G.R. No. L-477             June 30, 1947 certain raids and in confiscation of personal property.
n raids and in confiscation of personal property. The court below, however,
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLINARIO ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for appellee.
TUASON, J.:
This is an appeal from a judgment of conviction for treason by the People's Court
sentencing the accused to life imprisonment, P10,000 fine, and the costs.
The information charged:
That between January and April, 1945 or thereabout, during the
occupation of the Philippines by the Japanese Imperial Forces, in the
Province of Nueva Ecija and in the mountains in the Island of Luzon,
Philippines, and within the jurisdiction of this Court, the above-named
accused, Apolinario Adriano, who is not a foreigner, but a Filipino citizen
owing allegiance to the United States and the Commonwealth of the
Philippines, in violation of said allegiance, did then and there willfully,
criminally and treasonably adhere to the Military Forces of Japan in the
Philippines, against which the Philippines and the United States were then
at war, giving the said enemy aid and comfort in the manner as follows:
That as a member of the Makapili, a military organization established and
designed to assist and aid militarily the Japanese Imperial forces in the
Philippines in the said enemy's war efforts and operations against the
United States and the Philippines, the herein accused bore arm and joined
and assisted the Japanese Military Forces and the Makapili Army in armed
conflicts and engagements against the United States armed forces and the
Guerrillas of the Philippine Commonwealth in the Municipalities of San
Leonardo and Gapan, Province of Nueva Ecija, and in the mountains of
Luzon, Philippines, sometime between January and April, 1945. Contrary
to Law.
The prosecution did not introduce any evidence to substantiate any of the facts
alleged except that of defendant's having joined the Makapili organization. What
the People's Court found is that the accused participated with Japanese soldiers in
1
said these acts had not been established by the testimony of two witnesses, and
so regarded them merely as evidence of adherence to the enemy. But the court
did find established under the two-witness rule, so we infer, "that the accused and
other Makapilis had their headquarters in the enemy garrison at Gapan, Nueva
Ecija; that the accused was in Makapili military uniform; that he was armed with
rifle; and that he drilled with other Makapilis under a Japanese instructor; . . . that
during the same period, the accused in Makapili military uniform and with a rifle,
performed duties as sentry at the Japanese garrison and Makapili headquarters in
Gapan, Nueva Ecija;" "that upon the liberation of Gapan, Nueva Ecija, by the
American forces, the accused and other Makapilis retreated to the mountains with
the enemy;" and that "the accused, rifle in hand, later surrendered to the
Americans."
Even the findings of the court recited above in quotations are not borne out by the
proof of two witnesses. No two of the prosecution witnesses testified to a single
one of the various acts of treason imputed by them to the appellant. Those who
gave evidence that the accused took part in raids and seizure of personal property,
and performed sentry duties and military drills, referred to acts allegedly committed
on different dates without any two witnesses coinciding in any one specified deed.
There is only one item on which the witnesses agree: it is that the defendant was a
Makapili and was seen by them in Makapili uniform carrying arms. Yet, again, on
this point it cannot be said that one witness is corroborated by another if
corroboration means that two witnesses have seen the accused doing at least one
particular thing, it a routine military chore, or just walking or eating.
We take it that the mere fact of having joined a Makapili organization is evidence of
both adherence to the enemy and giving him aid and comfort. Unless forced upon
one against his will, membership in the Makapili organization imports treasonable
intent, considering the purposes for which the organization was created, which,
according to the evidence, were "to accomplish the fulfillment of the obligations
assumed by the Philippines in the Pact of Alliance with the Empire of Japan;" "to
shed blood and sacrifice the lives of our people in order to eradicate Anglo-Saxon
influence in East Asia;" "to collaborate unreservedly and unstintedly with the
Imperial Japanese Army and Navy in the Philippines;" and "to fight the common
enemies." Adherence, unlike overt acts, need not be proved by the oaths of two
witnesses. Criminal intent and knowledge may be gather from the testimony of one
witness, or from the nature of the act itself, or from the circumstances surrounding
the act. (Cramer vs. U.S., 65 Sup. Ct., 918.)
At the same time, being a Makapili is in itself constitutive of an overt act. It is not
necessary, except for the purpose of increasing the punishment, that the
defendant actually went to battle or committed nefarious acts against his country or
countrymen. The crime of treason was committed if he placed himself at the
enemy's call to fight side by side with him when the opportune time came even
though an opportunity never presented itself. Such membership by its very nature
gave the enemy aid and comfort. The enemy derived psychological comfort in the
knowledge that he had on his side nationals of the country with which his was at
war. It furnished the enemy aid in that his cause was advanced, his forces
augmented, and his courage was enhanced by the knowledge that he could count
on men such as the accused and his kind who were ready to strike at their own
people. The principal effect of it was no difference from that of enlisting in the
invader's army.
But membership as a Makapili, as an overt act, must be established by the
deposition of two witnesses. Does the evidence in the present case meet this
statutory test? Is two-witness requirement fulfilled by the testimony of one witness
who saw the appellant in Makapili uniform bearing a gun one day, another witness
another day, and so forth?
The Philippine law on treason is of Anglo-American origin and so we have to look
for guidance from American sources on its meaning and scope. Judicial
interpretation has been placed on the two-witness principle by American courts,
and authoritative text writers have commented on it. We cull from American
materials the following excerpts which appear to carry the stamp of authority.
Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:
In England the original Statute of Edward, although requiring both
witnesses to be to the same overt act, was held to mean that there might
be one witness to an overt act and another witness to another overt act of
the same species of treason; and, in one case it has been intimated that
the same construction might apply in this country. But, as Mr. Wigmore so
succinctly observes: "The opportunity of detecting the falsity of the
testimony, by sequestering the two witnesses and exposing their variance
in details, is wholly destroyed by permitting them to speak to different
acts." The rule as adopted in this country by all the constitutional
provisions, both state and Federal, properly requires that two witnesses
shall testify to the same overt act. This also is now the rule in England.
More to the point is this statement from VII Wigmore on Evidence, 3d ed., section
2038, p. 271:
2
Each of the witnesses must testify to the whole of the overt act; or, if it is
separable, there must be two witnesses to each part of the overt act.
Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y., 259 Fed., 685),
expressed the same idea: "It is necessary to produce two direct witnesses to
the whole overt act. It may be possible to piece bits together of the overt act; but, if
so,  each bit must have the support of two oaths; . . .." (Copied as footnote in
Wigmore on Evidence, ante.) And in the recent case of Cramer vs. United States
(65 Sup. Ct., 918), decide during the recent World War, the Federal Supreme
Court lays down this doctrine: "The very minimum function that an overt act must
perform in a treason prosecution is that it shows sufficient action by the accused,
in its setting, to sustain a finding that the accused actually gave aid and comfort to
the enemy.  Every act, movement, deed, and  word of the defendant charged to
constitute treason must be supported by the testimony of two witnesses."
In the light of these decisions and opinions we have to set aside the judgment of
the trial court. To the possible objection that the reasoning by which we have
reached this conclusion savors of sophism, we have only to say that the authors of
the constitutional provision of which our treason law is a copy purposely made
conviction for treason difficult, the rule "severely restrictive." This provision is so
exacting and so uncompromising in regard to the amount of evidence that where
two or more witnesses give oaths to an overt act and only one of them is believed
by the court or jury, the defendant, it has been said and held, is entitled to
discharge, regardless of any moral conviction of the culprit's guilt as gauged and
tested by the ordinary and natural methods, with which we are familiar, of finding
the truth. Natural inferences, however strong or conclusive, flowing from other
testimony of a most trustworthy witness or from other sources are unavailing as a
substitute for the needed corroboration in the form of direct testimony of another
eyewitness to the same overt act.
The United States Supreme Court saw the obstacles placed in the path of the
prosecution by a literal interpretation of the rule of two witnesses but said that the
founders of the American government fully realized the difficulties and went ahead
not merely in spite but because of the objections. (Cramer vs. United States,  ante.)
More, the rule, it is said, attracted the members of the Constitutional Convention
"as one of the few doctrines of Evidence entitled to be guaranteed against
legislative change." (Wigmore on Evidence, ante, section 2039, p. 272, citing
Madison's Journal of the Federal Convention, Scott's ed., II, 564, 566.) Mr. Justice
Jackson, who delivered the majority opinion in the celebrated Cramer case, said:
"It is not difficult to find grounds upon which to quarrel with this Constitutional
provision. Perhaps the farmers placed rather more reliance on direct testimony
than modern researchers in psychology warrant. Or it may be considered that such
a quantitative measure of proof, such a mechanical calibration of evidence is a
crude device at best or that its protection of innocence is too fortuitous to warrant
so unselective an obstacle to conviction. Certainly the treason rule, whether wisely
or not, is severely restrictive." It must be remembered, however, that the
Constitutional Convention was warned by James Wilson that "'Treason may
sometimes be practiced in such a manner, as to render proof extremely difficult —
as in a traitorous correspondence with an enemy.' The provision was adopted not
merely in spite of the difficulties it put in the way of prosecution but because of
them. And it was not by whim or by accident, but because one of the most
venerated of that venerated group considered that "prosecutions for treason were
generally virulent.'"
Such is the clear meaning of the two-witness provision of the American
Constitution. By extension, the lawmakers who introduced that provision into the
Philippine statute books must be understood to have intended that the law should
operate with the same inflexibility and rigidity as the American forefathers meant.
The judgment is reversed and the appellant acquitted with costs charged  de oficio.
Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros, and Padilla,
JJ., concur.
Paras, J., concurs in the result.
G.R. No. L-409             January 30, 1947
ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
3
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc.,  the Court,
acting on the petition for habeas corpus filed by Anastacio Laurel and
based on a theory that a Filipino citizen who adhered to the enemy giving
the latter aid and comfort during the Japanese occupation cannot be
prosecuted for the crime of treason defined and penalized by article 114 of
the Revised Penal Code, for the reason (1) that the sovereignty of the
legitimate government in the Philippines and, consequently, the correlative
allegiance of Filipino citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the
proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which consists in
the obligation of fidelity and obedience to his government or sovereign;
and that this absolute and permanent allegiance should not be confused
with the qualified and temporary allegiance which a foreigner owes to the
government or sovereign of the territory wherein he resides, so long as he
remains there, in return for the protection he receives, and which consists
in the obedience to the laws of the government or sovereign.
(Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster
Report to the President of the United States in the case of Thraser, 6 Web.
Works, 526);
Considering that the absolute and permanent allegiance of the inhabitants
of a territory occupied by the enemy of their legitimate government or
sovereign is not abrogated or severed by the enemy occupation, because
the sovereignty of the government or sovereign de jure is not transferred
thereby to the occupier, as we have held in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of
Prisons  (75 Phil., 285), and if it is not transferred to the occupant it must
necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the supreme power
which governs a body politic or society which constitute the state) must be
distinguished from the exercise of the rights inherent thereto, and may be
destroyed, or severed and transferred to another, but it cannot be
suspended because the existence of sovereignty cannot be suspended
without putting it out of existence or divesting the possessor thereof at
least during the so-called period of suspension; that what may be
suspended is the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes temporarily to
the occupant; that the subsistence of the sovereignty of the legitimate
government in a territory occupied by the military forces of the enemy
during the war, "although the former is in fact prevented from exercising
the supremacy over them" is one of the "rules of international law of our
times"; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by
necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation;
and that, as a corollary of the conclusion that the sovereignty itself is not
suspended and subsists during the enemy occupation, the allegiance of
the inhabitants to their legitimate government or sovereign subsists, and
therefore there is no such thing as suspended allegiance, the basic theory
on which the whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United State
was suspended in Castine, set forth in the decision in the case of United
States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our
decision in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon and Peralta vs. Director of Prisons, supra, in connection with the
question, not of sovereignty, but of the existence of a government de
facto therein and its power to promulgate rules and laws in the occupied
territory, must have been based, either on the theory adopted
subsequently in the Hague Convention of 1907, that the military
occupation of an enemy territory does not transfer the sovereignty to the
occupant; that, in the first case, the word "sovereignty" used therein should
be construed to mean the exercise of the rights of sovereignty, because as
this remains vested in the legitimate government and is not transferred to
the occupier, it cannot be suspended without putting it out of existence or
divesting said government thereof; and that in the second case, that is, if
the said conclusion or doctrine refers to the suspension of the sovereignty
itself, it has become obsolete after the adoption of the Hague Regulations
in 1907, and therefore it can not be applied to the present case;
Considering that even adopting the words "temporarily allegiance,"
repudiated by Oppenheim and other publicists, as descriptive of the
relations borne by the inhabitants of the territory occupied by the enemy
toward the military government established over them, such allegiance
may, at most, be considered similar to the temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein he
resides in return for the protection he receives as above described, and
4
does not do away with the absolute and permanent allegiance which the
citizen residing in a foreign country owes to his own government or
sovereign; that just as a citizen or subject of a government or sovereign
may be prosecuted for and convicted of treason committed in a foreign
country, in the same way an inhabitant of a territory occupied by the
military forces of the enemy may commit treason against his own
legitimate government or sovereign if he adheres to the enemies of the
latter by giving them aid and comfort; and that if the allegiance of a citizen
or subject to his government or sovereign is nothing more than obedience
to its laws in return for the protection he receives, it would necessarily
follow that a citizen who resides in a foreign country or state would, on one
hand, ipso facto acquire the citizenship thereof since he has enforce public
order and regulate the social and commercial life, in return for the
protection he receives, and would, on the other hand, lose his original
citizenship, because he would not be bound to obey most of the laws of his
own government or sovereign, and would not receive, while in a foreign
country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the
rights of sovereignty by the legitimate government in the territory occupied
by the enemy military forces, because the authority of the legitimate power
to govern has passed into the hands of the occupant (Article 43, Hague
Regulations), the political laws which prescribe the reciprocal rights, duties
and obligation of government and citizens, are suspended or in abeyance
during military occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively bear relation to
the ousted legitimate government, they are inoperative or not applicable to
the government established by the occupant; that the crimes against
national security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as well as
those against public order, such as rebellion, sedition, and disloyalty,
illegal possession of firearms, which are of political complexion because
they bear relation to, and are penalized by our Revised Penal Code as
crimes against the legitimate government, are also suspended or become
inapplicable as against the occupant, because they can not be committed
against the latter (Peralta vs. Director of Prisons, supra); and that, while
the offenses against public order to be preserved by the legitimate
government were inapplicable as offenses against the invader for the
reason above stated, unless adopted by him, were also inoperative as
against the ousted government for the latter was not responsible for the
preservation of the public order in the occupied territory, yet article 114 of
the said Revised Penal Code, was applicable to treason committed against
the national security of the legitimate government, because the inhabitants
of the occupied territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or
continue in force, unless absolutely prevented by the circumstances, those
laws that enforce public order and regulate the social and commercial life
of the country, he has, nevertheless, all the powers of de facto government
and may, at his pleasure, either change the existing laws or make new
ones when the exigencies of the military service demand such action, that
is, when it is necessary for the occupier to do so for the control of the
country and the protection of his army, subject to the restrictions or
limitations imposed by the Hague Regulations, the usages established by
civilized nations, the laws of humanity and the requirements of public
conscience (Peralta vs. Director of Prisons, supra; 1940 United States
Rules of Land Warfare 76, 77); and that, consequently, all acts of the
military occupant dictated within these limitations are obligatory upon the
inhabitants of the territory, who are bound to obey them, and the laws of
the legitimate government which have not been adopted, as well and those
which, though continued in force, are in conflict with such laws and orders
of the occupier, shall be considered as suspended or not in force and
binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation
of fidelity and obedience of a citizen or subject to his government or
sovereign does not demand from him a positive action, but only passive
attitude or forbearance from adhering to the enemy by giving the latter aid
and comfort, the occupant has no power, as a corollary of the preceding
consideration, to repeal or suspend the operation of the law of treason,
essential for the preservation of the allegiance owed by the inhabitants to
their legitimate government, or compel them to adhere and give aid and
comfort to him; because it is evident that such action is not demanded by
the exigencies of the military service or not necessary for the control of the
inhabitants and the safety and protection of his army, and because it is
tantamount to practically transfer temporarily to the occupant their
allegiance to the titular government or sovereign; and that, therefore, if an
inhabitant of the occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him aid and comfort,
the former may lawfully resist and die if necessary as a hero, or submit
thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and weak
5
nations or states, and would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow invaders to legally
recruit or enlist the Quisling inhabitants of the occupied territory to fight
against their own government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not aid them in
their military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus deprive them
all of their own independence or sovereignty — such theory would
sanction the action of invaders in forcing the people of a free and
sovereign country to be a party in the nefarious task of depriving
themselves of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to commit a
political suicide;
(2) Considering that the crime of treason against the government of the
Philippines defined and penalized in article 114 of the Penal Code, though
originally intended to be a crime against said government as then
organized by authority of the sovereign people of the United States,
exercised through their authorized representative, the Congress and the
President of the United States, was made, upon the establishment of the
Commonwealth Government in 1935, a crime against the Government of
the Philippines established by authority of the people of the Philippines, in
whom the sovereignty resides according to section 1, Article II, of the
Constitution of the Philippines, by virtue of the provision of section 2,
Article XVI thereof, which provides that "All laws of the Philippine
Islands . . . shall remain operative, unless inconsistent with this
Constitution . . . and all references in such laws to the Government or
officials of the Philippine Islands, shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under
this constitution;
Considering that the Commonwealth of the Philippines was a sovereign
government, though not absolute but subject to certain limitations imposed
in the Independence Act and incorporated as Ordinance appended to our
Constitution, was recognized not only by the Legislative Department or
Congress of the United States in approving the Independence Law above
quoted and the Constitution of the Philippines, which contains the
declaration that "Sovereignty resides in the people and all government
authority emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late President
Roosevelt in one of his messages to Congress said, among others, "As I
stated on August 12, 1943, the United States in practice regards the
Philippines as having now the status as a government of other
independent nations — in fact all the attributes of complete and respected
nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that
it is a principle upheld by the Supreme Court of the United States in many
cases, among them in the case of Jones vs. United States (137 U.S., 202;
34 Law. ed., 691, 696) that the question of sovereignty is "a purely political
question, the determination of which by the legislative and executive
departments of any government conclusively binds the judges, as well as
all other officers, citizens and subjects of the country.

Considering that section I (1) of the Ordinance appended to the

Constitution which provides that pending the final and complete withdrawal
of the sovereignty of the United States "All citizens of the Philippines shall
owe allegiance to the United States", was one of the few limitations of the
sovereignty of the Filipino people retained by the United States, but these
limitations do not away or are not inconsistent with said sovereignty, in the
same way that the people of each State of the Union preserves its own
sovereignty although limited by that of the United States conferred upon
the latter by the States; that just as to reason may be committed against
the Federal as well as against the State Government, in the same way
treason may have been committed during the Japanese occupation
against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the change of our
form of government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during
the Commonwealth, because it is an offense against the same government
and the same sovereign people, for Article XVIII of our Constitution
provides that "The government established by this constitution shall be
known as the Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the
Philippines shall thenceforth be known as the Republic of the Philippines";

This Court resolves, without prejudice to write later on a more extended

opinion, to deny the petitioner's petition, as it is hereby denied, for the
reasons above set forth and for others to be stated in the said opinion,
without prejudice to concurring opinion therein, if any. Messrs. Justices
Paras and Hontiveros dissent in a separate opinion. Mr. justice Perfecto
concurs in a separate opinion.

6

G.R. No. L-319             March 28, 1946
GO TIAN SEK SANTOS, petitioner,
vs.
ERIBERTO MISA, Director of Prisons, respondent.
Mariano Trinidad for petitioner.
First Assistant Solicitor General Reyes and Solicitor De los Angeles for
respondent.
BENGZON, J.:
The petitioner avers he is a Chinese citizen apprehended in February, 1945, by the
Counter Intelligence Corps of the United States Army, turned over last September,
to the Commonwealth Government, and since then detained by the respondent as
a political prisoner. Such detention, he claims, is illegal, because he has not been
charge before, nor convicted by, the judge of a competent court, and because he
may not be confined under Act. No. 682, as he owes allegiance neither to the
United States nor to the Commonwealth of the Philippines.
The Solicitor-General, for the respondent, admits the detention, for active
collaboration with the Japanese, doubts the allegation of citizenship, and maintains
that, conceding arguendo petitioner's alienage, he may be charged for espionage,
a crime against national security wherein allegiance is immaterial, and may,
therefore, be held in custody under Commonwealth Act No. 682.
As the record stands, the petitioner must be deemed a Chinese subject. The
commitment order No. 291 issued by the United States Army authorities describes
him as such. But it does not follow that he is entitled to liberty now. He is included
among those contemplated by section 19 of Commonwealth Act No. 682, which
reads partly:
Upon delivery the Commander-in-Chief of the Armed Forces of the United
States in the Philippines of the persons detained by him as political
prisoners, to the Commonwealth Government, the Office of Special
7
Prosecutors shall receive all records, documents, exhibits and such other
things as the Government of the United States may have turned over in
connection with and/or affecting said political prisoners, examine the
aforesaid records, documents, exhibits, etc., and take, as speedily as
possible, such action as may be proper: Provided, however,  . . .. And,
provided, further,  That, in the interest of public security, the provisions of
article one hundred twenty-five of the Revised Penal Code, as amended,
shall be deemed, as they are hereby suspended, insofar as the aforesaid
political prisoners are concerned, until the filing of the corresponding
information with the People's Court, but the period of suspension shall not
be than six (6) months from the formal delivery of said political prisoners
by the Commander-in-Chief of the Armed Forces of the United States in
the Philippines to the Commonwealth Government.
His foreign status does not exclude him ipso facto from the scope of the above
provisions. As stated by the Solicitor-General, he might be prosecuted for
espionage, (Commonwealth Act No. 616) a crime not conditioned by the
citizenship of the offender, and considered as an offense against national security.
The contentions advanced during the oral argument, challenging the validity of the
said section 19, Commonwealth Act. No. 682, upon constitutional grounds must be
overruled, in view of our decision in  Laurel vs. Director of Prisons  (p. 372, ante),
copy of which will be furnished to petitioner by the clerk of this court. The petition is
denied, with costs.
Moran, C.J., Ozaeta, Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones,
JJ., concur.
Paras, J., concurs in the result.
Separate Opinions
PERFECTO, J., concurring and dissenting:
We concur with the majority pronouncement to the effect that petitioner is not
excluded from the group of persons contemplated by section 19 of Commonwealth
Act No. 682, notwithstanding his foreign status as a Chinese subject. We also
agreed that, if there are facts and evidence to justify it, he might be prosecuted for
espionage, or any other crime not conditioned by the citizenship of the offender.
But we disagree as to the denial of the petition, it appearing that petitioner is being
deprived of his personal liberty without any due and legal process of law, and as to
this question, we refer to the stand we have been taken in our dissenting opinion in
case G.R. No. L-200, Laurel vs. Director of Prisons (p. 372, ante), the contentions
therein we reiterate here.
G.R. No. 116488            May 31, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AARON FLORES @ "RONITO", SULPECIO SILPAO y ORTEGA @ "SULPING"
and EDGAR VILLERAN y MAGBANUA, accused-appellants.
YNARES-SANTIAGO, J.:
Sgt. Wennie Tampioc, Detachment Commander of the 7th Infantry Brigade
detailed at Barangay Tabu, Ilog, Negros Occidental, and three (3) members of the
local Citizen Armed Force Geographical Unit (CAFGU) under his supervision,
namely, Aaron Flores alias "Ronito", Sulpecio Silpao y Ortega alias "Sulping" and
Edgar Villeran y Magbanua, were charged before the Regional Trial Court of
Kabankalan, Negros Occidental, Branch 61, with Kidnapping and Serious Illegal
Detention. The information charged as follows:
That on or about the 29th day of September, 1992, in the Municipality of
Ilog, Province of Negros Occidental, Philippines, and within the jurisdiction
8
of this Honorable Court, the above-named accused, armed with high
powered firearms conspiring, confederating and helping one another, by
means of force, violence and intimidation, did then and there, willfully,
unlawfully and feloniously take, kidnap, detain and keep under guard one
SAMSON SAYAM y GEPANAO from Km 117, Hda. Shangrella (sic), Brgy.
Tabu, of the above-named municipality, and bring the latter to their
detachment at Brgy. Tabu, under restraint and against his will, without
proper authority thereof, thereby depriving said victim of his civil liberty
since then up to the present.
CONTRARY TO LAW.1
All the four accused pleaded "Not Guilty" when arraigned. Trial ensued and, based
on the testimonial evidence presented, the trial court found the following
antecedent facts to be undisputed.
On the night of September 29, 1992, the victim, Samson Sayam, was drinking beer
at the store owned by Terry Cabrillos located at Barangay Tabu, Ilog, Negros
Occidental. Sgt. Wennie Tampioc, Aaron Flores, Sulpecio Silpao and Edgar
Villeran were at the same store drinking beer. Sayam joined the four accused at
their table. Sometime later, all the accused and the victim left the store and walked
towards the direction of the military detachment headquarters. After the accused
left the store with Samson Sayam, witnesses heard a single gunshot followed by
rapid firing coming from the direction of the detachment headquarters.2 That was
the last time Samson Sayam was seen, and despite diligent efforts of Sayam's
mother and relatives, he has not been found.
It was the prosecution's contention that on that fateful evening, all four accused
hatched a conspiracy to kidnap the victim and thereafter detain him at the
detachment headquarters. They allegedly succeeded in their plot and, the
prosecution avers, to this day the accused have not released Samson Sayam. All
the accused, however, vehemently denied committing the acts charged.
The trial court held that the testimonial evidence failed to prove beyond reasonable
doubt the existence of a conspiracy among the four accused. More specifically, the
prosecution failed to show an apparent common design by and among the
accused to kidnap and detain Samson Sayam against his will. Thus, the trial court
proceeded to determine the individual liabilities of the four accused based on the
degree of their participation in the commission of the offense charged.
The trial court gave credence to the prosecution's evidence that Samson Sayam
was seen being forcibly dragged out of the store and pulled towards the direction
of the detachment headquarters by accused Aaron Flores, Sulpecio Silpao and
Edgar Villeran. Since Samson Sayam had not been seen nor heard from since
then, the trial court held that the three accused were responsible for the former's
disappearance.
As regards Wennie Tampioc, the trial court found that he left the store ahead of the
three (3) co-accused and, thus, had nothing to do with the disappearance of
Samson Sayam. Notably, none of the prosecution witnesses specifically or
categorically mentioned Tampioc as among those who actively participated in
bringing Samson Sayam by force to their headquarters. Unlike his co-accused who
are natives of the place of the incident, Wennie Tampioc was newly assigned as
Detachment Commander and did not know Samson Sayam, such that no ill-motive
was attributed to him by the trial court. Likewise, the testimonies of prosecution
witnesses Nelson Golez, on the one hand, and that of Carlos Manlangit, on the
other hand, conflict as to the kind of firearm allegedly carried by Tampioc. While
Golez stated that he was armed with an Armalite rifle,3 Manlangit testified that
Tampioc was armed with a short firearm.4
More importantly, the trial court found that the identity of Sgt. Tampioc as one of
the perpetrators of the crime was doubtful, because notwithstanding the fact that
Nelson Golez knew Wennie Tampioc even before September 29, 1992,5 the
original complaint filed before the Municipal Circuit Trial court of Ilog Candoni,
dated October 21, 1992, which was based on the affidavits of Golez and Carlito
Manlingit, did not mention Wennie Tampioc as one of the respondents. The said
affidavits merely mentioned an "unidentified member of the 7th IB, Philippine Army,
assigned at Brgy. Tabu, detachment." At the time of the execution of the affidavits,
the witnesses could have known that Wennie Tampioc was a sergeant, and that he
was a commander of the detachment. Finally, the straightforward and emphatic
manner in which Wennie Tampioc testified inspired belief in the trial court's mind.6
On December 8, 1993, the trial court rendered the assailed judgment, the
dispositive of which states:
WHEREFORE, premises considered, this Court finds the accused Aaron
Flores, Edgar Villeran and Sulpecio Silpao GUILTY beyond reasonable
doubt of the crime of kidnapping and serious illegal detention as defined
and penalized in Article 267 of the Revised Penal Code and are each
sentenced to suffer the penalty of Reclusion Perpetua; and there being no
proof that Samson Sayam is dead, they are ordered to pay him jointly and
severally, or in the alternative, his heirs the sum of Fifty Thousand
9
(P50,000.00) Pesos as damages, without subsidiary imprisonment in case
of insolvency and to pay the costs of this suit.
The accused Wennie Tampioc is ACQUITTED on grounds of reasonable
doubt.
The bail bonds of the said accused are ordered cancelled and the
convicted accused ordered confined pending appeal if they so file an
appeal, in accordance with Administrative Circular No. 2-92, dated January
20, 1992 of the Supreme Court.
SO ORDERED.7
Two (2) separate appeals were brought before us. Accused-appellant Sulpecio
Silpao raised the following errors:
I. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT
SULPECIO SILPAO OF THE CRIME OF KIDNAPPING AND SERIOUS
ILLEGAL DETENTION, UNDER ARTICLE 267, REVISED PENAL CODE.
II. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED-
APPELLANT CAFGU SULPECIO SILPAO, AS AMONG THOSE WHO
FORCIBLY BROUGHT SAMSON SAYAM TO THEIR HEADQUARTERS
IN THE EVENING OF 29 SEPTEMBER 1992 AND RESPONSIBLE FOR
SAMSON SAYAM'S DISAPPEARANCE.
III. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT
CAFGU SULPECIO SILPAO GUILTY BEYOND REASONABLE DOUBT
OF THE OFFENSE CHARGED.
On the other hand, accused-appellants Aaron Flores and Edgar Villeran interposed
a joint appeal based on the sole error that:
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANTS
AARON FLORES AND EDGAR VILLERAN GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF KIDNAPPING AND
SERIOUS ILLEGAL DETENTION BASED ON CIRCUMSTANTIAL AND
INSUFFICIENT EVIDENCE.
After a thorough review of the facts and evidence adduced before the trial court,
we find that accused-appellants should be acquitted of the offense charged against
them.
The crime of Kidnapping and Serious Illegal Detention is defined and penalized
under Article 267 of the Revised Penal Code, as amended by Republic Act No.
7659. The elements of the offense are:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives the
latter of his liberty.
3. That the act of detention or kidnapping must be illegal.
4. That in the commission of the offense, any of the following
circumstances are present:
(a) That the kidnapping or detention lasts for more than 3 days;
(b) That it is committed simulating public authority;
(c) That any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or
(d) That the person kidnapped is a minor, female or public officer.8
Clearly, accused-appellants cannot be charged with or convicted of the crime of
Kidnapping and Serious Illegal Detention, since the first element of the said crime
is that the offender must be a private individual. In the case at bar, accused-
appellants were members of the local CAFGU at the time the alleged crime was
committed.
The CAFGU was created pursuant to Executive Order No. 264 for the purpose of
complementing the operations of the regular force formations in a locality.9 It was
composed of civilian volunteers who were tasked to maintain peace and order in
their localities, as well as to respond to threats to national security. As such, they
were provided with weapons, and given the authority to detain or order detention of
individuals.10
10
The Solicitor General recognizes the error of charging and convicting accused-
appellants of Kidnapping and Serious Illegal Detention for the reason that the
appellants are not private individuals, but public officers. As such, the Solicitor
General submits that, under the facts alleged, accused-appellants can only be
liable for the crime of Arbitrary Detention, defined and penalized in Article 124 of
the Revised Penal Code. The prosecution maintains that inasmuch as all the other
elements of Arbitrary Detention were alleged in the criminal information filed
against the accused-appellants, they may still be convicted of said crime.
Arbitrary detention is committed by any public officer or employee who, without
legal grounds, detains a person.11 Since it is settled that accused-appellants are
public officers, the question that remains to be resolved is whether or not the
evidence adduced before the trial court proved that Samson Sayam was arbitrarily
detained by accused-appellants.
As far back as the case of U.S. v. Cabanag,12 it was held that in the crime of illegal
or arbitrary detention, it is essential that there is actual confinement or restriction of
the person of the offended party. The deprivation of liberty must be proved,13 just
as the intent of the accused to deprive the victim of his liberty must also be
established by indubitable proof.14 In the more recent case of People v.
Fajardo,15 this Court reiterated the ruling in U.S. v. Cabanag, i.e., there must be
uncontroverted proof of both intent to deprive the victim of his liberty, as well as
actual confinement or restriction.
Detention is defined as the actual confinement of a person in an enclosure, or in
any manner detaining and depriving him of his liberty.16 A careful review of the
records of the instant case shows no evidence sufficient to prove that Samson
Sayam was detained arbitrarily by accused-appellants. While the prosecution
witnesses testified that accused-appellants were seen walking with Samson
Sayam toward the direction of the detachment headquarters, there is no shred of
evidence that he was actually confined there or anywhere else. The fact that
Samson Sayam has not been seen or heard from since he was last seen with
accused-appellants does not prove that he was detained and deprived of his
liberty. The prosecution, however, argues that Samson Sayam was deprived of his
liberty when accused-appellants forced him to go with them when they left the
store of Jerry Cabrillos and brought him to the detachment headquarters.
We assayed the testimonies of the prosecution's main witnesses, namely, Carlito
Manlangit and his son Jerry Manlangit. Carlito Manlangit's testimony was offered to
prove that Samson Sayam was forcibly taken from the store and that the latter tried
his best to free himself from his abductors. And yet, all that Carlito testified to was
that he saw Samson Sayam crossing the street alone from the store of a certain
Moleng; that the four accused, who were armed, followed Sayam and asked for his
residence certificate; that the four accused apprehended Samson Sayam and
brought him to the detachment headquarters; and that he went home after he saw
Samson Sayam talking to the accused.17
It is readily apparent that Carlito Manlangit's testimony failed to prove the stated
purpose thereof, i.e., that Samson Sayam was taken forcibly to the detachment
headquarters. To be sure, the witness did not state that Samson Sayam was
pulled, dragged, or coerced to go with accused-appellants. Neither did he say that
Samson Sayam was taken at gunpoint. There is also no relevant testimony to the
effect that Samson Sayam tried his best to free himself from the clutches of
accused-appellants. For if that were the truth, the reactions of Carlito Manlangit do
not conform to human experience. If he really witnessed Samson Sayam being
apprehended, forcibly taken, and trying to free himself, it cannot be logically
explained why Carlito Manlangit just went home,18 instead of doing anything to help
Samson Sayam. He admitted that he did not immediately report the incident to the
authorities.19 More telling is the absence of testimony to the effect that Samson
Sayam was being taken to the detachment headquarters against his will, that he
was protesting his apprehension, or that he was asking for help, considering that
there were other people within hearing and seeing distance. Most damaging is
Carlito Manlangit's statement that he did not see Samson Sayam in the
detachment headquarters with any or all of the accused.20 In fine, Carlito
Manlangit's testimony failed to prove that Samson Sayam was arbitrarily detained
or deprived of his liberty.
Jerry Manlangit, son of Carlito, also testified for the prosecution. According to him,
he and Samson Sayam went to Barangay Tabu to have a sack of palay milled on
September 29, 1992. At around six in the evening, while on their way home, they
passed by the store of Terry Cabrillos to buy kerosene. There, he saw the four
accused drinking beer. Samson Sayam told him to go home because he had to
show his residence certificate and barangay clearance to accused-appellant Aaron
Flores. Jerry Manlangit then proceeded to his residence in Hacienda Shangrila,
located about half a kilometer away from the center of Barangay Tabu. Later, he
told his father that Samson Sayam stayed behind and asked him to fetch Samson.
He also testified that he heard gunshots coming from the direction of the
detachment headquarters.21
The testimony of Jerry Manlangit does not prove any of the elements of the crime
of arbitrary detention. Neither does it support nor corroborate the testimony of his
father, Carlito, for they dealt on a different set of facts. Jerry Manlangit did not see
any of accused-appellant apprehend or detain Samson Sayam. He did not even
see if accused-appellant Flores really inspected the residence certificate and
11
barangay clearance of Samson Sayam. The rest of his testimony comprised of
hearsay evidence,22 which has no probative value.23 In summary, Jerry Manlangit's
testimony failed to establish that accused-appellants were guilty of arbitrary
detention.
The prosecution also presented the testimony of Nelson Golez, who identified the
four accused as the persons with Samson Sayam, drinking inside the store of
Terry Cabrillos. He also stated that following a heated argument, the accused and
Samson Sayam left the store and went towards the direction of the detachment
headquarters. He said that the accused were "holding and pulling" Samson Sayam
"towards the road." Ten minutes later, Nelson Golez heard a single gunshot
followed by rapid firing.24
On cross-examination, however, Nelson Golez did not affirm his earlier statement
that the accused and Samson Sayam were engaged in a heated argument.
Rather, he said he did not hear them arguing as they were leaving the store.
Although Nelson Golez attested that Samson Sayam was protesting while the
accused were dragging him, he did not do anything to help Samson Sayam, who
happened to be his cousin.25
Again, no conclusion of guilt can be inferred from Nelson Golez's testimony. First
of all, he was unsure of his assertion that there was an argument. The mere fact
that Samson Sayam was being dragged towards the road does not constitute
arbitrary detention. There is no showing that Samson Sayam was completely
deprived of his liberty such that he could not free himself from the grip of the
accused, if he was indeed being held against his will. The incident transpired in a
public place, where there were people milling about, many of whom were his
friends. It is puzzling that Samson Sayam did not cry out for help. Nobody
bothered to report the incident, if indeed it happened, to the barangay authorities.
No one else came forward to corroborate the testimony of Nelson Golez.
The testimony of Nelson Golez, by itself, lacks credibility. He wavered on material
points, even as the prosecution failed to substantiate by direct or corroborative
evidence the bare testimony of Nelson Golez.
It is basic and elemental that in criminal prosecutions, before the accused may be
convicted of a crime, his guilt must be proven beyond reasonable doubt. Although
the findings of fact made by trial courts are generally not disturbed on appeal, if
there are substantial facts which were overlooked but which may alter the results
of the case in favor of the accused, such facts should be taken into account by the
appellate court.26 And where it appears that the trial court erred in the appreciation
of the evidence on record or the lack of it, the factual findings of the trial court may
be reversed.27
After thoroughly reviewing the records of this case and weighing the testimonial
evidence on the scale of creditworthiness and materiality, this Court finds the
evidence of the prosecution grossly insufficient to sustain a conviction. Again, the
fact of detention, whether illegal or arbitrary, was not clearly established by
credible evidence. There was no showing that Samson Sayam was locked up,
restrained of his freedom, or prevented from communicating with anyone.
Likewise, there was no proof that there was actual intent on the part of accused-
appellants to arbitrarily deprive Samson Sayam of his liberty. It is necessary that
there must be a purposeful or knowing action by accused-appellants to restrain the
victim by or with force, because taking coupled with intent completes the crime of
illegal or arbitrary detention.28
The prosecution, however, maintains that the evidence, even though
circumstantial, sufficiently establishes the guilt of the accused-appellants. It cites
the following circumstances:
1. On September 29, 1992, at about 6:00 o'clock in the evening, accused-
appellants, together with their companions Sergeant Tampioc and fellow
CAFGU Sulpecio Silpao, were seen with Samson at the store of Terry
Cabrillos. Accused-appellants were having a drinking spree. Later, they
were seen engaged in a heated argument.
2. Thereafter, Samson was forcibly brought out of the store by accused-
appellants by holding and pulling him towards the road. From another
angle, another prosecution witness saw accused-appellants on the road
arresting Samson.
3. Accused-appellants brought Samson towards the direction of the
detachment of Brgy. Tabu.
4. Ten (10) minutes later, a gunshot was heard coming from the direction
of the detachment followed by rapid firing.
5. After the incident, Samson was never seen again or heard from.29
As already discussed, the above-enumerated circumstances were not established
by clear and convincing evidence. And even if these acts were proven to be true,
the combination of all these circumstances would still not be able to produce a
12
conviction beyond reasonable doubt. To our mind, the totality of these
circumstantial evidence do not constitute an unbroken chain pointing to the fair and
reasonable conclusion that the accused-appellants are guilty of the crime charged.
For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with the hypothesis that the accused-appellants
are guilty, and inconsistent with the possibility that they are innocent.30 Thus:
SECTION 4. Circumstantial evidence, when sufficient. — Circumstantial
evidence is sufficient for conviction if:
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.31
The rule is clear that there must be at least two proven circumstances which in
complete sequence leads to no other logical conclusion than that of the guilt of the
accused.32 It is admitted that Samson Sayam was seen drinking with accused-
appellants on that fateful night. However, the circumstances that there was a
heated argument among them, and that the accused-appellants held and pulled
Samson Sayam to the road and brought him towards the direction of the
detachment headquarters was not sufficiently proven by material or relevant
testimony.
Moreover, the circumstance that gunshots were heard on that night have no
relevancy to the case. Even if it were, it cannot be concluded that the gunshots
came from the direction of the detachment headquarters. The witnesses who
testified that they heard the gunshots were at least half a kilometer away from the
center of the barangay, while the detachment headquarters itself was also some
distance from the barangay. At night, especially in the rural areas when all is quiet,
loud sounds such as gunshots reverberate and would seem to come from every
direction. An ordinary person a kilometer away cannot, with certainty, point to the
exact location where the gunshots would be coming from. That would otherwise be
attributing expertise on such matters to the prosecution witnesses.
That Samson Sayam was never seen or heard from again cannot be the basis for
the trial court to render judgment convicting the accused-appellants. In fact, it has
no bearing in this case because it is not one of the elements of the crime of
arbitrary detention. Consequently, only one relevant circumstance was proved, i.e., guilt, there is a virtual dearth of convincing evidence to prove that a crime had
that accused-appellants were the last persons seen with Samson Sayam. been committed.
However, said circumstance does not necessarily prove that they feloniously
abducted him, then arbitrarily detained him.33 There is no need even to assess the evidence of the defense, for the prosecution
bears the onus to distinctly and indubitably prove that a crime had been committed
Moreover, mere suspicion that the disappearance of Samson Sayam was a result by accused-appellants.38 It is incumbent upon the prosecution to establish its case
of accused-appellants' alleged criminal acts and intentions is insufficient to convict with that degree of proof which leads to no other conclusion but conviction in an
them. Proof beyond reasonable doubt is the required quantum of evidence.34 An unprejudiced mind. The evidence for the prosecution must stand or fall on its own
uncorroborated circumstantial evidence is certainly not sufficient for conviction merits for it cannot be allowed to draw strength from the weakness of the evidence
when the evidence itself is in serious doubt.35 The prosecution was not able to for the defense.39 Clearly, the prosecution in this case has failed to prove the guilt
prove a possible motive why accused-appellants would arbitrarily detain Samson of accused-appellants beyond reasonable doubt. In similar cases, this Court has
Sayam. In sum, there is no unbroken chain of circumstances leading to the often and consistently ruled that it is better to acquit a guilty person than to convict
conclusion that accused-appellants are guilty. Since the pieces of circumstantial an innocent one.40
evidence do not fulfill the test of moral certainty that is sufficient to support a
judgment or conviction, the Court must acquit the accused.36 WHEREFORE, the assailed decision is REVERSED and SET ASIDE. Accused-
appellants are ACQUITTED. Unless being held or detained for some lawful
In the recent case of People v. Comesario,37 we had occasion to rule that: reason, accused-appellants are ORDERED RELEASED immediately. The Director
of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the
Accused-appellant's conviction by the trial court hinged on circumstantial date and time when accused-appellants are released pursuant to this Decision.
evidence. To validly invoke circumstantial evidence, it must be shown that
there is more than one circumstance and the facts from which the SO ORDERED.
inferences are derived are proven. The combination of all the
circumstances is such as to produce a conviction beyond reasonable Davide, Jr., C .J ., Puno and Pardo, JJ ., concur.
doubt. The circumstances must constitute an unbroken chain of events Kapunan, J ., is on leave.
that can lead reasonably to the conclusion pointing to the accused to the
exclusion of all others as the author of the crime. Logically, it is where the
evidence is purely circumstantial that there should be an even greater
need than usual to apply with vigor the rule that the prosecution cannot
depend on the weakness of the defense and that any conviction must rest
on nothing less than a moral certainty of guilt of the accused. Like a
tapestry made of strands which create a pattern when interwoven, a
judgment of conviction based on circumstantial evidence can be upheld
only if the circumstances proved constitute an unbroken chain which leads
to one fair and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person.

Accused-appellants enjoy the presumption of innocence until the contrary is

proved. In the case at bar, the pieces of testimonial evidence relied on by the
prosecution and the trial court to support a conviction have failed to overcome the
constitutional precept of the presumed innocence of accused-appellants. Among
other grounds, not only is there a lot of room for reasonable doubt in regard to their

13
 [ GR No. 134503, Jul 02, 1999 ]

JASPER AGBAY v. DEPUTY OMBUDSMAN FOR MILITARY +

DECISION

369 Phil. 174

GONZAGA-REYES, J.:

This petition for certiorari seeks to nullify the Resolution of the Deputy
Ombudsman for the Military dated 19 January 1998[1] which recommended the
dismissal of the criminal complaint filed by petitioner against herein private
respondents for violation of Article 125 of the Revised Penal Code for delay in the
delivery of detained persons, and the Order of April 13 1998[2] which denied his
motion for reconsideration.

The pertinent facts leading to the filing of the petition at bar are as follows:

On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot, was

arrested and detained at the Liloan Police Station, Metro Cebu for an alleged
violation of R.A. 7610, the "Special Protection of Children Against Child abuse,
Exploitation and Discrimination Act."[3] The following day, or on September 8,
1997, a Complaint for violation of R.A. 7610 was filed against petitioner and
Jugalbot before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu by one
Joan Gicaraya for and in behalf of her daughter Gayle[4] The complaint, insofar as
pertinent, reads as follows:
"That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan,
Metro Cebu, Philippines and within the Preliminary Jurisdiction of this Honorable
Court, the above-named accused, did then and there, willfully, feloniously and
unlawfully, conspiring, confederating, helping with one another, while accused
JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA AMIGABLE
GICAYARA, his companion block the sight of the Private Complainant, Mrs. JOAN
A. GICAYARA, while on board a tricycle going their destinations. Upon initial
investigation of the Bgy, Captain of Bgy. Catarman, accused SHERWIN

14
JUGALBOT was released and accused JASPER AGBAY is presently detain Liloan
Police Station Jail. Medical Certificate issued from Don Vicente Sotto Memorial
Medical Center, Cebu City is hereto attached."
On September 10, 1997, counsel for petitioner wrote the Chief of Police of Liloan
demanding the immediate release of petitioner considering that the latter had
"failed to deliver the detained Jasper Agbay to the proper judicial authority within
thirty-six (36) hours from September 7, 1997."[5] Private respondents did not act
on this letter and continued to detain petitioner.[6]
On September 12, 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu
issued an order, denominated as "Detention During the Pendency of the Case",
committing petitioner to the jail warden of Cebu City.[7] Five (5) days later, or on
September 17, 1997, petitioner was ordered released by the said court after he
had posted bond.[8]
On September 26, 1997, petitioner filed a complaint for delay in the delivery of
detained persons against herein private respondents SPO4 Nemesio Natividad,
Jr., SPO2 Eleazar M. Salomon and other unidentified police officers stationed at
the Liloan Police Substation, before the Office of the Deputy Ombudsman for the
Visayas.[9]
Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on
November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a resolution
containing the following dispositive portion:
"WHEREFORE, finding probable cause for the crime in Violation of Republic Act
7610, it is hereby recommended that an INFORMATION be filed against the two
aforenamed accused.
Forward the record of this case to the Provincial Fiscal's Office for appropriate
action."[10]
By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October 1995
of the Office of the Ombudsman,[11] the case for delay in delivery filed by
petitioner against herein private respondents before the Deputy Ombudsman for
the Visayas was transferred to the Deputy Ombudsman for the Military for its
proper disposition. Thus, it was this office which acted on the complaint, now
denominated as OMB-VIS-CRIM-97-0786, and which issued the questioned
Resolution dated January 19, 1998 recommending its dismissal against herein
private respondents. Petitioner moved for reconsideration of this Resolution but
this motion was denied in an Order dated April 13, 1998.
Hence, this petition for certiorari.
The grounds relied upon in the present petition[12] are as follows:
15
I.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN RELYING
ON MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED 10
OCTOBER 1995, OF THE OFFICE OF THE OMBUDSMAN IN HOLDING THAT IT
HAS COMPETENCE TO ACT ON THE ABOVE-ENTITLED CASE BEFORE IT,
THE SAID CIRCULAR BEING UNCONSTITUTIONAL AND ILLEGAL, HENCE,
NULL AND VOID.
II.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT
HOLDING THAT IT IS BEYOND ITS COMPETENCE TO DETERMINE WHETHER
OR NOT THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOAN-COMPOSTELA
HAS IN FACT NO JURISDICTION TO TRY THE CASE FILED AGAINST HEREIN
PETITIONER.
III.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT
HOLDING THAT THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A
PRELIMINARY INVESTIGATION, IS NOT THE "PROPER JUDICIAL
AUTHORITY" CONTEMPLATED IN ARTICLE 125 OF THE REVISED PENAL
CODE AND, HENCE, THE FILING OF THE COMPLAINT BEFORE IT FOR THE
PURPOSE OF CONDUCTING A PRELIMINARY INVESTIGATION DID NOT
INTERRUPT THE PERIOD PRESCRIBED BY ART. 125.
IV.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN
HOLIDING THAT THE ISSUE OF THE VALIDITY OF THE ORDER OF
DETENTION IS IRRELEVANT TO THE ISSUE OF CRIMINAL LIABILITY OF
PRIVATE RESPONDENTS FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS.
V.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN
HOLDING THAT THE DUTY OF PRIVATE RESPONDENTS TO FILE THE
NECESSARY COMPLAINT IN COURT WAS FULFILLED WHEN THEY FILED A
FORMAL COMPLAINT ON 8 SEPTEMBER 1997 WITH THE 7TH MCTC OF
LILOAN-COMPOSTELA.
On the first issue, petitioner argues that due to the civilian character of the
Philippine National Police, the Office of the Deputy Ombudsman for the Military, by
virtue of the description of the Office, has no competence or jurisdiction to act on
his complaint against private respondents who are members of the PNP. Petitioner
also questions the constitutionality of Memorandum Circular No. 14 insofar as it
purports to vest the Office of the Deputy Ombudsman for Military Affairs with
jurisdiction to investigate all cases against personnel of the Philippine National
Police.
There is no dispute as to the civilian character of our police force. The 1987
Constitution, in Section 6, Article XVI, has mandated the establishment of "one
police force, which shall be national in scope and civilian in character
(underscoring supplied)." Likewise, R.A. 6975[13] is categorical in describing the
civilian character of the police force.[14] The only question now is whether
Memorandum Circular No. 14, in vesting the Office of the Deputy Ombudsman for
the Military with jurisdiction to investigate complaints against members of the PNP,
violates the latter's civilian character.
As opined by the Office of the Solicitor General in its Comment dated 7 December
1998[15], the issue as to whether the Deputy Ombudsman for the Military has the
authority to investigate civilian personnel of the government was resolved in the
affirmative in the case of Acop v. Office of the Ombudsman.[16] In that case, the
petitioners, who were members of the Philippine National Police questioned the
jurisdiction of the Deputy Ombudsman to investigate the alleged shootout of
certain suspected members of the "Kuratong Baleleng" robbery gang; this Court
held that:
"The deliberations on the Deputy for the military establishment do not yield
conclusive evidence that such deputy is prohibited from performing other functions
or duties affecting non-military personnel. On the contrary, a review of the relevant
Constitutional provisions reveal otherwise.
As previously established, the Ombudsman `may exercise such other powers or
perform such functions or duties' as Congress may prescribe through legislation.
Therefore, nothing can prevent Congress from giving the Ombudsman supervision
and control over the Ombudsman's deputies, one being the deputy for the military
establishment. In this light, Section 11 of R.A. No. 6770 provides:
SEC. 11. Structural Organization.- The authority and responsibility for the exercise
of the mandate of the Office of the Ombudsman and for the discharge of its powers
and functions shall be vested in the Ombudsman, who shall have supervision and
control of the said Office.
While Section 31 thereof declares:
SEC, 31. Designation of Investigators and Prosecutors.- The Ombudsman may
utilize the personnel of his office and/or designate or deputize any fiscal, state
16
prosecutor to assist in the investigation and prosecution of certain cases. Those
designated or deputized to assist him herein shall be under his supervision and
control.
Accordingly, the Ombudsman may refer cases involving non-military personnel for
investigation by the Deputy for Military Affairs. In these cases at bench, therefore,
no irregularity attended the referral by the Acting Ombudsman of the Kuratong
Baleleng case to respondent Casaclang who, in turn, created a panel of
investigators."[17]
The cited case is determinative of the issue. However, petitioner, in his Reply to
Comment dated February 1, 1999, argues that the ruling in the Acop case is not on
all fours with the case at bar[18]. Petitioner states that the doctrine laid down in the
said case is simply that "the Ombudsman may refer cases involving non-military
personnel for investigation by the Deputy for Military Affairs. This doctrine,
petitioner argues, "applies only to isolated or individual cases involving non-military
personnel referred by the Ombudsman to the Deputy for Military Affairs" and does
not apply when, as in this case, there is a wholesale or indiscriminate referral of
such cases to the Deputy Ombudsman for Military Affairs in the form of an Office
Memorandum Circular.
Petitioner's arguments do not convince as there is no basis for the distinction.
There is no basis in the above-cited decision to limit the referral of cases involving
non-military personnel to the Deputy Ombudsman for Military Affairs to isolated or
individual cases.
The Office of the Ombudsman, in issuing Memorandum Circular No. 15, is simply
exercising the power vested in the Ombudsman "to utilize the personnel of his
office and/or designate or deputize any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the
investigation and prosecution of certain cases." This Court, absent any grave
abuse of discretion, may not interfere with the exercise by the Ombudsman of his
power of supervision and control over the said Office.
Petitioner further argues that Memorandum Circular No. 14 violates the clear intent
and policy of the Constitution and of R.A. 6975 to maintain the civilian character of
the police force and "would render nugatory and meaningless the distinction
between cases involving civilian and military personnel and the creation of
separate divisions of the Ombudsman."[19]
Said contentions are misplaced.
The Deputy Ombudsman for the Military, despite his designation as such, is by no
means a member of the military establishment. The said Office was established "to
extend the Office of the Ombudsman to the military establishment just as it
champions the common people against bureaucratic indifference". The Office was
intended to help the "ordinary foot soldiers" to obtain redress for their grievances
against higher authorities and the drafters of the Constitution were aware that the
creation of the Office, which is seemingly independent of the President, to perform
functions which constitutionally should be performed by the President, might be in
derogation of the powers of the President as Commander-In-Chief of the Armed
Forces[20]
It must be borne in mind that the Office of the Ombudsman was envisioned by the
framers of the 1987 Constitution as the "eyes and ears of the people"[21] and "a
champion of the citizen.[22]" Sec. 12, Art. XI of the 1987 Constitution describes the
Ombudsman and his deputies as "protectors of the people." Thus, first and
foremost, the Ombudsman and his deputies, including the Deputy Ombudsman for
the Military owe their allegiance to the people and ordinary citizens; it is clearly not
a part of the military. We fail to see how the assumption of jurisdiction by the said
office over the investigation of cases involving the PNP would detract from or
violate the civilian character of the police force when precisely the Office of the
Ombudsman is a civilian office.
The other issues raised by petitioner concerns the application of Art. 125 of the
Revised Penal Code which provides as follows:
"Art. 125. Delay in the delivery of detained persons to the proper judicial
authorities. - The penalties provided in the next preceding article shall be imposed
upon the public officer or employee who shall detain any person for some legal
ground and shall fail to deliver such person to the proper judicial authorities within
the period of: twelve (12) hours, for crimes or offenses punishable by light
penalties, or their equivalent; eighteen (18) hours, for crimes or offenses
punishable by correctional penalties, or their equivalent; and thirty-six hours (36)
hours, for crimes or offenses punishable by afflictive or capital penalties, or their
equivalent.
In every case, the person detained shall be informed of the cause of his detention
and shall be allowed, upon his request, to communicate and confer at any time
with his attorney or counsel."
In the case at bar, petitioner was arrested and detained at the Liloan Police Station
on 7 September 1997 for an alleged violation of R.A. 7610, specifically section 5(b)
thereof[23]. This crime carries a penalty of reclusion temporal in its medium period
to reclusion perpetua, an afflictive penalty. Under these circumstances, a criminal
complaint or information should be filed with the proper judicial authorities within
thirty six (36) hours of his arrest.
17
As borne by the records before us the mother of private complainant, Joan
Gicaraya, filed a complaint on 8 September 1997 against petitioner for violation of
R.A. 7610 before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu.
Petitioner contends that the act of private complainant in filing the complaint before
the MCTC was for purposes of preliminary investigation as the MCTC has no
jurisdiction to try the offense. This act of private complainant petitioner argues, was
unnecessary, a surplusage which did not interrupt the period prescribed by Art.
125[24] considering that under the Rules it is the Regional Trial Court which has
jurisdiction to try the case against him. As such, upon the lapse of the thirty-six
hours given to the arresting officers to effect his delivery to the proper Regional
Trial Court, private respondents were already guilty of violating Art. 125. Thus,
petitioner argues, when the Judge-Designate of the 7th MCTC issued a
Commitment Order on September 12, 1997, he was acting contrary to law since by
then there was no basis for the continued detention of petitioner.[25]
In addressing the issue, the Office of the Deputy Ombudsman for the Military in its
13 April 1998 Order, stated that the duty of filing the corresponding complaint in
court was "fulfilled by respondent when the formal complaint was filed on
September 8, 1997 with the 7th MCTC of Liloan-Compostela, barely 20 hours after
the arrest of herein complainant of September 7, 1997."[26] The Solicitor General,
for his part, argues that while a municipal court judge may conduct preliminary
investigations as an exception to his normal judicial duties, he still retains the
authority to issue an order of release or commitment. As such, upon the filing of
the complaint with the MCTC, there was already compliance with the very purpose
and intent of Art. 125[27]
The core issue is whether the filing of the complaint with the Municipal Trial Court
constitutes delivery to a "proper judicial authority" as contemplated by Art. 125 of
the Revised Penal Code.
Article 125 of the Revised Penal Code is intended to prevent any abuse resulting
from confining a person without informing him of his offense and without permitting
him to go on bail[28]. More specifically, it punishes public officials or employees
who shall detain any person for some legal ground and shall fail to deliver such
person to the proper judicial authorities within the periods prescribed by law. The
continued detention of the accused becomes illegal upon the expiration of the
periods provided for by Art. 125 without such detainee having been delivered to
the corresponding judicial authorities[29]
The words "judicial authority" as contemplated by Art. 125 mean "the courts of
justices or judges of said courts vested with judicial power to order the temporary
detention or confinement of a person charged with having committed a public
offense, that is, `the Supreme Court and other such inferior courts as may be
established by law.[30]"
Petitioner takes great pains in arguing that when a municipal trial court judge, as in
the instant case, conducts a preliminary investigation, he is not acting as a judge
but as a fiscal. In support, petitioner cites the cases of Sangguniang Bayan ng
Batac, Ilocos Norte vs. Albano, 260 SCRA 561, and Castillo vs. Villaluz, 171 SCRA
39, where it was held that "when a preliminary investigation is conducted by a
judge, he performs a non-judicial function as an exception to his usual duties."
Thus, petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862,
that the city fiscal is not the proper judicial authority referred to in Art. 125 is
applicable.
the filing of the complaint with the MCTC. We agree with the position of the
Ombudsman that such filing of the complaint with the MCTC interrupted the period
prescribed in said Article.
Finally, we note that it was the mother of private complainant who filed the
complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If there was
any error in this procedure, private respondents should not be held liable. In the
same manner, petitioner's argument that the controversial orders issued by the
MCTC are contrary to law does not give rise to criminal liability on the part of the
respondents. Respondent police officers may have rendered themselves open to
sanctions if they had released petitioners without the order of the court, knowing
fully well that a complaint was already filed with it.

Petitioner's reliance on the cited cases is misplaced. The cited cases of WHEREFORE, finding no grave abuse of discretion in the issuance of the assailed
Sangguniang Bayan and Castillo dealt with the issue of whether or not the findings January 19, 1998 Resolution and the April 13, 1998 Order of the Office of the
of the Municipal Court Judge in a preliminary investigation are subject to review by Deputy Ombudsman for the Military, the Court resolves to DISMISS the petition.
provincial and city fiscals. There was no pronouncement in these cases as to No pronouncement as to costs.
whether or not a municipal trial court, in the exercise of its power to conduct
preliminary investigations, is a proper judicial authority as contemplated by Art. SO ORDERED.
125.
Vitug, (Acting Chairman), Panganiban, and Purisima, JJ., concur.
Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of Police, Romero, J., abroad, on official business leave.
supra, since the facts of this case are different. In Sayo, the complaint was filed
with the city fiscal of Manila who could not issue an order of release or
commitment while in the instant case, the complaint was filed with a judge who had
the power to issue such an order. Furthermore, in the Resolution denying the
Motion for Reconsideration of the Sayo case[31], this Court even made a
pronouncement that the delivery of a detained person "is a legal one and consists
in making a charge or filing a complaint against the prisoner with the proper justice
of the peace or judge of Court of First Instance in provinces, and in filing by the city
fiscal of an information with the corresponding city courts after an investigation if
the evidence against said person warrants."

The power to order the release or confinement of an accused is determinative of

the issue. In contrast with a city fiscal, it is undisputed that a municipal court judge,
even in the performance of his function to conduct preliminary investigations,
retains the power to issue an order of release or commitment[32]. Furthermore,
upon the filing of the complaint with the Municipal Trial Court, the intent behind Art.
125 is satisfied considering that by such act, the detained person is informed of the
crime imputed against him and, upon his application with the court, he may be
released on bail[33]. Petitioner himself acknowledged this power of the MCTC to
order his release when he applied for and was granted his release upon posting
bail[34]. Thus, the very purpose underlying Article 125 has been duly served with
18
 of Gumaca, Quezon Province, under an information1 dated February 8, 1989,
which reads as follows:

That on or about the 5th day of December 1988, along the Maharlika
Highway at Barangay Tinandog, Municipality of Atimonan, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and
mutually helping each other, armed with bladed and pointed weapons, with
intent to gain, by means of force, violence, threats and intimidation, did
then and there willfully, unlawfully and feloniously take, steal and carry
away from one Freddie Saavedra, a Honda TMX motorcycle with a sidecar
bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS
(P30,000.00) Philippine currency, belonging to the said Freddie Saavedra,
to the damage and prejudice of the latter in the aforesaid amount; and that
on the occasion of said robbery and by reason thereof, the said accused,
with intent to kill, with evident premeditation and treachery, and taking
advantage of their superior strength and in pursuance of their conspiracy,
did then and there willfully, unlawfully and feloniously attack, assault and
stab with the said weapon said Freddie Saavedra, thereby inflicting upon
the latter multiple stab wounds on the different parts of his body, which
directly caused his death.

Contrary to law.

On arraignment, the accused pleaded not guilty to the charge.

The relevant facts established by the prosecution are as follows:

G.R. No. 117321 February 11, 1998
On December 5, 1988, at about 7:00 o'clock p.m., tricycle driver Freddie Saavedra
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, went to see his wife, Delfa, at Our Lady of Angeles Academy in Atimonan,
vs. Quezon, where the latter is a third year high school student, to inform her that he
HERSON TAN y VERZO, accused-appellant. will drive both accused to Barangay Maligaya. It was the last time, however, that
Freddie was seen alive. When the latter failed to return that evening, Delfa, as
early as 4:30 o'clock a.m. of December 6, 1988 inquired on his whereabouts from
ROMERO, J.: relatives and friends. In the course of such inquiry, a certain Arnel Villarama
revealed that the lifeless body of her husband was discovered on the diversion
May the confession of an accused, given before a police investigator upon road at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place
invitation and without the benefit of counsel, be admissible in evidence against and found him sprawled on the ground with fourteen stab wounds in different parts
him? of his body.

Accused-appellant Herson Tan, along with Lito Amido, were charged with the
crime of highway robbery with murder before the Regional Trial Court, Branch 62,
19
Meanwhile, relying on the information that an abandoned sidecar of a tricycle was
sighted at Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt.
Carlos Santos proceeded to the scene of the crime and recovered a blue sidecar
which they brought back with them to their headquarters. Subsequently, Lt.
Santos, Cpl. Numeriano Aguilar and Pat. Rolando Alandy invited appellant in
connection with the instant case and with respect to two other robbery cases
reported in Lucena City. During their conversation, appellant allegedly gave an
explicit account of what actually transpired in the case at bar. He narrated that he
and co-accused Amido were responsible for the loss of the motorcycle and the
consequent death of Saavedra. Moreover, he averred that they sold the
motorcycle to a certain Danny Teves of Barrio Summit, Muntinlupa for a sum of
P4,000.00. With the help of appellant as a guide, the Lucena PNP immediately
dispatched a team to retrieve the same.
After admitting that it was purchased from both the accused and upon failure to
present any document evidencing the purported sale, Teves voluntarily
surrendered it to the police who turned it over, together with the sidecar, to the
Atimonan Police Station for safekeeping.
Lt. Carlos, on cross-examination, testified that when he invited appellant to their
headquarters, he had no warrant for his arrest. In the course thereof, he informed
the latter that he was a suspect, not only in the instant case, but also in two other
robbery cases allegedly committed in Lucena City. In the belief that they were
merely conversing inside the police station, he admitted that he did not inform
appellant of his constitutional rights to remain silent and to the assistance of
counsel; nor did he reduce the supposed confession to writing.2
Appellant, on the other hand, alleged that he had no participation in the offense
charged and contended that his only involvement in the matter was the referral of
accused Amido to Teves. He recounted that sometime in December 1988, Amido
sought him at his house and told him that the motorcycle he was riding on was
being offered for sale. Upon proof shown that it was indeed registered under
Amido's name, he accompanied the latter to Manila on board the said motorcycle
and they approached Antonio Carandang. The latter, thereafter, brought them to a
certain Perlita Aguilar and Danilo Teves with whom the sale was finally
consummated. He allegedly received P150.00 as his commission.
Amido presented alibi as his defense. He alleged that although a tricycle driver by
occupation, he was at Barangay Malusak, Atimonan on the day in question, some
seven kilometers from the town, busy assisting in the renovation of his mother's
house. He narrated that the victim was his friend and, therefore, he could not have
participated in the gruesome death of the latter.
20
In a decision dated April 21, 1994, the trial court convicted appellant, the
dispositive portion of which reads:
WHEREFORE, premised in the foregoing considerations, this Court finds
Herson Tan GUILTY beyond reasonable doubt of the crime of Highway
Robbery with Murder and hereby sentences him to suffer an imprisonment
of RECLUSION PERPETUA. He is further ordered to indemnify the family
of the deceased in the amount of Thirty Thousand Pesos (P30,000.00).
Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the
charges against him and the Provincial Warden of Quezon, Provincial Jail,
Lucena City, is hereby ordered to release from custody the person of said
Lito Amido, unless he is being detained thereat for some other lawful
cause.
SO ORDERED.3
Appellant assails the finding of conviction despite failure of the prosecution to
positively identify him as the culprit of the crime and to present clear and
convincing circumstantial evidence that would overcome his innocence.
In light of the above facts and circumstances, the appealed decision is set aside
and appellant acquitted on the ground that his constitutional rights were violated.
It is well-settled that the Constitution abhors an uncounselled confession or
admission and whatever information is derived therefrom shall be regarded as
inadmissible in evidence against the confessant. Article III, Section 12, paragraphs
(1) and (3) of the Constitution provides:
x x x           x x x          x x x
Sec. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own choice.
If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the
presence of counsel.
x x x           x x x          x x x
 (3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible against him.
Republic Act No. 7438 (R.A. No. 7438),4 approved on May 15, 1992, reenforced
the constitutional mandate protecting the rights of persons under custodial
investigation, a pertinent provision5 of which reads:
As used in this Act, "custodial investigation" shall include the practice
of issuing an "invitation" to a person who is investigated in connection with
an offense he is suspected to have committed, without prejudice to the
liability of the "inviting" officer for any violation of law.
Custodial investigation involves any questioning initiated by law enforcement
authorities after a person is taken into custody or otherwise deprived of his
freedom of action in any significant manner. The rules on custodial investigation
begin to operate as soon as the investigation ceases to be a general inquiry into
an unsolved crime and begins to focus a particular suspect, the suspect is taken
into custody, and the police carries out a process of interrogations that tends itself
to eliciting incriminating statements that the rule begins to operate.6
Furthermore, not only does the fundamental law impose, as a requisite function of
the investigating officer, the duty to explain those rights to the accused but also
that there must correspondingly be a meaningful communication to and
understanding thereof by the accused. A mere perfunctory reading by the
constable of such rights to the accused would thus not suffice.7
Under the Constitution and existing law and jurisprudence, a confession to be
admissible must satisfy the following requirements: (1) it must be voluntary; (2) it
must be made with the assistance of competent and independent counsel; (3) it
must be express; and (4) it must be in writing.8
While the Constitution sanctions the waiver of the right to counsel, it must,
however, be "voluntary, knowing and intelligent, and must be made in the
presence and with the assistance of counsel."9 To reiterate, in People v.  Javar,10 it
was ruled therein that any statement obtained in violation of the constitution,
whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in
evidence. Even if the confession contains a grain of truth, if it was made without
the assistance of counsel, it becomes inadmissible in evidence, regardless of the
absence of coercion or even if it had been voluntarily given.
21
The records of this case do not indicate that appellant was assisted by counsel
when he made such waiver, a finding evident from the testimony of Lt. Santos on
cross-examination, thus:
Q Now, when you brought Herson Tan to the
Headquarters, did you tell him that he is one of the
suspects in the robbery slain (sic) that took place in
Atimonan on December 5, 1988?
A Yes, sir, and he was also suspect to the robbery case
which was investigated at Lucena Police Station. There
were two (2) cases which were investigated on Herson
Tan.
Q Now, so in addition to the Atimonan case, you also took
Herson Tan to your custody in connection with another
case that happened in Lucena?
A Yes, sir.
Q And you happened to have Herson Tan in your list as
suspect in both cases because Herson was previously
incarcerated at Lucena City Jail in connection with a
certain case, is it not?
A Yes, sir.
Q Just for curiosity sake, you invited him in your
headquarters, is that what happened in this case?
A Yes, sir.
Q And it just happened that without applying third degree
to him he gave you that information?
A Yes, sir.
Q Did you notify him of his constitutional right to counsel
before you propounded questions to him?
 A No, sir, because we are asking question only to him.

Q Before propounding question or information you sought

to elicit from him, did you inform him of his constitutional
right not to testify against himself because he is a suspect
in these two (2) cases?

A No, sir, because we were just conversing.11 (Emphasis

supplied)

The evidence for the prosecution shows that when appellant was invited for
questioning at the police headquarters, he allegedly admitted his participation in
the crime. This will not suffice to convict him, however, of said crime. The
constitutional rights of appellant, particularly the right to remain silent and to
counsel, are impregnable from the moment he is investigated in connection with an
offense he is suspected to have committed, even if the same be initiated by mere
invitation. "This Court values liberty and will always insist on the observance of
basic constitutional rights as a condition sine qua non against the awesome
investigative and prosecutory powers of government."12

What remains of the evidence for the prosecution is inadequate to warrant a

conviction. Considering the circumstances attendant in the conduct of appellant's
investigation which fell short of compliance with constitutional safeguards, we are
constrained to acquit the appellant.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of
Gumaca, Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant
HERSON TAN y VERZO is hereby ACQUITTED of the crime charged and his
immediate release from confinement is hereby ordered, unless there is any other
lawful cause for continued detention. Costs de oficio.

SO ORDERED.
G.R. No. L-46000             May 25, 1939
Narvasa, C.J., Kapunan, Francisco and Purisima, JJ., concur.
THE PEOPLE OF THE PHILIPPINES, appellee,
vs.
JOSE M. BAES, appellant.

Crispin Oben for appellant.

Guillermo B. Guevarra for defendants-appellees.
No appearance for plaintiff-appellee.
22
CONCEPCION, J.:
This appeal was given due course by the Court of First Instance of Laguna by
virtue of a writ of mandamus issued by this court in G.R. No. 45780. The facts are
the following: In the justice of the peace court of the municipality of Lumban,
Province of Laguna, a complaint was filed of the following tenor:
The undersigned Parish Priest of the Roman Catholic Church in the parish
and municipality of Lumban, Province of Laguna, upon being duly sworn,
charges Enrique Villaroca, Alejandro Lacbay and Bernardo del Rosario
with an offense against religion committed as follows:
That on April 14, 1937, at about 9 o'clock a.m., in this municipality of
Lumban, Province of Laguna, Philippines, and within the jurisdiction of this
court, the aforesaid accused, while holding the funeral of one who in life
was called Antonio Macabigtas, in accordance with the rites of religious
sect known as the "Church of Christ", willfully, unlawfully, and criminally
caused the funeral to pass, as it in fact passed, through the chruchyard
fronting the Roman Catholic Church, which churchyard belongs to the said
Church, which churchyard belongs to the said Church and is devoted to
the religious worship thereof, against the opposition of the undersigned
complainant who, through force and threats of physical violence by the
accused, was compelled to allow the funeral to pass through the said
churchyard. An act committed in grave profanation of the place, in open
disregard of the religious feelings of the Catholics of this municipality, and
in violation of article 133 of the Revised Penal Code.
(Sgd.) JOSE M.A. BAES
Parish Priest
Complainant
(Here follow the affidavit and the list of witnesses.)
The accused pleaded not guilty and waived the preliminary investigation. Before
the case was remanded to the Court of First Instance of Laguna, the complainant
filed a sworn statement regarding other points so that the provincial fiscal may
have full knowledge of the facts and of the witnesses who could testify thereon.
Upon the remand of the case to the court, the fiscal, instead of filing the
corresponding information, put in the following motion for dismissal:
23
The complainant is the parish priest of the Roman Catholic Church of
Lumban, Laguna. The said priest charges the accused with having
caused, through force, intimidation and threats, the funeral of one
belonging to the Church of Christ to pass through the churchyard of the
Church. Apparently, the offense consists in that the corpse was that of one
who belonged to the Church of Christ.
The undersigned is of the opinion that the fact act imputed to the accused
does not constitute the offense complained of considering the spirit of
article 133 of the Revised Penal Code. At most they might be chargeable
with having threatened the parish priest, or with having passed through a
private property without the consent of the owner. Justice Albert,
commenting on the article, has this to say: "An act is said to be notoriously
offensive to the religious feelings of the faithful when a person ridicules or
makes light of anything constituting a religious dogma; works or scoffs at
anything devoted to religious ceremonies; plays with or damages or
destroys any object of veneration by the faithful." The mere act of causing
the passage through the churchyard belonging to the Church, of the
funeral of one who in life belonged to the Church of Christ, neither offends
nor ridicules the religious feelings of those who belong to the Roman
Catholic Church.
Sustaining the foregoing motion, the court by an order of August 31, 1937,
dismissed the case, reserving, however, to the fiscal the right to file another
information for the crime found to have been committed by the accused.
From this order, the plaintiff appealed, which appeal was denied but thereafter
given due course by the court by virtue of an order of this court.
The appealed order is based upon the motion to dismiss filed by the fiscal. This
officer questions the sufficiency of the facts alleged in the complaint, but omits an
essential part thereof, to wit, that the churchyard belongs to the church, and is
devoted to the religious services of said church, and it is through this churchyard
that the accused, over the objection of the parish priest and through force and
intimidation, caused to pass the funeral of one under the rites of the religious sect
known as the Church of Christ. Had the fiscal not omitted this essential part, he
would not have come to the conclusion that the acts complained of do not
constitute the crime defined and penalized by article 133 of the Revised Penal
Code.
Moreover, the fiscal, in his aforesaid motion, denies that the unlawful act
committed by the accused had offended the religious feelings of the Catholics of
the municipality in which the act complained of took place. We believe that such
ground of the motion is indefensible. As the fiscal was discussing the sufficiency of
the facts alleged in the complaint, he cannot deny any of them, but must admit
them, although hypothetically, as they are alleged. The motion raises a question of
law, not one of fact. In the second place, whether or of the act complained of is
offensive to the religious feelings of the Catholics, is a question of fact which must
be judged only according to the feelings of the Catholics and not those of other
faithful ones, for it is possible that certain acts may offend the feelings of those
who profess a certain religion, while not otherwise offensive to the feelings of those
professing another faith. We, therefore, take the view that the facts alleged in the
complaint constitute the offense defined and penalized in article 133 of the
Revised Penal Code, and should the fiscal file an information alleging the said
facts and a trial be thereafter held at which the said facts should be conclusively
established, the court may find the accused guilty of the offense complained of, or
that of coercion, or that of trespass under article 281 of the Revised Penal Code,
as may be proper, pursuant to section 29 of General Orders, No. 58.

The appealed order is reversed and the fiscal is ordered to comply with his duty
under the law, without pronouncement as to the costs. So ordered.

Avanceña, C.J., Villa-Real, and Diaz, JJ., concur .

24

G.R. Nos. 83837-42 April 22, 1992
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. MAXIMIANO C. ASUNCION, Presiding Judge of Branch 104, RTC,
Quezon City, PATERNA RUIZ, NOLI G. NARCA, FR. NICK RUIZ, LYDIA R.
NARCA, RODOLFO CORTEZA and TOMAS DOMINADO, respondents.
NOCON, J.:
In a Petition for certiorari filed under Rule 65 of the Rules of Court, the People
raise the issue of whether the crime of illegal possession of firearms, ammunition
and explosives, punishable under P.D. 1866, is absorbed by the crime of
subversion, i.e., membership in a subversive organization, punishable under R.A.
1700, as amended.
The People filed this petition assailing the Resolution dated May 4, 1988 of
respondent Judge Maximiano C. Asuncion, granting the motion of private
respondents to quash the Information charging them with violation of P.D. 1866, as
being void ab initio and the order dated June 8, 1988 denying petitioner's motion
for reconsideration of said resolution.
Private respondents Paterna Ruiz, Noli Narca, Fr. Nick Ruiz, Lydia Narca, Rodolfo
Corteza, and Tomas Dominado, were charged with Subversion under R.A. 1700
before the Metropolitan Trial Court of Quezon City, Branch 40, based on the
following information filed on February 10, 1988:
That on or about the 1st and 2nd day of February, 1988 in Quezon
City, Metro Manila Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together,
25
confederating with and mutually helping one another by overt acts
with the common objective to overthrow the duly constituted
government of the Republic of the Philippines, did, then and there,
willfully and unlawfully and feloniously affiliate themselves with,
become and remain members of the Communist Party of the
Philippines/National Democratic Front and/or its successor or of
any subversive association in violation of said law. 1
On February 12, 1988, six separate informations for violation of P.D. 1866 (Illegal
Possession of Firearms) were filed against the same respondents before the
Regional Trial Court of Quezon City, Branch 104. Said Informations in substantially
identical language allege:
That on or about the (1st and 2nd days) of February the accused
without any authority of law, did, then and there, willfully,
unlawfully and feloniously have in (his/her) possession and control
and custody one (cal .45 pistol, armalite rifle, handgranade,
fragmentation granade, M-14 rifle), without first securing any
license/permit from the proper authority and that said firearm is
being used in support and furtherance of the crime of subversion
or rebellion. 2
The facts 3 as presented by the prosecution reveal that sometime in February
1988, elements of the Intelligence Service of the Armed Forces of the Philippines
apprehended the private respondents in separate operations.
Various ammunitions, firearms, and explosives were found in their possession,
while subsequent searches in their respective hide-outs resulted in the confiscation
of several subversive materials, including documents showing that they are
ranking members of the Communist Party of the Philippines/New People's Army,
or are mere members.
Private respondents, in their motion to quash, 4 argued that the filing of two (2)
separate informations for each of the accused violates the rule on double jeopardy,
and that there being only a single criminal intent, the other offense of illegal
possession of firearms, ammunition and explosives should be absorbed in the
charge of violation of R.A. 1700, following the doctrine in People v. Hernandez. 5
The respondent Judge, in his questioned resolution, agreed with this contention
and held:
 After evaluating the grounds and the arguments in support of the
same, the Court is of the opinion that the motion to quash, as
prayed for should be GRANTED.
Applying by analogy the doctrine laid down in the case of People
v.  Hernandez (99 Phil. 515), the possession of firearms,
ammunition and explosives to which all the accused are charged
before this Court is a constitutive ingredient of the crime of
subversion and, hence, absorbed by the same and cannot be
punished separately. Deadly weapons are needed and necessary
to generate the kind of force and violence to accomplish the
purpose of subversion. As pointed out by Atty. Poncevic Ceballos,
counsel for the accused, the elements of force, violence and other
illegal means mentioned in the law (R.A., 1700 as amended), may
be done with the use of violence, explosives and ammunition or
the possession thereof. 6 (Emphasis supplied)
It should be recalled that in People v. Hernandez, supra, and even in the more
recent cases of Enrile v. Amin, 7and Enrile v. Salazar, 8 the issue resolved is that
the crime of rebellion cannot be complexed with, nor may a separate information
be filed, for violation of common crimes, since force and violence are already
necessary ingredients of the same.
Private respondents do not dispute the fact that rebellion is distinct from
subversion. However, they want to adopt by analogy existing jurisprudence on
rebellion to subversion on the theory that both crimes are political offenses
intended to destabilize and overthrow the government with the use of force,
violence or other illegal means. 9 The trial court went along with respondents when
it stated:
. . . The possession of said items by all the accused, as alleged in
the information, is the very element of force, violence, or other
illegal means in the crime of subversion. So that the crime of
alleged possession of firearms in furtherance of rebellion or,
subversion cannot be separated from the charge of subversion.
the former crime being merely an element of the latter crime. 10
We cannot agree.
If We are to espouse the theory of the respondents that force and violence are the
very essence of subversion, then it loses its distinction from rebellion. In People
26
v. Liwanag,11 the Court categorically distinguished subversion from rebellion, and
held:
Violation of Republic Act No. 1700, or subversion, as it is more
commonly called, is a crime distinct from that of actual rebellion.
The crime of rebellion is committed by rising publicly and taking up
arms against the Government for any of the purposes specified in
Article 134 of the Revised Penal Code; while the Anti-Subversion
Act (Republic Act No. 1700) punishes affiliation or membership in
a subversive organization as defined therein. In rebellion, there
must be a public uprising and taking of arms against the
Government; whereas, in subversion, mere membership in a
subversive association is sufficient and the taking up of arms by a
member of a subversive organization against the Government is
but a circumstance which raises the penalty to be imposed upon
the offender. (Emphasis supplied)
Furthermore, in the case of Buscayno vs. Military Commissions, 12 this Court said
that subversion, like treason, is a crime against national security, while rebellion is
a crime against public order. Rising publicly and taking arms against the
Government is the very element of the crime of rebellion. 13 On the other hand,
R.A. 1700 was enacted to outlaw the Communist Party of the Philippines (CPP),
other similar associations and its successors because their existence and activities
constitute a clear, present and grave danger to national security. 14
The first Whereas clause of R.A. 1700 states that the CPP is an organized
conspiracy to overthrow the Government, not only by force and violence but also
by deceit, subversion and other illegal means. This is a recognition that subversive
acts do not only constitute force and violence (contra to the arguments of private
respondents), but may partake of other forms as well. One may in fact be guilty of
subversion by authoring subversive materials, where force and violence is neither
necessary or indispensable.
Private respondents contended 15 that the Court in Misolas v. Panga 16 impliedly
ruled that if an accused is simultaneously charged with violation of P.D. 1866 and
subversion, the doctrine of absorption of common crimes as applied in rebellion
would have found application therein. The respondents relied on the opinion of this
Court when it said:
. . . in the present case, petitioner is being charged specifically for
the qualified offense of illegal possession of firearms and
ammunition under PD 1866. HE IS NOT BEING CHARGED WITH
 THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL
POSSESSION OF FIREARMS. NEITHER IS HE BEING
SEPARATELY CHARGED FOR SUBVERSION AND FOR
ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the
Court in Hernandez, Geronimo and  Rodriguez find no application
in this case. 17
This is however a mere obiter. In the above case, the Court upheld the validity of
the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined
that the dictum in the Hernandez  case is not applicable in that case, considering
that the legislature deemed it fit to provide for two distinct offenses: (1) illegal
possession of firearms qualified by subversion (P.D. 1866) and (2) subversion
qualified by the taking up of arms against the Government (R.A. 1700). "The
practical result of this may be harsh or, it may pose grave difficulty on an accused
in instances similar to those that obtain in the present case, but the wisdom of the
legislature in the lawful exercise of its power to enact laws is something that the
Court cannot inquire into . . ." 18
The Court further said:
Undeniably, it is easier to prove that a person has unlawfully
possessed a firearm and/or ammunition under P.D. 1866 than to
establish that he had knowingly, willfully and by overt acts affiliated
himself with, became or remained a member of the Communist
Party of the Philippines and/or its successor or of any subversive
organization under R.A. 1700, as conviction under the latter
"requires that membership must be knowing or active, with specific
intent to further the illegal objectives of the Party" (quoting from
People v. Ferrer, supra).
However, that the same act may be penalized under two different
statutes with different penalties, even if considered highly
advantageous to the prosecution and onerous to the accused, will
not necessarily call for the invalidation of the third paragraph of
Section 1 of P.D. 1866 which provides for the higher penalty. 19
On the issue of whether the filing of the subsequent information constitutes double
jeopardy, the trial court in its resolution articulated, thus:
On the question of double jeopardy, the Court agrees with the
observation of the herein accused that the filing of two separate
27
informations against each of the accused constitute a violation of
their constitutional right of not being twice put in jeopardy of
punishment for the same offense where it can be shown that the
offenses in question arise from a single criminal intent. (People v.
Elkanish, 90 Phil. 53)
The case of People v.  Elkanish, 20 relied upon by the Honorable Judge, is not in
point with the present case. Since We have resolved that P.D. 1866 can be
prosecuted independently of R.A. 1700, there can be no double jeopardy. Double
jeopardy can be invoked only if one offense is inseparable from another and
proceeds from the same act, in which case, they cannot be subject to separate
prosecutions. Art. III, Section 21 of the present Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment
for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act.
Implementing the constitutional provision, Rule 117, Section 7 of the Rules of
Court provides as follows:
When the accused has been convicted or acquitted, or the case
against him has been dismissed or otherwise terminated without
his express consent, by a court of competent jurisdiction, upon
valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction, and after the accused
had pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit
the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
Thus, according to a long line of cases, in order that a defendant may successfully
allege former jeopardy, it is necessary that he had  previously been (1) convicted or
(2) acquitted, or (3) in jeopardy of being convicted of the offense charged, that is,
that the former case against him for the same offense has been dismissed or
otherwise terminated without his express consent, by a court of competent
jurisdiction, upon a valid complaint or information, and after the defendant has
pleaded to the charge.
Premises considered, We find this petition meritorious and the resolution of the
trial court dated May 4, 1988 quashing the informations for violation of PD 1866 is
hereby reversed and the informations reinstated. Let this case be remanded to the
lower court for further proceedings and trial. Cost de oficio.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Davide, Jr. and Romero, JJ., concur.
G.R. No. 81567 July 9, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO
UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL,
and NICANOR P. DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.
PER CURIAM:
The are eight (8) petitioners for habeas corpus filed before the Court, which have
been consolidated because of the similarity of issues raised, praying for the
issuance of the writ of habeas corpus, ordering the respective respondents to
produce the bodies of the persons named therein and to explain why they should
not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of
the writ of habeas corpus is not available to the petitioners as they have
been legally arrested and are detained by virtue of valid informations filed in court
against them.
The petitioners counter that their detention is unlawful as their arrests were
made without warrant and, that no preliminary investigation was first conducted, so
that the informations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective
pleadings, and it finds that the persons detained have not been illegally arrested
nor arbitrarily deprived of their constitutional right to liberty, and that the
circumstances attending these cases do not warrant their release on habeas
corpus.
28
The arrest of a person without a warrant of arrest or previous complaint is
recognized in law. The occasions or instances when such an arrest may be
effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as
amended, 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 in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of
Rule 113 of the Rules of Court, as amended, is justified when the person arrested
is caught in  flagranti delicto, viz., in the act of committing an offense; or when an
offense has just been committed and the person making the arrest has personal
knowledge of the facts indicating that the person arrested has committed it. The
rationale behind lawful arrests, without warrant, was stated by this Court in the
case of People vs. Kagui Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy
of the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances.
The record of the instant cases would show that the persons in whose behalf these
petitions for habeas corpus have been filed, had freshly committed or were actually
committing an offense, when apprehended, so that their arrests without a warrant
were clearly justified, and that they are, further, detained by virtue of valid
informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions
is in order.
I shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988,
the Regional Intelligence Operations Unit of the Capital Command (RIOU-
CAPCOM) received confidential information about a member of the NPA Sparrow
Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes
Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the
wounded person, who was listed in the hospital records as Ronnie Javelon, is
actually Rolando Dural, a member of the NPA liquidation squad, responsible for
the killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in
Macanining Street, Bagong Barrio, Caloocan City. In view of this verification,
Rolando Dural was transferred to the Regional Medical Services of the CAPCOM,
for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural
was positively identified by eyewitnesses as the gunman who went on top of the
hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers
seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the
Caloocan City Fiscal who conducted an inquest and thereafter filed with the
Regional Trial Court of Caloocan City an information charging Rolando
Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon
Agents of Persons in Authority." The case was docketed therein as Criminal Case
No. C-30112 and no bail was recommended. On 15 February 1988, the
information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the
filing of the original information, was still unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this
Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court
issued the writ of habeas corpus on 9 February 1988 and the respondents filed a
Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15
February 1988.
29
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail
before the Regional Trial Court of Pasay City where charges for violation of the
Anti-Subversion Act had been filed against them, and they were accordingly
released. The petition for habeas corpus, insofar as Umil and Villanueva are
concerned, is now moot and academic and is accordingly dismissed, since the writ
of habeas corpus does not lie in favor of an accused in a criminal case who has
been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the act of
after the commission of the said offense for his arrest came a day after the said
shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples
Army (NPA), an outlawed subversive organization. Subversion being a continuing
offense, the arrest of Rolando Dural without warrant is justified as it can be said
that he was committing an offense when arrested. The crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or offenses
committed in furtherance thereof or in connection therewith constitute direct
assaults against the State and are in the nature of continuing crimes. As stated by
the Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners that
they were initially arrested illegally is, therefore, without basis in
law and in fact. The crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and other crimes
and offenses committed in the furtherance, on the occasion
thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart from the common
offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. Clearly then, the arrest of the
herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its
fighting armed elements, or for committing non-violent acts but in
furtherance of the rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a statutory
offense. The arrest, therefore, need not follow the usual procedure
in the prosecution of offenses which requires the determination by
 a judge of the existence of probable cause before the issuance of
a judicial warrant of arrest and the granting of bail if the offense is
bailable. Obviously, the absence of a judicial warrant is no legal
impediment to arresting or capturing persons committing overt
acts of violence against government forces, or any other milder
acts but equally in pursuance of the rebellious movement. The
arrest or capture is thus impelled by the exigencies of the situation
that involves the very survival of society and its government and
duly constituted authorities. If killing and other acts of violence
against the rebels find justification in the exigencies of armed
hostilities which is of the essence of waging a rebellion or
insurrection, most assuredly so in case of invasion, merely seizing
their persons and detaining them while any of these contingencies
continues cannot be less justified. . . . 3
The record, moreover, shows that the criminal case filed against Rolando
Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below
and at the conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo
Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando
Dural is now serving the sentence imposed upon him by the trial court. Thus, the
writ of habeas corpus is no longer available to him. For, as held in the early case
of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his arrest,
the fact remains that the defendant was actually in court in the
custody of the law on March 29, when a complaint sufficient in
form and substance was read to him. To this he pleaded not guilty.
The trial followed, in which, and in the judgment of guilty
pronounced by the court, we find no error. Whether, if there were
irregularities in bringing him personally before the court, he could
have been released on a writ of habeas corpus or now has a civil
action for damages against the person who arrested him we need
not inquire. It is enough to say that such irregularities are not
sufficient to set aside a valid judgment rendered upon a sufficient
complaint and after a trial free from error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia
Roque and Wilfredo Buenaobra, without warrant, is also justified. When
apprehended at the house of Renato Constantino in Marikina Heights, Marikina,
Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he
30
had with him letters to Renato Constantino and other members of the rebel group.
Amelia Roque, upon the other hand, was a member of the National United Front
Commission, in charge of finance, and admitted ownership of subversive
documents found in the house of her sister in Caloocan City. She was also in
possession of ammunition and a fragmentation grenade for which she had no
permit or authority to possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio
Ramos y Ibanes, a member of the NPA, who had surrendered to the military
authorities, told military agents about the operations of the Communist Party of the
Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified
some of his former comrades as "Ka Mong", a staff member of the
Communications and Transportation Bureau; "Ka Nelia", a staff member in charge
of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka
Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato
Constantino located in the Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila, which is used as a safehouse of the National United Front
Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge
Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was
conducted at about 5:00 o'clock in the afternoon, by a combined team of the
Criminal Investigation Service, National Capital District (CIS-NCD) and the
Constabulary Security Group (CSG). In the course of the search, the following
articles were found and taken under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or authority to
possess the firearms, ammunition, radio and other communications equipment.
Hence, he was brought to the CIS Headquarters for investigation. When
questioned, he refused to give a written statement, although he admitted that he
was a staff member of the executive committee of the NUFC and a ranking
member of the International Department of the Communist Party of the Philippines
(CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo
Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound.
When accosted, he readily admitted to the military agents that he is a regular
member of the CPP/NPA and that he went to the place to deliver letters to "Ka
Mong", referring to Renato Constatino, and other members of the rebel group. On
further questioning, he also admitted that he is known as "Ka Miller" and that he
was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him
were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co."
dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)"
dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated
August 11, 1988.
Also found Buenaobra's possession was a piece of paper containing a written but
jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka
Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the
whereabouts of Amelia Roque, the military agents went to the given address the
next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the
morning. After identifying themselves as military agents and after seeking
permission to search the place, which was granted, the military agents conducted
a search in the presence of the occupants of the house and the barangay captain
of the place, one Jesus D. Olba.
31
The military agents found the place to be another safehouse of the NUFC/CPP.
They found ledgers, journals, vouchers, bank deposit books, folders, computer
diskettes, and subversive documents as well as live ammunition for a .38 SPL
Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live
ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia
Roque and the other occupants of the house were brought to the PC-CIS
Headquarters at Camp Crame, Quezon City, for investigation. Amelia
Roque admitted to the investigators that the voluminous documents belonged to
her and that the other occupants of the house had no knowledge of them. As a
result, the said other occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for
inquest after which an information charging her with violation of PD 1866 was filed
with the Regional Trial Court of Caloocan City. The case is docketed therein as
Criminal Case No. C-1196. Another information for violation of the Anti-Subversion
Act was filed against Amelia Roque before the Metropolitan Trial Court of
Caloocan City, which is docketed therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case
is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on
behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case,
however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP
Stockade at Camp Crame, Quezon City. According, the petition for habeas
corpus filed on his behalf is now moot and academic. Only the petition of Amelia
Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers
and/or members of the National United Front Commission (NUFC) of the CPP was
not controverted or traversed by said petitioners. The contention must be deemed
admitted. 5 As officers and/or members of the NUFC-CPP, their arrest, without
warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural.
The arrest without warrant of Roque was additionally justified as she was, at the
time of apprehension, in possession of ammunitions without license to possess
them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo
Anonuevo and Ramon Casiple, without warrant, is also justified under the rules.
Both are admittedly members of the standing committee of the NUFC and, when
apprehended in the house of Renato Constatino, they had a bag containing
subversive materials, and both carried firearms and ammunition for which they had
no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening
of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the
house of Renato Constatino at Marikina Heights, Marikina, which was still under
surveillance by military agents. The military agents noticed bulging objects on their
waist lines. When frisked, the agents found them to be loaded guns. Anonuevo
and Casiple were asked to show their permit or license to possess or carry
firearms and ammunition, but they could not produce any. Hence, they were
brought to PC Headquarters for investigation. Found in their possession were the
following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1)
magazine for Cal. 7.65 containing ten (10) live ammunition of
same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered
with one (1) magazine containing five (5) live ammunition of same
caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon
Casiple as "Ka Totoy" of the CPP, by their comrades who had previously
surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary
evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who
conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were
charged with violation of Presidential Decree No. 1866 before the Regional Trial
Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases
Nos. 74386 ad 74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf
of Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and
Casiple were unlawfully arrested without a warrant and that the informations filed
32
against them are null and void for having been filed without prior hearing and
preliminary investigation. On 30 August 1988, the Court issued the writ of habeas
corpus, and after the respondents had filed a Return of the Writ, the parties were
heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested
because there was no previous warrant of arrest, is without merit The record
shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed
firearms and ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them are
null and void for want of a preliminary investigation. The filing of an information,
without a preliminary investigation having been first conducted, is sanctioned by
the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:
Sec. 7. When accused lawfully arrested without a warrant. —
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his choice.
Notwithstanding such waiver, he may apply for bail as provided in
the corresponding rule and the investigation must be terminated
within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may within
five (5) days from the time he learns of the filing of the information,
ask for a preliminary investigation with the same right to adduced
evidence in his favor in the manner prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign
a waiver of the provisions of Article 125 of the Revised Penal Code, as amended.
In the informations filed against them, the prosecutor made identical certifications,
as follows:
This is to certify that the accused has been charged in accordance
with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure,
that no preliminary investigation was conducted because the
accused has not made and signed a waiver of the provisions of
Art. 125 of the Revised Penal Code, as amended; that based on
the evidence presented, there is reasonable ground to believe that
the crime has been committed, and that the accused is probably
guilty thereof.
Nor did petitioners ask for a preliminary investigation after the informations had
been filed against them in court. Petitioners cannot now claim that they have been
deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky
Ocaya is justified under the Rules, since she had with her unlicensed ammunition
when she was arrested. The record of this case shows that on 12 May 1988,
agents of the PC Intelligence and Investigation of the Rizal PC-INP Command,
armed with a search warrant issued by Judge Eutropio Migrino of the Regional
Trial Court of Pasig, Metro Manila, conducted a search of a house located at Block
19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be
occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search,
Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents and
several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky
Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC
Headquarters for investigation. When Vicky Ocaya could not produce any permit or
authorization to possess the ammunition, an information charging her with violation
of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The
case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other
hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf
of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was
illegally arrested and detained, and denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in  flagranti delicto so that
her arrest without a warrant is justified. No preliminary investigation was conducted
33
because she was arrested without a warrant and she refused to waive the
provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112
of the Rule of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia
Roque claim that the firearms, ammunition and subversive documents alleged to
have been found in their possession when they were arrested, did not belong to
them, but were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their
aforesaid claim. On the other hand, no evil motive or ill-will on the part of the
arresting officers that would cause the said arresting officers in these cases to
accuse the petitioners falsely, has been shown. Besides, the arresting officers in
these cases do not appear to be seekers of glory and bounty hunters for, as
counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing
in the evidence submitted during the inquest that petitioners are on the 'AFP Order
of Battle with a reward of P150,000.00 each on their heads.'" 6 On the other hand,
as pointed out by the Solicitor General, the arrest of the petitioners is not a product
of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of
NPA safehouses pointed to by no less than former comrades of the petitioners in
the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners Roque,
Buenaobra, Anonuevo and Casiple, was the lawful search and
seizure conducted by the military at the residence of Renato
Constantino at Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila. The raid at Constantino's residence, was
not a witch hunting or fishing expedition on the part of the military.
It was a result of an in-depth military surveillance coupled with the
leads provided by former members of the underground subversive
organizations. That raid produced positive results. to date, nobody
has disputed the fact that the residence of Constantino when
raided yielded communication equipment, firearms and
ammunitions, as well as subversive documents.
The military agents working on the information provided by
Constantino that other members of his group were coming to his
place, reasonably conducted a "stake-out" operation whereby
some members of the raiding team were left behind the place.
True enough, barely two hours after the raid and Constantino's
arrest, petitioner Buenaobra arrived at Constantino's residence.
He acted suspiciously and when frisked and searched by the
military authorities, found in his person were letters. They are no
ordinary letters, as even a cursory reading would show. Not only
that, Buenaobra admitted that he is a NPA courier and was there
to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and Casiple
arrived at Constantino's place. Would it be unreasonable for the
military agents to believe that petitioners Anonuevo and Casiple
are among those expected to visit Constantino's residence
considering that Constatino's information was true, in that
Buenaobra did come to that place? Was it unreasonable under the
circumstances, on the part of the military agents, not to frisk and
search anyone who should visit the residence of Constantino,
such as petitioners Anonuevo and Casiple? Must this Honorable
Court yield to Anonuevo and Casiple's flimsy and bare assertion
that they went to visit Constantino, who was to leave for Saudi
Arabia on the day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military
authorities to effect her arrest without warrant considering that it
was Buenaobra who provided the leads on her identity? It cannot
be denied that Buenaobra had connection with Roque. Because
the former has the phone number of the latter. Why the necessity
of jumbling Roque's telephone number as written on a piece of
paper taken from Buenaobra's possession? Petitioners Roque and
Buenaobra have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted
reasonably, under the time, place and circumstances of the events
in question, especially considering that at the time of petitioner's
arrest, incriminatory evidence, i.e, firearms, ammunitions and/or
subversive documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor
innocently visiting a camp, but were arrested in such time, place
and circumstances, from which one can reasonably conclude tat
34
they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the
petitioner Deogracias Espiritu, who is detained by virtue of an Information for
Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with
the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of
the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an
association of drivers and operators of public service vehicles in the Philippines,
organized for their mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988,
while he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila,
he was awakened by his sister Maria Paz Lalic who told him that a group of
persons wanted to hire his jeepney. When he went down to talk to them, he was
immediately put under arrest. When he asked for the warrant of arrest, the men,
headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type
jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany
him, but the men did not accede to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt,
Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the
same morning, he was brought before the respondent Lim and, there and then, the
said respondent ordered his arrest and detention. He was thereafter brought to the
General Assignment Section, Investigation Division of the Western Police District
under Police Capt. Cresenciano A. Cabasal where he was detained, restrained
and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified in
view of the Information filed against him before the Regional Trial Court of Manila,
docketed therein as Criminal Case No. 88-683-85, charging him with violation of
Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a
judicial warrant of arrest since petitioner when arrested had in fact just committed
an offense in that in the afternoon of 22 November 1988, during a press
conference at the National Press Club.
 Deogracias Espiritu through tri-media was heard urging all drivers
and operators to go on nationwide strike on November 23, 1988,
to force the government to give into their demands to lower the
prices of spare parts, commodities, water and the immediate
release from detention of the president of the PISTON (Pinag-
isang Samahan ng Tsuper Operators Nationwide). Further, we
heard Deogracias Espiritu taking the place of PISTON president
Medardo Roda and also announced the formation of the Alliance
Drivers Association to go on nationwide strike on November 23,
1988. 8
Policemen waited for petitioner outside the National Pres Club in order to
investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00
o'clock that afternoon at a gathering of drivers and symphatizers at the corner of
Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to
say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na
kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at and pagpapalaya sa ating pinuno na si Ka
Roda hanggang sa magkagulo na. 10 (emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He was
invited for questioning and brought to police headquarters after which an
Information for violation of Art. 142 of the Revised Penal Code was filed against
him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the
provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is
detained by virtue of a valid information filed with the competent court, he may not
be released on habeas corpus. He may, however be released upon posting bail as
recommended. However, we find the amount of the recommended bail
(P60,000.00) excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the
submission of Narciso Nazareno that he was illegally arrested and is unlawfully
detained. The record of this case shows that at about 8:30 o'clock in the morning
of 14 December 1988, one Romulo Bunye II was killed by a group of men near the
35
corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila.
One of the suspects in the killing was Ramil Regal who was arrested by the police
on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as
on of his companions in the killing of the said Romulo Bunye II. In view thereof, the
police officers, without warrant, picked up Narciso Nazareno and brought him to
the police headquarters for questioning. Obviously, the evidence of petitioner's
guilt is strong because on 3 January 1989, an information charging Narciso
Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II
was filed with the Regional Trial Court of Makati, Metro Manila. The case is
docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion
was denied by the trial court in an order dated 10 January 1989, even as the
motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted
by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ
of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of
Biñan, Laguna, Branch 24, ordering said court to hear the case on 30 January
1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the
Regional Trial Court of Biñan, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of
the respondents by reason of an information filed against him with the Regional
Trial Court of Makati, Metro Manila which had taken cognizance of said case and
had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably
because of the strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna
are based upon the facts and the law. Consequently, we will not disturb the same.
Evidently, the arrest of Nazareno was effected by the police without warrant
pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated
by his co-accused Ramil Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta: 12
The obligation of an agent of authority to make an arrest by reason
of a crime, does not presuppose as a necessary requisite for the
fulfillment thereof, the indubitable existence of a crime. For the
detention to be perfectly legal, it is sufficient that the agent or
person in authority making the arrest has reasonably sufficient
 grounds to believe the existence of an act having the We find, however, no compelling reason to abandon the said doctrine. It is based
characteristics of a crime and that the same grounds exist to upon express provision of the Rules of Court and the exigencies served by the law.
believe that the person sought to be detained participated therein. The fears expressed by the petitioners are not really unremediable. As the Court
sees it, re-examination or reappraisal, with a view to its abandonment, of the
VIII Ilagan case doctrine is not the answer. The answer and the better practice would
be, not to limit the function of the habeas corpus to a mere inquiry as to whether or
not the court which issued the process, judgment or order of commitment or before
It is to be noted that, in all the petitions here considered, criminal charges have
whom the detained person is charged, had jurisdiction or not to issue the process,
been filed in the proper courts against the petitioners. The rule is, that if a person
judgment or order or to take cognizance of the case, but rather, as the Court itself
alleged to be restrained of his liberty is in the custody of an officer under process
states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas corpus the court must
issued by a court judge, and that the court or judge had jurisdiction to issue the
inquire into every phase and aspect of petitioner's detention-from the moment
process or make the order, of if such person is charged before any court, the writ
petition was taken into custody up to the moment the court passes upon the merits
of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as
of the petition;" and "only after such a scrutiny can the court satisfy itself that the
amended is quite explicit in providing that:
due process clause of our Constitution has in fact been satisfied." This is exactly
what the Court has done in the petitions at bar. This is what should henceforth be
Sec. 4. When writ is allowed or discharge authorized. — If it done in all future cases of habeas corpus. In Short, all cases involving deprivation
appears that the person alleged to be restrained of his liberty is in of individual liberty should be promptly brought to the courts for their immediate
the custody of an officer under process issued by a court or judge scrutiny and disposition.
or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render the
WHEREFORE, the petitions are hereby DISMISSED, except that in
judgment, or make the order, the writ shall not be allowed; or if the
G.R.  No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is
jurisdiction appears after the writ is allowed, the person shall not
hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held
to authorize the discharge of a person charged with a convicted of SO ORDERED.
an offense in the Philippines or of a person suffering imprisonment
under lawful judgment. (emphasis supplied) Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco,
Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.
At this point, we refer to petitioner's plea for the Court of re-examine and,
thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas  
corpus is no longer available after an information is filed against the person
detained and a warrant of arrest or an order of commitment, is issued by the court
where said information has been filed. 14 The petitioners claim that the said ruling,
which was handed down during the past dictatorial regime to enforce and
strengthen said regime, has no place under the present democratic dispensation
and collides with the basic, fundamental, and constitutional rights of the people.
Petitioners point out that the said doctrine makes possible the arrest and detention
of innocent persons despite lack of evidence against them, and, most often, it is
only after a petition for habeas corpus is filed before the court that the military
authorities file the criminal information in the courts of law to be able to hide behind
the protective mantle of the said doctrine. This, petitioners assert, stands as an
obstacle to the freedom and liberty of the people and permits lawless and arbitrary
State action.
36

G.R. No. 88189 July 9, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TIBURCIO ABALOS, accused-appellant.
REGALADO, J.:p
In this appeal, accused-appellant Tiburcio Abalos seeks absolution from the
judgment of conviction rendered by the Regional Trial Court, Branch 27, of
Catbalogan, Samar which pronounced him guilty of the complex crime of direct
assault with murder in Criminal Case No. 2302. His arguments in the present
appeal turn on the central question of unwarranted credence allegedly extended by
the trial court to the version of the criminal incident narrated by the sole
prosecution witness. The totality of the evidence adduced, however, indubitably
confirms appellant's guilt of the offense charged. Accordingly, we affirm.
An information filed in the trial court, dated April 21, 1983, imputed the crime of
direct assault with murder to herein appellant Tiburcio Abalos, alias "Ewet," with
the allegations —
That on or about the 20th day of March, 1983, at nighttime, in the
Municipality of Catbalogan, Province of Samar, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, with deliberate intent to kill, with treachery and evident
premeditation and knowing fully well that one Sofronio Labine was
an agent of a person in authority being a member of the Integrated
National Police with station at Catbalogan, Samar, did then and
there willfully, unlawfully and feloniously attack, assault and strike
said Sofronio Labine with a piece of wood, which said accused
ha(d) conveniently provided himself for the purpose while said
P/Pfc. Sofronio Labine, a duly appointed and qualified member of
the said INP, was engaged in the performance of his official duties
37
or on the occasion of such performance, that is, maintaining peace
and order during the barangay fiesta of Canlapwas, of said
municipality, thereby inflicting upon him "Lacerated wound 2
inches parietal area right. Blood oozing from both ears and nose"
which wound directly caused his death.
That in the commission of the crime, the aggravating circumstance
of nocturnity was present.1
At his arraignment on June 7, 1983, appellant, with the assistance of counsel,
entered a plea of not guilty.2 The trial conducted thereafter culminated in the
decision3 of the trial court on February 3, 1989 finding appellant guilty as charged
and meting out to him the penalty of "life imprisonment, with the accessories of the
law." Appellant was likewise ordered to indemnify the heirs of the victim in the sum
of P30,000.00; actual and compensatory damages in the amount of P2,633.00,
with P15,000.00 as moral damages; and to pay the costs. 4
As recounted by prosecution witness Felipe Basal, a farmer residing in Barangay
Pupua, Catbalogan, Samar, appellant assaulted the victim, Pfc. Sofronio Labine, at
around 8:00 P.M. of March 20, 1983, which was then the day of
the barangay fiesta celebrations in Barangay Canlapwas, Catbalogan, Samar. The
incident transpired near the house of appellant at the said barangay. Felipe Basal
was then having a drinking session in front of the shanty of one Rodulfo Figueroa,
Jr. which was situated just a few meters from the residence of appellant.
According to Basal, at about that time he noticed the father of appellant, Police
Major Cecilio Abalos, scolding his employees in his transportation business for
turning in only two hundred pesos in earnings for that day. While Major Abalos was
thus berating his employees, appellant arrived and asked his father not to scold
them and to just let them take part in the barangay festivities. This infuriated the
elder Abalos and set off a heated argument between father and son.5
While the two were thus quarreling, a woman shouted "Justicia, boligue kumi! Adi
in mag-a-aringasa." meaning, "Police officer, help us! Somebody's making trouble
here." The victim, Pfc. Sofronio Labine, then appeared on the scene and asked
Major Abalos, "What is it, sir?" The victim saluted Abalos when the latter turned
around to face him. As Major Abalos leveled his carbine at Labine, appellant
hurriedly left and procured a piece of wood, about two inches thick, three inches
wide and three feet long, from a nearby Ford Fiera vehicle.
He then swiftly returned and unceremoniously swung with that wooden piece at
Labine from behind, hitting the policeman at the back of the right side of his head.
Labine collapsed unconscious in a heap, and he later expired from the severe skull
fracture he sustained from that blow. Felipe Basal and his wife took flight right after
appellant struck the victim, fearful that they might be hit by possible stray
bullets6 should a gunfight ensue.
Appellant's testimony, on the other hand, is of a different tenor. He admits having
struck Labine with a piece of wood during the incident in question but claims that
he did so in the erroneous belief that his father was being attacked by a member of
the New People's Army (NPA). According to appellant, he was then seated inside
their family-owned Sarao jeepney parked beside the store of Rodulfo Figueroa, Jr.
near their home in Barangay Canlapwas when he noticed a man in fatigue uniform
suddenly accost his father. At that time, appellant's father had just arrived from a
trip from Wright, Samar and had just alighted from his service vehicle, a Ford
Fiera.
The man tried to disarm Major Abalos of his firearm but the latter resisted and
while the two were grappling for possession of the gun, appellant instinctively went
to the rescue of his father. He got a piece of wood from Figueroa's store with which
he then clubbed Labine whom he did not recognize at that point. When Labine fell
to the ground from the blow, appellant immediately fled to Barangay Mercedes
nearby, fearing that the man had companions who might retaliate. When he came
to know of the identity of his victim the following morning, he forthwith surrendered
to the authorities.7
As mentioned at the outset, the foregoing version of the factual antecedents as
presented by appellant was roundly rejected by the lower court which found the
same unworthy of belief. Appellant ascribes reversible errors to the trial court (a) in
not giving credence to the evidence adduced by the defense; (b) in believing the
evidence presented by the prosecution; (c) in relying on the prosecution's evidence
which falls short of the required quantum of evidence that would warrant a
conviction; (d) in finding that treachery attended the commission of the crime and
failing to credit in appellant's favor his voluntary surrender; and (e) in finding
appellant guilty beyond reasonable doubt of the crime charged.8
In the main, appellant insists that the trial court should not have given credence to
the story of the lone eyewitness for the prosecution. He also contends that since
the testimony of that witness bore clear traces of incredibility, particularly the fact
that he could not have had a clear view of the incident due to poor visibility, the
prosecution should have presented as well the woman who had called for help at
the height of the incident if only to corroborate Basal's narration of the events.
38
Appellant also assails as inherently incredible the fact that it took quite a time for
witness Felipe Basal to come forward and divulge what he knew to the authorities.
All these, unfortunately, are flawed arguments.
From the evidence in the case at bar, the prosecution has convincingly proved,
through the clear and positive testimony of Basal, the manner in which the victim
was killed by herein appellant. The record is bereft of any showing that said
prosecution witness was actuated by any evil motivation or dubious intent in
testifying against appellant. Moreover, a doctrine of long standing in this
jurisdiction is that the testimony of a lone eyewitness, if credible and positive, is
sufficient to convict an accused.9 There was thus no need, as appellant would want
the prosecution to do, to present in court the woman who shouted for assistance
since her testimony would only be corroborative in nature.
The presentation of such species of evidence in court would only be warranted
when there are compelling reasons to suspect that the eyewitness is prevaricating
or that his observations were inaccurate. 10 Besides, it is up to the People to
determine who should be presented as prosecution witness on the basis of its own
assessment of the necessity for such testimony. 11 Also, no unreasonable delay
could even be attributed to Felipe Basal considering that during the wake for Pfc.
Labine, Basal came and intimated to the widow of the victim that he was going to
testify regarding her husband's slaying. 12
Appellant's contention that the deceased had attacked and attempted to divest his
father of his firearm is rather preposterous considering that no reason was
advanced as to why the deceased patrolman would assault a police officer of
superior rank. Parenthetically, the condition of visibility at the time of the incident
was conducive not only to the clear and positive identification of appellant as the
victim's assailant but likewise to an actual and unobstructed view of the events that
led to the victim's violent death.
Basal was seated just a few meters away from the protagonists whom he all knew,
he being also a long-time resident of that municipality. There was a twelve-foot
high fluorescent lamppost located along the road and which, by appellant's own
reckoning, was just seventeen meters away from them. 13 Notwithstanding the fact
that a couple of trees partly obstructed the post, the illumination cast by the
fluorescent lamp and the nearby houses provided sufficient brightness for the
identification of the combatants.
Curiously enough, appellant's assertion that there was poor visibility is ironically
contradicted by his testimony which is detailed on facts that one could readily
recall after witnessing an event in broad daylight. While appellant considers
unbelievable Basal's identification of him supposedly because of inadequate
lighting, he himself, under the same conditions, could clearly see his father's
assailant wearing a fatigue uniform which was different from that worn by
policemen. He even asserts that he saw his father clutching the carbine with his
hands holding the butt while his purported assailant held on tightly to the
rifle. 14 What these facts establish is that the lights in the area at the time of the
incident were enough to afford Basal an excellent view of the incident, contrary to
appellant's pretense. Appellant's testimony is thus negated by the rule that
evidence, to be believed, must have been given not only by a credible witness, but
that the same must also be reasonably acceptable in itself.
Appellant's flight right after he had assaulted the victim is also corrosive of his
testimony. For, if it were true that he had merely labored under the wrong notion
that his father was being attacked by a member of the NPA, and that it was an
innocent case of error in personae, he could have readily surrendered to his father
right then and there. After all, Cecilio Abalos was a police major and was the
Station Commander of the Integrated National Police (INP) in Wright, Samar.
Further, there was no necessity at all for him to flee from the crime scene for fear
of retaliation considering that he was in the company of his own father who, aside
from his position, was then armed with a carbine. Appellant's explanation is,
therefore, absurd and should be considered as self-serving evidence with no
weight in law.
On the offense committed by appellant, the trial court correctly concluded that he
should be held accountable for the complex crime of direct assault with murder.
There are two modes of committing atentados contra la autoridad o sus
agentes under Article 148 of the Revised Penal Code. The first is not a
true atentado as it is tantamount to rebellion or sedition, except that there is no
public uprising. On the other hand, the second mode is the more common way of
committing assault and is aggravated when there is a weapon employed in the
attack, or the offender is a public officer, or the offender lays hands upon a person
in authority. 15
Appellant committed the second form of assault, the elements of which are that
there must be an attack, use of force, or serious intimidation or resistance upon a
person in authority or his agent; the assault was made when the said person was
performing his duties or on the occasion of such performance; and the accused
knew that the victim is a person in authority or his agent, that is, that the accused
must have the intention to offend, injure or assault the offended party as a person
in authority or an agent of a person in authority. 16
39
Here, Labine was a duly appointed member of the then INP in Catbalogan, Samar
and, thus, was an agent of a person in authority pursuant to Article 152 of the
Revised Penal Code, as amended. There is also no dispute that he was in the
actual performance of his duties when assaulted by appellant, that is, he was
maintaining peace and order during the fiesta in Barangay Canlapwas. Appellant
himself testified that he personally knew Labine to be a policeman 17 and, in fact,
Labine was then wearing his uniform. These facts should have sufficiently deterred
appellant from attacking him, and his defiant conduct clearly demonstrates that he
really had the criminal intent to assault and injure an agent of the law.
When the assault results in the killing of that agent or of a person in authority for
that matter, there arises the complex crime of direct assault with murder or
homicide. 18 The killing in the instant case constituted the felony of murder qualified
by alevosia through treacherous means deliberately adopted Pfc. Labine was
struck from behind while he was being confronted at the same time by appellant's
father. The evidence shows that appellant deliberately went behind the victim
whom he then hit with a piece of wood which he deliberately got for that purpose.
Obviously, appellant resorted to such means to avoid any risk to himself, knowing
fully well that his quarry was a policeman who could readily mount a defense. The
aggravating circumstances of evident premeditation and nocturnity, however, were
not duly proven, as correctly ruled by the court below. On the other hand,
appellant's voluntary surrender even if duly taken into account by the trial court
would have been inconsequential.
The offense is a complex crime, the penalty for which is that for the graver offense,
to be imposed in the maximum period. Considering that the more serious crime of
murder then carried the penalty of reclusion temporal in its maximum period to
death, the imposable penalty should have been death. The mitigating
circumstance, in that context, would have been unavailing and inapplicable since
the penalty thus imposed by the law is indivisible. 19 At all events, the punishment
of death could not be imposed as it would have to be reduced to reclusion
perpetua due to the then existing proscription against the imposition of the death
penalty. 20
However, the designation by the trial court of the imposable penalty as "life
imprisonment" is erroneous, as the same should properly be denominated
as reclusion perpetua. 21 Also, the death indemnity payable to the heirs of the
victim, under the present jurisprudential policy, is P50,000.00.
ACCORDINGLY, with the MODIFICATION that the penalty imposed upon
accused-appellant Tiburcio Abalos should be reclusion perpetua, and that the
death indemnity is hereby increased to P50,000.00, the judgment of the court a
quo in Criminal Case No. 2302 is AFFIRMED in all other respects, with costs
against accused-appellant.
SO ORDERED.
Romero, Puno, Mendoza and Torres, Jr., JJ., concur.
G.R. No. 109617 August 11, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX SION
@ "ELLET," and FEDERICO DISU @ MIGUEL," accused.
FELIPE SION @ "JUNIOR" and FEDERICO DISU @ "MIGUEL," accused-
appellants.
DAVIDE, JR., J.:
In its decision1 in Criminal Case No. D-10796 dated 20 January 1993, but
promulgated on 8 February 1993, Branch 44 (Dagupan City) of the Regional Trial
Court of the First Judicial Region decreed as follows:
WHEREFORE, the Court finds accused Felipe Sion alias "Junior" and
Federico Disu alias Miguel Disu guilty beyond reasonable doubt as
principals of the crime of Murder pursuant to Article 248 of the Revised
Penal Code, and in view of the attendance of the aggravating
circumstance of cruelty which is not offset by any mitigating circumstance,
the two accused are hereby sentenced to suffer the penalty of Reclusion
Perpetua, and to indemnify jointly the heirs of the victim the sum of
P50,000.00 and to pay the costs of the proceedings.
Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu are
ordered to pay jointly the heirs of the victim the sum of P11,910.00 as
actual damages.
40
SO ORDERED.
Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion, Jr.2 (hereafter
appellant Sion), and Federico Disu alias "Miguel" (hereafter appellant Disu),
seasonably appealed therefrom to this Court3 in view of the penalty imposed.4
The case against appellants commenced with the filing of a criminal complaint for
Murder5 on 19 November 1991 in Criminal Case No. 2141 (SP-91) before the
Fourth Municipal Circuit Trial Court of San Fabian-San Jacinto in the Province of
Pangasinan. Charged with appellants therein were Johnny Juguilon, Edong Sion,
Felix Sion alias "Ellet," and "four (4) other John Does." After appropriate
preliminary examination, Judge Sergio Garcia of said court issued a warrant for the
arrest of the accused with no bail fixed for their temporary liberty.6 However, the
warrant was served only on appellant Disu, while the rest then remained at large.
Upon appellant Disu's motion for bail, to which Asst. Provincial Prosecutor
Restituto Dumlao, Jr., recommended that bail be fixed at P40,000.00 for said
accused only, the court fixed said accused's bail at such amount; and upon filing
and approval of the bail bond, appellant Disu was ordered
released.7 Subsequently, one Atty. Fernando Cabrera filed, for the rest of the
accused, a motion to reduce the bail from P40,000.00 to
P20,000.00.8 As Provincial Prosecutor Dumlao agreed to a reduction of
P10,000.00, the court granted the motion and fixed bail at P30,000.00. None of
them, however, filed a bail bond.
For failure of the accused to submit the required counter-affidavits, the Municipal
Circuit Trial Court, finding probable cause against all the accused for the crime of
murder on the basis of the evidence for the prosecution, ordered the transmittal of
the record of the case, including the bail bond of accused Federico Disu, to the
Office of the Provincial Prosecutor of Pangasinan for appropriate action.9
On 21 January 1992, an Information 10 was filed with the Regional Trial Court
(RTC), First Judicial Region, in Dagupan City, Pangasinan, against appellants Sion
and Disu and Johnny Juguilon, Edong Sion, Felix Sion alias "Ellet," and four (4)
unidentified persons (designated as John, Peter, Richard and Paul Doe), accusing
them of the crime of murder committed as follows:
That on or about October 16, 1991 in the evening at Brgy. Binday,
municipality of San Fabian, province of Pangasinan, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, armed
with stones and a bladed weapon conspiring, confederating and mutually
helping one another with intent to kill with treachery and evident
premeditation did, then and there wilfully, unlawfully and feloniously hurl
 with stones, attack and stab Fernando Abaoag inflicting upon him the
following injuries:
— stab wound 1 1/2 inches in width, 9
inches in depth between 10-11 ICS, mid
axillary area slanting upwards hitting the
left lobe of the lung
— stab wound right lateral side of the
neck 1 1/2, inch in depth
— stab wound 1 1/2 inches in width, 1 1/2
in depth mid scapular area, left
— contusion superimposed abrasion left
eyebrow
which caused his instant death, to the damage and
prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code.
The information was docketed as Criminal Case No. D-10796 and assigned to
Branch 44 thereof.
On 2 June 1992, accused Sion was arrested. 11 Then on 10 June 1992, the RTC
annulled and voided the bail earlier granted to appellant Disu by the MCTC Judge
Sergio Garcia for luck of proper hearing, denied the motion for bail filed by
appellant Sion, and ordered their detention in jail.12
Since only appellants Sion and Disu were arrested, the case proceeded against
them only. Upon arraignment, both pleaded not guilty to the charge and waived
pre-trial.13
The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother and the
wife of the victim, respectively; Dr. Leopoldo Manalo, San Fabian Municipal Health
Officer; Rosendo Imuslan, barangay captain of Barangay Binday; and SPO1
Ricardo Abrio. On the other hand, the defense presented as its witness appellant
Disu; appellant Sion; Corazon Sion, wife of appellant Sion; and Dr. Leopoldo
Manalo.
41
The evidence for the prosecution as established by the testimonies of its witnesses
is partly summarized by the Office of the Solicitor General in the Brief for the
Appellee, as follows:
On or about 7:00 o'clock in the evening of October 16, 1991, Cesar
Abaoag was at the barangay road in front of his house situated in Binday,
San Fabian, Pangasinan. He was with his elder brother Carlos Abaoag
and Ricardo Manuel (p. 6, TSN, August 20, 1992) when all of a sudden,
Ronnie Manuel arrived coming from the west complaining that he was
being chased by Felipe Sion and Johnny Juguilon (p. 7, TSN, id.). On that
same occasion, Fernando Abaoag also arrived at the scene. He said to
Ronnie, "why Ronnie, you are making trouble again." The latter answered,
"I am not making trouble uncle because while I was inside the house of
Eling Alcantara, Felipe Sion and Johnny Juguilon were trying to stab me.
(p. 8, TSN, id.). Seconds later, Felipe Sion and Johnny Juguilon appeared
and started throwing stones. Fernando Abaoag told them to stop throwing
stones but before they desisted and left, one of them uttered "even you
Andong, you are interfering, you will also have your day, vulva of your
mother, you Abaoag[s]" (pp. 9-10, id.) Apparently, the utterance was
directed against Fernando Abaoag whose nickname is Andong.
Subsequently thereafter, at about 9:00 o'clock on that same evening,
Cesar Abaoag while inside his house lying down on his bed heard the
sound of stone throwing at the nearby house of his brother Fernando. He
went out to see who were throwing stones (14, TSN, id.). When already
near the house of Lolly Galdones, Cesar Abaoag saw his brother
Fernando already outside his house. He also saw Johnny Juguilon, one of
the members of the group of stone throwers, hurl a big stone against
Fernando. Upon being hit on the left eyebrow, Fernando turned his back
towards Felix Sion, Edong Sion and Miguel Disu who were also throwing
stones towards his direction. On the other hand, appellant Felipe Sion,
who was near the victim, with a very sharp double bladed dagger, stabbed
Fernando, first on the left side just below the armpit, then on the left
waistline and finally on the right side of the neck below the jaw (pp. 18-19,
TSN, id.).
Cesar tried to extend help to his brother but Miguel Disu hurled a stone on
him which landed on his right side below the armpit. When he heard Felipe
Sion shouting to his companions saying, "we will also kill Cesar," Cesar
desisted in helping brother (pp. 22-23, TSN, id.). Instead, he ran to his
brother's house and informed Felicitas, the wife, about the helpless
condition of Fernando (pp. 22-23, TSN, id.). Upon being informed, Felicitas
 accompanied by Carlos Abaoag, went to the place of the incident. The
assailants were no longer there. She only saw her husband lying prostate
on the ground very weak in the state of dying. When she inquired what
happened, Fernando answered "naalaak" which in English means "I was
hit" (pp. 4-5, TSN, July 27, 1992). Fernando told his wife that his assailants
were Felipe Sion, Miguel Disu, Edong Sion, Johnny Juguilon and Felix
Sion (p. 6, TSN, id.)
The victim was rushed to St. Blaise Hospital in San Fabian but he was
pronounced dead on arrival (pp. 24-25, TSN, August 20, 1992).
Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian,
Pangasinan conducted  post mortem examination (Exh. A) on the body of
the victim. The result of his findings showed that Fernando Abaoag
sustained the following injuries, to wit:
1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-11, ICS,
mid axillary area slanting upwards hitting the left lobe of the lung
2) stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 inch
in depth
3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left
4) contusion superimposed abrasion left eyebrow.14
Dr. Manalo further testified that the stab wounds were caused by a sharp-pointed
instrument, possibly a dagger, with the first wound hitting the lower lobe of the left
lung causing severe bleeding and its eventual collapse. He determined the cause
of death to be hemorrhagic shock secondary to multiple stab wounds.15
Barangay Captain Imuslan testified that he and Kagawad Fernando Gatchalian, on
the night of the incident, found a small bolo and a bloodied double-bladed weapon
(dagger) near the scene of the crime.16 Cesar Abaoag recognized this weapon as
the one used by appellant Sion in stabbing the
victim.17 On her part, Felicitas Abaoag declared that she spent more than
P11,000.00 for the wake and burial of her husband whose death saddened her,
she being left alone to take care of their children.18
In his defense, appellant Sion, brother and cousin of accused Edong19 Sion and
Felix Sion alias "Ellet," respectively, admitted that on the night in question, he
42
participated in a stone-throwing incident and "free-for-all rumble" between his
group (the Sions and Johnny Juguilon) on one hand, and the Abaoags and
Manuels, on the other. However, he professed his innocence, claiming that it was
his brother Edong Sion and Johnny Juguilon who stabbed the victim.20 His version
of the incident was summarized by the trial court, thus:
On October 16, 1991 at about 7:00 p.m., he, together with Johnny Juguilon
went to the house of Eling Alcantara as he wanted to talk with his son, his
friend. Ronnie Manuel was already there when they arrived. While at the
place, Johnny Juguilon and Ronnie Manuel came out and started fighting
with each other. Ronnie and Manuel ran and proceeded to the place of his
cousin. He was pacifying Johnny Juguilon and Ronnie Manuel but Johnny
Juguilon threw stones at Ronnie Manuel. At this point, Fernando Abaoag
intervened in the quarrel saying, "vulva of your mother Johnny, you are too
much, you will also have your day." Johnny Juguilon answered "vulva of
your mother Andoy, do not interfere because you are not our enemy." After
the verbal exchange, he took Johnny Juguilon to their (Sion's) house . . . .
At about 9:00 p.m., that same evening, they stoned their house, its sides
and the stairs. He and Idong and Johnny Juguilon looked for Cesar
Abaoag, Ronnie Manuel, Ricky Manuel, Andong Abaoag and two (2) other
companions. They were at the place of Marta Soriano. After that, they still
threw stones towards them. There was a free for all rumble between
Ronnie Manuel, Ricky Manuel, the Abaoags and Idong Sion, and Johnny
Juguilon, Ellet Sion and himself, in front of the house of Loly Galdones. He
denied the testimony of Cesar Abaoag that he stabbed Fernando Abaoag
three times and before he was stabbed Johnny Juguilon stoned him
(Fernando Abaoag). It was Idong Sion and Johnny Juguilon who stabbed
Fernando Abaoag. After Fernando Abaoag was stabbed, they ran away.
His group also ran away. He went home and rushed towards Johnny
Juguilon because he was stabbed. He brought Juguilon to the St. Blaise
Clinic and Hospital. He did not report the incident to Barangay Captain
Rosendo Imuslan. On October 17, 1:00 p.m., he presented himself to
Kagawad Lagman who brought him to the Police Station . . . .21
In his defense, appellant Disu offered denial and alibi. He declared that he had no
participation in the killing of Fernando Abaoag, and during the whole night of 16
October 1991, while the quarrel, stoning and stabbing incidents in question were
taking place, he was resting and sleeping in the house of his employer, Felicidad
Gatchalian, after driving the latter's jeepney the entire day. However, before
proceeding home from work that afternoon, he went to the store of Oping Juguilon
to buy cigarettes and dropped by the house of appellant Sion where he stayed for
about five minutes. He only learned about the killing the following morning when he
was told that he was one of the suspects. He was arrested about a month after the
incident.22
On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar asserted
that neither his brothers, the Manuels nor himself threw stones at Sion's house;
there was no free-for-all fight between the Sions and the Abaoags; Johnny
Juguilon and Edong Sion merely threw stones at, but did not stab, Fernando
Abaoag; and it was only appellant Sion who stabbed Fernando Abaoag.23
After the conclusion of trial, the court granted appellants' motion to file a
memorandum within fifteen days. Despite the extension given, appellants' counsel
did not file the memorandum. Thus, in its order of 11 December 1992, the trial
court declared the case submitted for decision. 24
On 8 February 1993, the trial court promulgated its decision,25 the dispositive
portion quoted in the introductory paragraph of this ponencia.
As to the culpability of appellants Sion and Disu, the trial court found:
The defense of accused Federico Disu alias Miguel Disu and Felipe
Rodriguez Sion, Jr. deserve scant consideration. Cesar Abaoag narrated
in detail how his brother Fernando Abaoag was stoned by accused Johnny
Juguilon, Federico Disu and Felix Sion and how accused Felipe Sion
stabbed Fernando Abaoag three times. Cesar Abaoag saw Johnny
Juguilon throw stone hitting the left eyebrow of Fernando Abaoag, and
when his brother (Fernando Abaoag) turned left, accused Federico
Disu alias Miguel Disu, Idong Sion and Felix Sion simultaneously threw
stones toward him (Fernando Abaoag). Then, at a distance of two (2)
meters, Cesar Abaoag saw accused Felipe Sion stab Fernando Abaoag
three times, hitting the left side below the armpit, then on the left waistline
and the right side of the neck below the jaw of the deceased with the use
of a sharp double bladed dagger.
Cesar Abaoag could not be mistaken in the identification because he was
two meters away when he saw the accused Felipe Sion stab his brother,
and, moreover, there was a light illuminating the place of the incident
coming from the houses of Marta Soriano and Loly Caldones. Cesar
Abaoag identified the dagger (Exhibit D).
The narrations of Cesar Abaoag are bolstered by the testimony of Dr.
Leopoldo Manalo, the doctor who conducted the postmortem examination
43
on the cadaver of Fernando Abaoag. Dr. Manalo stated that "stab wound 1
1/2 inches in width, 9 inches in depth between 10-11 ICS, mid-axillary area
slanting upwards hitting the left lobe of the lung" is located below the left
armpit. The second stab wound, "stab wound right lateral side of the neck
1 1/2 inches in width, 1 1/2 in depth," is located at the right side of the
nec[k] at the back. The doctor stated that the wounds were caused
possibly by a dagger.
Finally, it is well to quote the statement uttered by Fernando Abaoag in the
presence of Felicitas Abaoag, to wit: "naalaak, which means, I was hit,
take note of this because I cannot survive these injuries of mine".
Fernando Abaoag told Felicitas Abaoag, Felipe Sion, Miguel Disu, Idong
Sion, Johnny Juguilon and Felix Sion stabbed him. (2-12 tsn July 27,
1992). This is a dying declaration because it was made under a
consciousness of impending death (Section 37, Rule 130, Rules of
Court). 26
The trial court likewise found that conspiracy was duly established by the
prosecution, thus:
As stated in the decision, accused Johnny Juguilon threw stone, hitting the
left eyebrow of Fernando Abaoag, and Edong Sion, Felix Sion and
Federico (Miguel) Disu simultaneously threw stones upon the deceased,
while accused Felipe Sion alias "Junior" stabbed him (victim) three times,
resulting in the latter's death.27
It then appreciated against appellants (a) the qualifying circumstance of treachery
because the "attack was so sudden that the victim had no time to defend himself"
and (b) the generic aggravating circumstance of cruelty because "there were three
stab wounds" and the first wound — which "caused severe bleeding and collapse
of the lung" and the death of Fernando Abaoag — "was deliberately augmented by
inflicting the other wounds which are unnecessary for its commission."28 It did not,
however, appreciate evident premeditation for lack of "substantial" evidence;29 nor
give the benefit of voluntary surrender in favor of appellant Sion since his
surrender was merely "forced by circumstances," as he "presented himself to
Kagawad Lagman because he was suspected as one of the persons who stabbed
the victim."30
Appellants, through counsel, seasonably filed their Notice of Appeal.31
In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L.
Bonifacio,32 appellants plead for their acquittal, contending that the trial court erred:
(1) in convicting them of murder; (2) in taking into account the aggravating
circumstance of cruelty; (3) in ruling that conspiracy was established; (4) in not
appreciating the presence of voluntary surrender; and (5) in disregarding the
defense of appellant Sion that it was Edong Sion and Johnny Juguilon who were
responsible for the death of Fernando Abaoag.
In support of their first assigned error, appellants attack the identification made of
them by prosecution witnesses. They claim that if witness Cesar Abaoag actually
saw appellant Sion stab the victim, then Cesar should have immediately informed
Felicitas Abaoag, the victim's wife, of this fact. Cesar's failure was then unusual
and unnatural. Then, too, Felicitas Abaoag's testimony on her husband's alleged
dying declaration was "not specific" as far as the assailant's identities were
concerned because the victim merely said "naalaak" ("I was hit"), without
identifying appellant Sion as the one who stabbed him; and, her claim that her
husband identified all the five (5) accused as the ones who "stabbed" him was "an
impossibility." Moreover, the prosecution witnesses were limited to relatives of the
victims; "other vital witnesses" — such as Marta Soriano, Loly Galdones, or Eling
Alcantara — should have been presented to corroborate the "biased" testimonies
of Cesar and Felicitas Abaoag.
Appellants further contend that: (1) there was no treachery since the stabbing of
the victim was not "sudden"; (2) cruelty was not proven because "there is no clear
testimony" that the first stab wound was fatal and the second and third wounds
were "unnecessary"; (3) conspiracy cannot be deduced from the mere fact that all
the accused threw stones at the victim before the stabbing; (4) appellant Sion
voluntarily surrendered even before the police started investigating the case when
he was not yet a suspect; and (5) appellant Sion could not have testified that it was
Edong Sion and Johnny Juguilon who stabbed the victim if such were not true,
considering that the former is his brother and the latter his barriomate; and (6)
appellant Sion bore no grudge against the victim and did not escape.
On the other hand, the Office of the Solicitor General, in its Brief for the Appellee,
supports the trial court's findings and conclusions, except as to the appreciation of
cruelty, which it concedes to be erroneous.
Our careful review of the record of the evidence adduced by the parties convinces
us that prosecution witness Cesar Abaoag positively identified appellants as being
present during the incident in question and saw appellant Sion stab the victim
thrice. As correctly found by the trial court:
44
Cesar Abaoag could not be mistaken in the identification because he was
two meters away when he saw the accused Felipe Sion stab his brother,
and, moreover, there was a light illuminating the place of the incident
coming from the houses of Marta Soriano and Loly Caldones. Cesar
Abaoag identified the dagger (Exhibit D).
Cesar Abaoag also saw the rest of the accused, including appellant Disu, throwing
stones at the victim. He was definite, however, that it was only accused Johnny
Juguilon who was able to hit the victim at the left eyebrow. The three stab wounds
inflicted by appellant Sion and the injury at the left eyebrow caused by the stone
thrown by Juguilon jibed with the post mortem findings of Dr. Manalo as he
described the injury on the left eyebrow as "contusion superimposed abrasion left
eyebrow."33 If Cesar had any ulterior motive to testify against appellant Disu, he
could have declared that it was Disu, and not Juguilon, who hit the victim with a
stone. Cesar then honestly narrated what he observed.
That Cesar did not at once inform Felicitas Abaoag that it was appellant Sion who
stabbed her husband, was not proof, as appellants suggest, that Cesar was absent
from the crime when it was committed. Cesar's presence was admitted by
appellant Sion himself on direct examination, thus:
Q Did you see Cesar Abaoag on that occasion anywhere
near Fernando Abaoag when you said he was stabbed by
Johnny Juguilon and Idong Sion?
A Yes, sir. 34
Furthermore, Cesar satisfactorily explained his failure to forthwith inform Felicitas
of this fact. At that time, Cesar himself was running away from the accused who
had hit him with a stone. His pressing concern then was to get someone to help his
wounded brother; besides, he was scared of accused Felix Sion, uncle of appellant
Sion, who was a "notorious" character in their neighborhood.35 It is settled that
delay in divulging the name of the perpetrator of a crime, if sufficiently explained,
does not impair the credibility of the witness nor destroy its probative value.36 In
any event, in his sworn statement37 which was submitted on 22 October 1991
before Judge Sergio Garcia, he narrated what he had witnessed and mentioned
appellants Sion and Disu as among the perpetrators of the crime.
The identifications of appellants and their co-accused were further bolstered by the
declaration made by the victim to his wife, Felicitas Abaoag. The trial court
correctly characterized this as a "dying declaration,"38 having been made under the
consciousness of impending death. The victim was already weak his wife saw him
and he knew that he would not survive the injuries he sustained; he even died a
few minutes later while on the way to the hospital.39 When Felicitas saw her
husband, he told her what had happened to him, who caused his injuries and that
he did not expect to live, thus:
Q What happened next after that when you met your
husband?
A Immediately asked him what happened to him.
Q And what was the answer of Fernando Abaoag?
A He said, "naalaak," which means, I was hit.
COURT:
Q Did you ask him why he said "naalaak"?
A He said he was stabbed and he was injured.
Q What do you mean by word "naalaak"?
A I was hit.
COURT:
Proceed.
PROSECUTOR DUMLAO:
Q Do you know the reason why he was hit?
A What I understand is that in the course of his pacifying
the trouble between his nephew and the rest, he was
stabbed, sir.
Q Aside from the statement of your husband Fernando
Abaoag that he was hit, what else did he say, if you know?
45
A He said, take note of this because I know I cannot
survive with these injuries of mine.
COURT:
Q What else did he tell you aside from that?
A He said, remember that in case I cannot survive with
the injuries that I sustained, the men who stabbed me are
Felipe Sion, Miguel Disu, Idong Sion, Johnny Juguilon
and Felix Sion, sir.  40  (emphasis supplied)
We find these statements given by the victim to his wife to have met the requisites
of a dying declaration under Section 37 of Rule 130 of the Rules of Court, viz: (a)
death is imminent and the declarant was conscious of that fact; (b) the preliminary
facts which bring the declaration within its scope must be made to appear; (c) the
declaration relates to the facts or circumstances pertaining to the fatal injury or
death; and (d) the declarant would have been competent to testify had he
survived.41 Dying declarations are admissible in evidence as an exception to the
hearsay rule because of necessity and trustworthiness. Necessity, because the
declarant's death renders impossible his taking the witness stand, and it often
happens that there is no other equally satisfactory proof of the crime;
and trustworthiness, for it is "made in extremity, when the party is at the point of
death and every hope of this world is gone; when every motive to falsehood is
silenced, and the mind is induced by the most powerful consideration to speak the
truth.42 We find no ulterior motive on the part of Felicitas to fabricate the
declarations of her husband.
We likewise find to be without basis appellants' claim that all the prosecution
witnesses were biased due to their relation to the victim's family. Plainly, witnesses
Imuslan (the barangay captain) and Dr. Manalo were not related to the victim,
while the relationship of witnesses Cesar Abaoag and Felicitas Abaoag to the
victim, as brother and wife, respectively, neither disqualified them as witnesses nor
rendered their testimony unworthy of belief. It is not to be lightly supposed that
relatives of the deceased would callously violate their conscience to avenge the
death of a dear one by blaming it on persons whom they believe to be innocent
thereof.43 A witness' relationship to a victim, far from rendering his testimony
biased, would even render the same more credible as it would be unnatural for a
relative who is interested in vindicating the crime to accuse somebody other than
the real culprit.44
Neither was the failure of the prosecution to present other witnesses, such as
those mentioned by the appellants, fatal to the cause of the People. It is well-
settled that the decision as whom to present as witnesses for the prosecution is
addressed to the sound discretion of the prosecutor handling the case and the
non-presentation of certain witnesses by the prosecution is not a plausible
defense.45 The prosecution is not obliged to present all possible witnesses,
especially if their testimony will only serve to corroborate that of another
eyewitness' testimony, in which case the former may every well be dispensed with
considering that the testimony of a single witness, if credible and positive to prove
the guilt of the accused beyond reasonable doubt, would suffice.46
The trial court correctly rejected appellant Sion's defense that it was not he who
stabbed the victim, but his brother Edong Sion and Johnny Juguilon, both of whom
fled after the incident. Constituting a mere denial of Cesar Abaoag's positive
testimony that it was appellant Sion who stabbed the victim, such must fail in light
of the settled rule of evidence that positive testimony is stronger that negative
testimony.47 Moreover, the claim was made rather late in the day, casting serious
doubt as to its veracity. From the time that appellant Sion presented himself to
Kagawad Lagman and the police authorities on 17 October 1991, and during his
subsequent incarceration, he never told anyone nor made any statement that he
was not one who stabbed the victim; he did not even so inform his close relatives,
not even his wife who visited him in jail.48 Also, during the preliminary investigation,
when he had the opportunity to submit counter-affidavits and other evidence to
refute the charges, he did not care to dispute the statements of Felicitas and Cesar
Abaoag identifying him and detailing his participation in the crime.49 He raised this
claim for the first time only during his testimony in court almost one (1) year after
the stabbing incident and his initial surrender, and notably, only after the hope of
apprehending Idong Sion and Johnny Juguilon, together with the other accused,
already seemed remote. Such failure to immediately disclose the information as
soon as he was implicated in the crime and his prolonged silence on a vital matter
hardly inspire belief, being unnatural and inconsistent with ordinary habits of men
and common experience.
That appellant Sion did not flee, unlike his brother Edong and Johnny Juguilon,
neither proved his innocence. Non-flight — unlike flight of an accused which validly
serves as a badge of guilt — is simply inaction which may be due to several
factors; hence, it should not be construed as an indication of innocence.50
Appellant Sion's claim of lack of ill-feeling or grudge against Fernando Abaoag was
belied and contradicted by his admission in court that just before the stabbing of
the victim, he and his co-accused hurled stones at and fought with the Abaoags,
including Fernando, whom he blamed for allegedly stoning his house. 51 It is also
46
belied by his actuation and utterance made earlier in the evening of 16 October
1991 when Fernando Abaoag interfered in the quarrel between appellant Sion and
Fernando's nephew, Ronnie Manuel, which prompted appellant Sion and Johnny
Juguilon to curse and warn Fernando, thus: "even you Andong [Fernando Abaoag]
you are interfering, you are siding with your nephew Ronnie Manuel, you have also
your day . . . . you Abaoags."52 Appellant Sion also admitted that he "had an ill-
feeling towards" Ronnie Manuel, the victim's nephew, because "he was making
trouble" inside his jeepney "5 days before the incident."53
In light of the positive identification of appellants, appellant Disu's alibi must fail.
It is settled that alibi is a weak defense for it is easy to concoct and fabricate; it
cannot prevail over and is worthless in the face of the positive identification by
credible witnesses that an accused perpetrated the crime.54 We are unable to
discern any plausible reason, and appellant Disu does not offer any, why he
should be falsely implicated by Cesar Abaoag and mentioned in the victim's dying
declaration as one of the victim' assailants, if appellant Disu was not actually
present during the incident and had no participation in the commission of the
crime. As to his motive or lack thereof, appellant Disu claims that he had no
misunderstanding with Fernando Abaoag or his family.55 However, Felipe Sion, Jr.,
disclosed that appellant Disu was close to the Sion clan, which explains why
appellant Disu sympathized with and joined the Sions and Juguilon in assaulting
the victim: Federico Disu was Sion Jr.'s jeepney conductor for five (5) months, the
latter teaching the former how to drive for three (3) months; and when Disu
became a driver himself, they had the same route and saw each other every day at
the poblacion.56 Disu even admitted that on 16 October 1991, after 5:00 p.m., he
"dropped by" the house of Felipe Sion, which he often did before.57
We now rule on the presence or absence of conspiracy. There is conspiracy when
two or more persons come to an agreement concerning the commission of a felony
and decide to commit it.58 Direct proof of a previous agreement to commit a crime
is not necessary; it may be deduced from the mode and manner in which the
offense was perpetrated, or inferred from acts of the accused themselves when
such point to a joint purpose design, concerted action and community of
interest.59 Once conspiracy is established, the act of one is the act of all.60
In this case, appellants and the other accused were already at the barangay road
of Binday, near the houses of Lolly Galdones and Marta Soriano, when Fernando
Abaoag, who was looking for the persons who just stoned his house several times,
and Cesar Abaoag, arrived. Immediately, Johnny Juguilon threw a stone at
Fernando hitting him on the left eyebrow; then, Edong, and Felix Sion and
appellant Disu, "simultaneously" threw stones, also at Fernando. As Fernando
turned away from his assailants, appellant Sion "rushed" and stabbed the victim
three (3) times, even as the latter raised his arms saying, "I will not fight back."
When Cesar Abaoag tried to help his brother Fernando, appellant Disu threw and
hit Cesar with a stone. Appellant Sion then commanded his companions to also kill
Cesar, prompting the latter to run away. Then the assailants fled, leaving behind a
small bolo and a dagger. The confluence of their acts indubitably manifested a
community of interest and unity of purpose and design to take Fernando Abaoag's
life.
We also find to be unsupported by evidence appellant's claim, through the
testimony of appellant Sion, that the fatal stabbing of Fernando Abaoag was a
result of a "free-for-all rumble," thereby possibly tempering their liability to that of
causing death in a tumultuous affray under Article 251 of the Revised Penal Code,
which carries a penalty lower than that for homicide.61 In this case, it was
ascertained beyond doubt that appellant Sion inflicted the fatal stab wounds;
hence, this claim must be rejected.
Having resolved appellants' liability for Fernando Abaoag's death, we now rule on
the circumstances attendant to the commission of the crime.
In convicting appellants of murder, the trial court considered the qualifying
circumstance of treachery, and disregarded the qualifying circumstance of evident
premeditation, which was likewise alleged in the information. We agree as to the
latter as the prosecution failed to prove the essential elements of evident
premeditation, viz: (a) the time when appellants determined to commit the crime;
(b) an act manifestly indicating that they clung to their determination; and (c) a
sufficient lapse of time between such determination and execution to allow them to
reflect upon the consequences of their act.62
We disagree, however, with the trial court's finding as regards the qualifying
circumstance of treachery. Under the law, there is treachery when the offender
commits any of the crimes against the person, employing means, methods, or
forms in the execution thereof which tend directly or specifically to ensure its
execution, without risk to himself arising from the defense which the offended party
might make.63 We find no clear and convincing evidence of treachery. Cesar
Abaoag's testimony as to how his brother was attacked lacks sufficient detail
showing conclusively that the mode and manner of the assault rendered the victim
entirely defenseless. He merely testified that when he and his brother proceeded
west of the barangay road of Binday, he saw Johnny Juguilon stone his brother
and hit him on the left eyebrow. Fernando Abaoag then turned to the left with his
back towards Felix Sion, Edong Sion, Miguel Disu and the four (4) other
unidentified companions, who then "simultaneously" threw stones at Fernando.
47
"Seconds later," Cesar saw appellant Sion holding a very sharp double bladed
dagger and stab his brother three (3) times; Fernando Abaoag, when stabbed,
"was just standing and said 'I will not fight.'"64 They were six (6) meters away from
Johnny Juguilon when the latter first hurled a stone at Fernando which signaled
the other accused to the same.65
Considering therefore the distance between the assailants and the victim when the
attack commenced, and the fact the three were two (2) waves of stoning which
preceded the stabbing of the victim, these should have sufficiently forewarned him
of the greater danger which loomed and prompted him to escape. Moreover, in
light of the absence of clear details showing conclusively that the stabbing was
inflicted from behind or the victim was entirely helpless when stabbed, we are not
prepared to conclude that the attack was "so sudden and unexpected" as to render
the victim entirely defenseless. Treachery cannot qualify the killing to murder when
the victim was forewarned of the attack by the assailant, or when the attack was
frontal, or the attack was not so sudden as to have caught the deceased
completely unaware.66 Furthermore, the evidence does not disclose that the means
of execution were deliberately or consciously adopted by appellants.
Absent then of any qualifying circumstance, the crime committed was homicide as
defined and penalized under Article 249 of the Revised Penal Code.
The trial court likewise erred in appreciating against appellants the generic
aggravating circumstance of cruelty,67 based solely on the fact that the victim was
stabbed thrice, with the first stab wound hitting the lower left lung causing severe
bleeding and its collapse. In fact, appellee concedes this error of the trial court.
Cruelty cannot be appreciated in absence of any showing that appellants, for their
pleasure and satisfaction, caused the victim to suffer slowly and painfully and
inflicted on him unnecessary physical and moral pain; and, the mere fact that
wounds in excess of what was indispensably necessary to cause death were found
on the body of the victim does not necessarily imply that such wounds were
inflicted with cruelty and with the intention of deliberately intensifying the victim's
suffering.68 In the instant case, the evidence only shows that the three (3) stab
wounds were delivered in succession, nothing more.
We agree with appellants that appellant Sion is entitled to the benefit of the
mitigating circumstance of voluntary surrender, which requires that "the offender
voluntarily surrendered himself to a person in authority."69 Its requisites are: (a) the
offender had not been actually arrested; (b) the offender surrendered himself to a
person in authority or to the latter's agent; and (c) the surrender was
voluntary.70 For a surrender to be voluntary, it must be spontaneous and show the
intent of the accused to submit himself unconditionally to the authorities, either: (1)
because he acknowledges his guilt; or (2) because he wishes to save them the
trouble and expense incidental to his search and capture.71
As shown by the records, in the afternoon of 17 October 1991, appellant Sion
"presented" himself to Kagawad Modesto Lagman who, in turn, "escorted and
surrendered" him to the police in the poblacion.72 His admission that he
surrendered because he was already suspected as one of the perpetrators of the
crime does not make his surrender "forced by circumstances" as ruled by the trial
court. His arrest at that time was neither imminent nor inevitable. At the time of his
surrender, no warrant of arrest against him had yet been issued, the same having
been issued only on 19 November 1991.73 In fact, he was released from custody
after a few days, and was ordered committed to jail only sometime in June 1992,
after his motion for bail was denied by the trial court on 10 June 1992 and was
thus taken into custody.74 This subsequent fact should not diminish nor erase the
favorable effect of Felipe Sion Jr.'s voluntary surrender on 17 October 1991. As
has been held, whatever the accused's reason for surrendering — either the fear
of reprisal from victim's relatives or, in this case, his knowledge that he was
already a suspect — "does not gainsay the spontaneity of the surrender, nor alter
the fact that by giving himself up, he saved the State the time and trouble of
searching for him until arrested."75
entitled to the mitigating circumstance of voluntary surrender, and applying the
Indeterminate Sentence Law, they are sentenced, respectively, to suffer an
indeterminate penalty ranging from eight (8) years of  prison mayor minimum, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal as
maximum, and an indeterminate penalty ranging from ten (10) years and one (1)
day of  prision mayor maximum, as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal minimum as maximum, with all the
accessory penalties therefor, and subject to the provision of Article 29 of the
Revised Penal Code. Except as so modified, the rest of the challenged judgment
stands.
Costs against accused-appellants.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

We disagree with Appellee's submission that there was no voluntary surrender

because appellant Sion surrender to a mere barangay "Kagawad" or Sangguniang
Barangay member, and not to the police authorities, implying that the former is not
a person in authority.76 This ignores Section 388 of the Local Government Code of
1991 which expressly provides, in part, that "[f]or purposes of the Revised Penal
Code, the punong barangay, sangguniang barangay members, and members of
the lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdictions . . . ."77 This law expands the definition of a person in
authority under the Revised Penal Code, wherein among the barangay officials,
only the barangay captain or chairman, now called Punong Barangay, is expressly
considered a person in authority, as provided in Article 152 thereof. Thus, in
addition to the Punong Barangay, the members of the Sangguniang Barangay, or
Kagawads, and members of the Lupong Tagapayapa are now considered not
merely as agents of, but as persons, in authority.78

WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the

Regional Trial Court of the First Judicial Region in Criminal Case No. D-10796 is
MODIFIED. As modified, appellants FELIFE SION, alias "JUNIOR" or FELIFE
RODRIGUEZ, JR., and FEDERICO DISU, alias "MIGUEL," are hereby declared
GUILTY beyond reasonable doubt, as principals, of the crime of HOMICIDE as
defined and penalized in Article 249 of the Revised Penal Code, with the former
48

G.R. No. 107383 December 7, 1994
FELIX NIZURTADO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
Melquiades P. De Leon for petitioner.
Eugene C. Paras collaborating counsel for the petitioner.
VITUG, J.:
An information, accusing Felix Nizurtado of having committed the complex crime of
malversation of public funds through falsification of public document, reads:
That on or about August 25, 1983, and for sometime prior or subsequent thereto,
in the City of Caloocan, Philippines and within the jurisdiction of this Honorable
Court, the abovenamed accused, a public officer, being then the Barangay Captain
of Panghulo, Malabon, Metro Manila, did then and there, willfully, unlawfully and
feloniously falsify and attest Resolution No. 17 Series of 1983 by making it appear
that on August 25, 1983 the Barangay council of Panghulo met and identified T-
shirt manufacturing as its livelihood project, when in truth and in fact, as the
accused fully well knew, no such meeting was held, where T-shirt manufacturing
was identified and approved by the Barangay Council as its livelihood project, and
thereafter, accused submitted the falsified resolution to the MHS-MMC-KKK
Secretariat which endorsed the same to the Land Bank of the Philippines, which
on the basis of said endorsement and the falsified resolution, encashed LBP check
No. 184792 in the amount of TEN THOUSAND PESOS (P10,000.00), which check
was earlier received by him as Barangay Captain of Panghulo in trust for the
Barangay for its livelihood project and for which fund accused became
accountable, and upon receipt thereof herein accused, with deliberate intent and
grave abuse of confidence did then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert to his own personal use and benefit the
amount of TEN THOUSAND PESOS (P10,000.00) out of the funds for which he
49
was accountable, to the damage and prejudice of the government in the said
amount.
CONTRARY TO LAW. 1
When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to the
charge. During the pre-trial, held on 17 July 1989, the prosecution and the defense
stipulated thusly:
1. That sometime in 1983 and 1984, accused Felix Nizurtado was the Barangay
Captain of Barangay Panghulo of Malabon, Metro Manila and discharged his
functions as such;
2. That sometime in 1983, the Ministry of Human Settlements, the Metro Manila
Commission and Kilusang Kabuhayan at Kaunlaran (KKK) undertook a Livelihood
Program for Barangays in Metro Manila consisting of loans in the amount of P10,
000.00 per barangay.
3. That as Barangay Captain of Barangay Panghulo, accused received a check in
the amount of P10,000.00 for said barangay's livelihood program;
4. That the check, to be encashed, had to be supported by a project proposal to be
approved by the KKK;
5. That the accused encashed the check received by him in the amount of
P10,000.00 with the Land Bank of the Philippines; and
6. That the accused distributed the amount of P10,000.00 in the form of loans of
P1,000.00 each to members of the barangay council. 2
After evaluating the evidence adduced, the Sandiganbayan came out with its
factual findings and conclusions, hereunder detailed:
It appears from the evidence, testimonial and documentary, as well as from the
stipulations of the parties that accused Felix V. Nizurtado was the Barangay
Captain of Barangay Panghulo, Malabon, Metro Manila from 1983 to 1988.
In April or May 1983, Nizurtado and Manuel P. Romero, Barangay Treasurer of
Panghulo, attended a seminar at the University of Life, Pasig, Metro Manila. The
seminar was about the Barangay Livelihood Program of the Ministry of Human
Settlements (MHS), the Metro Manila Commission (MMC), and the Kilusang
Kabuhayan at Kaunlaran (KKK). Under the program, the barangays in Metro
Manila could avail of loans of P10,000.00 per barangay to finance viable livelihood
projects which the Barangay Councils would identify from the modules developed
by the KKK Secretariat or which, in the absence of such modules, the Councils
would choose subject to the evaluation/validation of the Secretariat.
After the seminar, Nizurtado received a check for P10,000.00 intended for
Barangay Panghulo and issued in his name. The check, however, could be
encashed only upon submission to the Secretariat of a resolution approved by the
Barangay Council identifying the livelihood project in which the loan would be
invested. He entrusted the check to Romero for safekeeping.
In one of its regular sessions, which was on the second Saturday of each month,
the Barangay Council of Panghulo discussed the project in which to invest the
P10,000.00. Among the proposals was that of Romero that a barangay service
center be established. But the meeting ended without the Councilmen agreeing on
any livelihood project.
A few days after the meeting, Nizurtado got back the check from Romero, saying
that he would return it because, as admitted by Nizurtado during the trial, the
Councilmen could not agree on any livelihood project. Nizurtado signed a receipt
dated August 4, 1983, for the check "to be returned to the Metro Manila
Commission."
After a few more days, Nizurtado asked Romero to sign an unaccomplished
resolution in mimeograph form. All the blank spaces in the form were unfilled-up,
except those at the bottom which were intended for the names of the Barangay
Councilmen, Secretary, and Captain, which were already filled-up and signed by
Councilmen Marcelo Sandel, Jose Bautista, Alfredo Aguilar, Alfredo Dalmacio,
F.A. Manalang (the alleged Barangay Secretary), and Nizurtado. In asking Romero
to sign, Nizurtado said that the MMC was hurrying up the matter and that the
livelihood project to be stated in the resolution was that proposed by Romero —
barangay service center. Trusting Nizurtado, Romero affixed his signature above
his typewritten name. When he did so, the blank resolution did not yet bear the
signatures of Councilmen Santos Gomez and Ceferino Roldan.
The blank resolution having already been signed by Romero, Nizurtado asked him
to talk with Gomez and secure the latter's signature. Romero obliged and upon his
pleading that his proposed barangay service center would be the one written in the
blank resolution, Gomez signed. But before he returned the resolution, he had it
machine copied. The machine copy is now marked Exhibit J.
Unknown to Romero and Gomez, the blank but signed resolution was later on
accomplished by writing in the blank space below the paragraph reading:
50
WHEREAS, the Barangay Council now in this session had already identified one
livelihood project with the following title and description:
the following:
Title : T-shirt Manufacturing
Description : Manufacture of round neck T-shirts of
various sizes and colors.
The other blank spaces in the resolution were also filled-up. Thus "Panghulo,"
"Brgy. Hall," and "August 25, 1983" were typewritten in the spaces for the name of
the Barangay, the place where and the date when the council meeting took place,
respectively. In the blank spaces for the names of the members of the Council who
attended the meeting were typewritten the names of
Felix Nizurtado Barangay Captain
Marcelo Sandel Barangay Councilman
Alfredo Aguilar Barangay Councilman
Santos Gomez Barangay Councilman
Jose Bautista Barangay Councilman
Alfredo Dalmacio Barangay Councilman
Ceferino Roldan Barangay Councilman
The word "none" was inserted in the space intended for the names of the
Councilmen who did not attend. The resolution was given the number "17" series
of "1983." Finally, the last line before the names and signatures of the Councilmen
was completed by typewriting the date so that it now reads:
UNANIMOUSLY APPROVED this 25th day of August, 1983.
The resolution as fully accomplished is now marked Exhibit D.
Other supporting documents for the encashment of the check of P10,000.00 were
also prepared, signed, and filed by Nizurtado. They were: Project Identification
(Exhibit B), Project Application in which the borrower was stated to be Samahang
Kabuhayan ng Panghulo (Exhibit C and C-1), Project Location Map (Exhibit E),
and Promissory Note
(Exhibit F).
The application for loan having been approved, the Promissory Note (Exhibit F)
was re-dated from August to October 18, 1983, placed in the name of the
Samahang Kabuhayan ng Panghulo represented by Nizurtado, and made payable
in two equal yearly amortizations of P5,000.00 each from its date. The purpose of
the loan was stated to be
T-Shirt Manufacturing of round neck shirts of various sizes and colors.
Nizurtado encashed the check on the same day, October 18, 1983, and re-lent the
cash proceeds to himself, Sandel, Aguilar, Bautista, Dalmacio, and Roldan at
P1,000.00, and to Manalang and Oro Soledad, Barangay Court Secretary and
Barangay Secretary, respectively, at P500.00 each.
On April 25, 1984, Nizurtado who was then on leave wrote Sandel, then acting
Barangay Captain, informing him that per record, he, Romero, and Gomez had not
made any remittance for the account of their P1,000.00 loans from the barangay
livelihood fund of P10,000.00 and advising him to collect, through the Secretary or
Treasurer.
Since Romero and Gomez had not borrowed any amount from the said fund, they
told Sandel to ask Nizurtado if he had any proof of their alleged loans. So Sandel
wrote Nizurtado on May 2, 1984, but the latter did not answer.
This attempt to collect from Romero and Gomez prompted them to make inquiries.
They learned that the check for P10,000.00 was indeed encashed by Nizurtado
and that the blank resolution which they had signed was filled-up to make it appear
that in a Council meeting where all councilmen were present on August 25, 1983,
T-shirt manufacturing was adopted as the livelihood project of Panghulo. But no
such meeting occurred on that day or on any other day. Neither was Nizurtado
authorized by the Council to submit T-shirt Manufacturing as the livelihood project
of Panghulo.
On August 9, 1984, Romero and Gomez lodged their complaint against Nizurtado
with the Office of the Tanodbayan. After due preliminary investigation, this case
was filed.
As of September 7, 1984, the members of the Council who had received
P1,000.00 each, as well as Bacani (also referred to as Manalang) and Soledad
who had received P500.00 each had paid their respective loans to Nizurtado who,
in turn, remitted the payments to the MMC on these dates:
April 16, 1984 P1,450.00
August 14, 1984 3,550.00
September 7, 1984 3,000.00
————
Total P8,000.00
51
In June 1987, after demands for payment, Dalmacio remitted the balance of
P2,000.00 from his pocket because, as acting Barangay Captain, he did not want
to leave the Barangay with an indebtedness.3
On the basis of its above findings, the Sandiganbayan convicted the accused of
the offense charged. The dispositive portions of its decision, promulgated on 18
September 1992, read:
WHEREFORE, the Court finds Felix Nizurtado y Victa guilty beyond reasonable
doubt of the complex crime of malversation of public funds committed through
falsification of public document and, appreciating in his favor . . . two mitigating
circumstances and applying the Indeterminate Sentence Law, imposes upon him
the penalties of imprisonment ranging from FOUR (4) YEARS, NINE (9) MONTHS,
and ELEVEN (11) DAYS of prision correccional as minimum to EIGHT (8) YEARS,
EIGHT (8) MONTHS, and ONE (1) DAY of prision mayor as maximum; perpetual
special disqualification; and a fine of P10,000.00.
No pronouncement is made as to civil liability, there having been complete
restitution of the amount malversed.
With costs.
SO ORDERED.4
His motion for reconsideration having been denied, Nizurtado has filed the instant
petition for review on certiorari. Petitioner faults the Sandiganbayan in that —
1. It has committed grave abuse of discretion in finding that Resolution No. 17,
dated August 25, 1983, of the Barangay Council of Panghulo, Malabon, Metro
Manila (Exh. "D") is a falsified document and that the petitioner is the forger
thereof; and
2. It has committed serious error of law and gravely abused its discretion in finding
petitioner guilty of malversation of the amount of P10,000.00 which he had
received as a loan from the then Metro Manila Commission in his capacity as
representative of the Samahang Kabuhayan ng Barangay Panghulo, Malabon,
Metro Manila. 5
The Solicitor General Agrees in all respects with the Sandiganbayan in its findings
and judgment except insofar as it has found petitioner to have likewise committed
the crime of falsification of a public document.
Article 217 of the Revised Penal Code provides:
Art. 217. Malversation of public funds or property. — Presumption of malversation.
— Any public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty the misappropriation or malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundreds pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is
less than twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal
use.
The elements of malversation, essential for the conviction of an accused, under
the above penal provisions are that —
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by reason of the duties of his
office;
52
(c) the funds or property involved are public funds or property for which he is
accountable; and
(d) he has appropriated, taken or misappropriated, or has consented to, or through
abandonment or negligence permitted, the taking by another person of, such funds
or property.
Nizurtado was a public officer, having been the Barangay Captain of Panghulo,
Malabon, Metro Manila, from 1983 to 1988; in that capacity, he received and later
encashed a check for P10,000.00, specifically intended by way of a loan to the
barangay for its livelihood program; and the funds had come from the Ministry of
Human Settlements, the Metro Manila Commission and "Kilusang Kabuhayan at
Kaunlaran."
The only point of controversy is whether or not Nizurtado has indeed
misappropriated the funds.
Petitioner was able to encash the check on 18 October 1988 on the basis of a
resolution of the Barangay Council, submitted to the KKK Secretariat, to the effect
that a livelihood project, i.e., "T-shirt manufacturing," had already been identified by
the council. The money, however, instead of its being used for the project, was
later lent to, along with petitioner, the members of the Barangay Council.
Undoubtedly, the act constituted "misappropriation" within the meaning of the law.6
Accused-appellant sought to justify the questioned act in that it was only when the
members of the Barangay Council had realized that P10,000.00 was not enough to
support the T-shirt manufacturing project, that they decided to distribute the money
in the form of loans to themselves. He submitted, in support thereof, a belated 7
certification issued by Rodolfo B. Banquicio, Chief of District IV of the Support Staff
and Malabon Sub-District Officer of KKK, to the effect that Barangay Captains
were given discretionary authority to invest the money in any viable project not
falling within the list of project modules provided by the MHS-NCR Management.
Lending the unutilized funds to the members of the Barangay council could have
hardly been meant to be the viable project contemplated under that certification.
Furthermore, it would appear that only Regional Action Officer Ismael Mathay, Jr.,
and Deputy Regional Action Officer Lilia S. Ledesma were the officials duly
authorized to approve such projects upon the recommendation of the KKK
Secretariat.8 We could see no flaw in the ratiocination of the Sandiganbayan,
when, in rejecting this defense, it said:
The defense evidence that the Barangay Council changed the T-shirt
Manufacturing to whatever business ventures each members of the Council would
select for investment of his P1,000.00 has, as already stated, little, if any, probative
value.
But assuming there was such a change, the same is of no avail. The Resolution
marked Exhibit D expressly stated that the P10,000.00 "shall only be appropriated
for the purpose/s as provided in the issued policies and guidelines of the program."
The guidelines, in turn, prescribed that the livelihood project shall be identified from
the modules developed by the KKK Secretariat or, as stipulated in the Resolution
itself, in the absence of such modules, shall be chosen by the Samahang
Kabuhayan "subject to the evaluation/validation of the KKK Secretariat." There is
absolutely no showing that the alleged substitute projects which each lendee of
P1,000.00 would select were among those of the developed modules or were
submitted to the KKK Secretariat for evaluation/validation.9
Accused-appellant criticizes the Sandiganbayan for its having failed to consider the
fact that no valid demand has been made, or could have been made, for the
repayment of the loaned sum. Demand merely raises a prima facie presumption
that missing funds have been put to personal use. The demand itself, however, is
not an element of, and not indispensable to constitute, malversation. Even without
a demand, malversation can still be committed when enough facts, such as here,
are extant to prove it. 10
Accused-appellant was charged with having committed the crime through the
falsification of a public document punishable under paragraph 2 of Article 171 of
the Revised Penal Code.
The pertinent provisions read:
Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister.
— The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary who, taking advantage of his
official position, shall falsify a document by committing any of the following acts:
xxx xxx xxx
2. Causing it to appear that persons have participated in any act or proceeding
when they did not in fact so participate;
In falsification under the above-quoted paragraph, the document need not be an
authentic official paper since its simulation, in fact, is the essence of falsification.
So, also, the signatures appearing thereon need not necessarily be forged. 11
53
In concluding that the Barangay Council resolution, Exhibit "D," 12 was a falsified
document for which petitioner should be held responsible, the Sandiganbayan
gave credence to the testimonies of Barangay Councilman Santos A. Gomez and
Barangay Treasurer Manuel P. Romero. The two testified that no meeting had
actually taken place on 25 August 1983, the date when
"T-shirt manufacturing" was allegedly decided to be the barangay livelihood
project. The Sandiganbayan concluded that Nizurtado had induced Romero and
Gomez to sign the blank resolution, Exhibit "J" 13 on the representation that
Romero's proposal to build a barangay service center would so later be indicated
in that resolution as the barangay livelihood project.
The established rule is that unless the findings of fact of the Sandiganbayan are
bereft of substantial evidence to support it, those findings are binding on this court.
The Sandiganbayan has considered the mitigating circumstances of voluntary
surrender and restitution in favor of Nizurtado. Deputy Clerk of Court Luisabel
Alfonso Cortez, on 17 January 1989, has certified to the voluntary surrender of the
accused thusly:
CERTIFICATION
THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case No: 13304
voluntarily surrendered before this court on JANUARY 17, 1989 and posted his
bail bond in said case.
Manila, Philippines, JANUARY 17, 1989
(sgd.)
LUISABEL ALFONSO CORTEZ
Deputy Clerk of Court 14
Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may thus be
treated as a modifying circumstance independent and apart from restitution of the
questioned funds by petitioner (Art. 13, par. 10, Revised Penal Code). We are
convinced, furthermore, that petitioner had no intention to commit so grave a
wrong as that committed. (Art. 13, par. 3, Revised Penal Code), entitling him to
three distinct mitigating circumstances.
Under Article 48 of the Revised Penal Code, when a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed, the
same (the penalty) to be applied in the maximum period. The penalty prescribed
for the offense of malversation of public funds, when the amount involved exceeds
six thousand pesos but does not exceed twelve thousand pesos, is prision mayor The law and the evidence no doubt sustains Nizurtado's conviction. Given all the
in its maximum period to reclusion temporal in its minimum period; in addition, the attendant circumstances, it is, nevertheless, the personal and humble opinion of
offender shall be sentenced to suffer perpetual special disqualification and to pay a the assigned writer of this ponencia that appellant deserves an executive
fine equal to the amount malversed (Art. 217[3], Revised Penal Code). The penalty commutation of the statutory minimum sentence pronounced by this Court.
of prision mayor and a fine of five thousand pesos is prescribed for the crime of
falsification under Article 171 of the Revised Penal Code. The former (that WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado for
imposed for the malversation), being more severe than the latter (that imposed for malversation of public funds through falsification of public document is AFFIRMED
the falsification), is then the applicable prescribed penalty to be imposed in its but the sentence, given the circumstances here obtaining, is MODIFIED by
maximum period. The actual attendance of two separate mitigating circumstances imposing on petitioner a reduced indeterminate sentence of from two years, four
of voluntary surrender and restitution, also found by the Sandiganbayan and months and one day to eight years, eight months and one day, perpetual special
uncontested by the Solicitor General, entitles the accused to the penalty next lower disqualification and a fine of P2,000.00.
in degree. For purposes of determining that next lower degree, the full range of the
penalty prescribed by law for the offense, not merely the imposable penalty SO ORDERED.
because of its complex nature, should, a priori, be considered. It is our considered
view that the ruling in People vs. Gonzales, 73 Phil. 549, as opposed to that of
People vs. Fulgencio, 92 Phil. 1069, is the correct rule and it is thus here
reiterated. In fine, the one degree lower than prision mayor maximum to reclusion
temporal minimum is prision mayor minimum to prision mayor medium (being the
next two periods in the scale of penalties [see Art. 64, par 5, in relation to Art. 61,
par 5, Revised Penal Code]) the full range of which is six years and one day to ten
years. This one degree lower penalty should, conformably with Article 48 of the
Code (the penalty for complex crimes), be imposed in its maximum period or from
eight years, eight months and one day to ten years. The presence of the third
mitigating circumstance of praeter intentionem (lack of intention to commit so
grave a wrong as that committed) would result in imposing a period the court may
deem applicable. 15 Considering, however, that the penalty has to be imposed in
the maximum period, the only effect of this additional mitigating circumstance is to
impose only the minimum portion of that maximum period, 16 that is, from eight
years, eight months and one day to nine years, six months and ten days, from
which range the maximum of the indeterminate sentence shall be taken.

Under the Indeterminate Sentence Law (which can apply since the maximum term
of imprisonment would exceed one year), the court is to impose an indeterminate
sentence, the minimum of which shall be anywhere within the range of the penalty
next lower in degree (i.e., prision correccional in its medium period to prision
correccional in its maximum period or anywhere from two years, four months and
one day to six years) and the maximum of which is that which the law prescribes
after considering the attendant modifying circumstances. In view of the mitigating
circumstances present in this case, the fine of P10,000.00 may also be reduced
(Art. 66, Revised Penal Code) and, since the principal penalty is higher than
prision correccional, subsidiary imprisonment would not be warranted. (Art. 39,
par. 3, Revised Penal Code).
54

G.R. No. 112170 April 10, 1996
CESARIO URSUA, petitioner,
vs.
COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:p
This is a petition for review of the decision of the Court of Appeals which affirmed
the conviction of petitioner by the Regional Trial Court of Davao City for violation of
Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as "An
Act to Regulate the Use of Aliases". 1
Petitioner Cesario Ursua was a Community Environment and Natural Resources
Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor
of Cotabato requested the Office of the Ombudsman in Manila to conduct an
investigation on a complaint for bribery, dishonesty, abuse of authority and giving
of unwarranted benefits by petitioner and other officials of the Department of
Environment and Natural Resources. The complaint was initiated by the
Sangguniang Panlalawigan of Cotabato through a resolution advising the
Governor to report the involvement of petitioner and others in the illegal cutting of
mahogany trees and hauling of illegally-cut logs in the area.2
On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office
of the Ombudsman in Davao City requesting that he be furnished copy of the
complaint against petitioner. Atty. Palmones then asked his client Ursua to take his
letter-request to the Office of the Ombudsman because his law firm's messenger,
Oscar Perez, had to attend to some personal matters. Before proceeding to the
Office of the Ombudsman petitioner talked to Oscar Perez and told him that he
was reluctant to personally ask for the document since he was one of the
respondents before the Ombudsman. However, Perez advised him not to worry as
he could just sign his (Perez) name if ever he would be required to acknowledge
receipt of the complaint. 3
55
When petitioner arrived at the Office of the Ombudsman in Davao City he was
instructed by the security officer to register in the visitors' logbook. Instead of
writing down his name petitioner wrote the name "Oscar Perez" after which he was
told to proceed to the Administrative Division for the copy of the complaint he
needed. He handed the letter of Atty. Palmones to the Chief of the Administrative
Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt
of which he acknowledged by writing the name "Oscar Perez."4
Before petitioner could leave the premises he was greeted by an acquaintance,
Josefa Amparo, who also worked in the same office. They conversed for a while
then he left. When Loida learned that the person who introduced himself as "Oscar
Perez" was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her
gasoline station, Loida reported the matter to the Deputy Ombudsman who
recommended that petitioner be accordingly charged.
On 18 December 1990, after the prosecution had completed the presentation of its
evidence, petitioner without leave of court filed a demurrer to evidence alleging
that the failure of the prosecution to prove that his supposed alias was different
from his registered name in the local civil registry was fatal to its cause. Petitioner
argued that no document from the local civil registry was presented to show the
registered name of accused which according to him was a condition sine qua
non for the validity of his conviction.
The trial court rejected his contentions and found him guilty of violating Sec. 1 of
C.A. No. 142 as amended by R.A. No. 6085. He was sentenced to suffer a prison
term of one (1) year and one (1) day of prision correccional minimum as minimum,
to four (4) years of  prision correccional medium as maximum, with all the
accessory penalties provided for by law, and to pay a fine of P4,000.00 plus costs.
Petitioner appealed to the Court of Appeals.
On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but
modified the penalty by imposing an indeterminate term of one (1) year as
minimum to three (3) years as maximum and a fine of P5,000.00.
Petitioner now comes to us for review of his conviction as he reasserts his
innocence. He contends that he has not violated C.A. No. 142 as amended by R.A.
No. 6085 as he never used any alias name; neither is "Oscar Perez" his alias.
An alias, according to him, is a term which connotes the habitual use of another
name by which a person is also known. He claims that he has never been known
as "Oscar Perez" and that he only used such name on one occasion and it was
with the express consent of Oscar Perez himself. It is his position that an essential
requirement for a conviction under C.A. No. 142 as amended by R.A. No. 6085
has not been complied with when the prosecution failed to prove that his
supposed alias was different from his registered name in the Registry of Births. He
further argues that the Court of Appeals erred in not considering the defense
theory that he was charged under the wrong law.5
Time and again we have decreed that statutes are to be construed in the light of
the purposes to be achieved and the evils sought to be remedied. Thus in
construing a statute the reason for its enactment should be kept in mind and the
statute should be construed with reference to the intended scope and
purpose.6 The court may consider the spirit and reason of the statute, where a
literal meaning would lead to absurdity, contradiction, injustice, or would defeat the
clear purpose of the lawmakers.7
Sec. 1. Except as a pseudonym solely for literary, cinema,
television, radio or other entertainment purposes and in athletic
events where the use of pseudonym is a normally accepted
practice, no person shall use any name different from the one with
which he was registered at birth in the office of the local civil
registry or with which he was baptized for the first time, or in case
of all alien, with which he was registered in the bureau of
immigration upon entry; or such substitute name as may have
been authorized by a competent court: Provided, That persons
whose births have not been registered in any local civil registry
and who have not been baptized, have one year from the approval
of this act within which to register their names in the civil registry of
their residence. The name shall comprise the patronymic name
and one or two surnames.

For a clear understanding of the purpose of C.A. No. 142 as amended, which was Sec. 2. Any person desiring to use an alias shall apply for authority
allegedly violated by petitioner, and the surrounding circumstances under which therefor in proceedings like those legally provided to obtain judicial
the law was enacted, the pertinent provisions thereof, its amendments and related authority for a change of name and no person shall be allowed to
statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, secure such judicial authority for more than one alias. The petition
and before its amendment by R.A. No. 6085, is entitled An Act to Regulate the Use for an alias shall set forth the person's baptismal and family name
of Aliases. It provides as follows: and the name recorded in the civil registry, if different, his
immigrant's name, if an alien, and his pseudonym, if he has such
names other than his original or real name, specifying the reason
Sec. 1. Except as a pseudonym for literary purposes, no person
or reasons for the desired alias. The judicial authority for the use
shall use any name different from the one with which he was
of alias, the Christian name and the alien immigrant's name shall
christened or by which he has been known since his childhood, or
such substitute name as may have been authorized by a be recorded in the proper local civil registry, and no person shall
use any name or names other than his original or real name
competent court. The name shall comprise the patronymic name
unless the same is or are duly recorded in the proper local civil
and one or two surnames.
registry.
Sec. 2. Any person desiring to use an alias or aliases shall apply
The objective and purpose of C.A. No. 142 have their origin and basis in Act No.
for authority therefor in proceedings like those legally provided to
3883, An Act to Regulate the Use in Business Transactions of Names other than
obtain judicial authority for a change of name. Separate
True Names, Prescribing the Duties of the Director of the Bureau of Commerce
proceedings shall be had for each alias, and each new petition
and Industry in its Enforcement, Providing Penalties for Violations thereof, and for
shall set forth the original name and the alias or aliases for the use
other purposes, which was approved on 14 November 1931 and amended by Act
of which judicial authority has been, obtained, specifying the
No. 4147, approved on 28 November 1934.8 The pertinent provisions of Act No.
proceedings and the date on which such authority was granted.
3883 as amended follow —
Judicial authorities for the use of aliases shall be recorded in the
proper civil register . . . .
Sec. 1. It shall be unlawful for any person to use or sign, on any
written or printed receipt including receipt for tax or business or
The above law was subsequently amended by R.A. No. 6085, approved on 4
any written or printed contract not verified by a notary public or on
August 1969. As amended, C.A. No. 142 now reads:
any written or printed evidence of any agreement or business
56
 transactions, any name used in connection with his business other
than his true name, or keep conspicuously exhibited in plain view
in or at the place where his business is conducted, if he is
engaged in a business, any sign announcing a firm name or
business name or style without first registering such other name,
or such firm name, or business name or style in the Bureau of
Commerce together with his true name and that of any other
person having a joint or common interest with him in such
contract, agreement, business transaction, or business . . . .
For a bit of history, the enactment of C.A. No. 142 as amended was made primarily
to curb the common practice among the Chinese of adopting scores of different
names and aliases which created tremendous confusion in the field of trade. Such
a practice almost bordered on the crime of using fictitious names which for obvious
reasons could not be successfully maintained against the Chinese who, rightly or
wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus
penalized the act of using an alias name, unless such alias was duly authorized by
proper judicial proceedings and recorded in the civil register.9
In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain the meaning,
concept and ill effects of the use of an alias within the purview of C.A. No. 142
when we ruled —
There can hardly be any doubt that petitioner's use of alias "Kheng
Chiau Young" in addition to his real name "Yu Cheng Chiau"
would add to more confusion. That he is known in his business, as
manager of the Robert Reid, Inc., by the former name, is not
sufficient reason to allow him its use. After all, petitioner admitted
that he is known to his associates by both names. In fact, the
Anselmo Trinidad, Inc., of which he is a customer, knows him by
his real name. Neither would the fact that he had encountered
certain difficulties in his transactions with government offices
which required him to explain why he bore two names, justify the
grant of his petition, for petitioner could easily avoid said difficulties
by simply using and sticking only to his real name "Yu Kheng
Chiau."
The fact that petitioner intends to reside permanently in the
Philippines, as shown by his having filed a petition for
naturalization in Branch V of the above-mentioned court, argues
the more against the grant of his petition, because if naturalized as
a Filipino citizen, there would then be no necessity for his further
57
using said alias, as it would be contrary to the usual Filipino way
and practice of using only one name in ordinary as well as
business transactions. And, as the lower court correctly observed,
if he believes (after he is naturalized) that it would be better for him
to write his name following the Occidental method, "he can easily
file a petition for change of name, so that in lieu of the name "Yu
Kheng Chian," he can, abandoning the same, ask for authority to
adopt the name Kheng Chiau Young."
All things considered, we are of the opinion and so hold, that
petitioner has not shown satisfactory proper and reasonable
grounds under the aforequoted provisions of Commonwealth Act
No. 142 and the Rules of Court, to warrant the grant of his petition
for the use of an alias name.
Clearly therefore an alias is a name or names used by a person or intended to be
used by him publicly and habitually usually in business transactions in addition to
his real name by which he is registered at birth or baptized the first time or
substitute name authorized by a competent authority. A man's name is simply the
sound or sounds by which he is commonly designated by his fellows and by which
they distinguish him but sometimes a man is known by several different names
and these are known as aliases. 11 Hence, the use of a fictitious name or a different
name belonging to another person in a single instance without any sign or
indication that the user intends to be known by this name in addition to his real
name from that day forth does not fall within the prohibition contained in C.A. No.
142 as amended. This is so in the case at bench.
It is not disputed that petitioner introduced himself in the Office of the Ombudsman
as "Oscar Perez," which was the name of the messenger of his lawyer who should
have brought the letter to that office in the first place instead of petitioner. He did
so while merely serving the request of his lawyer to obtain a copy of the complaint
in which petitioner was a respondent. There is no question then that "Oscar Perez"
is not an alias name of petitioner. There is no evidence showing that he had used
or was intending to use that name as his second name in addition to his real name.
The use of the name "Oscar Perez" was made by petitioner in an isolated
transaction where he was not even legally required to expose his real identity. For,
even if he had identified himself properly at the Office of the Ombudsman,
petitioner would still be able to get a copy of the complaint as a matter of right, and
the Office of the Ombudsman could not refuse him because the complaint was part
of public records hence open to inspection and examination by anyone under the
proper circumstances.
While the act of petitioner may be covered by other provisions of law, such does
not constitute an offense within the concept of C.A. No. 142 as amended under
which he is prosecuted. The confusion and fraud in business transactions which
the anti-alias law and its related statutes seek to prevent are not present here as
the circumstances are peculiar and distinct from those contemplated by the
legislature in enacting C.A. No. 142 as amended. There exists a valid presumption
that undesirable consequences were never intended by a legislative measure and
that a construction of which the statute is fairly susceptible is favored, which will
avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious
consequences. 12 Moreover, as C.A. No. 142 is a penal statute, it should be
construed strictly against the State and in favor of the accused. 13 The reason for
this principle is the tenderness of the law for the rights of individuals and the object
is to establish a certain rule by conformity to which mankind would be safe, and the
discretion of the court limited. 14 Indeed, our mind cannot rest easy on the
proposition that petitioner should be convicted on a law that does not clearly
penalize the act done by him.

WHEREFORE, the questioned decision of the Court of Appeals affirming that of

the Regional Trial Court of Davao City is REVERSED and SET ASIDE and
petitioner CESARIO URSUA is ACQUITTED of the crime charged.

SO ORDERED.

58

G.R. No. 116607 April 10, 1996
EMILIO R. TUASON, petitioner,
vs.
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.
PUNO, J.:p
This petition for review on certiorari seeks to annul and set aside the decision
dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying
petitioner's appeal from an order of the Regional Trial Court, Branch 149, Makati in
Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional
Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of
her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent
alleged that she and petitioner were married on June 3, 1972 and from this union,
begot two children; that at the time of the marriage, petitioner was already
psychologically incapacitated to comply with his essential marital obligations which
became manifest afterward and resulted in violent fights between husband and
wife; that in one of their fights, petitioner inflicted physical injuries on private
respondent which impelled her to file a criminal case for physical injuries against
him; that petitioner used prohibited drugs, was apprehended by the authorities and
sentenced to a one-year suspended penalty and has not been rehabilitated; that
petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited
with three women in succession, one of whom he presented to the public as his
wife; that after he left the conjugal dwelling, petitioner gave minimal support to the
family and even refused to pay for the tuition fees of their children compelling
private respondent to accept donations and dole-outs from her family and friends;
that petitioner likewise became a spendthrift and abused his administration of the
conjugal partnership by alienating some of their assets and incurring large
obligations with banks, credit card companies and other financial institutions,
59
without private respondent's consent; that attempts at reconciliation were made but
they all failed because of petitioner's refusal to reform. In addition to her prayer for
annulment of marriage, private respondent prayed for powers of administration to
save the conjugal properties from further dissipation.1
Petitioner answered denying the imputations against him. As affirmative defense,
he claimed that he and private respondent were a normal married couple during
the first ten years of their marriage and actually begot two children during this
period; that it was only in 1982 that they began to have serious personal
differences when his wife did not accord the respect and dignity due him as a
husband but treated him like a persona non grata; that due to the "extreme
animosities " between them, he temporarily left the conjugal home for a "cooling-off
period" in 1984; that it is private respondent who had been taking prohibited drugs
and had a serious affair with another man; that petitioner's work as owner and
operator of a radio and television station exposed him to malicious gossip linking
him to various women in media and the entertainment world; and that since 1984,
he experienced financial reverses in his business and was compelled, with the
knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf
and country clubs. Petitioner petitioned the court to allow him to return to the
conjugal home and continue his administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private
respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon
Law expert and marriage counselor of both private respondent and petitioner; Ms.
Adelita Prieto, a close friend of the spouses, and Atty. Jose F. Racela IV, private
respondent's counsel. Private respondent likewise submitted documentary
evidence consisting of newspaper articles of her husband's relationship with other
women, his apprehension by the authorities for illegal possession of drugs; and
copies of a prior a church annulment decree.2 The parties' marriage was clerically
annulled by the Tribunal Metropolitanum Matrimonial which was affirmed by the
National Appellate Matrimonial Tribunal in 1986.3
During presentation of private respondent's evidence, petitioner, on April 18, 1990,
filed his Opposition to private respondent's petition for appointment as
administratrix of the conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the reception of
petitioner's evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing , a counsel for petitioner
moved for a postponement on the ground that the principal counsel was out of the
country and due to return on the first week of June.4 The court granted the motion
and reset the hearing to June 8, 1990.5
On June 8, 1990, petitioner failed to appear. On oral motion of private respondent,
the court declared petitioner to have waived his right to present evidence and
deemed the case submitted for decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of private
respondent's marriage to petitioner and awarding custody of the children to private
respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted
by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972
is declared null and void ab initio on the ground of psychological
incapacity on the part of the defendant under Sec. 36 of the Family
Code. Let herein judgment of annulment be recorded in the
registry of Mandaluyong, Metro Manila where the marriage was
contracted and in the registry of Makati, Metro Manila where the
marriage is annulled.
The custody of the two (2) legitimate children of the plaintiff and
the defendant is hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of
the other effects of annulment as provided for under Arts . 50 and
51 of the Family Code of the Philippines.6
Counsel for petitioner received a copy of this decision on August 24, 1990. No
appeal was taken from the decision.
On September 24, 1990, private respondent filed a "Motion for Dissolution of
Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal
Properties."7 Petitioner opposed the motion on October 17, 1990.8
Also on the same day, October 17, 1990, petitioner, through new counsel, filed
with the trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991.9
60
Petitioner appealed before the Court of Appeals the order of the trial court denying
his petition for relief from judgment. On July 29, 1994, the Court of Appeals
dismissed the appeal and affirmed the order of the trial court. 10
Hence this petition.
The threshold issue is whether a petition for relief from judgment is warranted
under the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised
Rules of Court which provides:
Sec. 2. Petition to Court of First Instance for relief from judgment
or other proceeding thereof. — When a judgment or order is
entered, or any other proceeding is taken, against a party in a
Court of First Instance through fraud, accident, mistake, or
excusable negligence, he may file a petition in such court and in
the same cause praying that the judgment, order or proceeding be
set aside.
Under the rules, a final and executory judgment or order of the Regional Trial
Court may be set aside on the ground of fraud, accident, mistake or excusable
negligence. In addition, the petitioner must assert facts showing that he has a
good, substantial and meritorious defense or cause of action. 11 If the petition is
granted, the court shall proceed to hear and determine the case as if a timely
motion for new trial had been granted therein. 12
In the case at bar, the decision annulling petitioner's marriage to private
respondent had already become final and executory when petitioner failed to
appeal during the reglementary period. Petitioner however claims that the decision
of the trial court was null and void for violation of his right to due process. He
contends he was denied due process when, after failing to appear on two
scheduled hearings, the trial court deemed him to have waived his right to present
evidence and rendered judgment on the basis of the evidence for private
respondent. Petitioner justifies his absence at the hearings on the ground that he
was then "confined for medical and/or rehabilitation reason." 13 In his affidavit of
merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal,
Director of the Narcotics Command, Drug Rehabilitation Center which states that
on March 27, 1990 petitioner was admitted for treatment of drug dependency at
the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro
Manila of the Philippine Constabulary-Integrated National Police. 14 The records,
however, show that the former counsel of petitioner did not inform the trial court of
this confinement. And when the court rendered its decision, the same counsel was
out of the country for which reason the decision became final and executory as no
appeal was taken therefrom. 15
The failure of petitioner's counsel to notify him on time of the adverse judgment to
enable him to appeal therefrom is negligence which is not excusable. Notice sent
to counsel of record is binding upon the client and the neglect or failure of counsel
to inform him of an adverse judgment resulting in the loss of his right to appeal is
not a ground for setting aside a judgment valid and regular on its face. 16
Similarly inexcusable was the failure of his former counsel to inform the trial court
of petitioner's confinement and medical treatment as the reason for his non-
appearance at the scheduled hearings. Petitioner has not given any reason why
his former counsel, intentionally or unintentionally, did not inform the court of this
fact. This led the trial court to order the case deemed submitted for decision on the
basis of the evidence presented by the private respondent alone. To compound
the negligence of petitioner's counsel, the order of the trial court was never
assailed via a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He may
have lost his right to present evidence but he was not denied his day in court. As
the record show, petitioner, through counsel, actively participated in the
proceedings below. He filed his answer to the petition, cross-examined private
respondent's witnesses and even submitted his opposition to private respondent's
motion for dissolution of the conjugal partnership of gains. 17
A petition for relief from judgment is an equitable remedy; it is allowed only in
exception cases where there is no other available or adequate remedy. When a
party has another remedy available or adequate remedy. When a party has
another remedy available to him, which may be either a motion for new trial or
appeal from an adverse decision of the trial or appeal from an adverse decision of
the trial court, and he was not prevented by fraud, accident, mistake or excusable
negligence from filing such motion or taking such appeal, he cannot avail himself
of this petition. 18 Indeed, relief will not be granted to a party who seeks avoidance
from the effects of the judgment when the loss of the remedy at law was due to his
own negligence; otherwise the petition for relief can be used to revive the right to
appeal which had been lost thru inexcusable negligence. 19
61
Petitioner also insists that he has a valid and meritorious defense. He cites the
Family Code which provides that in actions for annulment of marriage or legal
separation, the prosecuting officer should intervene for the state because the law
"looks with disfavor upon the haphazard declaration of annulment of marriages by
default." He contends that when he failed to appear at the scheduled hearings, the
trial court should have ordered the prosecuting officer to intervene for the state and
inquire as to the reason for his non-appearance. 20
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecution attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.
Art. 60. No decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and
to take care that the evidence is not fabricated or suppressed. 21
A grant of annulment of marriage or legal separation by default is fraught with the
danger of collusion. 22 Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to
appear on behalf of the state for the purpose of preventing any collusion between
the parties and to take care that their evidence is not fabricated or suppressed. If
the defendant spouse fails to answer the complaint, the court cannot declare him
or her in default but instead, should order the prosecuting attorney to determine if
collusion exists between the parties.23 The prosecuting attorney or fiscal may
oppose the application for legal separation or annulment through the presentation
of his own evidence, if in his opinion, the proof adduced is dubious and
fabricated.24 Our Constitution is committed to the policy of strengthening the family
as a basic social institution. 25 Our family law is based on the policy that marriage is
not a mere contract, but a social institution in which the state is vitally interested.
The state can find no stronger anchor than on good, solid and happy families. The
break up of families weakens our social and moral fabric and, hence, their
preservation is not the concern alone of the family members.
The facts in the case at bar do not call for the strict application of Articles 48 and
60 of the Family Code. For one, petitioner was not declared in default by the trial
court for failure to answer. Petitioner filed his answer to the complaint and
contested the cause of action alleged by private respondent. He actively
participated in the proceedings below by filing several pleadings and cross-
examining the witnesses of private respondent. It is crystal clear that every stage
of the litigation was characterized by a no-holds barred contest and not by
collusion.

The role of the prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between the
parties and to take care that the evidence is not suppressed or fabricated.
Petitioner's vehement opposition to the annulment proceedings negates the
conclusion that collusion existed between the parties. There is no allegation by the
petitioner that evidence was suppressed or fabricated by any of the parties. Under
these circumstances, we are convinced that the non-intervention of a prosecuting
attorney to assure lack of collusion between the contending parties is not fatal to
the validity of the proceedings in the trial court.

Petitioner also refutes the testimonies of private respondent's witnesses,

particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and
hearsay. Petitioner alleges that if he were able to present his evidence, he could
have testified that he was not psychologically incapacitated at the time of the
marriage as indicated by the fact that during their first ten years, he and private
respondent lived together with their children as one normal and happy family, that
he continued supporting his family even after he left the conjugal dwelling and that
his work as owner and operator of a radio and television corporation places him in
the public eye and makes him a good subject for malicious gossip linking him with
various women. These facts, according to petitioner, should disprove the ground
for annulment of his marriage to petitioner.

Suffice it to state that the finding of the trial court as to the existence or non-
existence of petitioner's psychological incapacity at the time of the marriage is final
and binding on us. 26 Petitioner has not sufficiently shown that the trial court's
factual findings and evaluation of the testimonies of private respondent's
witnesses vis-a-vis petitioner's defenses are clearly and manifestly erroneous. 27

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of
the Court of Appeals in CA-G.R. CV No. 37925 is affirmed.

62