G.R. No. L-56291 June 27, 1988 CRISTOPHER GAMBOA, petitioner, vs. HON.

ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent. Rene V. Sarmiento for petitioner.

PADILLA, J.: Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set aside the order dated 23 October 1980 of the Court of First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales, Accused," and to restrain the respondent court from proceeding with the trial of the aforementioned case. Petitioner alleges that: On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant of arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked for vagrancy and then detained therein together with several others. The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner, complainant Erlinda B. Bernal pointed to petitioner and said, "that one is a companion." After the Identification, the other detainees were brought back to their cell but petitioner was ordered to stay on. While the complainant was being interrogated by the police investigator, petitioner was told to sit down in front of her. On 23 July 1979, an information for robbery was filed against the petitioner. On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the prosecution formally offered its evidence and then rested its case. On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court that he was filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said Motion predicated on the ground that the conduct of the line-up, without notice to, and in the absence of, his counsel violated his constitutional rights to counsel and to due process. On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar) denying the Motion to Acquit: For resolution is a motion to acquit the accused based on the grounds that the constitutional rights of the said accused, to counsel and to due process, have been violated. After considering the allegations and arguments in support of the said motion in relation to the evidence presented, the Court finds the said motion to be without merit and, therefore, denies the same. The hearing of this case for the purpose of presenting the evidence for the accused is hereby set on November 28, 1980, at 8:30 o'clock in the morning. Hence, the instant petition. On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and continuing until otherwise 1 ordered by the court".

Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null and void for being violative of his rights to 2 counsel and to due process. We find no merit in the contentions of petitioner. To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to lack of jurisdiction, committed by the respondent judge in issuing the questioned order dated 23 October 1980. It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very 3 antithesis of judicial prerogative in accordance with centuries of both civil law and common law traditions. To warrant the issuance of the extraordinary writ of certiorari, the alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as when power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, or the abuse must be so patent as to amount to an evasion of positive duty, or to a virtual refusal to perform a duty 4 enjoined by law, or to act at all, in contemplation of law. This is not the situation in the case at bar. The respondent court considered petitioner's arguments as well as the prosecution's evidence against him, and required him to present his evidence. The rights to counsel and to due process of law are indeed two (2) of the fundamental rights guaranteed by the Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society, like ours, every person is entitled to the full enjoyment of the rights guaranteed by the Constitution. On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, reads: No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The same guarantee, although worded in a different manner, is included in the 1987 Constitution. Section 12 (1, 2 & 3), Article III thereof provides: Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him. The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense. Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has consistently held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and 5 that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel.

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The Solicitor General states: When petitioner was Identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States Federal Supreme Court, 378 US 478, 1964). Since petitioner in the course of his Identification in the police line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his right to be assisted by counsel because the accusatory process had not yet set in. The police could not have violated petitioner's right to counsel and due process as the confrontation between the State and him had not begun. In fact, when he was Identified in the police line-up by complainant he did not give any statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal charge. Far from what he professes, the police did not, at that stage, exact a confession to be used against him. For it was not he but the complainant who was being investigated at that time. He "was ordered to sit down in front of the complainant while the latter was 6 being investigated" (par. 3.03, Petition). Petitioner's right to counsel had not accrued. Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause for claiming a violation 7 of his rights to counsel and due process. In Kirby vs. Illinois, the facts of the case and the votes of the Justices therein are summarized as fellows: After arresting the petitioner and a companion and bringing them to a police station, police officers learned that certain items found in their possession had been stolen in a recent robbery. The robbery victim was brought to the police station and immediately Identified the petitioner and his companion as the robbers. No attorney was present when the Identification was made, and neither the petitioner nor his companion had asked for legal assistance or had been advised of any right to the presence of counsel. Several weeks later, the petitioner and his companion were indicted for the robbery. At trial in an Illinois state court, the robbery victim testified that he had seen the petitioner and his companion at the police station, and he pointed them out in the courtroom and Identified them as the robbers. The petitioner and his companion were convicted, and the Illinois Appellate Court, First District, affirmed the petitioner's conviction, holding that the constitutional rule requiring the exclusion of evidence derived from out-of-court Identification procedures conducted in the absence of counsel did not apply to pre-indictment Identifications (121 III App 2d 323, 257 NEE 2d 589). On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In an opinion by STEWART, J., announcing the judgment of the court and expressing the view of four members of the court, it was held that the constitutional right to counsel did not attach until judicial criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court Identifications in the absence of counsel did not apply to Identification testimony based upon a police station show-up which took place before the accused had been indicted or otherwise formally charged with any criminal offense. BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the right to counsel did not attach until criminal charges were formally made against an accused. POWELL, J., concurred in the result on the ground that the exclusionary rule should not be extended. BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although Supreme Court decisions establishing the exclusionary rule happened to involve post-indictment Identifications, the rationale behind the rule was equally applicable to the present case. WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary rule 8 governed the present case. Mr. Justice Stewart, expressing his view and that of three other members of the Court, said:
9

In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90 S Ct. 1999. This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, 10 indictment, information, or arraignment. (Emphasis supplied). As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee of the right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while, under the latter, the right to counsel "attaches only at or after the time that adversary judicial proceedings have been initiated against him (the accused)," under the 1973 and 1987 Philippine Constitutions, the right to counsel attaches at the start of investigation against a respondent and, therefore, even before adversary judicial proceedings against the accused have begun. Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police investigation the right to counsel, this occasion may be better than any to remind police investigators that, while the Court finds no real need to afford a suspect the services of counsel during a police line-up, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel. On the right to due process, the Court finds that petitioner was not, in any way, deprived of this substantive and constitutional right, as he was duly represented by a member of the Bar. He was accorded all the opportunities to be heard and to present evidence to substantiate his defense; only that he chose not to, and instead opted to file a Motion to Acquit after the 11 prosecution had rested its case. What due process abhors is the absolute lack of opportunity to be heard. The case at bar is far from this situation. In any event, certiorari and prohibition are not the proper remedies against an order denying a Motion To Acquit. Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the defendant shall immediately either move to quash the complaint or information or plead thereto, or do both and that, if the defendant moves to quash, without pleading, and the motion is withdrawn or overruled, he should immediately plead, which means that trial must proceed. If, after trial on the merits, judgment is rendered adversely to the movant (in the motion to quash), he can appeal the judgment and raise the same defenses or objections (earlier raised in his motion to quash) which would then be subject to review by the appellate court. An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such order of denial may only be reviewed, 12 in the ordinary course of law, by an appeal from the judgment, after trial. As stated in Collins vs. Wolfe, and reiterated in Mill 13 vs. Yatco, the accused, after the denial of his motion to quash, should have proceeded with the trial of the case in the court below, and if final judgment is rendered against him, he could then appeal, and, upon such appeal, present the questions which he sought to be decided by the appellate court in a petition for certiorari. In Acharon vs. Purisima,
14

the procedure was well defined, thus:

Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if,

after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is 15 unwarranted it being contrary to the usual course of law. Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and to due process is a question which he could raise, as a defense or objection, upon the trial on the merits, and, if that defense or objection should fail, he could still raise the same on appeal. On the other hand, if a defendant does not move to quash the complaint or information before he pleads, he shall be taken to have waived all objections which are grounds for a motion to quash, except where the complaint or information does not 16 charge an offense, or the court is without jurisdiction of the same. Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and rested its case. Since the exceptions, above-stated, are not applicable, petitioner is deemed to have waived objections which are grounds for a motion to quash. Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds provided in Sec. 2, Rule 117 of the Rules of Court for quashing a complaint or information. Consequently, the lower court did not err in denying petitioner's Motion to Acquit. WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981 is LIFTED. The instant case is remanded to the respondent court for further proceedings to afford the petitioner-accused the opportunity to present evidence on his behalf. This decision is immediately executory. With costs against the petitioner. SO ORDERED. Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Grio-Aquino and Medialdea, JJ., concur.

G.R. Nos. L-91011-12 November 24, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO MACAM y LONTOC, EUGENIO CAWILAN, JR. y BELEN, ANTONIO CEDRO y SANTOS, ERNESTO ROQUE y MARIANO AND DANILO ROQUE y MARIANO, accused. DANILO ROQUE and ERNESTO ROQUE, accused-appellants. The Solicitor General for plaintiff-appellee. Conde and Associates for accused-appellants.

QUIASON, J.: This is an appeal from the decision of the Regional Trial Court, Branch 104, Quezon City in Criminal Case No. Q-53781, finding Danilo Roque and Ernesto Roque guilty beyond reasonable doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of reclusion perpetua. I

In Criminal Case No. Q-53781, appellants, together with Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr., were accused of Robbery with Homicide as defined and penalized under Article 294(1) of the Revised Penal Code, committed as follows: That on or about the 18th day of August, 1987, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused; conspiring together, confederating with and mutually helping one another, with intent to gain, and by means of intimidation and/or violence upon person, armed with a firearm and bladed weapons, did, then and there, wilfully, unlawfully and feloniously rob one BENITO MACAM y SY in the manner as follows: on the date and in the place aforementioned, the said accused, pursuant to their conspiracy, entered the residence of said offended party located at No. 43-A Fema Road, Brgy. Bahay Toro, this City, and thereafter divested the said offended party of the following properties: One (1) model .59 cal. 9mm (toygun) One (1) Walter P 38 cal. 9mm (toygun) One (1) airgun rifle with leather attache case One (1) master CO2 refiller One (1) Sony TV antennae Three (3) betamax tapes One (1) Kenyo betamax rewinder One (1) Samsonite attache case One (1) set of four pieces of trays One (1) Airmail typewriter One (1) Sony betamax One (1) Sony TV Trinitron One (1) chessboard One (1) Toyota Crown car bearing plate No. CAS-997 Assorted jewelry Cash money (still undetermined) One (1) .22 Walter valued in the total amount of P454,000.00, more or less, Philippine Currency, and by reason of the crime of Robbery, said accused, with intent to kill, did, then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one Leticia Macam y Tui, thereby inflicting upon her serious and mortal injuries which were direct and immediate cause (sic) of her untimely death, and on the occasion of said offense, one Benito Macam y Sy, Salvacion Enrera y Escota, and Nilo Alcantara y Bautista, all sustained physical injuries which have required medical attendance for a period of more than thirty (30) days and which have incapacitated all of them from performing their customary labor for the said period of time, to the damage and prejudice of the heirs of the late LETICIA MACAM y TUI and to the damage and prejudice of the said offended parties in such amount as may be awarded under the provisions of the Civil Code (Rollo, pp. 3-4). Together with Criminal Case No. Q-53781, Criminal Case No. Q-53783 was filed against Eugenio Cawilan, Sr. for violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law (Rollo, p. 31). Upon being arraigned, all the accused in Criminal Cases Nos. Q-53781 and Q-53783 pleaded "not guilty" to the crimes charged. After the prosecution had presented its evidence on July 4, 1989, accused Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr., assisted by their respective counsels, changed their plea from "not guilty" to "guilty" (Rollo, p. 23). Consequently, a separate judgment was rendered sentencing each of them to suffer the penalty of reclusion perpetua and ordering each of them to pay P30,000.00 to the heirs of Leticia Macam without subsidiary imprisonment in case of insolvency, but with all the accessory penalties provided for by law, and to pay the costs (Rollo, p. 24). The trial proceeded with respect to Eugenio Cawilan, Sr. and appellants. Of the latter, only Danilo Roque testified.

On September 26, 1989, the trial court rendered its judgment finding appellants guilty beyond reasonable doubt of the crime of Robbery with Homicide in Criminal Case No. Q-53781 and acquitting Eugenio Cawilan, Sr. of violation of the Anti-Fencing Law in Criminal Case No. Q-53783 (Rollo, pp. 43-44). II The trial court accepted the prosecution's version as correct and made the following findings of fact: The prosecution evidence, stripped of non-essentials, shows that on August 18, 1987, Eduardo Macam, Antonio Cedro, Eugenio Cawilan, Jr., Danilo Roque and Ernesto Roque went to the house of Benito Macam located at 43 Fema Road, Quezon City, and that upon arrival at said place, Eduardo Macam, a nephew of Benito Macam, entered the house and talked to Benito Macam. Benito then offered lunch to Eduardo, who told him that he had companions waiting outside. Benito then told his maid, Salvacion Enrera, to call the said companions of Eduardo and ask them to enter the house and have their lunch. Salvacion went outside and called the persons waiting in a tricycle who, she positively identified, were Antonio Cedro, Eugenio Cawilan, Jr., Danilo Roque and Ernesto Roque. Salvacion Enrera testified that only Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque entered the house and that Ernesto Roque remained in the tricycle. After Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque had taken their lunch, Eduardo Macam suddenly grabbed the clutch bag of Benito Macam and pulled out Benito's gun and after they announced a hold-up, they started ransacking the place and looking for valuables. After tying up the members of Benito Macam's household, namely, Leticia Macam, Nilo Alcantara, Salvacion Enrera, and the children of Benito Macam, the same persons brought them to a room upstairs. After a while, Leticia Macam, Nilo Alcantara, Salvacion Enrera, and Benito Macam were taken out of the room and brought to another room where Leticia Macam was killed and Benito Macam, Nilo Alcantara, and Salvacion Enrera were stabbed. The prosecution presented as Exhibit "C" a list of the items taken by the said persons with a total value of P536,700.00. Nilo Alcantara testified that while he was being brought downstairs by Antonio Cedro, he saw Leticia Macam being held by Danilo Roque inside the comfort room and that Danilo Roque told Antonio Cedro that "pare doon mo na upakan yan." Nilo then testified that he was brought back to a room upstairs where he suddenly heard a very loud scream from Leticia Macam, after which, he was suddenly stabbed by Antonio Cedro. Salvacion Enrera testified that she was brought to another room by Antonio Cedro where she saw Benito Macam and Nilo Alcantara bloodied from stab wounds and that she heard a loud scream from Mrs. Leticia Macam prior to her being stabbed by Danilo Roque (Rollo, pp. 36-37). III The version of the defense, as summarized by the trial court, is as follows: In exculpation, the defense in Criminal Case Q-53781 presented its sole witness accused Danilo Roque, who testified that in the morning of August 18, 1987, while he was driving his tricycle, he was stopped by three persons who, he came to know only during the trial of this case, were Eduardo Macam, Eugenio Cawilan, Jr. and Antonio Cedro. According to Danilo Roque, the said persons stopped him and asked that he bring them to Fema Road for which they were willing to pay P50.00 and that he agreed to bring them to Fema Road after Eduardo Macam gave him a calling card. Danilo Roque testified that they stopped at the residence of Benito Macam where Eduardo Macam alighted from his tricycle and entered the compound, and that after a while, he, together with Antonio Cedro and Eugenio Cawilan, Jr., was called by the maid of Benito Macam to go in the house and eat. After eating, Danilo stated that he washed the dishes and swept the floor, when suddenly, Eugenio Cawilan, Jr. pulled out a gun and announced a hold-up and told Danilo to keep silent and just follow what was asked of him to do. After the said persons tied the occupants of the house of Benito Macam, they told Danilo to help them gather some of the things therein, which order, Danilo obeyed for fear of his life. Danilo Roque then testified that after placing the things in a car parked inside the house, Eduardo Macam said, "Kailangan patayin ang mga taong yan dahil kilala ako ng mga yan," and that upon hearing this, he went out of the house and went home using his tricycle. He likewise testified that his brother, Ernesto Roque, was not at the said location. Danilo testified that his brother Ernesto had just

arrived from the province on August 19, 1987 and that he asked Ernesto to go with him to the factory of Zesto Juice and that while they were at the said factory, where he was told by Eduardo Macam to get his payment, he and his brother Ernesto were suddenly apprehended by the security guards. He and Ernesto were then brought to the Quezon City Headquarters where Danilo alleged (sic) they (Ernesto Roque, Eduardo Macam, Eugenio Cawilan, Jr., and Antonio Cedro) were forced to admit certain acts (Rollo, pp. 3435). The issues raised by appellants can be summarized into whether or not (a) their arrest was valid; and (b) their guilt have been proved beyond reasonable doubt. Appellants contend that their arrest without a warrant and their uncounseled identification by the prosecution witnesses during the police line-up at the hospital are violative of their constitutional rights under Section 12, Article 3 of the Constitution (Rollo, p. 119). Appellants gave the following version of the circumstances surrounding their arrests: . . . , Accused-Appellant Danilo Roque stated that between 4:00 o'clock (sic) and 5:00 o'clock (sic) in the afternoon of August 19, 1987, he and his brother, Accused-Appellant Ernesto Roque, went to the factory of Accused Eduardo Macam's father in Kaloocan City to collect the fare of P50.00 from Accused Eduardo Macam; they were suddenly approached by the security guards of the factory and brought inside the factory where they were mauled by the security guards and factory workers and told they were involved in a robbery-killing; thereafter, Patrolman Lamsin and his policemen-companions brought them to the headquarters of the Quezon City Police Department for investigation and detention; the other Accused, Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr., were in the jail of the Station Investigation Division, the Accused including Accused-Appellants Danilo Roque and Ernesto Roque were forced to admit to the robbery killing, but Accused-Appellants Danilo Roque and Ernesto Roque refused to admit they had anything to do with it; then all the Accused were brought to the Quezon City General Hospital before each of the surviving victims of the crime charged in handcuffs and made to line up in handcuffs together with some policemen in civilian clothes for identification by the surviving victims who the policemen spoke to before all of the Accused were pointed to as the suspects in the crime charged (TSN, July 12, 1989, pp. 1518; Rollo, pp. 145-148) (Rollo, pp. 121-122). It appears that the security guards at the factory of the father of accused Eduardo Macam detained appellants. They were later brought to the Quezon City Police Headquarters for investigation. Since they refused to admit their participation in the commission of the crime, appellants were then brought to the Quezon City General Hospital and were made to line-up together with several policemen in civilian clothes. Salvacion Enrera, Benito Macam and Nilo Alcantara, who were confined at the hospital for injuries sustained during the robbery, were asked to pinpoint the perpetrators. At that time, appellants were handcuffed and bore contusions on their faces caused by the blows inflicted on them by the police investigators (TSN, July 12, 1989, pp. 15-18). In Gamboa v. Cruz, 162 SCRA 642 (1988), we held that the right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information, confessions or admissions from the accused (See also People v. Dimaano, 209 SCRA 819 [1992]). Historically, the counsel guarantee was intended to assure the assistance of counsel at the trial, inasmuch as the accused was "confronted with both the intricacies of the law and the advocacy of the public prosecutor." However, as a result of the changes in patterns of police investigation, today's accused confronts both expert adversaries and the judicial system well before his trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct 2568 [1973]). It is therefore appropriate to extend the counsel guarantee to critical stages of prosecution even before the trial. The law enforcement machinery at present involves critical confrontations of the accused by the prosecution at pre-trial proceedings "where the result might well settle the accused's fate and reduce the trial itself to a mere formality." A police line-up is considered a "critical" stage of the proceedings (U.S. v. Wade, 388 U.S. 218, 18 L Ed 2d 1149, 87 S Ct 1926 [1967]). After the start of the custodial investigation, any identification of an uncounseled accused made in a police line-up is inadmissible. This is particularly true in the case at bench where the police officers first talked to the victims before the

confrontation was held. The circumstances were such as to impart improper suggestions on the minds of the victims that may lead to a mistaken identification. Appellants were handcuffed and had contusions on their faces. However, the prosecution did not present evidence regarding appellant's identification at the police line-up. Hence, the exclusionary sanctions against the admission in evidence of custodial identification of an uncounseled accused can not be applied. On the other hand, appellants did not object to the in-court identification made by the prosecution witnesses. The prosecution witnesses, who made the identification of appellants at the police line-up at the hospital, again identified appellants in open court. Appellants did not object to the in-court identification as being tainted by the illegal line-up. In the absence of such objection, the prosecution need not show that said identifications were of independent origin (Gilbert v. California, 388 U.S. 263, 18 L Ed 2d 1178, 87 S Ct 1951 [1967]). The arrest of appellants was made without the benefit of a warrant of arrest. However, appellants are estopped from questioning the legality of their arrest. This issue is being raised for the first time by appellants before this Court. They have not moved for the quashing of the information before the trial court on this ground. Thus, any irregularity attendant to their arrest was cured when they voluntarily submitted themselves to the jurisdiction of the trial court by entering a plea of not guilty and by participating in the trial (People v. Rabang, 187 SCRA 682 [1990]). Appellants further contend that their guilt has not been proved beyond reasonable doubt, conspiracy not having been established by positive and conclusive evidence (Rollo, p. 131). The presence of conspiracy between appellants and the other accused can be shown through their conduct before, during and after the commission of the crime (People v. Dagoma, 209 SCRA 819 [1992]). It is undeniable that appellant Danilo Roque was the tricycle driver, who brought the accused Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr. to the house of Benito Macam. He contends that he did not know the said accused. Yet, why did he agree to bring them to the Macam residence when the route going to that place is out of his regular route? Why did he agree to bring them to that place without being paid the P50.00 as agreed but was merely given a calling card? Upon arriving at the residence of Benito Macam, appellant Danilo Roque, together with his co-accused, went inside the house to eat. He even admitted that after eating, he washed the dishes, swept the floor and sat on the sofa in the sala instead of going out of the house. This conduct is not in keeping with his being merely the tricycle driver hired by the accused to transport them to their destination. Appellant Danilo Roque was the one who gathered the articles stolen from the house of the victim and who placed them inside the tricycle. While he claimed that he was merely intimidated by the accused to do so, his subsequent conduct belied this claim. According to him, he escaped after hearing accused Eduardo Macam tell his co-accused to kill all the possible witnesses who may be asked to identify them. Yet he continued to ply his route as if nothing unusual happened. How he was able to escape unnoticed by his co-accused is a puzzle by itself. Likewise, he did not mention the incident to anyone, not even to his brother, appellant Ernesto Roque, whom he saw the following day. He did not report the incident to the police. In People v. Logronio, 214 SCRA 519 (1992), we noted: "For criminals to make an innocent third party a passive and unnecessary witness to their crime of robbing and killing, and then to let such witness go free and unharmed, is obviously contrary to ordinary human experience." Appellant Danilo Roque's denial of his participation in the commission of the crime is not sufficient to overcome the testimony of the prosecution witnesses, who positively identified the former as one of the persons who entered the Macam's residence, robbed and stabbed the occupants therein. Salvacion Enrera testified that she was stabbed by appellant Danilo Roque. Nilo Alcantara, likewise, positively identified appellant Danilo Roque as one of those who brought Leticia Macam to the comfort room, where she was found dead. Appellant Ernesto Roque did not even testify in his defense at the trial. The Constitution does not create any presumption of guilt against an accused who opts not to take the witness stand (Griffin v. California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S Ct 1229 [1965]). That is his right. However, appellant Ernesto Roque cannot rely on the testimony of Danilo Roque because said testimony failed to rebut and impeach the evidence of the prosecution against both appellants (Cf. Desmond v. U.S. 345 F. 2d 225 [CA 1st 1965]). We agree with the finding of the trial court that appellant Ernesto Roque, while remaining outside the house of Macam, stood as a look-out, which makes him a direct co-conspirator in the crime (U.S. v. Santos, 4 Phil. 189 [1905]).

Appellants contend that the crimes committed were robbery and homicide, and not the complex crime of robbery with homicide (Rollo, p. 143). We do not agree. The rule is whenever homicide has been committed as a consequence or on occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide (People v. Veloso, 112 SCRA 173 [1982]; People v. Bautista, 49 Phil. 389 [1926]; U.S. v. Macalalad, 9 Phil. 1 [1907]). Lastly, the award of civil damages made by the trial court is not in accordance with law and jurisprudence. In its judgment, the trial court disposed in pertinent part as follows: "In Crim. Case Q-53781, the court finds accused DANILO ROQUE and ERNESTO ROQUE guilty beyond reasonable doubt of the crime of Robbery with Homicide, . . . and hereby sentences each of them to suffer the penalty of RECLUSION PERPETUA and each to indemnify the heirs of the deceased the sum of P30,000.00, ." (Rollo, pp. 43-44; emphasis supplied). The trial court overlooked the rule in Article 110 of the Revised Penal Code that the principals shall be "severally (in solidum)" liable among themselves (People v. Hasiron, 214 SCRA 586 [1992]). WHEREFORE, the decision is AFFIRMED with the MODIFICATIONS: (1) that the civil damages awarded in favor of the heirs of Leticia Macam are increased to P50,000.00; and (2) that the word "each" before "to indemnify the heirs" in the dispositive portion of the decision is deleted. G.R. No. 85215 July 7, 1989 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents. Nelson Lidua for private respondent.

NARVASA, J.: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed. Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It 1 having allegedly come to light that he was involved in irregularities in the sales of plane tickets, the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines 2 Employees' Association (PALEA) to which Ramos pertained. On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes reading as follows: 2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. ( s )
3

F e l i p e R a m o s

( P r i n t e d ) F . R a m o s

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop 4 stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, 5 according to the indictment, he (Ramos) .. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of

P76,700.65 and in spite of repeated demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. . On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K. The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' By Order dated August 9, 1988, the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission." The private prosecutors filed a motion for reconsideration. It was denied, by Order dated September 14, 1988. In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited." These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it. At the core of the controversy is Section 20, Article IV of the 1973 Constitution, construction that is disputed by the People. The section reads as follows:
11 9 10 8 7 6

to which respondent Judge has given a

SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of

such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely: 1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American 12 Constitution, and 2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial 13 interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative 14 proceeding. The right is NOT to "be compelled to be a witness against himself" The precept set out in that first sentence has a settled meaning. It prescribes an "option of refusal to answer incriminating 16 questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can 17 be expected to know in advance the character or effect of a question to be put to the latter. The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as 18 by a failure to claim it at the appropriate time. Rights in Custodial Interrogation Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is 19 avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, a decision described as an "earthquake 20 in the world of law enforcement." Section 20 states that whenever any person is "under investigation for the commission of an offense"-15

1) he shall have the right to remain silent and to counsel, and to be informed of such right,

21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used 22 against him; and 3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence.
23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody 24 interrogation" being regarded as the commencement of an adversary proceeding against the suspect. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self25 incriminating statement without full warnings of constitutional rights." The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers 27 after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The 28 situation contemplated has also been more precisely described by this Court." .. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not 29 protected. Thus, in one case, where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. Rights of Defendant in Criminal Case As Regards Giving of Testimony It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime. It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the

second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation." But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 30 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any 32 manner prejudice or be used against him. The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for 33 the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the 34 witness stand, be sworn, answer any question. And, as the law categorically states, "his neglect or refusal to be a witness 35 shall not in any manner prejudice or be used against him." If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or 36 connected therewith . He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa. In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT
37 31

a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify in his own behalf, subject to cross-examination by the prosecution;

d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the socalled "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against selfincrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur. G.R. Nos. 74123-24 September 26, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONILO PINLAC Y LIBAO, accused-appellant.

PARAS, J.: The Decision of the Regional Trial Court, Branch CXLV (145) Makati, Metro Manila dated March 18, 1986 rendered jointly in its Criminal Case No. 10476 and Criminal Case No. 10477, is before Us on automatic review. Therein, accused Ronilo Pinlac y Libao was charged in two (2) separate information, as follows: Re: Criminal Case No. 10476 That on or about the 8th day of April, 1984, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above named accused RONILO PINLAC y LIBAO, with intent to gain and by means of force and violence upon things, did, then and there wilfully, unlawfully and feloniously enter the house of KOJI SATO, by detaching the four (4) pieces of window jalousies and destroying the aluminum screens of the servant's quarters and entered through the same, an opening not intended for entrance or egress and once inside, took, robbed and carried away the following articles, to wit: Cash amount and/or cash money P180.00 Alba (Seiko) wrist watch. 300.00 Gold necklace with pendant of undetermined value, to the damage and prejudice of the owner KOJI SATO, in the aforesaid total amount of P480.00 and a necklace of undetermined value. Re: Criminal Case No. 10477 That on or about the 8th day of April, 1984, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, RONILO PINLAC y LIBAO, with intent to gain and by means of force and violence upon things, did, then and there willfully, unlawfully and feloniously enter the house of SAEKI OSAMU, by slashing the screen wall of his house and entered through the same, an opening not intended for entrance or egress, and once inside, took, robbed and carried away a Hitachi Casette tape recorder of undetermined value, belonging to the said SAEKI OSAMU, to the damage and prejudice of the owner thereof, in the amount of undetermined value. That on the occasion of the said Robbery, the above named accused, RONILO PINLAC y LIBAO in order to insure the commission of the said Robbery, with deliberate intent to kill and without justifiable cause, did, then and there willfully, unlawfully and feloniously attack, assault and stab one SAEKI OSAMU, several times with a kitchen knife he was then provided with, thereby causing several mortal wounds on the person of the said SAEKI OSAMU, which directly caused his death. After said accused entered a plea of not guilty, the cases proceeded to trial. On March 18, 1986, the trial court rendered its now assailed decision finding the accused guilty as charged with the dispositive portion thereof reading as follows: WHEREFORE, premises considered, the Court hereby renders judgment: 1. In Criminal Case No. 10476 finding accused, Ronilo Pinlac y Libao, guilty beyond reasonable doubt of the crime of robbery, and sentencing him to suffer imprisonment of SIX (6) YEARS of prision correccional, as

minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum, and to pay the offended party, Koji Sato, in the amount of Five Hundred Pesos (P500.00), Philippine Currency, without subsidiary imprisonment in case of insolvency, and to pay the costs. He is credited in the service of his sentence with the full time during which he has undergone preventive imprisonment. 2. In Criminal CaseNo.10477 finding accused, Ronilo Pinlac y Libao, guilty beyond reasonable doubt of the crime of robbery with homicide, and sentencing him to the supreme penalty of DEATH, and to pay the heirs of the victim, Saeki Osamu, the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency, and to pay the costs." The facts of the case as summarized by the trial court in its decision areLong before April 1984, two Japanese nationals were neighbors in San Lorenzo Village, Makati, Metro Manila. Mr. Koji Sato, 27 years old, married and a mechanical engineer by profession rented a house at No. 32 Arguilla Street in the said plush subdivision. He was living alone in said house, although he had a housemaid by the name of Irene Jandayan, who started working for him in 1981, and a cook by the name of Delia Marcelino. The latter was employed for almost a year; she went on maternity leave three days before the end of February 1984, since she was due to deliver a child with her husband, Pinlac, who had frequently visited her in Sato's place. A low concrete fence separated the house rented by Sato from that rented by Mr. Saeki Osamu, 35 years old, whose house is No. 34 in the same street. The latter, whose wife, Hiroko Saeki, was in the same address but who returned to Japan sometime after his untimely demise, was a staff member of the Japan International Cooperation Agency in the Philippines. April 7, 1984, fell on a Saturday. The following day was Jandayan's day-off. According to arrangement she was allowed to begin her day-off in the evening of Saturday. At around five o'clock in the afternoon of April 7th Sato went out of his house. At around 6:45 following, Jandayan also left the house in order to go home to Novaliches, Quezon City. But before leaving the house Jandayan saw to it that the windows and doors were securely closed and locked. It was only in the morning of the following Monday that Jandayan returned to her employer's residence. Returning home at around 11:30 in the evening of the same day, Sato noticed that the front door was already unlocked. Upon returning to his room upstairs he discovered that his Walkman transistor which was placed beside his bed was already missing. He searched for it upstairs, downstairs and around the house. It was only after entering Jandayan's room that he found his transistor together with his two wrist watches (he was then wearing one), cigarette lighter and eyeglass case. Another watch, an Alba Seiko, which he bought in Japan for 7,000 yen (the approximate equivalent of P300.00), a gold necklace which had sentimental value because given to him as a gift, an cash money amounting to P180.00, were all missing. They were never recovered. Sato thereafter went to the Makati Police Station to report the robbery. He requested some policemen to repair to his residence to investigate. It was when the police investigators had already reached his residence that he learned about the death of Osamu. On April 8, 1984, police detective Renato Mallari, together with detectives Evelio Bactad, Alex Samson, Isagani Viclar and police sergeant Vicente Flores, acting upon a report, went to the Makati Medical Center where Osamu was rushed to. Learning that Osamu died upon arrival in the hospital, they proceeded to No. 34 Arguilla Street. Thereat Viclar took photographs from different angles of the scene of the crime. The death weapon, the kitchen knife marked Exhibit "Q" was recovered from the living room of the house. This was later turned over to the PC crime laboratory for chemical examination. Blood was scattered in the living room. The telephone cord in the living room was cut off. Going around the house the investigators saw the slashed screen wall near the back door. Several footprints were found in the backyard; these correspond to

the impressions of the soles of Pinlac's shoes (Exhibit R ) Osamu's maid, Evelyn Salomea, was investigated. She revealed that she saw Pinlac enter the house of Sato at seven o'clock in the evening, although she did not see him leave thereafter; and that Jandayan has knowledge of the address of Marcelino. Her two statements were introduced in evidence as Exhibits "Z" and "AA". Subsequently, the policemen went to Marcelino's residence in Taguig, Metro Manila and, finding Pinlac thereat, invited him to the police station. Detective Samson (who also took the witness stand) opined that the killer made his entry by removing the panels of jalousies at the rear of the house and that fingerprints were lifted from the victim's house. Policemen Mallari submitted his final report Exhibit "X", regarding this incident. Upon returning to her room at seven o'clock in the morning of April 9, 1984, Jandayan saw that almost onehalf of the jalousies were detached and that her room was dirty. In the afternoon of the same day (4:35 P.M.) she gave her sworn statement marked Exhibit "B". She told the investigator that in the morning of April 6 she was called by Pinlac thru the telephone to inform that she had a letter from his wife. That she had to go to the guardhouse to get the letter from him since he was not allowed to enter the subdivision; that at eight o'clock in the afternoon of the same day Pinlac again called her to inquire about her reply; that she again went to the guardhouse to deliver to Pinlac her reply letter to Marcelino and the sum of Fifty Pesos which she owed her. At around 8:30 o'clock in the evening of April 9th, Sgt. Flores extracted the extra-judicial confession of Pinlac (Exhibit "F", "F-1" and "F-2"). (pp. 65-67, Rollo) The foregoing findings of fact are vigorously denied by the accused. His version of the incident is that From 9:00 P.M., on April 7, 1984 up to 11:00 P.M., the accused has never left the premises of his house; this fact was corroborated by defense witness Barcelino Heramis who noticed accused's presence in the premises as he and his children were then practicing their musical instrument that evening. At about 2:00 P.M., April 9, 1986, three (3) Policemen, came to his house in Taguig and arrested the accused for robbing Mr. Sato and for killing Mr. Osamu, without any Warrant of Arrest shown to him despite his demand. Before he was brought first to the houses of Mr. Sato and Mr. Osamu, they walked him around and showed him the destroyed window; and thereafter brought him inside the house. In short, he was ordered to reenact according to what the police theorized how the crime was committed. It was at this moment that the prints of the sole of accused's shoes were all over the premises of Osamu and Sato's houses. During the investigation at the Police Headquarters in Makati, Metro Manila, he was tortured and forced to admit the crimes charged; and as a result of that unbearable physical torture, his lips and mouth suffered cuts and cracks to bleed furiously; and that blood dripped into his clothings down to his shoes, thus explaining why there are blood stains in his shoes. Before and during the arrest, the police officers have never mentioned about the stain of blood in accused's shoes which they could have easily detected during the arrest. They got his shoes only after it were stained with blood oozing from accused's lips and mouth as a result of the injuries he sustained from the torturers. It was on that evening of April 9,1986 at about 9:00 o'clock, when accused could no longer bear the torture starting from 2:00 P.M. for seven (7) solid hours when he ultimately succumbed to the wishes of his torturers and finally signed a prepared confession which he was not even allowed to read, nor explained to him. The police investigators did not even wait in the following morning for the accused to sign the same considering that said confession was subscribed only on the following day April 10, 1986 by a certain Assistant Fiscal. (pp- 53-54, Rollo) In assailing his conviction, the accused (now petitioner) contends that the trial court erred in admitting in evidence his extrajudicial confession, which was allegedly obtained thru force, torture, violence and intimidation, without having been apprised of his constitutional rights and without the assistance of counsel. Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be desired. No direct evidence or testimony of any eyewitness was presented Identifying the accused as the perpetrator of the crime charged. The

only evidence furnished by the police authorities were merely circumstantial evidence regarding the fingerprints of the accused found in the window stabs of the maid's quarters and in the kitchen cabinet in the house of Mr. Sato. But this was satisfactorily explained by the accused to the effect that aside from being a frequent visitor in the house of Mr. Sato where his wife works as a cook wherein at those times he could have unknowingly left his fingerprints, but most especially during the time when he was arrested and ordered to reenact. In the process he held some of these window slabs, walls, furniture, etc., in accordance with the order of the arresting officer. The only evidence presented by the prosecution which could have been fatal, is the extrajudicial confession of the accused, which is now being assailed as violative of the Constitution. In the case of People vs. Galit, G.R. No. L-51770, promulgated on March 20, 1985, which cited the case of Morales vs. Ponce Enrile, 121 SCRA 538, this Court reiterated the correct procedure for peace officers to follow when making arrest and in conducting a custodial investigation. Therein, We said 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, .... He shall be informed of his constitutional rights to remain silent and to counsel and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone in his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory in whole or in part shall be inadmissible in evidence. (pp. 19-20, 139 SCRA) When the Constitution requires a person under investigation "to be informed" of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, (See People vs. Ramos, 122 SCRA 312; People vs. Caguioa, 95 SCRA 2). In other words, the right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights. (People vs. Nicandro, 141 SCRA 289). The Fiscal has the duty to adduce evidence that there was compliance with the duties of an interrogating officer. As it is the obligation of the investigating officer to inform a person under investigation of his right to remain silent and to counsel, so it is the duty of the prosecution to affirmatively establish compliance by the investigating officer with his said obligation. Absent such affirmative showing, the admission or confession made by a person under investigation cannot be admitted in evidence. Thus, in People vs. Ramos, supra, the Court ruled that the verbal admission of the accused during custodial investigation was inadmissible, although he had been apprised of his constitutional rights to silence and to counsel, for the reason that the prosecution failed to show that those rights were explained to him, such that it could not be said that "the apprisal was sufficiently manifested and intelligently understood" by the accused. (People vs. Nicandro supra) Going to the instant case, We find that the evidence for the prosecution failed to prove compliance with these constitutional rights. Furthermore, the accused was not assisted by counsel and his alleged waiver was made without the assistance of counsel. The record of the case is also replete with evidence which was not satisfactorily rebutted by the prosecution, that the accused was maltreated and tortured for seven (7) solid hours before he signed the prepared extra-judicial confession. On June 23, 1987, the Solicitor General filed a Manifestation and Motion in lieu of brief, praying that the judgment of conviction be reversed and the accused be acquitted of the crime charged. All considered, We hold that the guilt of the accused (petitioner) has not been established beyond reasonable doubt. WHEREFORE, the appealed Decision is REVERSED and SET ASIDE, and the petitioner is hereby ACQUITTED.

SO ORDERED. Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur. G.R. No. 101808 July 3, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMON BOLANOS, accused-appellant.

PARAS, J.: This is a review of the decision of the Regional Trial Court of Malolos, Bulacan, Branch 14, under Criminal Case No. 1831-M-90, for "Murder", wherein the accused-appellant, Ramon Bolanos was convicted, as follows: WHEREFORE, judgment is rendered finding the accused guilty beyond reasonable doubt of the Crime of Murder and the Court hereby imposed upon the accused Ramon Bolanos the penalty of Reclusion Perpetua (life imprisonment) and to pay the heirs of the victim P50,000.00 With Costs. SO ORDERED. (Judgment, p. 6) The antecedent facts and circumstances, follow: The evidence for the prosecution consisted of the testimonies of Patrolmen Marcelo J. Fidelino and Francisco Dayao of the Integrated National Police (INP), Balagtas, Bulacan, Calixto Guinsaya, and Dr. Benito Caballero, Medico-Legal Officer of Bocaue, Bulacan and documentary exhibits. The testimonial evidence were after the fact narration of events based on the report regarding the death of the victim, Oscar Pagdalian which was communicated to the Police Station where the two (2) policemen who responded to the incident are assigned and subsequently became witnesses for the prosecution. (Appellant's Brief, p. 2) Patrolmen Rolando Alcantara and Francisco Dayao testified that they proceeded to the scene of the crime of the Marble Supply, Balagtas, Bulacan and upon arrival they saw the deceased Oscar Pagdalian lying on an improvised bed full of blood with stab wounds. They then inquired about the circumstances of the incident and were informed that the deceased was with two (2) companions, on the previous night, one of whom was the accused who had a drinking spree with the deceased and another companion (Claudio Magtibay) till the wee hours of the following morning, June 23, 1990. (Ibid., p. 3) The corroborating testimony of Patrolmen Francisco Dayao, further indicated that when they apprehend the accused-appellant, they found the firearm of the deceased on the chair where the accused was allegedly seated; that they boarded Ramon Bolanos and Claudio Magtibay on the police vehicle and brought them to the police station. In the vehicle where the suspect was riding, "Ramon Bolanos accordingly admitted that he killed the deceased Oscar Pagdalian because he was abusive." (Ibid., p. 4) During the trial, it was clearly established that the alleged oral admission of the appellant was given without the assistance of counsel as it was made while on board the police vehicle on their way to the police station. The specific portion of the decision of the court a quo reads as follows: . . . the police boarded the two, the accused Ramon Bolanos and Claudio Magtibay in their jeep and proceeded to the police station of Balagtas, Bulacan to be investigated, on the way the accused told the police, after he was asked by the police if he killed the victim, that he killed the victim because the victim was abusive; this statement of the accused was considered admissible in evidence against him by the Court because it was given freely and before the investigation. The foregoing circumstances clearly lead to a fair and reasonable conclusion that the accused Ramon Bolanos is guilty of having killed the victim Oscar Pagdalian. (Judgment, p. 6)

A Manifestation (in lieu of Appellee's Brief), was filed by the Solicitor General's Office, dated April 2, 1992, with the position that the lower court erred in admitting in evidence the extra-judicial confession of appellant while on board the police patrol jeep. Said office even postulated that: "(A)ssuming that it was given, it was done in violation of appellant's Constitutional right to be informed, to remain silent and to have a counsel of his choice, while already under police custody." (Manifestation, p. 4) Being already under custodial investigation while on board the police patrol jeep on the way to the Police Station where formal investigation may have been conducted, appellant should have been informed of his Constitutional rights under Article III, Section 12 of the 1987 Constitution which explicitly provides: (1) Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent preferably of his own choice. If the person cannot afford the service of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation and rehabilitation of victims of torture or similar practices and their families. (Emphasis supplied). Considering the clear requirements of the Constitution with respect to the manner by which confession can be admissible in evidence, and the glaring fact that the alleged confession obtained while on board the police vehicle was the only reason for the conviction, besides appellant's conviction was not proved beyond reasonable doubt, this Court has no recourse but to reverse the subject judgment under review. WHEREFORE, finding that the Constitutional rights of the accused-appellant have been violated, the appellant is ACQUITTED, with costs de oficio. SO ORDERED. Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur. G.R. No. 97214 July 16, 1994 ERNESTO NAVALLO, petitioner, vs. HONORABLE SANDIGANBAYAN (SECOND DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. Pepino Law Office for petitioner. The Solicitor General for the People of the Philippines.

VITUG, J.: On 11 May 1978, an information charging petitioner with having violated Article 217, paragraph 4, of the Revised Penal Code, was filed with the then Court of First Instance ("CFI") of Surigao del Norte (docketed Criminal Case No. 299). It read:

That on or before January 27, 1978 in the municipality of del Carmen, Province of Surigao del Norte and within the jurisdiction of this Honorable Court, accused who is the Collecting and Disbursing Officer of the Numancia National Vocational School, which school is also located at del Carmen, Surigao del Norte and while a Collecting and Disbursing Officer of the aforestated school therefore was holding in trust moneys and/or properties of the government of the Republic of the Philippines and holding in trust public funds with all freedom, intelligence, criminal intent and intent of gain, did then and there voluntarily, unlawfully, feloniously and without lawful authority appropriate and misappropriate to his own private benefit, public funds he was holding in trust for the Government of the Philippines in the total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS and SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency, which total sum accused failed to account during an audit and failed as well to restitute despite demands by the office of the Provincial Auditor, to the damage and prejudice of the Government equal to the amount misappropriated. Act contrary to par. 4 of Article 217, of the Revised Penal Code with a penalty of Reclusion Temporal, minimum and medium periods and in addition to penalty of perpetual special disqualification and fine as 1 provided in the same Article. A warrant of arrest was issued, followed by two alias warrants of arrest, but accused-petitioner Ernesto Navallo still then could not be found. Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect creating the Sandiganbayan and conferring on it original and exclusive jurisdiction over crimes committed by public officers embraced in Title VII of the Revised Penal Code. On 15 November 1984, Navallo was finally arrested. He was, however, later released on provisional liberty upon the approval of his property bail bond. When arraigned by the Regional Trial Court ("RTC") on 18 July 1985, he pleaded not guilty. On 22 May 1986, upon motion of the prosecution, the RTC transferred the case and transmitted its records to the Sandiganbayan. On 27 January 1989, Special Prosecutor Luz L. Quiones-Marcos opined that since Navallo had already been arraigned before the case was transferred to the Sandiganbayan, the RTC should continue taking cognizance of the case. The matter was referred to the Office of the Ombudsman which held otherwise. The information was docketed (Criminal Case No. 13696) with the Sandiganbayan. A new order for Navallo's arrest was issued by the Sandiganbayan. The warrant was returned with a certification by the RTC Clerk of Court that the accused had posted a bail bond. The bond, having been later found to be defective, on 30 August 1989, a new bond was approved and transmitted to the Sandiganbayan. Navallo filed a motion to quash, contending (1) that the Sandiganbayan had no jurisdiction over the offense and the person of the accused and (2) that since the accused had already been arraigned by the RTC, the attempt to prosecute him before the Sandiganbayan would constitute double jeopardy. On 15 September 1989, the Sandiganbayan issued a resolution denying Navallo's motion. On 20 October 1989, Navallo was arraigned; he pleaded, "not guilty," to the charge. Trial ensued. Evidence for the Prosecution: On 27 January 1978, the Provincial Auditor of Surigao del Norte, Antonio Espino, made a preliminary audit examination of cash and other accounts of Ernesto Navallo (then Collecting and Disbursing Officer of Numancia National Vocational School). Espino found Navallo to be short of P16,483.62. The auditor, however, was then merely able to prepare a cash count sheet since he still had to proceed to other municipalities. Before departing, Espino sealed the vault of Navallo. On 30 January 1978, Leopoldo A. Dulguime was directed by Espino to complete the preliminary examination and to conduct a final audit. Dulguime broke the seal, opened the vault, and made a new cash count. Dulguime next examined the cashbook of Navallo. Dulguime did not examine the official receipts reflected in the cashbook, said receipts having been previously turned over to the Officer of the Provincial Auditor. After the audit, he had the cashbook likewise deposited with the same office. The audit covered the period from July 1976 to January 1978 on the basis of postings and record of collections certified to by Navallo. Dulguime confirmed Navallo's shortage of P16,483.62. Dulguime made a Report of Examination and wrote Navallo a letter demanding the restitution of the missing amount. The latter neither complied nor offered any explanation for the shortage. The official receipts and cashbook, together with some other records, were subsequently lost or damaged on account of a typhoon that visited the province.

Evidence for the Defense: The accused, Navallo, testified that in 1970, he was a Clerk I in the Numancia National Vocational School. In 1976, he was appointed Collecting and Disbursing Officer of the school. His duties included the collection of tuition fees, preparation of vouchers for salaries of teachers and employees, and remittance of collections exceeding P500.00 to the National Treasury. Even while he had not yet received his appointment papers, he, together with, and upon the instructions of, Cesar Macasemo (the Principal and Navallo's predecessor as Collecting and Disbursing Officer of the school), was himself already doing entries in the cashbook. Navallo and Macasemo thus both used the vault. Navallo said that he started the job of a disbursement officer in June 1977, and began to discharge in full the duties of his new position (Collection and Disbursement Officer) only in 1978. There was no formal turn over of accountability from Macasemo to Navallo. Gainsaying the prosecution's evidence, Navallo continued that the charge against him was motivated by a personal grudge on the part of Espino. On 25 January 1978, he said, he was summoned to appear at the Numancia National Vocational School where he saw Espino and Macasemo. The safe used by him and by Macasemo was already open when he arrived, and the cash which was taken out from the safe was placed on top of a table. He did not see the actual counting of the money and no actual audit of his accountability was made by Espino. Navallo signed the cash count only because he was pressured by Macasemo who assured him that he (Macasemo) would settle everything. The collections in 1976, reflected in the Statement of Accountability, were not his, he declared, but those of Macasemo who had unliquidated cash advances. Navallo admitted having received the demand letter but he did not reply because he was already in Manila looking for another employment. He was in Manila when the case was filed against him. He did not exert any effort to have Macasemo appear in the preliminary investigation, relying instead on Macasemo's assurance that he would settle the matter. He, however, verbally informed the investigating fiscal that the shortage represented the unliquidated cash advance of Macasemo. The Appealed Decision: On 08 November 1990, after evaluating the evidence, the Sandiganbayan reached a decision, and it rendered judgment, thus: WHEREFORE, the Court finds the accused ERNESTO NAVALLO y GALON GUILTY beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, paragraph 4, of the Revised Penal Code. Accordingly and there being no modifying circumstances nor reason negating the application of the Indeterminate Sentence Law, as amended, the Court imposes upon the accused the indeterminate sentence ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to SIXTEEN (16) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of reclusion temporal as maximum; the penalty of perpetual special disqualification, and a fine in the amount of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS AND SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency. The Court further orders the accused to restitute the amount malversed to the Government. SO ORDERED.
2

Accused-petitioner's motion for reconsideration was denied by the Sandiganbayan in its resolution of 05 February 1991. Hence, the instant petition. Four issues are raised in this appeal 1. Whether or not the Sandiganbayan acquired jurisdiction to try and decide the offense filed against petitioner in spite of the fact that long before the law creating the Sandiganbayan took effect, an Information had already been filed with the then Court of First Instance of Surigao del Norte.

2. Whether or not double jeopardy set in when petitioner was arraigned by the Regional Trial Court on July 18, 1985. 3. Whether or not petitioner was under custodial investigation when he signed the certification prepared by State Auditing Examiner Leopoldo Dulguime. 4. Whether or not the guilt of petitioner has been established by the prosecution beyond reasonable doubt as to warrant his conviction for the offense imputed against him. We see no merit in the petition. On 10 December 1978, Presidential Decree No. 1606 took effect providing, among other things, thusly: Sec. 4. Jurisdiction. The Sandiganbayan shall have jurisdiction over: (a) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379; (b) Crimes committed by public officers and employees, including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and (c) Other crimes or offenses committed by public officers or employees, including those employed in government-owned or controlled corporations, in relation to their office. xxx xxx xxx Sec. 8. Transfer of cases. As of the date of the effectivity of this decree, any case cognizable by the Sandiganbayan within its exclusive jurisdiction where none of the accused has been arraigned shall be transferred to the Sandiganbayan. The law is explicit and clear. A case falling under the jurisdiction of the Sandiganbayan shall be transferred to it so long as the accused has not as yet been properly arraigned elsewhere on the date of effectivity of the law, i.e., on 10 December 1978. The accused is charged with having violated paragraph 4, Article 217, of the Revised Penal Code 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 of the misappropriation or malversation of such funds or property, shall suffer: xxx xxx xxx 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. an offense which falls under Title VII of the Revised Penal Code and, without question, triable by the Sandiganbayan. Navallo's arraignment before the RTC on 18 July 1985 is several years after Presidential Decree No. 1606, consigning that jurisdiction to the Sandiganbayan, had become effective. Accused-petitioner, invoking Section 7, Rule 117, of the Revised Rules of Court, pleads double jeopardy. We cannot agree. Double jeopardy requires the existence of the following requisites:

(1) The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction; (2) The court has jurisdiction to try the case; (3) The accused has been arraigned and has pleaded to the charge; and (4) The accused is convicted or acquitted or the case is dismissed without his express consent. When all the above elements are present, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can rightly be barred. In the case at bench, the RTC was devoid of jurisdiction when it conducted an arraignment of the accused which by then had already been conferred on the Sandiganbayan. Moreover, neither did the case there terminate with conviction or acquittal nor was it dismissed. Accused-petitioner claims to have been deprived of his constitutional rights under Section 12, Article III, of the 1987 3 Constitution. Well-settled is the rule that such rights are invocable only when the accused is under "custodial investigation," or 4 is "in custody investigation," which we have since defined as any "questioning initiated by law enforcement officers after a 5 person has been taken into custody or otherwise deprived of his freedom of action in any significant way." A person under a normal audit examination is not under custodial investigation. An audit examiner himself can hardly be deemed to be the law enforcement officer contemplated in the above rule. In any case, the allegation of his having been "pressured" to sign the Examination Report prepared by Dulguime appears to be belied by his own testimony. To quote: Q How were you pressured? A Mr. Macasemo told me to sign the report because he will be the one to settle everything. xxx xxx xxx Q Why did you allow yourself to be pressured when you will be the one ultimately to suffer? A Because he told me that everything will be all right and that he will be the one to talk with the auditor. Q Did he tell you exactly what you will do with the auditor to be relieved of responsibility? A No, your Honor. Q Why did you not ask him? A I was ashamed to ask him, your Honor, because he was my 6 superior. Navallo may have been persuaded, but certainly not pressured, to sign the auditor's report. Furthermore, Navallo again contradicted himself when, in his very petition to this Court, he stated: Bearing in mind the high respect of the accused with his superior officer and taking into consideration his gratitude for the favors that his superior officer has extended him in recommending him the position he held even if he was not an accountant, he readily agreed to sign the auditor's report even if he was not 7 given the opportunity to explain the alleged shortage.

Finally, accused-petitioner challenges the sufficiency of evidence against him. Suffice it to say that the law he contravened itself creates a presumption of evidence. Article 217 of the Revised Penal Code states that "(t)he 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." An accountable officer, therefore, may be convicted of malversation even in the absence of direct proof of misappropriation as long as there is evidence of shortage in 8 his accounts which he is unable to explain. Not least insignificant is the evaluation of the evidence of the Sandiganbayan itself which has found thusly: The claim that the amount of the shortage represented the unliquidated cash advance of Macasemo does not inspire belief. No details whatsoever were given by the accused on the matter such as, for instance, when and for what purpose was the alleged cash advance granted, what step or steps were taken by Navallo or Macasemo to liquidate it. In fact, Navallo admitted that he did not even ask Macasemo as to how he (Navallo) could be relieved of his responsibility for the missing amount when he was promised by Macasemo that everything would be all right. When Navallo was already in Manila, he did not also even write Macasemo about the shortage. As to the collections made in 1976 which Navallo denied having made, the evidence of the prosecution shows that he assumed the office of Collecting and Disbursing Officer in July 1976 and the cashbook which was examined during the audit contained entries from July 1976 to January 1978, which he certified to. Navallo confirmed that indeed he was appointed Collecting and Disbursing Officer in 1976. Finally, the pretense that the missing amount was the unliquidated cash advance of Macasemo and that Navallo did not collect tuition fees in 1976 was advanced for the first time during the trial, that is, 12 long solid years after the audit on January 30, 1978. Nothing was said about it at the time of the audit and immediately thereafter. Findings of fact made by a trial court are accorded the highest degree of respect by an appellate tribunal and, absent a clear disregard of the evidence before it that can otherwise affect the results of the case, those findings should not be ignored. We see nothing on record in this case that can justify a deviation from the rule. WHEREFORE, the petition is DISMISSED and the decision of respondent Sandiganbayan is AFFIRMED in toto. SO ORDERED. G.R. No. 117487 December 12, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALICANDO y BRIONES, accused-appellant.

PUNO, J.: The case at bar involves the imposition of the death penalty. With all our frailties, we are asked to play the role of an infallible God by exercising the divine right to give or take away life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse, our error can result in the worst of crimes murder by the judiciary. The records reveal that appellant Arnel Alicando was charged with the crime of rape with homicide in an Information which reads: That on or about the 12th day of June 1994 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force, violence and intimidation to wit: by then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of age, choking her with his right hand, succeeded in having carnal knowledge with her and as a result thereof
1

she suffered asphyxia by strangulation fractured cervical vertebra and lacerations of the vaginal and rectal openings causing profuse hemorrhages and other injuries which are necessarily fatal and which were the direct cause of her death. CONTRARY TO LAW. On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of the PAO, Department of Justice. Appellant pleaded guilty. After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It also set the case for reception 2 of evidence for the appellant, if he so desired. The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla, father of the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them but every now and then would take leave and return. Appellant was living in his uncle's house some five (5) arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's group stopped drinking and left. Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's length from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the window of appellant's house. She offered to buy her "yemas" but appellant closed the window. Soon she heard the victim crying. She approached appellant's house and peeped through an opening between its floor and door. The sight shocked her appellant was naked, on top of the victim, his left hand choking her neck. She retreated to her house in fright. She gathered her children together and informed her compadre, Ricardo Lagrana, then in her house, about what she saw. Lagrana was also overcome with fear and hastily left. Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae. He and his wife searched for her until 1 o'clock in the morning. Their effort was fruitless. Rebada was aware that the Penecillas were looking for their daughter but did not tell them what she knew. Instead, Relada called out appellant from her window and asked him the time Khazie Mae left his house. Appellant replied he was drunk and did not know. As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to answer the call of nature. He discovered the lifeless body of Khazie Mae under his house. Her parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed the crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally confessed his guilt without the assistance of counsel. On the basis of his uncounselled verbal confession and follow up interrogations, the police came to know and recovered from appellant's house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained T-shirt all of which were presented as evidence for the prosecution. The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His autopsy report reveals the following injuries sustained by the victim: HEAD & NECK/THORACO-ABDOMINAL REGIONS: 1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right anterior neck, down to the medial portion of the left and right infraclavicular area. 2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest wall. 3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right antero- inferior chest wall. 4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch. 5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac crest. ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra. b) Fractured, crecoid cartilage. c) Both lungs, expanded with multiple petechial hemorrhages. d) Other internal organs, congested. EXTREMITIES: 1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd, left forearm. 2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm. 3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd, right forearm. VAGINAL FINDINGS/ANAL FINDINGS: a) Lacerated wound, from the fourchette up to the dome of the rectum.. b) Hematoma, from the fourchette up to the rectum. c) Lacerated wound, lateral wall of the vagina up to the level of the promontory of the sacrum with a length of 8 centimeters. d) A cylinder with a diameter of 2 cms., easily passes the vaginal and anal openings. CAUSE OF DEATH: A) ASPHYXIA BY STRANGULATION. B) FRACTURED, 2nd CERVICAL VERTEBRA. C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL & RECTAL OPENINGS. Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove that the proximate cause of Khazie Mae's death was asphyxia by strangulation. On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz: WHEREFORE, the court hereby finds the accused, Arnel Alicando, GUILTY beyond reasonable doubt for (sic) the Crime of Rape with Homicide penalized under Article 335 of the Revised Penal Code as amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No. 7659. Arnel Alicando is hereby sentenced to suffer a (sic) penalty of death and to indemnify the heirs of the offended party, Khazie Mae D. Penecilla, the sum of P50,000.00. The death sentence shall be executed by putting the person under sentence to death by electrocution (electric chair). As soon as facilities are provided by the Bureau of Prisons, the method of carrying out his sentence shall be changed by gas poisoning (sic). Here ends Khazie Mae's quest for justice. Her tormentor must suffer for the grievous offense he had committed. He deserves no mercy.

Cost against the accused. SO ORDERED. The case is before us on automatic review considering the death penalty imposed by the trial court. A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant assails the decision of the trial court as a travesty of justice. We find that the Decision of the trial court sentencing the appellant to death is shot full of errors, both substantive and procedural. The conviction is on an amalgam of inadmissible and incredible evidence and supported by scoliotic logic. First. The arraignment of the appellant is null and void. The trial judge failed to follow section (1) (a) of Rule 116 on arraignment. Said section provides: xxx xxx xxx Sec. 1. Arraignment and plea; how made. (a) The accused must be arraigned before the court where the complaint or information has been filed or assigned for trial. The arraignment must be made in open court by the judge or clerk by furnishing the accused a copy of the complaint or information with the list of witnesses, reading the same in the language or dialect known to him and asking him whether he pleads guilty or not guilty. The prosecutor may, however, call at the trial witnesses other than those named in the complaint or information. The reading of the complaint or information to the appellant in the language or dialect known to him is a new requirement imposed by the 1985 Rules on Criminal Procedure. It implements the constitutional right of an appellant 3 ". . . to be informed of the nature and cause of the accusation against him." The new rule also responds to the reality that the Philippines is a country divided by dialects and Pilipino as a national language is still in the process of 4 evolution. Judicial notice can be taken of the fact that many Filipinos have limited understanding either of the 5 Pilipino or English language, our official languages for purposes of communication and instruction. The importance of reading the complaint or information to the appellant in the language or dialect known to him cannot thus be understated. In the case at bar, the records do not reveal that the Information against the appellant was read in the language or dialect known to him. The Information against the appellant is written in the English language. It is unbeknown whether the appellant knows the English language. Neither is it known what dialect is understood by the appellant. Nor is there any showing that the Information couched in English was translated to the appellant in his own dialect before his plea of guilt. The scanty transcript 6 during his arraignment, reads: xxx xxx xxx Prosecutor Edwin Fama Appearing as public prosecutor Atty. Rogelio Antiquiera For the accused, Your Honor. Ready for arraignment. Interpreter (Reading the information to the accused for arraignment and pre-trial.) Note: (After reading the information to the accused, accused pleads guilty) One need not draw a picture to show that the arraignment of the appellant is a nullity. It violated section 1(a) of Rule 116, the rule implementing the constitutional right of the appellant to be informed of the nature and cause of the 7 accusation against him. It also denied appellant his constitutional right to due process of law. It is urged that we must presume that the arraignment of the appellant was regularly conducted. When life is at stake, we cannot lean on this rebuttable presumption. We cannot assume. We must be sure.

Second. The plea of guilt made by the appellant is likewise null and void. The trial court violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section provides: Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. The records reveal how the trial judge inadequately discharged this duty of conducting a "searching inquiry." In the 8 hearing of June 28, 1994, the transcripts reveal the following: Note (After reading the information to the accused, accused pleads guilty.) Court Question (sic) of the court to the accused. Q Considering that this is a crime and under the amended law is a heinous crime, because of your plea of guilty without the consent or even against the discretion of the court, the court will give you a mandatory death penalty because of the crime charged, do you understand? Accused Yes, Your Honor. Q Did you enter a plea of guilty on your own voluntary will or without any force or intimidation from any one or whatever? Accused None, Your Honor. Q Are you sure? Accused Yes, Your Honor. Q Or maybe because you were manhandled or maltreated by anyone and that will just be the consideration for you to plead guilty? Accused No, Your Honor. Court Were you not manhandled, please let us see your body? Note (Accused raised his prison uniform or shirt and showed to the court his body from waist up.) Accused No, Your Honor. Court You were not maltreated in the jail? Accused No, Your Honor. Court Please let us see whether you have bruises so that you will be examined by a physician to the order of the court?

Accused No, Your Honor. Court If you will plead guilty, that plea of guilty has no use because there will be a mandatory death penalty, do you still insist on your plea of guilty? Accused Yes, Your Honor. Court If you plead guilty to the crime charged there will be some effects on your civil rights hut not until the decision will be affirmed by the Supreme Court. Accused Yes, Your Honor. Note (See Order dated June 28, 1994 attached to the records of this case.) In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: xxx xxx xxx Fiscal Fama: Appearing as the public prosecutor, ready, Your Honor. Our first witness is Dr. Tito Doromal, Your Honor. Atty. Antiquiera: For the accused, Your Honor. Court Before the court will proceed with the reception of evidence by the prosecution Arnel Alicando, please come here. (at this juncture, Arnel Alicando, come near to the court) The court is warning you again that this is reception of evidence by the prosecution after you plead guilty to the crime charged at, do you understand? A Yes. Q Do you still affirm and confirm to your plea of guilty of rape with homicide? A Yes, Your Honor. Q Do you still insist that your plea of guilty is voluntary without force, intimidation or whatsoever? A Yes. Q The court is warning you that after reception of evidence, the imposable penalty is mandatory death? A Yes, Your Honor. Q Despite of that, you still insist on your plea of guilty?
9

A Yes, Your Honor. Court Okey, proceed. Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated the decision of this Court in 10 11 People vs. Apduhan, Jr., and reiterated in an unbroken line of cases. The bottom line of the rule is that the plea of guilt must be based on a free and informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1) the voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. The questions of the trial court failed to show the voluntariness of the plea of guilt of the appellant nor did the questions demonstrate appellant's full comprehension of the consequences of his plea. The records do not reveal any information about the personality profile of the appellant which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt. The age, socioeconomic status, and educational background of the appellant were not plumbed by the trial court. The questions were framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will be noted too that the trial court did not bother to explain to the appellant the essential elements of the crime of rape with homicide. A cursory examination of the questions of the trial court to establish the voluntariness of appellant's plea of guilt will show their utter insufficiency. The trial court simply inquired if appellant had physical marks of maltreatment. It did not ask the appellant when he was arrested, who arrested him, how and where he was interrogated, whether he was medically examined before and after his interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as if involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the following damning entry on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was mobbed by inmates while in jail and had suffered hematoma, viz: c-0262-94 INFORMATION 2:50 PM, P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC, informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this date when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of Rizal, Palapala Zone I, CP, been arrested and mobbed by the irrate residents of Zone II Rizal, Palapala, GP, in connection of the Rape with Homicide case wherein the victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place who was discovered dead under the house thereat. Suspect when turned over to this office and put on lock up cell was also mobbed by the angry inmates thus causing upon him hematoma contusion on different parts of his body. Likewise, the trial court's effort to determine whether appellant had full comprehension of the consequences of his plea is fatally flawed. It warned the appellant he would get the mandatory death penalty without explaining the meaning of "mandatory" It did not inform the appellant of the indemnity he has to pay for the death of the victim. It cautioned appellant there ". . . will be some effects on your civil rights" without telling the appellant what those "effects" are and what "civil rights" of his are involved. Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses cannot rest alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the appellant and the precise degree of his culpability beyond reasonable doubt. This rule modifies prior jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain a conviction charged in the information without need of further proof. The change is salutary for it enhances one of the goals of the criminal process which is to minimize erroneous conviction. We share the stance that "it is a fundamental value determination of our system that it is far worse to convict an innocent person than let a guilty 12 man go free. Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant, were inadmissible, yet, were considered by the trial court in convicting the appellant. Thus, the trial court gave full faith and credit to the physical evidence presented by the prosecution. To quote its Decision,
13

viz:

xxx xxx xxx Further, there are physical evidence to prove Khazie was raped. These consists of a pillow with bloodstains 14 15 in its center and the T-shirt of the accused colored white with bloodstains on its bottom. These physical evidence are evidence of the highest order. They strongly corroborate the testimony of Luisa Rebada that the victim was raped. These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City PNP as a result of custodial interrogation where appellant verbally confessed to the crime without the benefit of counsel. PO3 Tan 16 admitted under cross-examination, viz: xxx xxx xxx CROSS-EXAMINATION BY ATTY. ANTIQUIERA: Q Mr. Witness, when for the first time did you see Arnel Alicando? A June 13, 1994, when I arrested him. Q Previous to that you have never seen him? A Yes, sir. Q When for the first time did you start investigating Arnel Alicando? A After I finished investigating the body of the victim, Khazie Mae Penecilla. Q And that was also after you were informed that Arnel Alicando was a suspect in the raping of Khazie Mae Penecilla? A Yes, sir Atty. Antiquiera: Q And who was that person who informed you of the suspect? A Luisa Rebada. Q Mrs. Rebada who is the witness in this case? A Yes, sir. Q And you started investigating Arnel Alicando in the morning of June 13, 1994? A Yes, sir. Q How long did you interrogate Arnel Alicando in the morning of June 13, 1994? A I cannot remember the length of time I investigated him.

Q Did it take you the whole morning of June 13, 1994 in interrogating and investigating Arnel Alicando? A Yes, sir. Q And the investigation you conducted continued in the afternoon of the same date? A Yes, sir. Q The following day, June 14, 1994, you still investigated and interrogated Arnel Alicando. A Yes, sir. Q And when did you stop, finally, investigating and interrogating Arnel Alicando? A After I finished recovering all the exhibits in relation to this case. Q What date did you stop your investigation? A June 14, 1994, when I finished recovering the white T-shirt and pair of earring. Atty. Antiquiera: Q You testified in this case, Mr. Witness, you never informed the court that you apprised the accused of his constitutional rights, is that correct? A I apprised him. Q My question is, during your testimony before this court under the direct examination of the prosecution you never informed the court that you apprised the accused of his constitutional rights? Pros. Fama: I did not ask him that question. How will he answer? Court: Sustained. Atty. Antiquiera: Q When did you inform, the date when you informed Alicando of his Constitutional rights? A On June 13. Q On what hour did you inform him?

A After the witness identified him. Q What constitutional rights did you inform Alicando of? A The right to remain silent, and right to get his lawyer and I have interpreted in Visayan language. Q And during your investigation for almost two (2) days the accused was never represented by counsel, is that correct? A Yes, sir. Atty. Antiquiera: Q Are you aware of the law that enjoins a public officer to inform the person of his constitutional rights? A Yes, sir. That is all, Your Honor. It is now familiar learning that the Constitution has stigmatized as inadmissible evidence uncounselled confession or admission. Section 12 paragraphs (1) and (3) of Article III of the Constitution provides: xxx xxx xxx 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. xxx xxx xxx (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him. In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important confession of the appellant in writing. Neither did he present any writing showing that appellant waived his right to silence and to have competent and independent counsel despite the blatant violation of appellant's constitutional right, the trial court allowed his uncounselled confession to flow into the records and illicitly used it in sentencing him to death. It is not only the uncounselled confession that is condemned as inadmissible, but also evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were evidence derived from the uncounselled confession illegally extracted by the 17 police from the appellant. Again, the testimony of PO3 Tan makes this all clear, viz: xxx xxx xxx Q Did the accused Arnel Alicando accompany you to the place of the incident? A Yes, sir. Q When you arrived at the place of the incident what did you do?

A He pointed to the fish basin. Q Can you identify this fish basin which you said pointed to you by Arnel Alicando? A Yes, sir. Q Please point? A (Witness pointing to the fish basin already marked as Exhibit "H".) Q Did you ask the accused what he did with this fish basin? A I asked the accused what he did with the fish basin and he answered that he used the fish basin to cover Khazie Mae Penecilla when she was already dead. Pros. Fama: Q You mean to say to conceal the crime? A Yes, sir. Q What else aside from this fish basin, what else did you recover? A At around 7 o'clock in the evening he further pointed to us the old mat and the pillow wherein he layed the victim Khazie Mae Penecilla Q You mean to say that you returned back to the scene of the incident that time? A It was already night time and it was only Kagawad Rodolfo Ignacio, my companion, who went to the place of the incident. Q You mean to say you were verbally instructed by the accused? A Yes, sir. Q In what particular place did you recover those things? A Inside the room where he raped the child. Q Whose house is that? A The house of Imelda Alicando. Q The wife of Romeo Alicando? A Yes, sir. Q In what particular place is that situated? A Inside the room where the accused was sleeping at Rizal-Palapala. Pros. Fama:

Q You mean to say inside that room the victim was raped by the accused? A Yes, sir. Q Can you point that pillow which you said you recovered inside the room of Imelda Alicando? A Yes, sir. Q And the mat? A (Witness taking out from the fish basin the mat and pillow.) Q Did you find something on the pillow? A The pillow have bloodstain in the middle. . . This was already marked as Exhibit "J", Your Honor and the mat as Exhibit "I". Q Aside from this what did you recover from the place of incident? A On June 14, 1994, at about 10:00 o'clock in the morning the accused Arnel Alicando further informed me that he kept the gold earring of the victim and her clothes inside the room of the house of Imelda Alicando. Q Where? A I saw the clothes of Khazie Mae Penecilla inside the room where the rape took place hanged on the clothes line. And I found the pair of earring at the bamboo post of the fence. Court: Q Where is that bamboo post of the fence situated? A Around the fence of Imelda Alicando situated at the from gate on the right side. Pros. Fama: Q You mean to say you returned back on June 14, you recovered the items accompanied by the accused? A No more, I only followed his direction. Q He made verbal direction to you? A Yes, sir. Q Can you please show us the white t-shirt? A (Witness taking out a white t-shirt from the fish basin.)

Q Please examine that white t-shirt? A The t-shirt have a bloodstain. We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the 18 celebrated case of Nardone v. United States. According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the " fruit " ) derived from it is also 19 inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally 20 obtained evidence taints all evidence subsequently obtained. We applied this exclusionary rule in the recent case of 21 People vs. Salanga, et al., a ponencia of Mr. Justice Regalado. Salanga was the appellant in the rape and killing of a 15-year old barrio lass. He was, however, illegally arrested. Soldiers took him into custody. They gave him a body search which yielded a lady's underwear. The underwear was later identified as that of the victim. We acquitted Salanga. Among other reasons , we ruled that "the underwear allegedly taken from the appellant is inadmissible in 22 evidence, being a so-called "fruit of the poisonous tree." But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the trial court erred in holding that they "strongly corroborated the testimony of Luisa Rebada that the victim was raped." For one, there was no basis for the trial court to conclude that the stains on the pillow and t-shirt were human bloodstains. The pillow and the t-shirt were not examined by any expert. To hold that they were human bloodstains is guesswork. For another, there was no testimony that the stains were caused by either the blood of the appellant or the victim. In addition, there was no testimony that the t-shirt was the one worn by the appellant when he allegedly committed the crime. It must also be noted that it is not unnatural for appellant to have bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla himself, the father of the victim, 23 testified he knows the appellant "because he used to accompany me during butchering of animals." The burden to prove that an accused waived his right to remain silent and the right to counsel before making a confession under custodial interrogation rests with the prosecution. It is also the burden of the prosecution to show that the evidence derived from confession is not tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and convincing evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides only one mode of waiver the waiver must be in writing and in the presence of counsel. In the case at bar, the records show that the prosecution utterly failed to discharge this burden. It matters not that in the course of the hearing, the appellant failed to make a timely objection to the introduction of these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy burden of proof that rested on the prosecution. There is no and there ought not to be any disagreement on basic principles. The Court should be concerned with the heinousness of the crime at bar and its despicable perpetration against a 4-year old girl, an impersonation of innocence itself. The Court should also be concerned with the multiplication of malevolence in our midst for there is no right to be evil, and there are no ifs and buts about the imposition of the death penalty as long as it remains unchallenged as part of the laws of our land. These concerns are permanent, norms hewn in stone, and they transcend the transitoriness of time. Be that as it may, our commitment to the criminal justice system is not only to convict and punish violators of our laws. We are equally committed to the ideal that the process of detection, apprehension, conviction and incarceration of criminals should be accomplished with fairness, and without impinging on the dignity of the individual. In a death penalty case, the Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction will leave a lasting stain in our escutcheon of justice. In sum, the Court cannot send the appellant to die in the electric chair on the basis of the procedural irregularities committed 24 by, and the inadmissible evidence considered by the trial court. In Binabay vs. People, et al., ponencia of Mr. Chief Justice R. Concepcion, this Court held that no valid judgment can be rendered upon an invalid arraignment. Since in the case at bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness to the appellant, and in justice to the victim, the case has to be remanded to the trial court. for further proceedings. There is no philosophy of punishment that allows the State to kill without any semblance of fairness and justice.

IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel Alicando of the crime of Rape with Homicide and sentencing him to suffer the penalty of death is annulled and set aside and the case is remanded to the trial court for further proceedings. No costs. SO ORDERED. Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug, Francisco and Panganiban, JJ., concur. G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:p The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias 1 "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion, and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition: In the original Information filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later 3 amended in an Amended Information which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned,
2

engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . (then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his 4 capture. A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and 5 his co-accused was filed with this Court which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no 6 jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, to which 7 petitioner filed an Opposition citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx xxx xxx Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. In his Order of March 6, 1987, respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, which herein 10 petitioner opposed in an Opposition filed on 27 May 1987 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: . . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present
11 9 8

circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense. As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex. In a motion to reconsider the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained." On 17 July 1987, petitioner filed a supplemental motion for reconsideration indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest,
13 12

which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute 14 constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, and that an 15 arrestee may be incarcerated until trial as he presents a risk of flight; and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the 16 community which no condition of release can dispel. On 30 July 1987 respondent Judge handed down the Order dispositive portion of which reads:
17

adverted to in the introductory portion of this decision the

WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58). In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues: THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS. in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal 18 background, the gravity of the pending charge, and the likelihood of flight.

In Our resolution of 11 August 1987 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987, private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL. III RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private respondent.
23 21 20

19

The reply was filed on 18 September 1987.

22

In Our resolution of 15 October 1987 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November and 23 November 1987 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our 26 27 resolution of 19 November 1987 and 1 December 1987, respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this 28 29 petitions, which he complied with by filing his Manifestation on 30 May 1990 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge.
24 25

And now on the issues presented in this case. I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not 30 exceeding P20,000.00. It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Section 3, Rule 114 of the Rules of Court, as amended, also provides: Bail, a matter of right: exception. All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is 31 32 punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute. And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is 33 strong. But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held: The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is 34 great! Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court 35 should resolve the motion for bail. We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . . In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail. II. It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua. xxx xxx xxx This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws 36 a final sentence has been pronounced and the convict is serving the same.

III. We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his coaccused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case: 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows: When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately. Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release.

Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave. 4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest: 1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement: a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed. 5. On 16 October 1986 We issued the following resolution: G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the

condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave. It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the 37 trial of his criminal case, [he] has expressly waived his right to bail." Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that: "Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306) He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or 38 otherwise deprived of his liberty." When the parties in G.R. No. 76009 stipulated that: b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. In defining bail as: . . . the security given for the release of a person in custody of the law, . . . Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet 39 secure his appearance at the trial. It presupposes that the person applying for it should be in the custody of the law or 40 otherwise deprived of liberty.

Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail. But, is such waiver valid? Article 6 of the Civil Code expressly provides: Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the 41 intentional doing of an act inconsistent with claiming it." As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of 42 waiver. In Commonwealth vs. Petrillo,
43

it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if 44 taken against his will." This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and 45 46 47 seizures; the right to counsel and to remain silent; and the right to be heard. Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part.

G.R. No. 93177 August 2, 1991 B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents. No. 95020 August 2, 1991 B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA., respondents. No. 96948 August 2, 1991 B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents.

No. 97454 August 2, 1991 AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents. Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza. Manuel Q. Malvar for Rafael Galvez and Danny Lim. Manuel E. Valenzuela for Arsenio Tecson Mariano R. Santiago for Alfredo Oliveros. Ricardo J.M. Rivera for Manuel Ison. Castillo, Laman, Tan and Pantaleon for Danilo Pizarro. Alfredo Lazaro for Romelino Gojo. Manuel A. Barcelona, Jr. for Jose Comendador. Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando. Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio. Efren C. Moncupa for All Tecson. M.M. Lazaro & Associates for respondents Ligot and Ison . Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot. Salvador B. Britanico for Cesar de la Pena. Gilbert R.T. Reyes for Danilo Pizarro. Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177. The Solicitor General for respondents.

CRUZ, J.:p These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident.

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989. The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the PreTrial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them. In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408. In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents. In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020. I Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit: You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS. Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence. On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion. At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990. In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses. On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990. The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides:

Art. 71. Charges Action upon. Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief. No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to crossexamine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.) They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits. At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39. In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court. After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison. On August 22, 1990, the trial court rendered judgment inter alia: (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14. Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson. On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpus on the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. II

The Court has examined the records of this case and rules as follows. It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pretrial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial. The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense. Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights. There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of jurisdiction." We so held in Arula v. 1 Espino, thus: xxx xxx xxx But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction. The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said: We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counter-part is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of the Army General court martial jurisdiction.. The Article does serve important functions in the administration of courtmartial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a courtmartial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level. xxx xxx xxx Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but

left unchanged the language here under consideration. compensable pre-requisite to the exercise of Army general court-martial jurisdiction A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings. As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in 2 Kapunan v. De Villa, where we declared: The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911. The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff. Article of War No. 8 reads: Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority. ... While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other respondents by the Solicitor General. Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit: Art. 18. Challenges. Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity

thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause. The history of peremptory challenge was traced in Martelino v. Alejandro, thus: In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps of the developing army was numerically made equate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause. On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them. On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory challenge, thus: No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced. On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree. On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein. P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically. It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul. Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge.
3

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime. The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers. The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a courtmartial trial to delay the proceedings and defer his deserved Punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve. The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings. The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of 4 Appeals where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals. It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts. In Martelino, we observed as follows: It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courtsmartial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... . The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions for habeas corpus and quo 5 warranto. In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their

duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial. The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus: ... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff. While accepting this explanation, the Court nevertheless must reiterate the following admonition: This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and release him. Any officer who is responsible for unnecessary delay in 6 investigating or carrying the case to a final conclusion may even be punished as a court martial may direct. It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the

decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991. III Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula: The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released. ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs. G.R. No. L-62100 May 30, 1986 RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of the Aviation Security Command (AVSECOM), respondents.

FERNAN, J.: The issue posed for resolution in this petition for review may be stated thus: Does a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel? Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the hands of professional men, he holds no officer-position in said business, but acts as president of the former corporation. Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner, who was then in the United States, came home, and together with his co-stockholders, filed a petition with the Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc Securities, Inc., but likewise for TransInsular Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed. Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division. When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of

Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU Instance Corporation as surety. On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions and 1 opportunities." The prosecution opposed said motion and after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9, 1982, reads: Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground that his trip is ... relative to his business transactions and opportunities. The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant judicial imprimatur on the proposed trip. In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future until 2 these two (2) cases are terminated . On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part: 6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might claim that they could no longer be held liable in their undertakings because it was the Court which allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the accused fail or decide not to return. WHEREFORE, the motion of the accused is DENIED.
3

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied in a letter dated May 27, 1982. Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure. On October 5, 1982, the appellate court rendered a decision dismissing the petition for lack of merit. Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari. Pending resolution of 6 the petition to which we gave due course on April 14, 1983 petitioner filed on August 15, 1984 a motion for leave to go abroad 7 pendente lite. In his motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the 8 obtention of foreign investment in Manotoc Securities, Inc." He attached the letter dated August 9, 1984 of the chief executive 9 officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller requesting his presence in the United States to "meet the people and companies who would be involved in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on the ground that after verification of the records of the Securities and Exchange Commission ... (he) was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the 10 offenses imputed to him." Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however, remained pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner, instead of dismissing the cases before him, ordered merely the informations amended so as to delete the allegation that petitioner was president and to 11 substitute that he was "controlling/majority stockholder,'' of Manotoc Securities, Inc. On September 20, 1984, the Court in a 12 resolution en banc denied petitioner's motion for leave to go abroad pendente lite.
5 4

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from exercising his constitutional right to travel. Petitioner's contention is untenable. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the 13 court and do what the law may require of him. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935). ... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction. Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have 14 the right to prevent the principal from leaving the state. If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise. To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage: ... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the appellants are in the territorial confines of the Philippines and not demandable if the appellants are out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If granted at all, liberty operates as fully within as without the boundaries of the granting state. This principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country. The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence expressly

declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the reason suggested by the appellate court. Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his comment: A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some business transactions and search for business opportunities. From the tenor and import of petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad. Petitioner's motion bears no indication that the alleged business transactions could not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's absence from the United States would absolutely preclude him from taking advantage of business opportunities therein, nor is there any showing that 15 petitioner's non-presence in the United States would cause him irreparable damage or prejudice. Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result has been reached as to a stipulation or agreement to postpone 16 the trial until after the final disposition of other cases, or to permit the principal to leave the state or country." Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases pending before said judge, We see the rationale behind said order. As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their having denied petitioner's motion for permission to leave the country, in much the same way, albeit with contrary results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would comply with the conditions of her bail bond. The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by the above-quoted constitutional provision. Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds that no gainful purpose will be served in discussing the other issues raised by petitioner. WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner. G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.

DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void. On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark 1 B. Jimenez, a.k.a. Mario Batacan Crespo, this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal

laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the 2 international community. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee, held 3 that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order. First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to 4 criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons and Chirskoff v. Commission of Immigration, this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to 8 9 the demanding state. It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition proceeding is 10 not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. It is sui 11 generis, tracing its existence wholly to treaty obligations between different nations. It is not a trial to determine the guilt or 12 13 innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which 14 he fled, for the purpose of trial or punishment. But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without
6 7 5

having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility 15 of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED. G.R. No. 72335-39 March 21, 1988 FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

YAP, J.: In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial

or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an entitled "People of the Philippines versus Francisco S. Tatad." The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act. Apparently, no action was taken on said report. Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public Information. The complaint repeated the charges embodied in the previous report filed by complainant before the Legal Panel, Presidential Security Command (PSC). On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter. Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed against petitioner before the Sandiganbayan, to wit: l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference in the discharge of his official functions through manifest partiality and evident bad faith; 2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973; 3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978. Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan against the petitioner: Re: Criminal Case No. 10499 The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully demand and receive a check for Pl25,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the payment to said Corporation of the sum of P588,000.00, for printing services rendered for the Constitutional Convention Referendum of January, 1973, wherein the accused in his official capacity had to intervene under the law in the release of the funds for said project.

That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10500 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practice Act, committed as follows: That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true detailed and sworn statement of his assets and liabilities, as of December 31, 1973, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1973), as required of every public officer. That the complaint against the above-named accused was flied with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10501 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the month of May, 1975 and for sometime prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully give Marketing Communication Group, Inc. (D' Group), a private corporation of which his brother-in-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the discharge of his official functions, through manifest partiality and evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and ownership of South East Asia Research Corporation (SEARCH), allegedly a private corporation registered with the Securities and Exchange Corporation on June 4, 1973, but whose organization and operating expenses came from the confidential funds of the Department of Public Information as it was organized to undertake research, projects for the government, without requiring an accounting of the funds advanced by the Department of Public Information and reimbursement thereof by D' GROUP, to the damage and prejudice of the government. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10502 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare

and file with the Office of the President, a true and sworn statement of his assets and liabilities, as of December 31, 1976, including a statement of the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1976), as required of every public officer. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1988. CONTRARY TO LAW. Re: Criminal Case No. 10503 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 15th day of April, 1979, in the City of Manila Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true, detailed and sworn statement of his assets and liabilities, as of December 31, 1978, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1978), as required of every public officer. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the informations on the follow grounds: 1 The prosecution deprived accused-movant of due process of law and of the right to a speedy disposition of the cases filed against him, amounting to loss of jurisdiction to file the informations; 2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501; 3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense; 4. No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500, 10502 and 10503; 5. No prima facie case against the accused-movant exists in Criminal Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended; 6. No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended. On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash, stating therein in particular that there were only two grounds in said motion that needed refutation, namely: 1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have already prescribed and criminal liability is extinguished; and

2. The facts charged in the information (Criminal Case No. 10500 For failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense. On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of prescription. Since the above-numbered cases were filed with the Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period of limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is constitutional. Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "... regardless of the networth," the mandate in the latter law is for ALL government employees and officials to submit a statement of assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair the validity of the informations filed and that neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation. On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to quash, the dispositive portion of which reads: WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's "Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect in the information in Criminal Case No. 10500 being one which could be cured by amendment, the Tanodbayan is hereby directed to amend said information to change the date of the alleged commission of the offense therein charged from January 31, 1974 to September 30, 1974 within five (5) days from receipt hereof. SO ORDERED. On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the commission of the offense to September 30, 1974. On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course the petition, resolved to require the respondents to comment thereon and issued a temporary restraining order effective immediately and continuing until further orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the respondents, through ,Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986. On April 10, 1986, the Court required the parties to move in the premises considering the supervening events, including the change of administration that had transpired, and the provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were concerned, which requires the successor official to state whether or not he maintains the action or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and they have no political bearing whatsoever," he had no alternative but to pursue the cases against the petitioner, should the Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in which he concurred with the position taken by the new Tanodbayan. Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing of

the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned. Petitioner has raised the following issues in his petition: 1. Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan had deprived petitioner of his constitutional light to due process and the right to a speedy disposition of the cases against him. 2. Whether the crimes charged has already prescribed. 3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan. 4. Whether Sandiganbayan should have ruled on the question of amnesty raised by the petitioner. 5. Whether petitioner's contention of the supposed lack or non- existence of prima facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned informations. Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and "speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in filing the corresponding informations only after more than a decade from the alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as would establish petitioner's claim of denial of due process and other constitutionally guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan: That there was a hiatus in the proceedings between the alleged termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985 could have been due to certain factors which do not appear on record and which both parties did not bother to explain or elaborate upon in detail. It could even be logically inferred that the delay may be due to a painstaking an gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In this respect, We are the considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the resolution of a complaint by the Tanodbayan within ten (10) days from termination of the preliminary investigation is merely "directory" in nature, in view of the nature and extent of the proceedings in said office. The statutory grounds for the quashal of an information are clearly set forth in concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it would be itself remiss in the performance of its official functions and subject to the charge that it has gravely abused its discretion. Such facts and circumstances which could otherwise justify the dismissal of the case, such as failure on the part of the prosecution to comply with due process or any other constitutionally-guaranteed rights may presented during the trial wherein evidence for and against the issue involved may be fully threshed out and considered. Regrettably, the accused herein attempts to have the Court grant such a radical relief during this stage of the proceedings which precludes a pre-cocious or summary evaluation of insufficient evidence in support thereof. This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution? May the court, ostrich like, bury its head in the sand, as it were, at the initial stage of the proceedings and wait to resolve the issue only after the trial?

In a number of cases, this Court has not hesitated to grant the so-called "radical relief" and to spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear that he has been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to each case. Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1, 1980-which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counter-affidavits were in the case was already for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the ring of the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone. A painstaking review of the facts can not but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding investigation and report. We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an office directly under the President in the prosecutorial process, lending credence to the suspicion that the prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice even handedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the of the prosecutor be enhanced. Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter. We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to

alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True-but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time. After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. Accordingly, the Court Resolved to give due course to the petition and to grant the same. The informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued on October 22, 1985 is made permanent. SO ORDERED. G.R. No. 72670 September 12, 1986 SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B. FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ, JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUOZ PALMA. JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE JAYME, **, petitioners, vs. SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, *** , respondents. Lupino Lazaro and Arturo M. de Castro for petitioners. Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr. Rodolfo U. Jimenez for respondent Brig. Gen. Custodio. Ramon M. Bernaldo for respondent H. Gosuico. Romulo Quimbo for respondent B. Vera Cruz. Norberto J. Quisumbing for respondent P. Olivas. Felix Solomon for respondent Col. A. Custodio. Alfonso S. Cruz for B. Fernandez.

Edgardo B. Gayos for M. Pamaran. RESOLUTION

TEEHANKEE, C.J.: Last August 21st, our nation marked with solemnity and for the first time in freedom the third anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military tribunal for common offenses alleged to have been committed long before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by the President of the charges in a nationwide press conference 1 held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but overwhelming ." This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts. Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport, he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired point blank into the back of his head by a murderous assassin, notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it (was) technically impossible to get inside (such) a 2 cordon." The military investigators reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it." The national tragedy shocked the conscience of the entire nation and outraged the free world. The large masses of people who joined in the ten-day period of national mourning and came out in millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and their yearning for the truth, justice and freedom. The then President was constrained to create a Fact Finding Board to investigate "the treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national 4 shame specially because of the early distortions and exaggerations in both foreign and local media so that all right thinking and honest men desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free 5 6 investigators." After two false starts, he finally constituted the Board on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan which was better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your conscience with what you have done."
3

The fact is that both majority and minority reports were one in rejecting the military version as propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist plot The only difference between the two reports is that the majority report found all the twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not have been planned and implemented without his intervention." The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies in what will transpire in accordance with the action that the Office of the President may thereafter direct to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after warning the forces who adhere to an alien and intolerable political ideology against unscrupulously using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing." They wrote: The task of the Board was clear and unequivocal. This task was not only to determine the facts and circumstances surrounding the death of the late former Senator. Of greater significance is the awesome responsibility of the Board to uphold righteousness over evil, justice over injustice, rationality over irrationality, humaneness over inhumanity. The task was indeed a painful test, the inevitable result of which will restore our country's honored place among the sovereign nations of the free world where peace, law and order, freedom, and justice are a way of life. More than any other event in contemporary Philippine history, the killing of the late former Senator Aquino has brought into sharper focus, the ills pervading Philippine society. It was the concretization of the horror that has been haunting this country for decades, routinely manifested by the breakdown of peace and order, economic instability, subversion, graft and corruption, and an increasing number of abusive elements in what are otherwise noble institutions in our country-the military and law enforcement agencies. We are, however, convinced that, by and large, the great majority of the officers and men of these institutions have remained decent and honorable, dedicated to their noble mission in the service of our country and people. The tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba Eban observes. "Nobody who has great authority can be trusted not to go beyond its proper limits." Social apathy, passivity and indifference and neglect have spawned in secret a dark force that is bent on destroying the values held sacred by freedomloving people. To assert our proper place in the civilized world, it is imperative that public officials should regard public service as a reflection of human Ideals in which the highest sense of moral values and integrity are strictly required. A tragedy like that which happened on August 21, 1983, and the crisis that followed, would have normally caused the resignation of the Chief of the Armed Forces in a country where public office is viewed with highest esteem and respect and where the moral responsibilities of public officials transcend all other considerations. It is equally the fact that the then President through all his recorded public acts and statements from the beginning disdained and rejected his own Board's above findings and insisted on the military version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my government were involved, I would have known somehow ... Even at a fairly low level, I would have known. I know how they think. I know what 7 they are thinking of." He told CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the following:

CBS: But indeed there has been recent evidence that seems to contradict earlier reports, namely, the recent evidence seems to indicate that some of the guards may have been responsible (for shooting Ninoy). MARCOS: Well, you are of course wrong. What you have been reading are the newspapers and the newspaper reports have been biased. The evidence still proves that Galman was the killer. The evidence also shows that there were intelligence reports connecting the communist party to the killing. 8 In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware, general, that the circumstances under which the board has chosen to implicate you in its findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been so accused by some members of the Board," 9 and extended "My very best wishes to you and your family for a speedy resolution of your case," even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the cases, he was quoted as saying that "as will probably 10 be shown, those witnesses (against the accused) are perjured witnesses." It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other petitioners, composed of three former Justices of this Court, five incumbent and former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. They asserted that the Tanodbayan did not represent the interest of the people when he failed to exert genuine and earnest efforts to present vital and important testimonial and documentary evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases which it had scheduled on November 20, 1985 and that judgment be rendered declaring a mistrial and nullifying the proceedings before 10 the Sandiganbayan and ordering a re-trial before an impartial tribunal by an unbiased prosecutor. -a At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order enjoining respondent 11 court from rendering a decision in the two criminal cases before it, the Court resolved by nine-to-two votes to issue the restraining order prayed for. The Court also granted petitioners a five-day period to file a reply to respondents' separate comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex 5 of his comment. But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in reverse, resolved to dismiss the petition and to lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan from rendering its 13 decision. The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to 14 respondents' separate comments, by an eight-to-three vote, with Justice Gutierrez joining the dissenters. On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not indicate the legal ground for such action and urging that the case be set for a full hearing on the merits because if the charge of partiality and bias against the respondents and suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on December 2, 1985. On December 5, 1985, the Court required the respondents to comment on the motion for reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them innocent and totally absolving them of any civil liability. This marked another unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as the
12

assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case had become moot and academic. On February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our dissent. On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration attached therewith. The thrust of the second motion for reconsideration was the startling and theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal. On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and ordered the respondents to 15 comment thereon. Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent never succumbed to any alleged attempts to influence his actuations in the premises, having instead successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation, and actually ordered the filing and prosecution of the two (2) murder cases below against herein private party respondents." He candidly admitted also in his memorandum: "There is not much that need be said about the existence of pressure. That there were 15 pressures can hardly be denied; in fact, it has never been denied." -a He submitted that "even as he vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course." Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986 stated that the trial of the criminal cases by them was valid and regular and decided on the basis of evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital evidence which would probably alter the result of the trial, Answering Respondents would not interpose any objection to the reopening of those cases, if only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution; and requested for an investigation by this Court to settle the note passing issue once and for all. Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his revelations, as follows: 1. AB INITIO, A. VERDICT OF ACQUITTAL! Incidents during the preliminary investigation showed ominous signs that the fate of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on August 21, 1983 was doomed to an ignominous end. Malacanang wanted dismissal-to the extent that a prepared resolution was sent to the Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and a resolution charging all the respondents as principals was forwarded to the Tanodbayan on January 10, 1985. 2. MALACAANG CONFERENCE PLANNED SCENARIO OF TRIAL

At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President) summoned to Malacaang Justice Bernardo Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and an the members of the Panel Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former President had a copy of the panel's signed resolution (charging all accused as principals), evidently furnished him in advance, and with prepared notes on the contents thereof. The former President started by vehemently maintaining that Galman shot Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to remain silent was the more discreet posture when the former President became emotional (he was quite sick then). During a good part of the conference, the former President talked about Aquino and the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not know what to do". . . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is becoming ambitious "the boys were frantic when they heard that they will be charged in court, and wig be detained at city jail." From outright dismissal, the sentiment veered towards a more pragmatic approach. The former President more or less conceded that for political and legal reasons all the respondents should be charged in court, Politically, as it will become evident that the government was serious in pursuing the case towards its logical conclusion, and thereby ease public demonstrations; on the other hand, legally, it was perceived that after (not IF) they are acquitted, double jeopardy would inure. The former President ordered then that the resolution be revised by categorizing the participation of each respondent. In the matter of custody of the accused pendente lite the Coordinator was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly Bugarin to put on record that they had no place in their respective institutions. The existence of PD No. 1950 (giving custody to commanding officers of members of AFP charged in court) was never mentioned. It was decided that the presiding justice (First Division) would personally handle the trial, and assurance was made by him that it would be finished in four to six months, pointing out that, with the recent effectivity of the New Rules on Criminal Procedure, the trial could be expedited. Towards the end of the two-hour meeting and after the script had been tacitly mapped out, the former President uttered: "Mag moro-moro na lang kayo." The parting words of the former President were: "Thank you for your cooperation. I know how to reciprocate." While still in the palace grounds on the way out, the undersigned manifested his desire to the Tanodbayan to resign from the panel, or even the office. This, as well as other moves to this effect, had always been refused. Hoping that with sufficient evidence sincerely and efficiently presented by the prosecution, all involves in the trial would be conscience-pricked and realize the futility and injustice of proceeding in accordance with the script, the undersigned opted to say on. Herrera further added details on the "implementation of the script," such as the holding of a "make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of January 23, 1985, while there were no members of the media; the installation of TV monitors directly beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding

that "in the almost twenty years that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal. " He "associated himself with the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan and its decision be declared null and void." New Solicitor General Sedfrey Ordoez' comment of April 25, 1986 submitted that a declaration of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim. Respondents-accused opposed the second motion for reconsideration and prayed for its denial. Respondent Olivas contended that the proper step for the government was to file a direct action to annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures. As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity. After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986 to appoint a threemember commission composed of retired Supreme Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents announced in open hearing that they decided to forego the taking of the projected deposition of former President Marcos, as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted its extensive 64-page 16 Report wherein it discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows: 1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special Prosecutor Tamayo, was originally of the view that all of the twenty-six (26) respondents named in the Agrava Board majority report should all be charged as principals of the crime of double murder for the death of Senator Benigno Aquino and Rolando Galman. 2. When Malacanang learned of the impending filing of the said charge before the Sandiganbayan, the Special Investigating Panel having already prepared a draft Resolution recommending such course of action, President Marcos summoned Justice Fernandez, the tree members of the Special Investigating Panel, and justice Pamaran to a conference in Malacanang in the early evening of January 10, 1985. 3. In said conference, President Marcos initially expressed his disagreement with the recommendation of the Special Investigating Panel and disputed the findings of the Agrava Board that it was not Galman who shot Benigno Aquino. 4. Later in the conference, however, President Marcos was convinced of the advisability of filing the murder charge in court so that, after being acquitted as planned, the accused may no longer be prosecuted in view of the doctrine of double jeopardy. 5. Presumably in order to be assured that not all of the accused would be denied bail during the trial, considering that they would be charged with capital offenses, President Marcos directed that the several accused be "categorized" so that some of them would merely be charged as accomplices and accessories. 6. In addition to said directive, President Marcos ordered that the case be handled personally by Justice Pamaran who should dispose of it in the earliest possible time.

7. The instructions given in the Malacanang conference were followed to the letter; and compliance therewith manifested itself in several specific instances in the course of the proceedings, such as, the changing of the resolution of the special investigating panel, the filing of the case with the Sandiganbayan and its assignment to Justice Pamaran, suppression of some vital evidence, harassment of witnesses, recantation of witneses who gave adverse testimony before the Agrava Board, coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in the very decision rendered in the case. 8. That that expression of President Marcos' desire as to how he wanted the Aquino-Galman case to be handled and disposed of constituted sufficient pressure on those involved in said task to comply with the same in the subsequent course of the proceedings. 9. That while Justice Pamaran and Justice Fernandez manifested no revulsion against complying with the Malacaang directive, justice Herrera played his role with manifestly ambivalent feelings. 10. Sufficient evidence has been ventilated to show a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case, as stage-managed from Malacaang and performed by willing dramatis personnae as well as by recalcitrant ones whipped into line by the omnipresent influence of an authoritarian ruler. The Commission submitted the following recommendation. Considering the existence of adequate credible evidence showing that the prosecution in the AquinoGalman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable Court that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled "People vs. Luther Custodia et al.," be granted. The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and required them to submit their objections thereto. It thereafter heard the parties and their objections at the hearing of August 26, 1986 and the matter was submitted for the Court's resolution. The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage-managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist', and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also pre-determined the final outcome of the case" of total absolution of the twenty-six respondents accused of all criminal and civil liability. The Court finds that the Commission's Report (incorporated herein by reference) and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutoral and judicial services (86 17 years in the trial and appellate courts), experts at sifting the chaff from the grain, the Commission properly appraised the evidences presented and denials made by public respondents, thus: The desire of President Marcos to have the Aquino-Galman case disposed of in a manner suitable to his purposes was quite understandable and was but to be expected. The case had stirred unprecedented public outcry and wide international attention. Not invariably, the finger of suspicion pointed to those then in power who supposedly had the means and the most compelling motive to eliminate Senator Aquino. A day or so after the assassination, President Marcos came up with a public statement aired over television that Senator Aquino was killed not by his military escorts, but by a communist hired gun. It was, therefore, not a

source of wonder that President Marcos would want the case disposed of in a manner consistent with his announced theory thereof which, at the same time, would clear his name and his administration of any suspected guilty participation in the assassination. The calling of the conference was undoubtedly to accomplish this purpose. . . . President Marcos made no bones to conceal his purpose for calling them. From the start, he expressed irritation and displeasure at the recommendation of the investigating panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. He insisted that it was Galman who shot Senator Aquino, and that the findings of the Agrava Board were not supported by evidence that could stand in court. He discussed and argued with Justice Herrera on this point. Midway in the course of the discussion, mention was made that the filing of the charge in court would at least mollify public demands and possibly prevent further street demonstrations. It was further pointed out that such a procedure would be a better arrangement because, if the accused are charged in court and subsequently acquitted, they may claim the benefit of the doctrine of double jeopardy and thereby avoid another prosecution if some other witnesses shall appear when President Marcos is no longer in office. xxx xxx xxx After an agreement was reached as to filing the case, instead of dismissing it, but with some of the accused to be charged merely as accomplices or accessories, and the question of preventive custody of the accused having thereby received satisfactory solution, President Marcos took up the matter of who would try the case and how long it would take to be finished. According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to personally handle the case. This was denied by Justice Pamaran. No similar denial was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice Pamaran explained that such order could not have been given inasmuch as it was not yet certain then that the Sandiganbayan would try the case and, besides, cases therein are assigned by raffle to a division and not to a particular Justice thereof. It was preposterous to expect Justice Pamaran to admit having received such presidential directive. His denial, however, falls to pieces in the light of the fact that the case was indeed handled by him after being assigned to the division headed by him. A supposition of mere coincidence is at once dispelled by the circumstance that he was the only one from the Sandiganbayan called to the Malacanang conference wherein the said directive was given. . . . The giving of such directive to Justice Pamaran may also be inferred from his admission that he gave President Marcos the possible time frame when asked as to how long it would take him to finish the case. The testimony of Justice Herrera that, during the conference, and after an agreement was reached on filing the case and subsequently acquitting the accused, President Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out of the room President Marcos expressed his thanks to the group and uttered "I know how to reciprocate," did not receive any denial or contradiction either on the part of justice Fernandez or justice Pamaran. (No other person present in the conference was presented by the respondents. Despite an earlier manifestation by the respondents of their intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any reason having been given therefor.) The facts set forth above are all supported by the evidence on record. In the mind of the Commission, the only conclusion that may be drawn therefrom is that pressure from Malacanang had indeed been made to bear on both the court and the prosecution in the handling and disposition of the Aquino-Galman case. The intensity of this pressure is readily deductible from the personality of the one who exerted it, his moral and official ascendancy over those to whom his instructions were directed, the motivation behind such instructions, and the nature of the government prevailing at that time which enabled, the then head of state to exercise authoritarian powers. That the conference called to script or stage-manage the prosecution and trial of the Aquino-Galman case was considered as something anomalous that should be kept away from the

public eye is shown by the effort to assure its secrecy. None but those directly involved were caned to attend. The meeting was held in an inner room of the Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with the President. The conferees were told to take the back door in going to the room where the meeting was held, presumably to escape notice by the visitors in the reception hall waiting to see the President. Actually, no public mention alas ever made of this conference until Justice Herrera made his expose some fifteen (15) months later when the former president was no longer around. President Marcos undoubtedly realized the importance of the matter he wanted to take up with the officials he asked to be summoned. He had to do it personally, and not merely through trusted assistants. The lack of will or determination on the part of Justice Fernandez and Justice Pamaran to resist the presidential summons despite their realization of its unwholesome implications on their handling of the celebrated murder case may be easily inferred from their unquestioned obedience thereto. No effort to resist was made, despite the existence of a most valid reason to beg off, on the lame excuses that they went there out of "curiosity," or "out of respect to the Office of the President," or that it would be 'unbecoming to refuse a summons from the President.' Such frame of mind only reveals their susceptibility to presidential pressure and lack of capacity to resist the same. The very acts of being summoned to Malacanang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified Their abject deference to President Marcos may likewise be inferred from the admitted fact that, not having been given seats during the two-hour conference (Justice Fernandez said it was not that long, but did not say how long) in which President Marcos did the talking most of the time, they listened to him on their feet. Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985. 18 The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be gauged by their subsequent actuations in their respective handling of the case." It duly concluded that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the entire proceedings of the Aquino Galman [murder] cases" as manifested in several specific incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure and Manipulation." Suffice it to give hereinbelow brief excerpts: 1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending bail for the latter two categories: "The categorization may not be completely justified by saying that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals. The majority of the Agrava Board found the existence of conspiracy and recommended that all of the accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance with the standard practice of the prosecution to charge accused with the most serious possible offense or in the highest category so as to prevent an incurable injustice in the event that the evidence presented in the trial will show his guilt of the graver charge, the most logical and practical course of action should have been, as originally recommended by the Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance with the Malacaang instruction." It is too much to attribute to coincidence that such unusual categorization came only after the then President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacanang conference on January 10, 1985], his own view was in conformity with that of the Special Investigating 19 Panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder." As the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on the afternoon of said 20 date which did not go through due to the summons for them to go to Malacanang in the early evening of said date." 2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled, perjured or threatened either to refrain from testifying or to testify in a manner favorable to the defense."

The Report specified the ordeals of the prosecution witnesses: Cesar Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution witnesses before at the trial. Witnesses Viesca and Raas who also testified before the Board "disappeared all of a sudden and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported that ... Undoubtedly in view of the considerable significance of her proposed testimony and its unfavorable effect on the cause of the defense, the efforts exerted to suppress the same was as much as, if not more than those in the case of Wakamiya. ... She recounted that she was in constant fear of her life, having been hunted by armed men; that their house in Tabaco, Albay was ransacked, her family harassed by the foreclosure of the mortgage on their house by the local Rural Bank, and ejected therefrom when she ignored the request of its manager to talk with her about her proposed testimony; that a certain William Farias offered her plane tickets for a trip abroad; that Mayor Rudy Farias of Laoag City kept on calling her sister in the United States to warn her not to testify; that, later, Rudy and William Farias offered her two million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio, the dropping of her estafa case in Hongkong, and the punishment of the persons responsible for the death of her father, if she would refrain from testifying. It is a matter of record, however, that despite such cajolery and harassments, or perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure expressed by Olympus at justice Herrera's going out of his way to make Ms. Quijano to testify, and for his refusal to honor the invitation to attend the birthday party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper with her testimony, however, did not end with her taking the witness stand. In the course of her testimony several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who cross-examined her, one of which suggested that she be asked more questions about Dean Narvasa who was suspected of having coached her as to what to declare (Exhibit "D"); and on another occasion, at a crucial point in her testimony, a power brownout occurred; which lasted for about twenty minutes, throwing the courtroom into darkness, and making most of those present to scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to leave the courtroom. It was verified that the brownout was limited to the building housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the Finance Building. Justice Herrera declared that the main switchboard of the Sandiganbayan electrical system was located beside the room occupied by Malacaang people who were keeping track of the proceedings. Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped together with a neighbor named Rogelio Taruc, They have been missing since then, despite his attempts to find any of them. According to him, "nobody was looking for these five persons because they said Marcos was in Power [despite his appeal to the Minister of National Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new leadership for its assistance in learning their fate. 3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa Airfield or some other place, such showing would not necessarily contravene the theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merely

21

showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said piece of evidence could go either way, it may not be successfully contended that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the same would have been totally uncalled for." 4. Nine proposed rebuttal witnesses not presented. 5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately announced to media that he was not filing a motion for the reconsideration of said denial for the reason that it would be futile to do so and foolhardy to expect a favorable action on the same. ... His posture ... is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon as possible, if not of something else." 6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice Pamaran of such instruction crumbles under the actuality of such directive having been complied with to the letter. ... "Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a particular Justice, but to a division thereof. The evidence before the Comission on how the case happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was not done fairly or regularly. "There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the claim of Justice xxx xxx xxx "It is also an admitted fact that the two Informations in the double murder case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in the actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering that before a case filed may be included in the raffle, there is need for a certain amount of paper work to be undertaken. If such preliminary requirements were done in this case within the limited time available therefor, the charge that the raffle was rushed to avoid the presence of media people would ring with truth. What is more intriguing is the fact that although a raffle might have been actually conducted which resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the decision thereof, and not by any one of the two other members of his division. . . . 7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view of the information given by the Warden of the City Jail that there was no space for the twenty-six accused in said jail. The same information was given when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused military personnel with their respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only after sometime. ..."

8. The monitoring of proceedings and developments from Malacaang and by Malacaang personnel: "There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well as the developments of the case outside the Court had been monitored by Malacaang presumably for it to know what was happening and to take remedial measures as may be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose. There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and Malacaang personnel stayed to keep track of the proceedings." the close monitoring by Malacaang showed its results on several occasions specified in the Report. Malacaang was immediately aware of the Japanese witness Wakamiya's presence injustice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacaang intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's inescapable finding. " It is abundantly clear that President Marcos did not only give instructions as to how the case should be handled He saw to it that he would know if his instructions will be complied with." 9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an integral part of the scenario which was cleverly designed to accomplish two principal objectives, seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the event that President Marcos shall no longer be in power. "In rendering its decision the Sandiganbayan overdid itself in favoring the presidential directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution was totally ignored and disregarded. ... It was deemed not sufficient to simply acquit all of the twenty-six accused on the standard ground that their guilt had not been proven beyond reasonable doubt, as was the most logical and appropriate way of justifying the acquittal in the case, there not being a total absence of evidence that could show guilt on the part of the accused. The decision had to pronounce them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total absolution. ... Doubt on the soundness of the decision entertained by one of the two justices who concurred with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in October, 1985, when the decision was being prepared, Justice Agusto Amores told him that he was of the view that some of the accused should be convicted he having found difficulty in acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera Cruz that Malacaang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera remained unrebutted " (Emphasis supplied) The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. As graphically depicted in the Report, supra, and borne out by the happenings (res ipsa 22 loquitur ) since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was unpalatable (it would summon the demonstrators back to the 23 streets ) and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through their acquittal the 24 legal shield of double jeopardy. Indeed, the secret Malacanang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the predetermined ignominious final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a phrase 25 from Ninoy's April 14, 1975 letter withdrawing his petition for habeas corpus, "This is the evil of one-man rule at its very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial authority with

respect to any case or business coming within the exclusive jurisdiction of the courts of justice." acquittal led to several first which would otherwise be inexplicable:

26

His obsession for "the boys' "

1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious assassination of Ninoy Aquino and "to ventilate the truth through free, independent and dispassionate investigation by prestigious and free investigators." 2. He cordially received the chairman with her minority report one day ahead of the four majority members and instantly referred it to respondents "for final resolution through the legal system" as if it were the majority and controlling report; and rebuked the four majority members when they presented to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report). 3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the alleged assassin Galman and searing his lips. 4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and 5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared the soldiers' version of Galman being Aquino's killer a "perjured story, given deliberately and in conspiracy with one another." The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacaang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. ... Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985." No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the AquinoGalman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the known 26 P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military men a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, 26 which could be much too easily transformed into a means of predetermining the outcome of individual cases. -b "This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power

whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal, Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century-and that the pre-determined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is 27 denied due process. As the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case its right to due process is thereby violated. 27-a The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy. More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the pre-determined final outcome of acquittal and total absolution as innocent of an the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end "deactivating" himself from the case, as it was his belief that its eventual resolution was already a foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained of being "cajoled into producing witnesses and pressed on making assurances that if given a certain period, they will be able to produce their witnesses Herrera pleaded for "a reasonable period of preparation of its evidence" and cited other pending cases before respondent court that were pending trial for a much longer time where the "dizzying tempo" and "fast pace" were not 28 maintained by the court. Manifestly, the prosecution and the sovereign people were denied due process of law with a partial

court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable affront to the society and the people. To 29 paraphrase Brandeis: If the authoritarian head of the government becomes the law-breaker, he breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy. Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or re-opened, without being put in double jeopardy was forcefully disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. |lang1033 xxx xxx xxx "Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice 30 where justice is due. 2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should not decide the case on the merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the Presiding Justice to show the latter's "following the script of Malacanang. PJ PAMARAN Well the court believes that we should proceed with the trial and then deal later on with that. After all, the most important thing here is, shall we say, the decision of the case. J. HERRERA I think more important than the decision of the case, Your Honor, is the capacity of the justices to sit in judgment. That is more important than anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by Herrera). 31 But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision, for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as follows: ... the motion for inhibition above referred to related exclusively for the contempt proceeding. Too, it must be remembered that the prosecution neither joined that petition, nor did it at any time manifest a desire to file a similar motion prior to the submission of these cases for decision. To do it now is not alone out of season but is also a confession of official insouciance (Page 22, Decision). 32 The action for prohibition was filed in the Court to seek the disqualification of respondents Justices pursuant to the procedure 33 recognized by the Court in the 1969 case of Paredes vs. Gopengco since an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due process to the People if 34 the alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is substantiated.

In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's, comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the 35 final action of this Court. This is the teaching of Valdez vs. Aquilizan , Wherein the court in setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner." 3. Re: Objections of respondents.-The other related objections of respondents' counsels must be rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-determined judgment of acquittal was unlawful and void ab initio. (a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the presentation of competent proof heard by the Commission and the Court's findings therefrom that the proceedings were from the beginning vitiated not only by lack of due process but also by the collusion between the public respondents (court and Tanodbayan) for the rendition of a pre-determined verdict of acquitting all the twenty-six respondents-accused. (b) It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict. (c) The contention of one of defense counsel that the State and the sovereign people are not entitled to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove. (d) The submittal of respondents-accused that they had not exerted the pressure applied by the authoritarian president on public respondents and that no evidence was suppressed against them must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale exoneration. (e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., Inc. is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. The second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacaang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the Court 37 (without any new appointees) unanimously voted to admit the second motion for reconsideration. 4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial court with an unbiased prosecutor.-There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President. As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation."
36

Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed. The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only, the Constitution and their own conscience and honor. 5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable services rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure spirit of public service, they rendered selflessly and without remuneration thorough competent and dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same and submitting their Report and findings to the Court within the scheduled period and greatly easing the Court's burden. ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard for the requirements of due process, so that the truth may be finally known and justice done to an G.R. No. L-52245 January 22, 1980 PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent. Raul M. Gonzales for petitioners Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J: This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions: Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. .... (Batas Pambansa Blg. 51) Sec. 4. Sec. 4. ... Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact. ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied). Section 1. Election of certain Local Officials ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52) Section 6. Election and Campaign Period The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.) In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised,

Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I . The procedural Aspect At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A. Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: "Section 2. The Commission on Elections shall have the following power and functions: 1) xxx 2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied) The aforequoted provision must also be related to section 11 of Art. XII-C, which provides: Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. B. Proper party.

The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress. It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus: ... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer. In the same vein, it has been held: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]). However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C. Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed. II. The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez

cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination. The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides: a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ... The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of

constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case. Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads: SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED. Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Fernando, C.J., concurs and submits a brief separate opinion. De Castro, J., abstain as far as petitioner Dumlao is concerned. G.R. No. 112889 April 18, 1995 BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

VITUG, J.: The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from justice as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx (e) Fugitive from justice in criminal or non-political cases here or abroad(.) Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly a fugitive from justice. It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on account of his alleged "flight" from that country. Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the petition. Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a possible post-election quo warranto proceeding against private respondent. The Court, in its resolution of 02 June 1992, held: Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the petition below for disqualification has ceased to be a pre-proclamation controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding. ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the 1 appropriate proceedings in the proper forum, if so desired, within ten (10) days from notice. Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution. Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office. Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This

definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with 2 Section 533 of R.A. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy. Here are some excerpts from the committee's deliberations: CHAIRMAN MERCADO. Session is resumed. So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39. CHAIRMAN DE PEDRO. Kay Benny Marquez. REP. CUENCO: What does he want? CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang constitutionality nito before the Supreme Court later on. REP. CUENCO. Anong nakalagay diyan? CHAIRMAN DE PEDRO. Iyong disqualification to run for public office. Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad. Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest pending, unserved. . . HONORABLE SAGUISAG. I think that is even a good point, ano what is a fugitive? It is not defined. We have loose understanding. . . CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive. Si Benny umalis na, with the understanding na okay na sa atin ito. THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . . MS. DOCTOR. Mr. Chairman. . . THE CHAIRMAN. Yes. MS. DOCTOR. Let's move to. . . THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important. Manny, can you come up?

MR. REYES. Let's use the word conviction by final judgment. THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,. Fugitive means somebody who is convicted by final judgment. Insert that on Line 43 after the semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07 May 1991). xxx xxx xxx THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What "fugitive"? Sino ba ang gumawa nito, ha? MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word "fugitive". THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha? MR. SANCHEZ. Means a person... THE CHAIRMAN. Ha? HON. REYES. A person who has been convicted. THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one who has been convicted by final judgment. It means one who has been convicted by final judgment. HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan. THE CHAIRMAN. Ano? Sige, tingnan natin. HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya? THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final judgment, meaning that if he is simply in jail and because he put up, post bail, but the 3 case is still being reviewed, that is not yet conviction by final judgment. The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing criminal charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference committee of the Senate and the House of Representatives, made this reservation: . . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a.
4

The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position: (a) . . .

(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a 5 person who has been convicted by final judgment. (Emphasis supplied) Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Court's en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." is an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this unresolved factual matter. WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement on costs. SO ORDERED. Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur. G.R. No. 74259 February 14, 1991 GENEROSO P. CORPUZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Law Firm of Roberto P. Halili for petitioner.

CRUZ, J.:p The petitioner seeks reversal of the decision of the respondent court dated February 27,1986, the dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Generoso Corpuz y Padre, guilty beyond reasonable doubt as principal of the crime of Malversation of Public Funds, and there being no modifying circumstances in attendance, and applying the Indeterminate Sentence Law, hereby sentences him to suffer imprisonment ranging from Twelve (12) Years and One (1) Day of reclusion temporal, as minimum, to Twenty (20) Years of reclusion temporal, as maximum; to restitute to the provincial government of Nueva Vizcaya the sum of P50,596.07 which is the amount misappropriated, and to pay the costs of this suit. Further, the accused is ordered to suffer the penalty of perpetual special disqualification, and to pay a fine equal to the amount embezzled. SO ORDERED. As Supervising Accounting Clerk in the Office of the Provincial Treasurer of Nueva Vizcaya, the petitioner was designated Acting Supervising Cashier in the said Office. In this capacity, he received collections, disbursed funds and made bank deposits and withdrawals pertaining to government accounts.

On April 13, 1981, his designation as Acting Supervising Cashier was terminated, and on April 22, 1981, a Transfer of Accountabilities was effected between the petitioner and his successor. The Certificate of Turnover revealed a shortage in the 1 amount of P72,823.08. A letter of demand dated April 22, 1981, required the petitioner to produce the missing amount but he was able to pay only P10,159,50. The balance was demanded in another letter dated October 12, 1981. This was subsequently reduced by P12,067.51 through the payment to the petitioner of temporarily disallowed cash items and deductions from his salary before 2 his dismissal from the service. On September 27, 1982, a final letter of demand for the total deficiency of P50,596.07 was sent to the petitioner. The demand not having been met, an information for malversation of the said amount was filed against him with the respondent court on October 11, 1983. The above facts are not denied by the petitioner. He insists, however, that he is not guilty of the charge because the shortage imputed to him was malversed by other persons. His claim is that the P50,000.00 constituting the bulk of the shortage represented the unliquidated withdrawal made by Paymaster Diosdado Pineda through one of four separate checks issued and encashed while the petitioner was on official leave of absence. He avers he was later made to post the amount in his cash book by Acting Deputy Provincial Treasurer Bernardo C. Aluning and he had no choice but to comply although he had not actually received the said amount. The four checks drawn from the Philippine National Bank and the corresponding vouchers dated are described as follows: 1. Provincial Voucher dated December 22, 1980 from the General Fund in the amount of P50,000.00 and paid by PNB Check No. 956637 dated December 22,1980. 2. Provincial Voucher dated December 23, 1980 from the Infrastructure Fund in the amount of P50,000.00 and paid by PNB Check No. NS958525 dated December 23,1980. 3. Provincial Voucher dated December 23, 1980 from the General Fund in the amount of P50,000.00 and paid by PNB Cheek No. 956639J dated December 22,1980. 4. Provincial Voucher dated December 29, 1980 from the Infrastructure Fund in the amount of P50,000.00 and paid by PNB Check No. 958226 dated December 29,1980. Testifying for the prosecution, Pineda insisted he had liquidated all four checks after the amounts thereof were disbursed, turning over to the petitioner the corresponding withdrawal vouchers, paid vouchers, and payrolls, (which were all submitted 4 as exhibits ). He added that the petitioner was not really absent on the dates in question as alleged but was in fact the one who prepared the said checks in the morning before attending to the sick wife in the hospital, returning to the office in the afternoon. He said that the payroll payments made on December 22, 23 and 29, 1980, were liquidated on December 29, 1980, 5 after the petitioner came back from the hospital. Acting Provincial Treasurer Perfecto Martinez corroborated Pineda's testimony that the petitioner was not on official leave on the dates in question. He said that although Check No. 958525 had already been encashed on December 23 1980, the encashment was not immediately recorded in the petitioner's cashbook, "which (was) one way of temporarily hiding the early detection of a shortage." It was only in March 1981 that the shortage was discovered and, when confronted with it, the 6 petitioner had no explanation to offer. Aluning denied he had exerted pressure on the petitioner to post the shortage in the petitioner's cash book. He explained that after receiving the bank statement from the PNB for December 1980, he discovered that although the amount of P50,000.00 appeared to have been already encashed, the encashment was not reflected in the petitioner's cash book. As his superior, he required the petitioner to make the proper entry in the cash book because the amount withdrawn was already part of the 7 latter's accountability.
3

After considering the evidence of the parties, the Sandiganbayan, through Justice Amante Q. Alconcel, made the following findings: The evidence on record is devoid of any explanation from the defense as to the amount of P595.87. Hence, the accused must be held answerable for the misappropriation of the said amount. As to the amount of P50,000.00, We are not disposed to give credence to his claim that same has not been liquidated by the paymaster, for the following reasons: First, Check No. 958525 is only one of four (4) checks issued and encashed for the same purpose, and that is, to pay salary differentials as well as salaries and wages of provincial officials and employees of the province of Nueva Vizcaya covering the period, January to December, 1980. Issuance and encashment occurred on December 23, 1980, and in fact, another check (No. 956639) was also issued and encashed on the same day. The two (2) other checks (Nos. 956637 and 958526) were issued and encashed on December 22 and 29, 1980, respectively. Except for Check No. 958525, which was only entered in accused's Cash Book on March 31, 1981, or three (3) months after its issuance and encashment, all the other three (3) were duly entered. Then Check No. 956639 which, as pointed out above, was issued and encashed on the same day as Check No. 958525, was duly entered in his Cash Book. Non-entry of the latter check on time was a subtle way of camouflaging the embezzlement of its money equivalent. Secondly, there seems to be no logical reason why Checks Nos. 956639 and 958525, could not have been liquidated together by Diosdado Pineda who used the proceeds to pay salary differentials of government officials and employees of the province of Nueva Vizcaya, since these have been issued and encashed on the same day. Thirdly, Diosdado Pineda, who was presented as a prosecution witness, swore that he duly liquidated the proceeds of the four (4) checks as follows: ATTY. DEL ROSARIO ON DIRECT EXAMINATION: Q If the payroll is already accomplished, where do you give the payroll? A I give it back to the cashier with the corresponding voucher to support the vouchers paid by me or disbursed by me. ATTY. ESCAREAL: Q So that your cash advances will be liquidated? A Yes, Your honor. xxx xxx xxx Q In the absence of the cashier to whom do you give these documents? A give them to the cashier only, no other person. ATTY. DEL ROSARIO Q In his absence, do you keep these documents? A Yes, Your Honor.

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

First. When he entered the said amount in his cash book in March, 1981, he did not make any notation that said amount, though entered, was not actually received. Second. At the time he signed the certificate of turn-over (Exhibit C), he did not make any certification that the amount of P50,000.00 should not be charged against him. Third. Despite his insistence that Pineda and Martinez misappropriated the money, he did not file any case, whether civil, criminal or otherwise, against either or both. The absence of a post-audit is not, as the petitioner contends, a fatal omission. That is not a preliminary requirement to the filing of an information for malversation as long as the prima facie guilt of the suspect has already been established. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly 8 authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. And what determines whether the crime of malversation has been committed is the presence of the following requirements under Article 217 of the Revised Penal Code: (a) That the offender be a public officer. (b) That he had the custody or control of funds or property by reason of the duties of his office. (c) That those funds or property were public funds or property for which he was accountable. (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. The petitioner's claim that he is the victim of a "sinister design" to hold him responsible for a crime he has not committed is less than convincing. His attempt to throw the blame on others for his failure to account for the missing money only shows it is he who is looking for a scapegoat. The plaintive protest that he is "a small fry" victimized by the "untouchables" during the Marcos regime is a mere emotional appeal that does not impress at all. The suggestion that the supposed injustice on the petitioner would be abetted by this Court unless his conviction is reversed must be rejected as an warrant presumptuousness. The equipoise rule invoked by the petitioner is applicable only where the evidence of the parties is evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused. There is no such equipoise here. The evidence of the prosecution is overwhelming and has not been overcome by the petitioner with his nebulous claims of persecution and conspiracy. The presumed innocence of the accused must yield to the positive finding that he malversed the sum of P50,310.87 to the prejudice of the public whose confidence he has breached. His conviction must be affirmed. WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur. G.R. No. L-2809 March 22, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO HOLGADO, defendant-appellant. Mauricio Carlos for appellant. Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V. Makasiar for appellee. MORAN, C.J.:

Appellant Frisco Holgado was charged in the court of First Instance of Romblon with slight illegal detention because according to the information, being a private person, he did "feloniously and without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for about eight hours thereby depriving said Artemia Fabreag of her personal liberty." On may 8, 1948, the day set for the trial, the trial court proceeded as follows: Court: Is this the case ready for trial? Fiscal: I am ready, your honor. Court: to the accused. Q. do you have an attorney or are you going to plead guilty? A. I have no lawyer and I will plead guilty. Court: Arraign the accused. Note: Interpreter read the information to the accused in the local dialect after which he was asked this question. Q. What do you plead? A. I plead guilty, but I was instructed by one Mr. Ocampo. Q. Who is that Mr. Ocampo, what is his complete name? A. Mr. Numeriano Ocampo. The provincial fiscal is hereby ordered to investigate that man. Fiscal: I have investigated this case and found out that this Ocampo has nothing to do with the case and I found no evidence against this Ocampo. Court: Sentenced reserved. Two days later, or on May 10, 1948, the trial court rendered the following judgment: [Criminal Case No. V-118] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO HOLGADO defendant-appellant. SLIGHT ILLEGAL DETENTION SENTENCE The accused, Frisco Holgado, stands charged with the crime of kidnapping and serious illegal detention in the following

INFORMATION That on or about December 11, 1947, in the municipality of Concepcion, Province of Romblon, Philippines and within the jurisdiction of this Honorable Court, the said accused being a private individual, did then and there wilfully, unlawfully and feloniously, and without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for about 8 hours thereby depriving said Artemia Fabreag of her personal liberty. Contrary to law. This case is called for trial on May 8, 1948. Upon arraignment the accused pleaded guilty to the information above described. The offense committed by the accused is kidnapping and serious illegal detention as defined by article 267 of the Revised Penal Code as amended by section 2 of Republic Act No. 18 and punished by reclusion temporal in it minimum period to death. Applying indeterminate sentence law the penalty shall be prision mayor in its maximum degree to reclusion temporal in the medium degree as minimum, or ten years (10) and one (1) day of prision mayor to twenty (20) years, with the accessory penalties provided for by law, with costs. The accused is entitled to one-half of his preventive imprisonment. It must be noticed that in the caption of the case as it appears in the judgment above quoted, the offense charged is named SLIGHT ILLEGAL DETENTION while in the body of the judgment if is said that the accused "stands charged with the crime of kidnapping and serious illegal detention." In the formation filed by the provincial fiscal it is said that he "accuses Frisco Holgado of the crime of slight illegal detention." The facts alleged in said information are not clear as to whether the offense is named therein or capital offense of "kidnapping and serious illegal detention" as found by the trial judge in his judgment. Since the accused-appellant pleaded guilty and no evidence appears to have been presented by either party, the trial judge must have deduced the capital offense from the facts pleaded in the information. Under the circumstances, particularly the qualified plea given by the accused who was unaided by counsel, it was not prudent, to say the least, for the trial court to render such a serious judgment finding the accused guilty of a capital offense, and imposing upon him such a heavy penalty as ten years and one day of prision mayor to twenty years, without absolute any evidence to determine and clarify the true facts of the case. The proceedings in the trial court are irregular from the beginning. It is expressly provided in our rules of Court, Rule 112, section 3, that: If the defendant appears without attorney, he must be informed by the court that it is his right to have attorney being arraigned., and must be asked if he desires the aid of attorney, the Court must assign attorney de oficio to defend him. A reasonable time must be allowed for procuring attorney. Under this provision, when a defendant appears without attorney, the court has four important duties to comply with: 1 It must inform the defendant that it is his right to have attorney before being arraigned; 2 After giving him such information the court must ask him if he desires the aid of an attorney; 3 If he desires and is unable to employ attorney, the court must assign attorney de oficio to defend him; and 4 If the accused desires to procure an attorney of his own the court must grant him a reasonable time therefor. Not one of these duties had been complied with by the trial court. The record discloses that said court did not inform the accused of his right to have an attorney nor did it ask him if he desired the aid of one. The trial court failed to inquire whether or not the accused was to employ an attorney, to grant him reasonable time to procure or assign an attorney de oficio. The question asked by the court to the accused was "Do you have an attorney or are you going to plead guilty?" Not only did such a question fail to inform the accused that it was his right to have an attorney before arraignment, but, what is worse, the question was so framed that it could have been construed by the accused as a suggestion from the court that he plead guilt if he had no attorney. And this is a denial of fair hearing in violation of the due process clause contained in our Constitution.

One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given the opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure an attorney of his own. It must be added, in the instant case, that the accused who was unaided by counsel pleaded guilty but with the following qualification: "but I was instructed by one Mr. Ocampo." The trial court failed to inquire as to the true import of this qualification. the record does not show whether the supposed instructions was real and whether it had reference to the commission of the offense or to the making of the plea guilty. No investigation was opened by the court on this matter in the presence of the accused and there is now no way of determining whether the supposed instruction is a good defense or may vitiate the voluntariness of the confession. Apparently the court became satisfied with the fiscal's information that he had investigated Mr. Ocampo and found that the same had nothing to do with this case. Such attitude of the court was wrong for the simple reason that a mere statement of the fiscal was not sufficient to overcome a qualified plea of the accused. But above all, the court should have seen to it that the accused be assisted by counsel specially because of the qualified plea given by him and the seriousness of the offense found to be capital by the court. The judgment appealed from is reversed and the case is remanded to the Court below for a new arraignment and a new trial after the accused is apprised of his right to have and to be assisted by counsel. So ordered. Ozaeta, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur. G.R. No. 122770 January 16, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO AGBAYANI y MENDOZA, accused-appellant.

PER CURIAM: Nine years and four months ago this Court declared: Rape is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender of her own free will. Whoever violates that will descends to the level of the odious beast. The act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is reduced to lower than the lowly animal. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin, but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as a human being and is justly spurned by all, not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless 1 lechery. At the end of the day, after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed 2 in the sanctity of their rented room on 19 July 1994, this Court finds itself repeating this declaration.

Before this Court on automatic review is the decision of the Regional Trial Court of Quezon City, Branch 106, in view of the death penalty imposed by it for the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as 4 amended by R.A. No. 7659. On 12 September 1994, the Station Investigation and Intelligence Division of the National Capital Regional Command, Philippine National Police (PNP), endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter 5 EDEN) for rape against her father, herein accused-appellant Eduardo Agbayani y Mendoza. After appropriate preliminary investigation, a complaint for rape signed by EDEN, assisted by her sister Fedelina Agbayani, and subscribed, and sworn to before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with the Regional Trial Court of Quezon City on 27 October 1994. The case was docketed as Criminal Case No. Q-94-59149, then set for arraignment, 7 pre-trial and trial on 22 December 1994. At his arraignment on 22 December 1994, appellant, assisted by Attys. Samuel Baldado and Edwin de la Cruz as counsel de 8 oficio, entered a plea of not guilty. Upon agreement of the parties, trial on the merits immediately followed, with the 9 prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-Legal Officer of the PNP Crime Laboratory, who was 10 11 cross-examined by Atty. Baldado. On the succeeding dates of trial, the prosecution presented EDEN and SPO1 Salvador 12 Buenviaje. During these hearings, however, appellant was represented by Atty. Arturo Temanil of the Public Attorney's Office.
13 6

On its part, the defense presented appellant, Adoracion M. Cruz, Fedelina Agbayani, as well as EDEN who identified her and 14 Fedelina's affidavit of desistance, which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. Said affidavit reads as follows: We, Eden Agbayani, 14 years old, complainant and Fedelina Agbayani, 19 years old, sister of Eden Agbayani, and presently residing at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after having been duly sworn to in accordance with law do hereby depose and states [sic]: That we are the complainant [sic] against our father, Eduardo Agbayani pending before this Honorable Court docketed as Criminal Case No. 59149; That after evaluating the circumstance that lead [sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father; That this resulted to family misunderstanding, hence we decided to formally forego this case and withdraw the same: That I am executing this affidavit for purpose of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. That this affidavit was executed freely and voluntarily. As EDEN declared in open court that what she said in her previous testimony and sworn statement were not true, the trial court held her in direct contempt of court, reasoning that her "intentional falsehood" was "offensive to its dignity and a blatant disrespect to the Court, and actually degrading [to] the administration of justice." Accordingly, the trial court ordered her 15 "committed to incarceration and imprisonment within the period provided by law," which penalty, however, was modified to 16 a fine of P200.00 upon EDEN's motion for reconsideration. On rebuttal, the prosecution had EDEN back on the witness stand. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The trial court's summary of the evidence for the prosecution, with the references to the pages of the stenographic notes and exhibits deleted, is as follows: The evidence adduced on record shows that sometime in September of 1993 in Malolos, Bulacan, the accused was charged by his two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of rape which case was raffled to

the sala of Judge Danilo Manalastas of Branch 7, Regional Trial Court, Bulacan. The case was, however, provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Eduardo Agbayani was thus consequently released from jail on July 13, 1994. Three (3) days thereafter, he began living with four (4) of his six (6) daughters, Fedelina, Eden, Diana and Edima, in a rented room at 30-A Makabayan St., Bgy. Obrero, Quezon City. The evidence of the prosecution, in part consisting of the testimonies of Complainant Eden Agbayani, Medico-Legal Officer, Dr. Florante Baltazar and SPO1 Salvador Buenviaje, shows that at the above-mentioned address the complainant, Eden Agbayani, on the evening of July 19, 1994, was sleeping on the floor of the room with her father, the accused Eduardo Agbayani and her youngest sister, Edima, while her sisters, Fedelina and Diana slept on a bed. At the time, complainant's mother was outside the country, working in Saudi Arabia. At about 9:00 p.m. of July 19, Complainant Eden Agbayani was awakened from her sleep by hands caressing her breasts and vagina. She turned to discover that it was her father who was then molesting her. Frightened, she asked, "Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa kulungan?" and threatened to kill her [sic]. The accused then proceeded to undress her. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. The complainant thereafter felt blood dripping from her vagina and felt pain. The next day, or on July 20, 1994, the complainant informed her elder sister, Fedelina, of what had been done to her by her father. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan, who had, the year before, handled the rape case filed by Fedelina and Dodima. Several attempts were made by her sisters, Fedelina and Eden to reach the said fiscal but it was only on September 9, 1994, that they were able to meet with him. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened the previously provisionally dismissed case and issued a warrant of arrest against the herein accused. With the assistance of police officers from Station 10 of the SIID in Quezon City, the accused was arrested on the same day at his residence at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought to Malolos, Bulacan where he is currently detained. After the accused's arrest, Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19, 1994. The next morning, Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory, Dr. Florante 17 Baltazar, a colonel, who, accordingly, prepared the corresponding Medico-Legal Report. Appellant put up the defense of denial and alibi. According to him, he could not have raped his daughter EDEN, because on 19 18 July 1994, he was in Barangay Victoria in Sual, Pangasinan, visiting his eldest daughter. He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts one night. Then on 24 July 1994, 19 she left their rented apartment and did not return anymore. Adoracion Cruz corroborated appellant's alibi. She declared that on 17 July 1994, appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father, returning home only on 21 July 20 1994. The trial court gave full credence to the testimony of EDEN, who "appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive;" further, it commended her "for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation, not to mention the pressure and lack of moral support of her family, brought on by the filing of this case." It also ruled that EDEN did not voluntarily execute the affidavit of desistance, as it was procured "at the behest of her mother and sister for whom the sanctity of the family and the family's good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused." Besides, even assuming arguendo that no such pressure was exerted by her mother and sister, the trial court declared that it understood EDEN's moral predicament, viz., for a child like EDEN, it was difficult to charge her own father with rape; insist on his punishment; and thereby inflict emotional stress and financial strain upon the members of her family, particularly her mother. The trial court likewise gave full faith to the sworn statement (Exhibit "E") of Fedelina Agbayani.

Turning to the defense of appellant, the trial court found his alibi wholly self-serving, and characterized the testimony of Adoracion Cruz unworthy of belief. As to appellant's claim that EDEN filed the complaint because of a grudge against him, the trial court found this "incredible, if not totally absurd," for: The complainant is an innocent girl of tender years who is unlikely to possess such vindictiveness and dearth of conscience as to concoct such a malicious and damaging story. The complainant appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive. Her retraction on March 16 was sufficiently explained to this Court (tsn, 5-4-95, testimony of Eden Agbayani, pp. 2-3). She has shown to this Court the seriousness of the injury upon her person and dignity inflicted upon by the accused. . . . Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him, it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her family's reputation, destroy the household peace and subject her father, the accused, to a grave punishment which by dent of express of law, can obliterate him from the face of this earth. Indeed, to uphold the defense's proposition would be stretching the imagination too far, if not to the extreme. The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone. Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent of the victim, rendered judgment against appellant, to wit: WHEREFORE, considering all the foregoing, judgment is hereby rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, Eden Agbayani, his minor daughter. This Court, as a consequence thereof, hereby imposes upon him the supreme penalty of DEATH, conformably with the provisions of the death penalty law, R.A. 7659. Further, Accused is hereby ordered to pay the complainant, Eden Agbayani, the sum of P75,000.00 as damages, with all the necessary penalties provided for by law without subsidiary imprisonment, however, in the event of insolvency and to pay the costs. Let the entire records of this case be forwarded to the Supreme Court on automatic review. SO ORDERED. On 26 May 1995, appellant, through his new counsel de parte Attorneys Froilan V. Siobal and Domingo Floresta, filed a Motion 21 for New Trial on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial, viz., the failure of the counsel de oficio to: (a) present at trial the Barangay Captain of Barangay Obrero, Quezon City, who would have testified, on the basis of certification attached to the motion, that there was a house bearing No. 30, Makabayan St., in his barangay, but that there was no such place as 30-A Makabayan St. of said barangay, which was the address given by EDEN; (b) consider the futility of Adoracion Cruz's testimony; (c) present private complainant's mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about the execution of the affidavit of desistance; and (d) cross-examine complainant and the police investigator exhaustively. He further alleged that his counsel de oficio was never prepared during all the scheduled hearings, worse, even waived the presence of appellant after the third witness for the prosecution was presented. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. In their Comments/Opposition to the Motion for New Tria1, the public and private prosecutors alleged that there were no such irregularities; neither was there new and material evidence to be presented that appellant could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court. In its Order of 31 July 1995, the trial court denied the motion for new trial for being devoid of merit and for not being within the purview of Sections 1 and 2, Rule 121 of the Rules of Court. In his Appellant's Brief filed before this Court, appellant contends that the trial court erred in: (a) denying his motion for new trial; and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged.
23 22

In support of the first assigned error, appellant reiterates the grounds in his motion for new trial, and adds two others, namely, (1) the lower court failed to apprise him of his right to have counsel of his own choice; and (2) the lower court did not give him the opportunity to prepare for trial, despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court. In his second assigned error, appellant contends that EDEN's testimony is not sufficient to convict, since it is unclear and not free from serious contradictions. Considering their proximity to EDEN, it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly being abused by him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did she shout for help or put up a fight that would have awakened her sisters. Notably, EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape. Finally, appellant asserts that EDEN's testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. Her "subsequent turn-around . . . that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and, in effect, demolished whatsoever faith left on her charge against the accused." The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. When appellant appeared without counsel at the arraignment, the trial court informed him that it would appoint de oficio counsel for him if he so desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment, especially if the defense, as here, consented thereto. It would have been entirely different if the defense did not agree, in which case the court would have no other alternative but to grant him the period. As to appellant's other grievances, the OSG points out that throughout all the hearings, appellant never questioned the way his defense was being handled by his counsel de oficio. The latter's request for a continuance because he had not yet conferred with appellant was not evidence of counsel's lack of sincerity. On the contrary, it showed counsel's awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. Likewise, the waiver of appellant's presence during the hearing of 18 March 1995 did not prejudice him, because on that date, the defense presented EDEN to testify as to her affidavit of desistance, and Fedelina to corroborate the statements of EDEN which testimonies were in appellant's favor. As to the manner appellant's counsel de oficio cross-examined the prosecution witnesses, the OSG stresses that the record shows that said counsel tried his best. The OSG then characterizes the second assigned error as "barren of merit." EDEN's positive identification of appellant as the author of the crime rendered appellant's defense of alibi unavailing; moreover, she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDEN's candid and categorical manner of testifying the OSG 24 concluded that she was a credible witness. As to the commission of rape in a small room and in the presence of other persons, the OSG maintains that such was not at all 25 improbable. There was, as well, nothing unusual in EDEN's silence; as she could only attempt to shout because appellant had 26 succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN, his daughter. Hence the OSG invokes the principle that in a rape committed by a father against his own daughter, the former's moral 27 ascendancy and influence over the latter substitutes for violence intimidation. As regards EDEN's affidavit of desistance, the OSG maintains that courts look with disfavor on retraction of testimonies previously given in court, for such can easily be secured from poor and ignorant witnesses usually for a monetary consideration, 28 as well as the probability that it may later be repudiated. In his Reply Brief, appellant countered that his consent to the appointment of counsel de oficio at his arraignment did not relieve the court of its duty under Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel and that it would be grievous error to deny an accused such right. Appellant then elaborated on this point as follows: This is not without judicial precedent. In People vs. Cachero, 73 Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in RJ Francisco's Criminal Procedure, Third Ed., 1966, p. 323 it was held, that: The courts should comply with Rule 116, Sec. 3. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete, when the accused is

denied the right recognized by said rule. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel. This is demanded by the interest of justice and remove all doubts that if the accused had waived said right, he was fully informed before giving his plea of its consequences. Omission by courts whether voluntary should not truly be censured but also condemned. Discussing further the right to the 2-day period to prepare for trial, the appellant contends that said right: [H]as been held to be mandatory and denial of this right is a reversible error and a ground for new trial. (R. J. Francisco's Criminal Procedure, Third Ed., 1986, p. 404, citing People vs. Mijares, et al., 47 OG 4606; Dumasig v. Morave, 23 SCRA 659). This must be so ". . . to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him. The first assigned error does not persuade this Court. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficio counsel with the consent of the said accused. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. However, this does not mean that the trial court failed to inform appellant of such right. The precise time the two counsel de oficio were appointed is not disclosed in the record either. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994, the two formally entered their appearance, thus: COURT: Call the case. (Interpreter calls the case). FISCAL ROSARIO BARIAS: For the prosecution, Your Honor. ATTY. MARIETA AGUJA: Respectfully appearing for the prosecution, Your Honor under the control and direct supervision of the Trial Prosecutor, Your Honor, we are ready to present our first witness. ATTY. BALDADO: For the accused Your Honor, appointed as counsel de oficio. ATTY. DE LA CRUZ: For the accused, Your Honor appointed by the court as counsel de oficio.
30 29

This obviously means that the appointment had taken place earlier. The trial court's order of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has 31 been regularly performed by the trial court stand. In other words, the trial court is presumed to have complied with its four32 fold duties under Section 6 of Rule 116 of the Rules of Court, namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires 33 to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively

proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was 34 informed by the court of such right. In U.S. v. Labial,
35

this Court held:

Adhering to the doctrine laid down in that case, the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of sections 17 of General Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so, is not reversible error. In the absence of an affirmative showing to the contrary, the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him. While in People v. Miranda
36

this Court explicitly stated:

However, said counsel calls attention to the fact that the record is silent as to whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court. This precise issue was determined in United States vs. Labial (27 Phil., 87, 88), in the sense that unless the contrary appears in the records, it will be presumed that the defendant was informed by the court of his right to counsel. ". . . If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and presumption, for it is often less difficult to do things correctly than to describe them correctly." (United States vs. Labial, supra.) The same doctrine was reiterated in People vs. Abuyen (52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We see no reason to modify it now. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom 37 extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged 38 failure of the trial court to inform him of his right to counsel. The cases of People v. Domenden and People v. Cachero cited by appellant are inapplicable. In both cases the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads: Sec. 9. Time to prepare for trial After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute 42 43 reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right.
41 39 40

During the succeeding hearings, appellant was represented by Atty. Temanil of the Public Attorney's Office in Quezon City, who entered his appearance as de parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanil's services were obtained pursuant to the law creating the Public Attorney's Office (PAO), formerly the Citizen's Legal Assistance Office (CLAO). 44 There is at all no showing that Atty. Temanil lacked the competence and skill to defend appellant. The latter's contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has "not yet 45 interviewed [his] Client," is misleading. Atty. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 o'clock in the afternoon and both of them were already hungry, thus: ATTY. TEMANIL: I just want to make it on record, Your Honor that from the start of trial the witness appears to be fluent and suffers no difficulty in answering the questions, even the questions propounded by the Private Prosecutor, Your Honor. COURT: Put that on record. That is true, Atty. Temanil, it is almost 1:00 o'clock in the afternoon and we are both hungry now. ATTY. TEMANIL: I will just asked [sic] for continuance considering that I have not yet interviewed my client, Your 46 Honor. Neither is there merit in appellant's claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz; (2) in not presenting the barangay captain in the evidence in chief for the defense, and EDEN's mother and sister Fedelina in sur-rebuttal; and (3) in not cross-examining exhaustively EDEN. Adoracion Cruz was presented to corroborate appellant's alibi that he was in the province and not in their rented room from 17 to 21 July 1994. On the other hand, the testimony of the barangay captain could not alter the fact that rape was committed in a rented room in a house along Makabayan Street in his barangay. Appellant neither testified that he did not occupy a house numbered 30-A nor denied that he was living with EDEN and her sisters in that room. Besides, he and his children were not renting the entire house, but merely a room, which could probably be the unit numbered "30-A" referred to by EDEN. As to the presentation of EDEN's mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance, suffice it to state that there was nothing to show that they were in fact willing to refute EDEN's claim. Finally, contrary to appellant's allegation, a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Temanil sufficiently cross-examined EDEN. If he decided to terminate his cross-examination, it could have been due to the futility of any further cross-examination which might only prove favorable to the prosecution, as it might have opened another window of opportunity for EDEN to strengthen her testimony. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the 47 witnesses and observed their deportment and manner of testifying. He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of 48 it, the scant or full realization of the solemnity of an oath, the carriage and mien. On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining

innocence or 49 guilt. At any rate, in view of the gravity of the offense charged and the extreme penalty of death imposed, this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. This Court is fully satisfied that EDEN told the truth that she was raped by her father, herein appellant, on 19 July 1994, in their rented room in Barangay Obrero, Quezon City. Her story was made even more credible by the simplicity and candidness of her answers, as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. By testifying in court, she made public a painful and humiliating secret, which others may have simply kept to themselves for the rest of their lives. She thereby jeopardized her chances of marriage, as even a compassionate man may be reluctant to marry her because her traumatic experience may be a psychological and emotional impediment to a blissful union. Moreover, such a revelation divided her family and brought it shame and humiliation. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as 50 in parks, along the roadside, within school premises, and inside a house where there are other occupants. In People v. Opena, 51 rape was committed in a room occupied also by other persons. In the instant case, EDEN''s other companions in the room when she was molested by appellant were young girls who were all asleep. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough render her incapable of resisting or asking for help. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim's and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then 52 offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or 53 influence over the latter substitutes for violence or intimidation. Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to 54 disregard the threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the 55 intrusion. Neither does the fact that EDEN continued to live with appellant in same rented room disprove the rape. While she was hurt physically, psychologically and emotionally, yet the thought must have been irresistible and compelling that her assailant was her own father, who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. Besides, a less harsh life outside was uncertain. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever. Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous

testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally 56 considered inferior to the testimony given in open court; and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous 57 witnesses. This Court has no doubt that appellant is guilty as charged. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as follows: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is God's exclusive prerogative. But the fundamental law of the land allows Congress, for compelling reasons, to impose capital punishment in 58 cases of heinous crimes, hence the passage of R.A. No. 7659. Hoc quidem per quam durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written and the Court is duty-bound to apply it in this case. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and imposing upon him the penalty of DEATH, subject to the above modification as to the amount of indemnity. Two Justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. Upon finality of this Decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659. With costs de oficio. SO ORDERED. G.R. No. 111399 September 27, 1996 ODON PECHO, petitioner, vs. PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, respondents. RESOLUTION

DAVIDE, JR., J.:

In our decision of 14 November, we modified the appealed judgment of the Sandiganbayan in Criminal Case No. 14844 by holding the petitioner guilty of the complex crime of attempted estafa through falsification of official and commercial documents, and sentencing him to suffer an indeterminate penalty ranging from two (2) years, four (4) months and one (1) day of pri-sion correctional as minimum to ten (10) years and one (1) day of prision mayor as maximum and to pay a fine of Two Thousand Pesos (P2,000.00). In short, we held that although the petitioner could not be convicted of the crime charged, viz., violation of Section 3(e) of R.A No. 3019, as amended because the said section penalizes only consummated offenses and the offense charged in this case was not consummated he could, nevertheless, be convicted of the complex crime of attempted estafa through falsification of official and commercial documents, which is necessarily included in the crime charged. Unable to accept our verdict, the petitioner seasonably filed a motion for reconsideration on the ground that after having been acquitted of the violation of Section 3(e) of R.A. No. 3019, a special law, he could not be convicted anymore of attempted estafa through falsification of official and commercial documents, an offense punishable under the Revised Penal Code, as general law; otherwise, the constitutional provision on double jeopardy would be violated. In other words, his acquittal of the crime charged crime of attempted estafa through falsification of official and commercial documents, because both offenses arose from the same overt act as alleged in the information in Criminal Case No. 14844. In its Comment on the motion for reconsideration signed only by Assistant Solicitor General Romeo C. de la Cruz and Solicitor Josette Sonia Holgado-Marcilla, the Office of the Solicitor General disagrees with the petitioner and asserts that the rule on double jeopardy cannot be successfully invoked in this case considering that no new information for estafa through falsification of public document was filed against the petitioner; only one information was filed against him and his co-accused. For double jeopardy to exist, there must be such new information and the accused must be able to show that (1) he has been previously brought to trial, (2) in a court of competent jurisdiction, (3) upon a valid complaint or information sufficient in form and substance, (4) for the same offense or an attempt to or frustration thereof as that charged in the new information, and that (5) the case has been dismissed or terminated without his 1 consent or after he had pleaded to the information but therefore judgment was rendered. Nevertheless, the Office of the Solicitor General joins the petitioner in the latter's plea for his acquittal, but for another ground, namely, insufficiency of evidence. In the resolution of 22 August 1995, we directed the Solicitor General to inform the Court whether he agrees with the recommendation of Assistant Solicitor General De la Cruz and Solicitor Holgado-Marcilla. In his Manifestation of 14 September 1995, the Solicitor General not only expressed full agreement with the said recommendation, but even added the following observations: 10. After reading the Courts Decision, the Solicitor General has noted the petitioner's conviction is based on circumstantial evidence. 11 The law and a host of the Court's ruling declare that circumstantial evidence sufficient for conviction if the following conditions concur: (1) There is more than one circumstance; (2) The facts from which the inferences are derived are proven; and (3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Section 3, Rule 133, Rules of Court). 12. In this case, it should be stressed that the inference that petitioner falsified documents appears to be based on another inference, i.e., that he was in possession of the same because he accompanied his co-accused Carte in the transactions. However,

other than accompanying Catre, there is no evidence on record that petitioner had custody of the falsified documents. 13 As to the conspiracy angle, there is likewise no showing that petitioner interceded for Catre. In fact, it was Catre who talked to Calica. (p. 19-20, TSN, August 26, 1991). Neither was it shown that petitioner had a hand in the processing of the import entry declaration for the release of the shipment from the Bureau of Customs. It was not also proven that he was instrumental in the approval of the import entry declaration. 14. The elements of conspiracy, like the physical acts constituting the crime itself, must be proven beyond reasonable doubt. (People vs. Manuel, 234 SCRA 532). To hold an accused guilty as co-principal by reason of conspiracy, it must be shown that he performed an overt act in pursuance or furtherance of the conspiracy. (People vs. Roxas, 241 SCRA 369). In this regard, it is respectfully submitted that there is no overt act conclusively attributable to petitioner which would pin him down as a con-conspirator. 15. Thus, it is the inexorable duty of the Solicitor General to recommend petitioner's acquittal, as he so recommends, inasmuch as the People was not able to adduce evidence sufficient to overcome the constitutional presumption of petitioner's innocence. We then required the parties to submit their respective memoranda on the following issues: (a) the sufficiency of the evidence for the complex crime of attempted estafa through falsification of public and commercial documents, and (b) the validity of the conviction therefor under an information for the violation of Section 3(e) of R.A. No. 3019, as amended, vis-a-vis the constitutional right of the accused to be informed of the nature and cause of the accusation against him. In their respective memoranda, the petitioner and the Office of the Solicitor General are one in asserting the petitioner could not be convicted base entirely on circumstantial evidence because of the failure of the prosecution to satisfy the requisites set forth in Section 4, Rule 133 of the Rules of Court, namely, (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. The petitioner further cited portions of the transcripts of the stenographic notes of the testimony of Customs Broker Constantino Calica which prove that it was Catre alone who made the introduction to Calica that they were agents of Eversun Commercial Trading, and that it was Catre who did all the talking and directly transacted with Calica regarding the terms and conditions of the particular engagement and who actually delivered the documents to him. There is no evidence that the petitioner had a hand in the processing of the import entry declaration for the release of the shipment from the Bureau of Customs or was instrumental in the approval of the import entry declaration. Thus: Q Now, did Mr. Odon Pecho actually engage your services? A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho. Q Who actually transacted with you with regards to your services, is it Mr. Catre or Mr. Pecho? A Mr. Joe Catre, sir. Q So it was Joe Catre? A Yes, sir.

Q And not Odon Pecho, is that right? A Well, he is the companion of Mr. Catre and they introduced themselves to me that they are the authorized representatives of the importer. Q That is right. Who introduced to you. A Mr. Catre was the one who talks [sic] to me, sir. Q But in your testimony, the person who delivered to you the documents, the bill of lading, the commercial invoices, the packing list, the importer's sworn statement, etc. which was made the basis of the, of your preparation for the processing of the import entry, who delivered to you these documents that you mentioned? A Mr. Catre, sir. Q And who talked to you about the terms and conditions of this engagement or contract? A Mr. Catre, sir. Q And not Mr. Odon Pecho? A Yes, sir. Q Who actually delivered to you the documents, Mr. Catre or Mr. Pecho? A It was Mr. Catre, sir, he was the one handling the case. AJ ESCAREAL Q [To] Whom did you talk first? A Mr. Catre, Your Honor, he was the one handling the case, the documents, Your Honor. Q Do you know how they introduced themselves to you? A That is the only thing that I remember Your Honor that they came to my office and told me that they are the importer's representatives and that they are engaging my services. Q Who said that? A Mr. Catre You Honor. Q How about Mr. Pecho? A No, Your Honor. Q Did he say anything? A At the time your Honor, it was Mr. Catre who was doing that talking.

Q Did Mr. Catre given his name to you? A Yes, Your Honor. Q That he is Mr. Joe Catre, Your Honor. A How about his companion, did his companion introduce himself to you or he was introduced by Mr. Catre to you? A He did not introduced himself to me Your Honor? Q So during that meeting you do not know that the name of the companion of Mr. Catre is Odon Pecho. A Yes, your Honor. Q And how did your son attend to it? A Two days after Your Honor, Mr. Catre called our office to assist and help them in the preparation of the cargo at the arrastre operator because that is usually being done by the broker when the shipment goes for examination (t.s.n., Hearing of August 26, 1991). As to the second issue, the Office of the Solicitor General rejects the theory of the petitioner and submits that the information in this case contains the essential ingredients of estafa through falsification of public and commercial documents; therefore, assuming there is sufficient evidence, the petitioner could be convicted of the complex crime of attempted estafa through falsification of public and commercial documents without violating Section 14(2), Article III of the Constitution on the right of the accused to be informed of the nature and cause of the accusation against him. I We shall first take up the second issue since it involved a constitutional right of the accused. On the assumption that the prosecution's evidence had satisfied that quantum of proof for conviction for the complex crime of attempted estafa through falsification of public and commercial documents, there is absolutely no merit in the petitioner's claim that he could not be convicted of the said crime without offending his right to be informed without offending his right to be informed of the nature and cause of the accusation against him which is guaranteed 2 by the Bill of Rights. Such right, an ancient bulwark of the liberties of men, has its origin in the Bill of Rights which the people of Great Britain demanded and received from the Prince and Princess of Orange on 13 February 1688. It was adopted by the Constitution of the United States and was extended to the Philippines by Act No. 235, or the 3 Philippine Bill of 1902. It was later carried into the Jones Law and, ultimately, enshrined in the Constitutions of 1935, 1973, and 1987. It has the following objectives: First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had (United States vs. Cruikshank, 92 U.S. 542). In order that this requirement may be satisfied facts must be stated: not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff or defendant), and circumstances. In short, the complaint must contain a 4 specific allegation of every fact and circumstance necessary to constitute the crime. Conformably therewith, the Rules of Court has prescribed the appropriate 5 rules.

What determines the real nature and cause of accusation against an accused is the actual recital of facts stated in the information or complaint and not the caption or preamble of the information or complaint nor the specification of the 6 provision of law alleged to have been violated, they being conclusions of law. An incorrect caption is not a fatal 7 mistake. It follows then that an accused may be convicted of a crime which although not the one charged, is necessarily included in the latter. Section 4, Rule 120 of the Rules of Court thus provides: Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint of information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. The succeeding Section 5 prescribes the rule in determining when an offense includes or is included in another. We have shown in the challenged decision why the complex crime of attempted estafa through falsification of public and commercial documents is included in the offense charged. Moreover, we held that the information in this case "can also be considered as charging two offenses; the violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsification of official and commercial documents." And since the petitioner failed to object 8 9 before trial to such duplicity, he could be validly convicted of both or either of the offenses charged and proved. II We shall now turn to the first issue: whether the evidence adduced by the prosecution had established beyond reasonable doubt the guilt of the petitioner for the complex crime of attempted estafa through falsification of public and commercial documents. In light of the consistent and persistent negative stance of the Office of the Solicitor General, personally confirmed and reinforced by the Solicitor General in his reinforced by the Solicitor General in his separated Manifestation, we re-evaluated the evidence. In our decision of 14 November 1994, we based the conviction of the petitioner on conspiracy. The question that logically crops up then is not whether the combination of the circumstantial evidence proved in this case against the petitioner had established beyond reasonable doubt that he is guilty of the complex crime of attempted estafa through falsification of public and commercial documents, as asseverated by him and the public respondent. Rather, the question is whether the prosecution has discharged its duty to establish conspiracy between the petitioner and Catre. The information charges the petitioner and his co-accused Joe Catre as principals who "conspir[ed], confabulat[ed], conniv[ed], confederat[ed], and mutually help[ed] one another," with Catre "representing himself to be a representative of Everson Commercial Trading of Cotabato City, a corporation, firm or partnership which turned out to be not-existent, fake or fictitious." The evidence for the prosecution, as admitted by the respondent, only showed that it was Catre who possessed the falsified documents, contracted the services of Calica, and delivered the documents to the latter for processing. In the absence of satisfactory explanation, Catre, being the one in possession 12 of the forged documents, is presumed to be the forger. Catre, however, could not provide the explanation because only the petitioner was tried. The information states that his address is "unknown," and the record does not show 13 that a warrant for his arrest was issued. The only warrant for his arrest that was issued was that for the petitioner. Assuming that such evidence and the others adduced by the prosecution are to be admitted to prove the commission of the crime, a prima facie case enough to prove the guilt of Catre with moral certainty was duly established against Catre as a principal. Accordingly, if conspiracy were proven, the petitioner would be equally guilty of the offense proved. For, in a conspiracy, every act of one of the conspirators in furtherance of a common design or purpose of 14 such a conspiracy is, in contemplation of law, the act of each of them. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and 15 decided to commit it. Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused 16 themselves when such point to a joint purpose and design, concerted action, and community of interest. It is,
10 11

however, settled that the same degree of proof required for establishing the crime is likewise required to support a finding or conspiracy. In other words conspiracy must be shown to exist as clearly and as convincingly as the commission of the offense itself in order to uphold the fundamental principle that no one shall be found guilty of a 17 crime except upon proof beyond reasonable doubt. It is also essential for one to be a party to a conspiracy as to be liable for the acts of the others that there be 18 intentional participation in the transaction with a view to the furtherance of the common design. Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a direct or 19 indirect contribution in the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators 20 by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Since conspiracy must be established by proof beyond reasonable doubt, then the next inquiry would be whether the prosecution was able to adduce such proof against the petitioner. It is in this respect that we agree with the People and the petitioner that the prosecution had only circumstantial evidence against the petitioner. Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict 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. As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven 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, i.e., the circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of 21 guilty. In the instant case, all that the prosecution was able to prove insofar as the petitioner is concerned is that he and coaccused Catre are from Surigao del Norte; that he accompanied Catre in contracting the services of customs broker Constantino Calica; and that he also was with Catre when the latter went with Dennis Calica, son of Constantino Calica, to the Manila International Container Port. In all these instances, however, it was Catre who transacted the business and did all the talking. As a matter of fact, the petitioner was not even introduced to Calica. As recapitulated by the Office of the Solicitor General in its Memorandum: [T]here is no evidence that petitioner interceded for Catre. Prosecution witness Calica testified that it was Catre and not petitioner, who introduced themselves as agents of Eversun Commercial Trading. He also testified that it was Casre who did all the talking and directly transacted with him (Calica) regarding the terms and conditions of the particular engagement and it was also Catre, and not petitioner, who actually delivered the documents to him (tsn, August 26, 1991). There is no evidence that petitioner had a hand in the processing of the import entry declaration for the release of the shipment from the Bureau of Customs. There is also no evidence that petitioner was instrumental in the approval of the import entry declaration. 22 In short, there is no showing that petitioner performed an overt act in furtherance of alleged conspiracy. The evidence for the prosecution likewise failed to prove that the petitioner (1) personally represented himself as an agent of Eversun Commercial Trading; (2) knew of the falsity of any of the public and commercial documents in question; and (3) had, at any time, possession of all or some of the said documents. Otherwise stated, there is no sufficient circumstantial evidence to prove conspiracy between the petitioner and Catre to commit the complex crime of estafa through falsification of public and commercial documents. Neither is there evidence of petitioner's active participation in the commission of the crime. The con-cordant combination and cumulative effect of the acts of the petitioner as proven by the prosecution's evidence fails to satisfy the requirements of Section 4, Rule 133 of the Rules of court. There is reasonable doubt as to his guilt. And since his 23 constitutional right to be presumed innocent unit proven guilty can be over-thrown only by proof beyond reasonable 24 25 doubt, the petitioner must then be acquitted even though his innocence may be doubted. WHEREFORE, the petitioner's motion for reconsideration is GRANTED. Our decision of 14 November 1994 is SET ASIDE, and another is hereby rendered REVERSING the challenged decision of 28 June 1993 and resolution of 12

August 1993 of the Sandigan-bayan in Criminal Case No. 14844 and ACQUITTING petitioner ODON PECHO of the complex crime of attempted estafa through falsification of official and commercial documents, without, however, prejudice to any appropriate administrative action which his office may take against him as may be warranted by the circumstances in this case. SO ORDERED. G.R. No. L-65952 July 31, 1984 LAURO G. SORIANO, JR., petitioner, vs. THE HONORABLE SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, respondents. Dakila F. Castro for petitioner. The Solicitor General for respondents.

ABAD SANTOS, J.: The principal issue in this petition to review a decision of the Sandiganbayan is whether or not the preliminary investigation of a criminal complaint conducted by a Fiscal is a "contract or transaction" so as to bring it within the ambit of Section 3 (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The factual background is as follows: Thomas N. Tan was accused of qualified theft in a complaint lodged with the City Fiscal of Quezon City. The case was docketed as I.S. No. 82-2964 and assigned for investigation to the petitioner who was then an Assistant City Fiscal. In the course of the investigation the petitioner demanded P4,000.00 from Tan as the price for dismissing the case. Tan reported the demand to the National Bureau of Investigation which set up an entrapment. Because Tan was hard put to raise the required amount only P2,000.00 in bills were marked by the NBI which had to supply one-half thereof. The entrapment succeeded and an information was filed with the Sandiganbayan in Criminal Case No. 7393 which reads as follows: The undersigned Tanodbayan Special Prosecutor accuses LAURO G. SORIANO, for Violation of Section 3, paragraph (b) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 21st day of March 1983, at Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then and still is an Assistant City Fiscal of the Quezon City Fiscal's Office, detailed as the Investigating Fiscal in the case of MARIANNE Z. LACAMBRA versus THOMAS N. TAN, docketed as I.S. No. 82-2964, for Qualified Theft, taking advantage of his official position and with grave abuse of authority, did then and there wilfully, unlawfully and feloniously demand and request from Thomas N. Tan the amount of FOUR THOUSAND PESOS (P4,000.00) Philippine Currency, and actually received from said Thomas N. Tan the amount of TWO THOUSAND PESOS (P2,000.00) Philippine Currency, in consideration for a favorable resolution by dismissing the abovementioned case, wherein said accused has to intervene in his official capacity as such Investigating Fiscal. CONTRARY TO LAW. Manila, Philippines, March 22, 1983.

(SGD.) EDGARD O C. LABELLA Special Prosecut or After trial the Sandiganbayan rendered a decision with the following dispositive portion: WHEREFORE, the Court finds accused Lauro G. Soriano, Jr., GUILTY beyond reasonable doubt, as Principal in the Information, for Violation of Section 3, paragraph (b), of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from SIX (6) YEARS and ONE (1) MONTH, as minimum, to NINE (9) YEARS and ONE (1) DAY, as maximum; to suffer perpetual disqualification from public office; to suffer loss of all retirement or gratuity benefits under any law; and, to pay costs. Of the sum of Two Thousand Pesos (P2,000.00) used in the entrapment operations, and which was fully recovered from the accused, One Thousand Pesos (P1,000.00) shall be returned to private complainant Thomas N. Tan, and the other half, to the National Bureau of Investigation, National Capital Region. A motion to reconsider the decision was denied by the Sandiganbayan; hence the instant petition. The petitioner has raised several legal questions plus one factual question. The latter is to the effect that the Sandiganbayan convicted him on the weakness of his defense and not on the strength of the prosecution's evidence. This claim is not meritorious not only because it is not for Us to review the factual findings of the court a quo but also because a reading of its decision shows that it explicitly stated the facts establishing the guilt of the petitioner and the competence of the witnesses who testified against him. As stated above, the principal issue is whether or not the investigation conducted by the petitioner can be regarded as a "contract or transaction" within the purview of Sec. 3 (b) of R.A. No. 3019. On this issue the petition is highly impressed with merit. The afore-mentioned provision reads as follows: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) ... (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. The petitioner states: Assuming in gratia argumenti, petitioner's guilt, the facts make out a case of Direct Bribery defined and penalized under the provision of Article 210 of the Revised Penal Code and not a violation of Section 3, subparagraph (b) of Rep. Act 3019, as amended. The evidence for the prosecution clearly and undoubtedly support, if at all the offense of Direct Bribery, which is not the offense charged and is not likewise included in or is necessarily included in the offense charged, which is for violation of Section 3, subparagraph (b) of Rep. Act 3019, as amended. The prosecution showed that: the accused is a public officer; in consideration of P4,000.00 which was allegedly

solicited, P2,000.00 of which was allegedly received, the petitioner undertook or promised to dismiss a criminal complaint pending preliminary investigation before him, which may or may not constitute a crime; that the act of dismissing the criminal complaint pending before petitioner was related to the exercise of the function of his office. Therefore, it is with pristine clarity that the offense proved, if at all is Direct Bribery. (Petition, p. 5.) Upon the other hand, the respondents claim: A reading of the above-quoted provision would show that the term 'transaction' as used thereof is not limited in its scope or meaning to a commercial or business transaction but includes all kinds of transaction, whether commercial, civil or administrative in nature, pending with the government. This must be so, otherwise, the Act would have so stated in the "Definition of Terms", Section 2 thereof. But it did not, perforce leaving no other interpretation than that the expressed purpose and object is to embrace all kinds of transaction between the government and other party wherein the public officer would intervene under the law. (Comment, p. 8.) It is obvious that the investigation conducted by the petitioner was not a contract. Neither was it a transaction because this term must be construed as analogous to the term which precedes it. A transaction, like a contract, is one which involves some consideration as in credit transactions and this element (consideration) is absent in the investigation conducted by the petitioner. In the light of the foregoing, We agree with the petitioner that it was error for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A. No. 3019. The petitioner also claims that he cannot be convicted of bribery under the Revised Penal Code because to do so would be violative of as constitutional right to be informed of the nature and cause of the accusation against him. Wrong. A reading of the information which has been reproduced herein clearly makes out a case of bribery so that the petitioner cannot claim deprivation of the right to be informed. IN THE LIGHT OF THE FOREGOING, the judgment of the Sandiganbayan is modified in that the petitioner is deemed guilty of bribery as defined and penalized by Article 210 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2) years of prision correccional as maximum, and to pay a fine of Two Thousand (P2,000.00) Pesos. The rest of the judgment is hereby affirmed. Costs against the petitioner. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. G.R. No. L-45667 June 20, 1977 MANUEL BORJA, petitioner, vs. HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of Cebu (Branch VI) and HON. ROMULO R. SENINING, Judge of the City Court of Cebu (Branch I), respondents. Hermis I. Mopntecillo for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F. Racela, Jr. and Solicitor Carlos N. Ortega for respondents. FERNANDO, J.: The jurisdictional infirmity imputer to respondent Judge Romulo R. Senining of the City of Cebu which was not remedied by respondent Judge Rafael T. Mendoza of the Court of First Instance of Cebu in this certionrari proceeding was the absence of an arrainment of petitioner Manuel Borja, who was accused of slight physical injuries. This notwithstanding respondent Judge

Senining proceeded with the trial in abssentia and thereafter, in a decision promulgated on August 18, 1976, found him guilty 1 of such offense and sentenced him to suffer imprisonment for a period of twenty days of arresto menor. Thereafter, an appeal 2 was duly elevated to the Court of First Instance of Cebu presided by respondent Judge Mendoza. It was then alleged that without any notice to petitioner and without requiring him to submit his memorandum, a decision on the appealed case was rendered on November 16, 1976 petitioner that the failure to arraign him is violative of his constitutional right to procedural 3 due process, more specifically of his right to be informed of the nature and cause of the accusation against him and of his right 4 5 to be heard by himself and counsel. Ther was thus, at the very least, a graveabuse of discretion. The Solicitor General, when asked to comment, agreed that the procedural defect was of such gravity as to render void the decision of the City Court affirmed by the Court of First Instance. The comment was considered as answer, with the case being submitted for decision. Respect for the constitutional rights of an accused as authoritatively construed by this Court, duly taken note of in the comment of the Solicitor General, thus calls for the grant of the writ of certiorari prayed for. 1. The plea of petitioner to nullify the proceedings had in the criminal case against him finds support in the procedural due process mandate of the Constitution. It requires that the accused be arraigned so that he may be informed as to why he was indicted and what penal offense he has to face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence against him. Moreover, the sentence to be imposed in such a case is to be 6 7 in accordance with a valid law. This Court, in People v. Castillo, speaking through Justice De Joya and following the language of the American Supreme Court, Identified due process with the accused having "been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon 8 notice to him, with an opportunity to be heard, and a judgment awarded with the authority of a constitutional law, ..." An arraignment thus becomes indispensable as the means "for bringing the accused into court and notifying him of the cause he is 9 required to meet ... " Its importance was stressed by Justice Moreland as early as 1916 in the leading case of United States v. 10 Binayoh. He pointed out that upon the accused being arraigned, "there is a duty laid by the Code [now the Rules of Court] upon the court to inform [him] of certain rights and to extend to him, on his demand, certain others. This duty is an affirmative 11 one which the court, on its own motion, must perform, unless waived." To emphasize its importance, he added: "No such duty, however, is laid on the court with regard to the rights of the accused which he may be entitled to exercise during the trial. Those are rights which he must assert himself and the benefits of which he himself must demand. In other words, in the 12 arraignment the court must act of its own volition, ..." In the terse and apt language of the Solicitor General: "Arraignment is 13 an indispensable requirement in any criminal prosecution." Procedural due process demands no less. 2. Nor is it only the due process guarantee that calls for the accused being duly arraigned. As noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. It is imperative that he is thus made fully aware of Possible loss of freedom, even of his life, depending on the nature of the crime imputed to him. At the very least then, he must be fully informed of why the prosecuting arm of the state is mobilized against him. An arraignment serves that purpose. Thereafter he is no longer in the dark. It is true, the complaint or information may not be worded with sufficient clarity. He would be in a much worse position though if he does not even have such an opportunity to plead to the charge. With his counsel by his side, he is thus in a position to enter his plea with full knowledge of the consequences. He is not even required to do so immediately. He may move to quash. What is thus evident is that an arraignment assures that he be fully acquainted with the nature of the crime imputed to him and the circumstances under which it is allegedly committed. It is thus a vital aspect of the constitutional rights guaranteed him. It is not useless formality, much less an Idle ceremony. 3. An equally fatal defect in the proceeding had before respondent Judge Senining was that notwithstanding its being conducted in the absence of petitioner, he was convicted. It was shown that after one postponement due to his failure to appear, the case was reset for hearing. When that date came, December 14, 1973, without petitioner being present, although his bondsmen were notified, respondent Judge, as set forth in the comment of the Solicitor General, "allowed the prosecution to present its evidence invoking Letter of Instruction No. 40. Only one witness testified, the offended party herself, and three documents were offered in evidence after which the prosecution rested its case. Thereupon, respondent City Court set the 14 promulgation of the decision on December 28, 1973." It could then conclude: :Verily the records clearly show that petitioner was not arraigned at all and was not represented by counsel throughout the whole proceedings in the respondent City Court." 15 It is indisputable then that there was a denial of petitioner's constitutional right to be heard by himself and counsel. As 16 categorically affirmed by Justice Ozaeta for this Court in the leading case of Abriol v. Homeres: "It is the constitutional right of 17 the accused to be heard in his defense before sentence is pronounced on him." He added further that such "constitutional 18 right is inviolate." There is no doubt that it could be waived, but here there was no such waiver, whether express or implied. 19 It suffices to refer to another leading case, People v. Holgado, where the then Chief Justice Moran emphatically took note of the importance of the right to counsel: "In criminal cases there can be no fair hearing unless the accused be given an

opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish 20 his innocence." With the violation of the constitutional right to be heard by himself and counsel being thus manifest, it is easily understandable why the Solicitor General agreed with petitioner that the sentence imposed on him should be set aside for being null. 4. The provision in the present Constitution allowing trial to be held in absentia is unavailing. It cannot justify the actuation of respondent Judge Senining. Its language is clear and explicit. What is more, it is mandatory. Thus: "However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear 21 is unjustified." As pointed out then by the Solicitor General, the indispensable requisite for trial in absentia is that it should come "after arraignment." The express mention in the present Constitution of the need for such a step emphasizes its importance in the procedural scheme to accord an accused due process. Without the accused having been arraigned, it becomes academic to discuss the applicability of this exception to the basic constitutional right that the accused should be heard by himself and counsel. 5. Nor did the appeal to the Court of First Instance presided by respondent Judge Mendoza possess any curative aspect. To quote anew from the comment of the Solicitor General: "Respondent Court of First Instance ... considered the appeal taken by the petitioner as waiver of the defects in the proceedings in the respondent City Court. Precisely, the appeal itself is tantamount to questioning those defects. In fact, the Memorandum in support of the appeal unmistakably raised as error the absence of petitioner at the arraignment and cited jurisprudence, commentaries and the rules to bolster his position. Specifically, the absence of an arraignment can be invoked at anytime in view of the requirements of due process to ensure a 22 fair and impartial trial." WHEREFORE, the petition for certiorari is granted. The decision of respondent Judge Romulo R. Senining dated December 28, 1973, finding the accused guilty of the crime of slight physical injuries, is nullified and set aside. Likewise, the decision of respondent Judge Rafael T. Mendoza dated November 16, 1976, affirming the aforesaid decision of Judge Senining, is nullified and set aside. The case is remanded to the City Court of Cebu for the prosecution of the offense of slight physical injuries, with due respect and observance of the provisions of the Rules of Court, starting with the arraignment of petitioner. Barredo, Antonio, Aquino and Fernandez, JJ, concur. Concepcion Jr., J, is on leave. G.R. Nos. 140546-47 January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a. ESTOY TEE, accused-appellant. QUISUMBING, J.: For automatic review is the consolidated judgment of the Regional Trial Court (RTC) of Baguio City, Branch 6, dated September 2 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of the Dangerous Drugs Law. Since appellant was acquitted in the second case, we focus on the first case, where appellant has been found guilty and sentenced to death and fined one million pesos. The decretal portion of the trial courts decision reads: WHEREFORE, judgment is hereby rendered, as follows: 1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt of the offense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a search warrant and sentences him to the supreme penalty of death and to pay a fine of 1 million pesos without subsidiary imprisonment in case of insolvency.
1

The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-1 to U-27) are ordered forfeited in favor of the State to be destroyed immediately in accordance with law. 2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused Modesto Tee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information since the marijuana confiscated have to be excluded in evidence as a product of unreasonable search and seizure. The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component parts) although excluded in evidence as the product(s) of unreasonable search and seizure, are nevertheless ordered forfeited in favor of the State to be destroyed immediately in accordance with law considering that they are prohibited articles. The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim. Case No. 15822-R unless held on other charges. COST(S) DE OFFICIO. SO ORDERED.
3

Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command (PNP NARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana. On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that the NBI had not complied with the requirements for the issuance of a valid search warrant. The pendency of said motion, however, did not stop the filing of the appropriate charges against appellant. In an information dated July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of Baguio City charged Modesto Tee, alias "Estoy Tee," with illegal possession of marijuana, allegedly committed as follows: That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: 1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and 2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and 3 Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms, all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.
4

On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet "considering that subject marijuana were 5 seized in two (2) different places." As a result, the information in Criminal Case No. 15800-R was amended to read as follows: That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:

- Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (26) boxes and a yellow sack, weighing 591.81 kilograms a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.
6

A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory portion of which reads: That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: 1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and 2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.
7

On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellants arraignment. When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court entered a plea of 8 not guilty for him. Trial on the merits then ensued. The facts of this case, as gleaned from the records, are as follows: Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well acquainted with each 9 other, since Abratiques wife is the sister of Tees sister-in-law. Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled cigarettes. Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant then brought several boxes of purported "blue seal" cigarettes to the leased premises. Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not "blue seal" cigarettes but marijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed upon appellant to remove them from 11 the premises. Appellant then hired Abratiques taxi and transported the boxes of cannabis from the Ballesteros place to appellants residence 12 at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in Abratiques taxi. He then asked Abratique to find him a place where 13 he could store the contraband. Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St., QM Subdivision, Baguio City, which was being managed by Abratiques aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant unloaded 14 and stored there the sacks of marijuana brought from Sablan. Abratique was aware that they were transporting marijuana as 15 some of the articles in the sacks became exposed in the process of loading.
10

Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianzas brother-in-law, Edwin Fianza, was an NBI agent, Alice 16 and Abratique phoned him and disclosed what had transpired. On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cario St. While the NBI agents were conducting 17 their surveillance, they noticed that several PNP NARCOM personnel were also watching the place. The NBI then learned that the PNP NARCOM had received a tip from one of their informers regarding the presence of a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have a joint operation. As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and found four (4) boxes and thirteen (13) sacks of marijuana, 18 totaling 336.93 kilograms. Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant from RTC Judge 19 Antonio Reyes at his residence. Judge Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the NBI to search appellants residence at Km. 6, Dontogan, Green Valley, 20 Baguio City for marijuana. The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellants residence where they served the 21 warrant upon appellant himself. The search was witnessed by appellant, members of his family, barangay officials, and 22 23 members of the media. Photographs were taken during the actual search. The law enforcers found 26 boxes and a sack of 24 25 dried marijuana in the water tank, garage, and storeroom of appellants residence. The total weight of the haul was 591.81 26 kilograms. Appellant was arrested for illegal possession of marijuana. The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the items taken from appellants rented room at No. 27, 27 Dr. Cario St., as well as those from his residence at Green Valley, showed these to be marijuana. In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too general and the process by which said warrant was acquired did not satisfy the constitutional requirements for the issuance of a valid search warrant. Moreover, Abratiques testimony, which was heavily relied upon by the judge who issued the warrant, was hearsay. In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of marijuana was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the prosecutions evidence was more than ample to prove appellants guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of illegal possession of marijuana and sentenced him to death. Hence, this automatic review. Before us, appellant submits that the trial court erred in: 1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT; 2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRITIQUE TO TESTIFY AGAINST APPELLANT; 3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;

4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY 28 OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE. We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at the appellants residence; (2) the alleged prejudice caused by the reopening of the case and absences of the prosecution witness, on appellants right to speedy trial; (3) the sufficiency of the prosecutions evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty imposed. 1. On the Validity of the Search Warrant; Its Obtention and Execution Appellant initially contends that the warrant, which directed the peace officers to search for and seize "an undetermined amount of marijuana," was too general and hence, void for vagueness. He insists that Abratique could already estimate the amount of marijuana supposed to be found at appellants residence since Abratique helped to transport the same. For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge finds probable cause that the place to be searched contains prohibited drugs, and not that he believes the place contains a specific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand to determine the exact amount of prohibited drugs that a person has on himself. Appellant avers that the phrase "an undetermined amount of marijuana" as used in the search warrant fails to satisfy the 29 requirement of Article III, Section 2 of the Constitution that the things to be seized must be particularly described. Appellants contention, in our view, has no leg to stand on. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to 30 be seized and thus prevent them from seizing the wrong items; and (2) leave said peace officers with no discretion regarding 31 the articles to be seized and thus prevent unreasonable searches and seizures. What the Constitution seeks to avoid are search warrants of broad or general characterization or sweeping descriptions, which will authorize police officers to undertake 32 a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. However, it is not 33 required that technical precision of description be required, particularly, where by the nature of the goods to be seized, their 34 description must be rather general, since the requirement of a technical description would mean that no warrant could issue. Thus, it has been held that term "narcotics paraphernalia" is not so wanting in particularity as to create a general warrant. Nor is the description "any and all narcotics" and "all implements, paraphernalia, articles, papers and records pertaining to" the use, 36 possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional. A search warrant commanding peace 37 officers to seize "a quantity of loose heroin" has been held sufficiently particular. Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must be held to satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, 38 and the circumstances. Thus, this Court has held that the description "illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia" 39 particularizes the things to be seized. The search warrant in the present case, given its nearly similar wording, "undetermined amount of marijuana or Indian hemp," in our view, has satisfied the Constitutions requirements on particularity of description. The description therein is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact not of law by which the peace officers may be guided in making the search and seizure; and (3) limits the things to be seized to those which bear direct relation to the 40 offense for which the warrant is being issued. Said warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might be violative of the Bill of Rights. Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of violation of Republic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus unconstitutional. For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and control marijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425.
35

We have carefully scrutinized Search Warrant No. 415 (7-98), and we find that it is captioned "For Violation of R.A. 6425, as 42 amended." It is clearly stated in the body of the warrant that "there is probable cause to believe that a case for violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having in his possession and control an UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the 43 aforementioned law." In an earlier case, we held that though the specific section of the Dangerous Drugs Law is not pinpointed, "there is no question at all of the specific offense alleged to have been committed as a basis for the finding of 44 probable cause." Appellants averment is, therefore, baseless. Search Warrant No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of marijuana. Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine the applicant and his witness. Appellant points out that said magistrate should not have swallowed all of Abratiques statements hook, line, and sinker. He points out that since Abratique consented to assist in the transport of the marijuana, the examining judge should have elicited from Abratique his participation in the crime and his motive for squealing on appellant. Appellant further points out that the evidence of the NBI operative who applied for the warrant is merely hearsay and should not have been given credit at all by Judge Reyes. Again, the lack of factual basis for appellants contention is apparent. The OSG points out that Abratique personally assisted appellant in loading and transporting the marijuana to the latters house and to appellants rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal knowledge on Abratiques part. Law enforcers cannot themselves be eyewitnesses to every crime; they are allowed to present witnesses before an examining judge. In this case, witness Abratique personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in applying for a search warrant but on personal knowledge of the witness, Abratique. Before a valid search warrant is issued, both the Constitution and the 2000 Revised Rules of Criminal Procedure require that the judge must personally examine the complainant and his witnesses under oath or affirmation. The personal examination 47 must not be merely routinary or pro forma, but must be probing and exhaustive. In the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A. Lising, the applicant for the search warrant as well as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the 48 RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is made of "notes" at "pages 7-11." We have thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere find said "notes." The depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the existence of probable 49 cause. The Bill of Rights does not make it an imperative necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the record showing what 50 testimony was presented. In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of 51 52 his affidavit; there were instances when Judge Reyes questioned him extensively. It is presumed that a judicial function has 53 been regularly performed, absent a showing to the contrary. A magistrates determination of probable cause for the issuance 54 of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that 55 determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in his motion to quash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed to ask searching questions of the 56 applicant and his witness. Belatedly, however, he now claims that Judge Reyes perfunctorily examined said witness. But it is settled that when a motion to quash a warrant is filed, all grounds and objections then available, existent or known, should be 57 raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived. In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored in appellants house was indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their particular location. Abratiques statements to the NBI and to Judge Reyes contained credible and reliable details. As the NBIs witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed description of appellants activities with respect to the seized drugs was substantial. In relying on witness Abratique, Judge Reyes was not depending on casual rumor circulating in the underworld, but on personal knowledge Abratique possessed.
45 46

41

In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that: The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been 58 drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused. Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be no mistake. A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain 59 60 and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness. Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant fails, however, to point to any evidentiary matter in the record to support his contention. Defense witness Cipriana Tee, appellants mother, testified on the search conducted but she said nothing that indicated the use of force on the part of the NBI operatives who 61 62 conducted the search and seizure. What the record discloses is that the warrant was served on appellant, who was given 63 time to read it, and the search was witnessed by the barangay officials, police operatives, members of the media, and 64 appellants kith and kin. No breakage or other damage to the place searched is shown. No injuries sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has been orderly and peaceably performed. 2. On The Alleged Violation of Appellants Substantive Rights Appellant insists that the prosecutions unjustified and willful delay in presenting witness Abratique unduly delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of Abratique to testify against him. Appellant insists that said lapse on the prosecutions part violated Supreme Court 65 Circular No. 38-98. Appellant now alleges that the prosecution deliberately resorted to delaying the case to cause him untold miseries. For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to amount to a violation of appellants right to a speedy trial. A trial is always subject to reasonable delays or postponements, but absent any showing that these delays are capricious and oppressive, the State should not be deprived of a reasonable opportunity to prosecute the criminal action. On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in 66 67 1999. No less than four (4) warrants of arrest were issued against him to compel him to testify. The NBI agent who supposedly had him in custody was found guilty of contempt of court for failing to produce Abratique at said hearings and 68 sanctioned. The prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regarding the 69 failure of the Bureaus agents to bring Abratique to court. Nothing on record discloses the reason for Abratiques aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing the trial court to again order his arrest 70 71 for the fifth time. He also failed to show up at the hearing of June 8, 1999. Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellants 72 constitutional and statutory right to a speedy trial. A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free from 73 vexatious, capricious, and oppressive delays. In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that "where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom."

The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused to the 74 accused. The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) 75 days. However, in determining the right of an accused to speedy trial, courts should do more than a mathematical 76 computation of the number of postponements of the scheduled hearings of the case. The right to a speedy trial is deemed 77 violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays; or (2) when unjustified 78 postponements are asked for and secured; or (3) when without cause or justifiable motive a long period of time is allowed to 79 elapse without the party having his case tried. In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days, there is no showing whatsoever that prosecution capriciously caused Abratiques absences so as to vex or oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up for the taking of his testimony, the prosecution went to the extent of praying that the trial court order the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried to get the NBI to produce Abratique as the latter was in the Bureaus custody, but to no avail. Eventually, the trial court 80 ordered the prosecution to waive its right to present Abratique and rest its case on the evidence already offered. Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two months has 81 been found, in fact, to be not an unreasonably lengthy period of time. Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to produce its witness. Under the Rules, appellant could have moved the trial court to require that witness Abratique post bail to ensure that 82 the latter would testify when required. Appellant could have moved to have Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial. No persuasive reason supports appellants claim that his constitutional right to speedy trial was violated. One must take into account that a trial is always subject to postponements and other causes of delay. But in the absence of a showing that delays 83 were unreasonable and capricious, the State should not be deprived of a reasonable opportunity of prosecuting an accused. Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed the reopening of the case after the prosecution had failed to present Abratique on several occasions and had been directed to rest its case. Appellant stresses that the lower courts order to reopen the case to receive Abratiques further testimony is an indication that the trial court favored the prosecution and unduly prejudiced appellant. On appellees behalf, the Solicitor General points out that the trial courts order was in the interest of substantial justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not formally rested its case and had yet to present its formal offer of evidence, hence, the submission of additional testimony by the same witness cannot be prejudicial to the accused, it being but the mere continuation of an uncompleted testimony. Furthermore, appellant did not properly oppose the prosecutions motion to reopen the case. At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure were in effect. 84 There was no specific provision at that time governing motions to reopen. Nonetheless, long and established usage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a specific procedural rule, the only controlling guideline governing a motion to reopen was the paramount interests of justice. As a rule, the matter of reopening of a case for 85 reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court. However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter 86 evidence. Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen may properly be 87 presented only after either or both parties have formally offered and closed their evidence, but before judgment. In the instant case, the records show that on April 19, 1999, the prosecution was directed to close its evidence and given 15 days to 88 make its formal offer of evidence. This order apparently arose from the manifestation of the prosecution on April 16, 1999 89 that should they fail to produce witness Abratique on the next scheduled hearing the prosecution would rest its case. On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders,

and warrants of arrest. However, on April 27, 1999, or before the prosecution had formally offered its evidence, Abratique was brought to the trial court by the NBI. In its order of said date, the trial court pointed out that the prosecution could move to 90 "reopen" the case for the taking of Abratiques testimony. On May 7, 1999, the prosecution so moved, stressing that it had not yet formally offered its evidence and that the substantial rights of the accused would not be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the prosecution had not formally rested its case. Moreover, the taking of Abratiques testimony was not for the purpose of presenting additional evidence, but more properly for the completion of his 91 unfinished testimony. In U.S. vs. Base, we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judges mind with reference to particular facts involved in the case. A judge cannot be faulted should he require a material witness to complete his testimony, which is what happened in this case. It is but proper that the judges mind be satisfied on any and all questions presented during the trial, in order to serve the cause of justice. Appellants claim that the trial courts concession to "reopen" the case unduly prejudiced him is not well taken. We note that appellant had every opportunity to present his evidence to support his case or to refute the prosecutions evidence point-bypoint, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A day in court is the 92 touchstone of the right to due process in criminal justice. Thus, we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the so-called "reopening" in order to complete the testimony of a prosecution witness. 3. On the Sufficiency of the Prosecutions Evidence In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that Abratiques testimony is profuse with lies, contrary to human nature, hence incredible. According to appellant, Abratique was evasive from the outset with respect to certain questions of the trial court. He adds that it appeared the court entertained in particular the suspicion that witness Abratique had conspired with appellant in committing the crime charged. Appellant questions Abratiques motive in informing the NBI about his activities related to the marijuana taking, transfer, and warehousing. The OSG contends that Abratiques testimony, taken as a whole, is credible. It points out that Abratique testified in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in two different places. His testimony, said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of marijuana found by law enforcers at appellants residence, inexorably leads to the inculpation of appellant. It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made to suffer 93 the unusually severe penalties meted out for drug offenses. Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain parts of a witness testimony are found true, his testimony cannot be disregarded 94 entirely. Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant transport huge amounts of marijuana to appellants rented room at No. 27 Dr. Cario St., Baguio City and to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out of fear of being involved, he decided to divulge his knowledge of appellants possession of large caches of marijuana to the NBI. When the places referred to by Abratique were searched by the authorities, marijuana in staggering quantities was found and seized by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratiques testimony on material points. Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique should likewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for appellant. Nor would Abratiques prosecution mean appellants absolution. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is not authorized by 95 law; and (3) that the accused freely and consciously possessed the said drug.

We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt. In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellants residence served to prove appellants possession of a prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles to be marijuana. These articles were seized pursuant to a valid search warrant and hence, fully admissible in evidence. In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possess said articles, without authority of law. Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge of the 96 accused or that animus possidendi existed together with the possession or control of said articles. Nonetheless, this dictum must be read in consonance with our ruling that possession of a prohibited drug per se constitutes prima facie evidence of 97 knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession. In 98 effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi in this situation. Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness, who testified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden of the evidence on the possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was established beyond reasonable doubt. 4. On The Proper Penalty Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine 99 ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00) shall be imposed if the 100 quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall be 750 grams or more. In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of 750 grams, as stressed by the trial court: The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they were first brought to the court, it took hours to load them on the truck and hours also to unload them prompting the court to direct that the boxes and sack of marijuana be instead kept at the NBI office in Baguio. And the identification of said marijuana during the trial was made in the NBI premises itself by the witnesses since it was physically cumbersome 101 and inconvenient to keep bringing them to the court during every trial. In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but also "the acts of accused of hiding them in different placesand transferring them from place to place and making them appear as boxes of cigarettes to avoid and evade apprehension and detection." They showed his being a big supplier, said the trial court, [whose] 102 criminal perversity and craft that "deserve the supreme penalty of death." We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that where the quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shall 103 automatically be imposed. The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty 104 to be imposed must conform with Article 63 of the Revised Penal Code. As already held, the death penalty law, Republic Act 105 No. 7659 did not amend Article 63 of the Revised Penal Code. The rules in Article 63 apply although the prohibited drugs 106 involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425. Thus, finding neither mitigating nor aggravating circumstances in the present case, appellants possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua. The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiary imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession of illegal drugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these sanctions might not remedy all the havoc

wrought by prohibited drugs on the moral fiber of our society, especially the youth. of prohibited drugs that they cannot ply their trade in our streets with impunity.

107

But these penalties should warn peddlers

WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias "ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise directed to pay the costs of suit. SO ORDERED. G.R. No. L-21741 January 25, 1924

AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting provincial fiscal of Tayabas, and FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents. Godofredo Reyes for petitioner. Attorney-General Villa-Real for respondents. MALCOLM, J.: Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to no less than five informations for various crimes and misdemeanors, has appeared with her witnesses and counsel at hearings no less than on eight different occasions only to see the cause postponed, has twice been required to come to the Supreme Court for protection, and now, after the passage of more than one year from the time when the first information was filed, seems as far away from a definite resolution of her troubles as she was when originally charged. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays. Once before, as intimidated, the petitioner had to come to us for redress of her grievances. We thought then we had pointed out the way for the parties. But it seems not. Once again therefore and finally, we hope, we propose to do all in our power to assist this poor woman to obtain justice. On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law. We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of First Instance, Fourteenth Judicial District, and the 1 Provincial Fiscal of Tayabas, No. 21236. The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further attempts to prosecute the accused pursuant to informations growing out of the facts set forth in previous informations, and the charges now pending before the justice of the peace of Lucena, Tayabas, are ordered dismissed, with cost against the respondent fiscal. We append to our order

the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of record, will take such administrative action as to him seems proper to the end that incidents of this character may not recur. So ordered. Araullo, C.J., Johnson, Street, Avancea, Ostrand, Johns and Romualdez, JJ., concur. A.M. No. 01-4-03-S.C. June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA. SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors. VITUG, J.: The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings. On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio networks throughout the country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our 2 history." The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo. On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition, submitting the following exegesis: "3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a matter of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed and made aware of. "4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of the concomitant court proceedings. "5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to railroad 4 the instant criminal cases against the Former President Joseph Ejercito Estrada." Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation. In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino. The resolution read: "The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely.
3

"While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibits the presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. "Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom. "In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated: "Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. 1wphi1.nt 'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.' "Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom. "Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. " Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated." Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the 5 quest for truth. Recent history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice of the enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-tubes during those times, that would soon culminate in EDSA II. The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other 6 hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial.

When these rights race against one another, jurisprudence tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free 8 from improper influence, and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions. Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made an object of public's attention9 and where the conclusions reached are induced not by any outside 10 force or influence but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded. Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in 11 the behavior of the people it focuses on." Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot 12 be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it. It might be farcical 13 to build around them an impregnable armor against the influence of the most powerful media of public opinion. To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance 14 of the mind so indispensable to the calm and deliberate dispensation of justice can create. The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it 15 now. An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed 16 during the proceedings. The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is 17 still the paramount right of the accused to due process which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance 18 of absolute fairness in the judicial process." This Court, in the instance already mentioned, citing Estes vs. Texas, the United States Supreme Court holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices: "1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. x x x.
19 20

"2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is Simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth. "3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. xxx "4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him -sometimes the difference between life and death -dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice." In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous 21 potentialities for intruding upon the detached atmosphere that should always surround the judicial process. The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers. It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media coverage of the court proceedings because of supposed abuse of discretion on the part of the judge. En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the rd matter, and when it did in its 23 October resolution, it confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the opportunity to rule on the question squarely." But were the cases decided by the U.S. courts and cited in the minority opinion really in point? In Nebraska Press Association vs, Stewart, the Nebraska State trial judge issued an order restraining news media from publishing accounts of confession or admissions made by the accused or facts strongly implicating him. The order was struck 23 down. In Richmond Newspaper; Inc., vs, Virginia, the trial judge closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that criminal trials were 24 historically open. In Globe Newspaper vs. Superior Court, the US Supreme Court voided a Massachusetts law that required trial judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses. Justice Steward, in Chandler vs. Florida, where two police officers charged with burglary sought to overturn their conviction before the US Supreme Court upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the Estes Court did not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, rather, in the hypothesis that the mere 26 presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused."
25 22

Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings. The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It is undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitude of the events has left a still divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The transcendental events in our midst do not allow us to turn a blind eye to yet another possible extraordinary case of mass action being allowed to now creep into even the business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution of 23 October 1991 may not appear to be propitious. Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to 27 only adjudicate justiciable controversies on the basis of what alone is submitted before them. A trial is not a free trade of 28 ideas, Nor is a competing market of thoughts the known test of truth in a courtroom. The Court is not all that umnindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is DENIED. G.R. No. L-12990 January 21, 1918

THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER, ET AL., defendants-appellants. Modesto Castillo, Eusebio Lopez and G. N. Trinidad for appellants. Acting Attorney-General Paredes for appellee. MALCOLM, J.: We find the proven facts as brought out in the trial of this case to be as follows: Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued at P150 in his corral situated in the barrio of Trapiche municipality of Tanauan, Province of Batangas. On the following morning when he went to look after the animal, he found the gate to the corral open and that the carabao had disappeared. He reported the matter to the Constabulary, and a patrol of the Constabulary under the leadership of sergeant Presa, now deceased, on the 20th of November following, encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez leading the carabao. When the ladrones saw the Constabulary, that scattered in all directions. On the following day, the Constabulary found this carabao tied in front of the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San Pablo. The carabao was identified by Doroteo Natividad as the one which had been taken from his corral on the night of October 22, 1915, and by the Constabulary as the one seen in the possession of the accused. As corroborative of such evidence, we have the well-known legal principle, which as applied to cases of this character is that, although the persons who unlawfully took a certain carabao are not recognized at the time, and their identity remains entirely unknown, nevertheless, if the stolen animal is found in the possession of the accused shortly after the commission of the crime and they make no satisfactory explanation of such possession they may be properly convicted of the crime. (See U. S. vs. Divino [1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate that one of the Constabulary soldiers testified against them falsely because of enmity is hardly believable. The foregoing statement of the facts and the law disposes of all but one assignment of error, namely, that the lower court erred in admitting Exhibit B of the prosecution as evidence. Exhibit B is the sworn statement of sergeant Presa, now deceased, whose signature was identified, before the justice of the peace of the municipality of Santo Tomas, Province of Batangas. Appellant's argument is predicated on the provision of the Philippine Bill of Rights which says, "That in all criminal prosecutions the accused

shall enjoy the right . . . to meet the witnesses face to face," and the provision of the Code of Criminal Procedure, section 15 (5), which says that "In all criminal prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to crossexamine the witnesses against him." With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of the Philippine origin (Dowdell vs. U. S. [1911], 221 U. S., 325) that it "intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination. It was intended to prevent the conviction of the accused upon deposition or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination." In other words, confrontation is essential because cross-examination is essential. A second reason for the prohibition is that a tribunal may have before it the department and appearance of the witness while testifying. ( U. S. vs. Anastacio [1906], 6 Phil., 413.) The Supreme Court of the Philippine Islands has applied this constitutional provisions on behalf of accused persons in a number of cases. (See for example U. S. vs. Tamjuanco [1902], 1 Phil., 374; U. S. vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908], 12 Phil., 87.) It is for us now to determine whether the present facts entitle the accused to the protection of the Bill of Rights or whether the facts fall under some exception thereto. The sworn statement of Presa was not made by question and answer under circumstances which gave the defense an opportunity to cross-examine the witness. The proviso of the Code of Criminal Procedure as to confrontation is therefore inapplicable. Presa's statement again is not the testimony of a witness deceased, given in a former action between the same parties relating to the same matter. Consequently, the exception provided by section 298, No. 8, of the Code of Civil Procedure and relied upon by the prosecution in the lower court is also inapplicable. Nor is the statement of Presa a dying declaration or a deposition in a former trial or shown to be a part of the preliminary examination. Under these circumstances, not to burden the opinion with an extensive citation of authorities, we can rely on the old and historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div.]) occurring in the year 1696. It appears that a deposition of B., examined by the Mayor of Bristol under oath, but not in P's presence, was offered. It was objected that B, being dead, the defendant had lost all opportunity of cross-examining him. The King's Bench consulted with the Common Pleas, and "it was the opinion of both courts that these deposition should not be given in evidence, the defendant not being present when they were taken before the Mayor and so had lost the benefit of a cross-examination." Although we are faced with the alternative of being unable to utilize the statements of the witness now deceased, yet if there has been no opportunity for cross-examination and the case is not one coming within one of the exceptions, the mere necessity alone accepting the statement will not suffice. In fine, Exhibit B was improperly received in evidence in the lower court. With such a resolution of this question, we could, as has been done in other cases, further find this to be reversible error and remand the case for a new trial. We are convinced, however, that this would gain the accused nothing except delay for the testimony of the owner of the carabao and of the two Constabulary soldiers, rebutted by no reasonable evidence on behalf of the accused, is deemed sufficient to prove guilt beyond a reasonable doubt. The facts come under article 518, No. 3, in connection with article 520, as amended, of the Penal Code. Accordingly the defendants and appellants are each sentenced to four years, two months, and one day of presidio correccional, with the accessory penalties provided by law, and to pay one-third part of costs of both instances; the carabao shall be returned to Doroteo Natividad, if this has not already been done. So ordered. Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur. G.R. No. L-21741 January 25, 1924

AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting provincial fiscal of Tayabas, and FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents. Godofredo Reyes for petitioner. Attorney-General Villa-Real for respondents. MALCOLM, J.:

Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to no less than five informations for various crimes and misdemeanors, has appeared with her witnesses and counsel at hearings no less than on eight different occasions only to see the cause postponed, has twice been required to come to the Supreme Court for protection, and now, after the passage of more than one year from the time when the first information was filed, seems as far away from a definite resolution of her troubles as she was when originally charged. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays. Once before, as intimidated, the petitioner had to come to us for redress of her grievances. We thought then we had pointed out the way for the parties. But it seems not. Once again therefore and finally, we hope, we propose to do all in our power to assist this poor woman to obtain justice. On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law. We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of First Instance, Fourteenth Judicial District, and the 1 Provincial Fiscal of Tayabas, No. 21236. The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further attempts to prosecute the accused pursuant to informations growing out of the facts set forth in previous informations, and the charges now pending before the justice of the peace of Lucena, Tayabas, are ordered dismissed, with cost against the respondent fiscal. We append to our order the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of record, will take such administrative action as to him seems proper to the end that incidents of this character may not recur. So ordered. Araullo, C.J., Johnson, Street, Avancea, Ostrand, Johns and Romualdez, JJ., concur. .R. No. Nos. L-75511-14 March 16, 1987 AGUSTIN V. TALINO, Petitioner, vs. THE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents.chanrobles virtual law library

CRUZ, J.: chanrobles virtual law library It is settled that if a separate trial is allowed to one of two or more defendants, his testimony therein imputing guilt to any of 1 the co-accused is not admissible against the latter who was not able to cross-examine him. The issue in this case is whether or not such testimony was considered by the respondent court against the petitioner, who claims that it was in fact the sole basis of his conviction.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner, along with several others, were charged in four separate informations with estafa through falsification of public documents for having allegedly conspired to defraud the government in the total amount of P26,523.00, representing the cost of repairs claimed to have been undertaken, but actually not needed and never made, on four government vehicles, through 2 falsification of the supporting papers to authorize the illegal payments. Docketed as CC Nos. 6681, 6682, 6683 and 6684, these

cases were tried jointly for all the accused until after the prosecution had rested, when Genaro Basilio, Alejandro 3 Macadangdang and petitioner Talino asked for separate trials, which were allowed. They then presented their evidence at such trials, while the other accused continued defending themselves in the original proceedings, at which one of them, Pio Ulat 4 gave damaging testimony against the petitioner, relating in detail his participation in the questioned transactions. In due time, the Sandiganbayan rendered its decision in all the four cases finding Talino, Basilio, Macadangdang Ulat and Renato Valdez guilty beyond reasonable doubt of the crimes charged while absolving the other defendants for insufficient evidence. This decision is now challenged by the petitioner on the ground that it violates his right of confrontation as guaranteed by the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library In its decision, the respondent court * makes the following remarks about the separate trial: The peculiarity of the trial of these cases is the fact that We allowed, upon their petition, separate trials for the accused Basilio and Talino and Macadangdang. This being the case, We can only consider, in deciding these cases as against them, the evidence for the, prosecution as wen as their own evidence. Evidence offered by the other accused can not be taken up.chanroblesvirtualawlibrary chanrobles virtual law library It would really have been simpler had there been no separate trial because the accused Pio B. Ulat said so many incriminatory things against the other accused when he took the stand in his own defense. But because Basilio, Talino and Macadangdang were granted separate trials and they did not cross examine Ulat because, as a matter of fact, they were not even required to be present when the other accused were presenting their defenses, the latter's testimonies can not now be considered against said three accused.chanroblesvirtualawlibrary chanrobles virtual law library We cannot understand why, after it had heard the long and sordid story related by Ulat on the stand, the prosecution did not endeavor to call Ulat and put him on he stand as part f its rebuttal evidence. Had this been done, there would have been no 5 impediment to the consideration of Ulat's testimony against all the accused. chanrobles virtual law library The grant of a separate trial rests in the sound discretion of the court and is not a matter of right to the accused, especially 6 where, as in this case, it is sought after the presentation of the evidence of the prosecution. While it is true that Rule 119, Section 8, of the Rules of Court does not specify when the motion for such a trial should be filed, we have held in several cases that this should be done before the prosecution commences presenting its evidence, although, as an exception, the motion may be granted later, even after the prosecution shall have rested, where there appears to be an antagonism in the respective 7 defenses of the accused. In such an event, the evidence in chief of the prosecution shall remain on record against an the 8 accused, with right of rebuttal on the part of the fiscal in the separate trial of the other accused. chanrobles virtual law library The rule in every case is that the trial court should exercise the utmost circumspection in granting a motion for separate trial, allowing the same only after a thorough study of the claimed justification therefor, if only to avoid the serious difficulties that may arise, such as the one encountered and regretted by the respondent court, in according the accused the right of confrontation.chanroblesvirtualawlibrary chanrobles virtual law library The right of confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. No accusation is permitted to be made against his back or in his absence nor is any derogatory information accepted if it is made anonymously, as in poison pen letters sent by persons who cannot stand by their libels and must shroud their spite in 10 secrecy. That is also the reason why ex parte affidavits are not permitted unless the affiant is presented in court and hearsay is barred save only in the cases allowed by the Rules of Court, like the dying declaration. 11 In United States v. Javier,
12 9

this Court emphasized:

... With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of Philippine origin (Dowdell v. U.S. 119111, 221 U.S. 325) that it intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial who give their testimony in his presence, and give to the accused an opportunity of cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination.' In other words, confrontation is essential because cross-examination is essential. A second reason for the prohibition is that a tribunal may have before it the deportment and appearance of the witness while testifying. (U.S. v. Anastacio [1906], 6 Phil. 413.) The Supreme Court of the Philippine Islands has applied this constitutional

provision on behalf of accused persons in a number of cases. (See for example U.S. v. Tanjuanco [1902], 1 Phil., 374; U.S. v. Bello [1908], 11 Phil., 526; U.S. v. De la Cruz [1908], 12 Phil. 87.) ... We have carefully studied the decision under challenge and find that the respondent court did not consider the testimony given by Ulat in convicting the petitioner. The part of that decision finding Talino guilty made no mention of Ulat at all but confined itself to the petitioner's own acts in approving the questioned vouchers as proof of his complicity in the plot to swindle the government. Thus: If, as claimed, by Macadangdang, he had no knowledge nor participation in the conspiracy to defraud, he would have questioned this obvious irregularity. He would have asked whoever was following up the vouchers why two biddings were conducted, why the awards to "D" Alfenor' were cancelled, when the latter were cancelled, and when the new bidding was made.chanroblesvirtualawlibrary chanrobles virtual law library The very same case is true as regards the accused Agustin Talino. While his duty to initial or sign the vouchers as regards the adequacy of funds may have been ministerial, his failure to observe the obvious irregularity is clear evidence of his complicity in the conspiracy.chanroblesvirtualawlibrary chanrobles virtual law library Talino declared that in the morning of May 23, 1980, four vouchers (including three made out in favor of "D" Alfenor Repair Shop') were brought to him for his certificate as regards the availability of funds. He had signed all the four vouchers. In the afternoon of the same day, three other vouchers were also presented to him for certification as to funds these three were in substitution of Exhibits "A", "B" and "C" which he had earlier signed but which, according to Talino, were disallowed and cancelled, Talino claims that he had examined the supporting documents of the last three vouchers the RIV, the bids signed by the repair shops and the abstract of bids. If what Talino says is true, at least the abstract of bids submitted in the morning, where "D" Alfenor Motor Shop' appears to be the lowest bidder, must have been different from the ones submitted together with vouchers in the afternoon. This would have raised his suspicions as to why these last three abstracts could be dated as they were (May 18, May 15 and May 11, respectively) when it was only that morning that the abstracts containing the name of "D"; Alfenor Motor Shop' were submitted. The fact that he readily approved the substitute vouchers with the substitute winning bidders is a clear indication that he knew he was facilitating an irregular transaction.chanroblesvirtualawlibrary chanrobles virtual law library It is our view that the evidence on record has established beyond doubt the participation of both Agustin Talino and Alejandro Macadangdang in all the four felonies charged in the informations. 13 chanrobles virtual law library The petitioner makes much of the statement in the Comment that the petitioner's guilt could be deduced "from the evidence 14 for the prosecution and from the testimony of Pio Ulat," but that was not the respondent court speaking. That was the Solicitor General's analysis. As far as the Sandiganbayan was concerned, the said testimony was inadmissible against the petitioner because he "did not cross examine Ulat and was not even required to be present when the latter was testifying. In fact, the respondent court even expressed the wish that Ulat had been presented as rebuttal witness in the separate trial of the petitioner as there would then have been "no impediment to the use of his testimony against the other accused. " As it was not done, the trial court could not and did not consider Ulat's testimony in determining the petitioner's part in the offenses.chanroblesvirtualawlibrary chanrobles virtual law library The factual findings of the respondent court being supported by substantial evidence other than Ulat's testimony, we see no reason to disturb them. It is futile for the petitioner to invoke his constitutional presumption of innocence because his guilt has in the view of the trial court been established beyond reasonable doubt, and we agree.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the judgment appealed from is AFFIRMED, with costs against the petitioner. Teehankee, CJ., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Melencio-Herrera and Feliciano, JJ., are on leave.chanroblesvirtualawlibrary chanrobles virtual law library Alampay, J., took no part.

G.R. No. 7081

September 7, 1912

THE UNITED STATES, plaintiff-appellee, vs. TAN TENG, defendant-appellant. Chas A. McDonough, for appellant. Office of the Solicitor General Harvey, for appellee. JOHNSON, J.: This defendant was charged with the crime of rape. The complaint alleged: That on or about September 15, 1910, and before the filing of this complaint, in the city of Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age. After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty of the offense of abusos deshonestos, as defined and punished under article 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision correccional, and to pay the costs. From that sentence the defendant appealed and made the following assignments of error in this court: I. The lower court erred in admitting the testimony of the physicians about having taken a certain substance from the body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition of the accused with reference to a venereal disease. II. The lower court erred in holding that the complainant was suffering from a venereal disease produced by contact with a sick man. III. The court erred in holding that the accused was suffering from a venereal disease. IV. The court erred in finding the accused guilty from the evidence. From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on the day in question, after having taken a bath, returned to her room; that the defendant followed her into her room and asked her for some face powder, which she gave him; that after using some of the face powder upon his private parts he threw the said Oliva upon the floor, placing his private parts upon hers, and remained in that position for some little time. Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what happened upon the morning of the 15th of September. The sister at once put on foot an investigation to find the Chinaman. A number of Chinamen were collected together. Oliva was called upon to identify the one who had abused her. The defendant was not present at first. later he arrived and Oliva identified him at once as the one who had attempted to violate her. Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and examined. The policeman who examined the defendant swore from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of the same. The result of the examination showed that the defendant was suffering from gonorrhea. During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the ground that because of her tender years her testimony should not be given credit. The lower court, after carefully examining her with reference to her ability to understand the nature of an oath, held that she had sufficient intelligence and discernment to justify the court in

accepting her testimony with full faith and credit. With the conclusion of the lower court, after reading her declaration, we fully concur. The defense in the lower court attempted to show that the venereal disease of gonorrhea might be communicated in ways other than by contact such as is described in the present case, and called medical witnesses for the purpose of supporting the contention. Judge Lobingier, in discussing that question said: We shall not pursue the refinement of speculation as to whether or not this disease might, in exceptional cases, arise from other carnal contact. The medical experts, as well as the books, agree that in ordinary cases it arises from that cause, and if this was an exceptional one, we think it was incumbent upon the defense to bring it within the exception. The offended party testified that the defendant had rested his private parts upon hers for some moments. The defendant was found to be suffering from gonorrhea. The medical experts who testified agreed that this disease could have been communicated from him to her by the contact described. Believing as we do the story told by Oliva, we are forced to the conclusion that the disease with which Oliva was suffering was the result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva constructed said obnoxious disease from the defendant is not necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration. The defendant attempted to prove in the lower court that the prosecution was brought for the purpose of compelling him to pay to the sister of Oliva a certain sum of money. The defendant testifed and brought other Chinamen to support his declaration, that the sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible to believe that the sister, after having become convinced that Oliva had been outraged in the manner described above, would consider for a moment a settlement for the paltry sum of P60. Honest women do not consent to the violation of their bodies nor those of their near relatives, for the filthy consideration of mere money. In the court below the defendant contended that the result of the scientific examination made by the Bureau of Science of the substance taken from his body, at or about the time he was arrested, was not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to admit such evidence was to compel the defendant to testify against himself. Judge Lobingier, in discussing that question in his sentence, said: The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object found on his person was examined: seems no more to infringe the rule invoked, than would the introduction in evidence of stolen property taken from the person of a thief. The substance was taken from the body of the defendant without his objection, the examination was made by competent medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not be used against him as evidence, without violating the rule that a person shall not be required to give testimony against himself. The question presented by the defendant below and repeated in his first assignment of error is not a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question, said: But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we are not considering how far a court would go in compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is competent.

The question which we are discussing was also discussed by the supreme court of the State of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said, speaking through its chancellor: It was not erroneous to permit the physician of the jail in which the accused was confined, to testify to wounds observed by him on the back of the hands of the accused, although he also testified that he had the accused removed to a room in another part of the jail and divested of his clothing. The observation made by the witness of the wounds on the hands and testified to by him, was in no sense a compelling of the accused to be a witness against himself. If the removal of the clothes had been forcible and the wounds had been thus exposed, it seems that the evidence of their character and appearance would not have been objectionable. In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of the house where the crime was committed, for the purpose of ascertaining whether or not his hand would have produced the bloody print. The court said, in discussing that question: It was not erroneous to permit evidence of the coincidence between the hand of the accused and the bloody prints of a hand upon the wall of the house where the crime was committed, the hand of the accused having been placed thereon at the request of persons who were with him in the house. It may be added that a section of the wall containing the blood prints was produced before the jury and the testimony of such comparison was like that held to be proper in another case decided by the supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law Reports, 271). The defendant caused the prints of the shoes to be made in the sand before the jury, and the witnesses who had observed shoe prints in the sand at the place of the commission of the crime were permitted to compare them with what the had observed at that place. In that case also the clothing of the defendant was used as evidence against him. To admit the doctrine contended for by the appellant might exclude the testimony of a physician or a medical expert who had been appointed to make observations of a person who plead insanity as a defense, where such medical testimony was against necessarily use the person of the defendant for the purpose of making such examination. (People vs. Agustin, 199 N.Y., 446.) The doctrine contended for by the appellants would also prevent the courts from making an examination of the body of the defendant where serious personal injuries were alleged to have been received by him. The right of the courts in such cases to require an exhibit of the injured parts of the body has been established by a long line of decisions. The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt. Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said: If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles a clear reductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion. (4 Wigmore, sec. 2263.) The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.) The doctrine contended for by appellant would prohibit courts from looking at the fact of a defendant even, for the purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted. Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call upon the accused as a witness it does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony but his body his body itself. As was said by Judge Lobingier:

The accused was not compelled to make any admission or answer any questions, and the mere fact that an object found upon his body was examined seems no more to infringe the rule invoked than would the introduction of stolen property taken from the person of a thief. The doctrine contended for by the appellant would also prohibit the sanitary department of the Government from examining the body of persons who are supposed to have some contagious disease. We believe that the evidence clearly shows that the defendant was suffering from the venereal disease, as above stated, and that through his brutal conduct said disease was communicated to Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof. Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the courts of law require corroborative proof, for the reason that such crimes are generally committed in secret. In the present case, taking into account the number and credibility of the witnesses, their interest and attitude on the witness stand, their manner of testifying and the general circumstances surrounding the witnesses, including the fact that both parties were found to be suffering from a common disease, we are of the opinion that the defendant did, on or about the 15th of September, 1910, have such relations as above described with the said Oliva Pacomio, which under the provisions of article 439 of the Penal Code makes him guilty of the crime of "abusos deshonestos," and taking into consideration the fact that the crime which the defendant committed was done in the house where Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law should be imposed. The maximum penalty provided for by law is six years of prision correccional. Therefore let a judgment be entered modifying the sentence of the lower court and sentencing the defendant to be imprisoned for a period of six years of prision correccional, and to pay the costs. So ordered. Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur. G.R. No. 16444 September 8, 1920

EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of the City of Manila, respondent. Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner. Assistant City of Fiscal Felix for respondent. MALCOLM, J.: The petitioner prays that a writ of habeas corpus issue to restore her to her liberty. The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two competent doctors to determine if she was pregnant or not. The accused refused to obey the order on the ground that such examination of her person was a violation of the constitutional provision relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be committed to Bilibid Prison until she should permit the medical examination required by the court. The sole legal issue from the admitted facts is whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant, violates that portion of the Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin in the Constitution of the United States and practically all state constitutions and in the common law rules of evidence, providing that no person shall be compelled in any criminal case to be a witness against himself. (President's Instructions to the Philippine Commission; Act of Congress of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for petitioner argues that such bodily exhibition is an infringement of the constitutional provision; the representative of the city fiscal contends that it is not an infringement of the constitutional provision. The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a judge of the same court has held on an identical question as contended for by the attorney for the accused and petitioner.

The authorities are abundant but conflicting. What may be termed the conservative courts emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend the privilege in order that its mantle may cover any fact by which the accused is compelled to make evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman was charged with the crime of infanticide. The corner directed two physicians to go to the jail and examine her private parts to determine whether she had recently been delivered of a child. She objected to the examination, but being threatened with force, yielded, and the examination was had. The evidence of these physicians was offered at the trial and ruled out. The court said that the proceeding was in violation of the spirit and meaning of the Constitution, which declares that "no person shall be compelled in any criminal case to be a witness against himself." Continuing, the court said: "They might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an examination they are of the opinion she is not a virgin, and has had a child? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner." It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in State vs. Height, supra, the instant case was reported by the writer with the tentative recommendation that the court should lay down the general rule that a defendant can be compelled to disclose only those parts of the body which are not usually covered. Buth having disabused our minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we think, to penetrate through the maze of law reports to the policy which lies behind the constitutional guaranty and the common law principle, we have come finally to take our stand with what we believe to be the reason of the case. In contradistinction to the cases above-mentioned are others which seem to us more progressive in nature. Among these can be prominently mentioned decisions of the United States Supreme Court, and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based upon what he termed "an extravagant extension of the Fifth Amendment," said: "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." (See also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two decisions, has seemed to limit the protection to a prohibition against compulsory testimonial self-incrimination. The constitutional limitation was said to be "simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme Court of the Philippine Islands as authority.) Although we have stated s proposition previously announced by this court and by the highest tribunal in the United States, we cannot unconcernedly leave the subject without further consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was inserted the careful proviso that "we need not consider how far a court would go in compelling a man to exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of the dividing line between what is proper and what is improper in this very broad constitutional field. But here before us is presented what would seem to be the most extreme case which could be imagined. While the United States Supreme Court could nonchalantly decree that testimony that an accused person put on a blouse and it fitted him is not a violation of the constitutional provision, while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit substances taken from the person of an accused to be offered in evidence, none of these even approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a principle which would permit of such a result by adhering steadfastly to the proposition that the purpose of the constitutional provision was and is merely to prohibit testimonial compulsion. So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the Philippines, being in the agrreable state of breaking new ground, would rather desire our decision to rest on a strong foundation of reason and justice than on a weak one blind adherence to tradition and precedent. Moreover, we believe that an unbiased consideration of the history of the constitutional provisions will disclose that our conclusion is in exact accord with the causes which led to its adoption.

The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days, but not in the other legal systems of the world, in a revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused person by which to extort unwilling confessions with the ever present temptation to commit the crime of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial compulsion. As forcing a man to be a witness against himself was deemed contrary to the fundamentals of republican government, the principle was taken into the American Constitutions, and from the United States was brought to the Philippine Islands, in exactly as wide but no wider a scope as it existed in old English days. The provision should here be approached in no blindly worshipful spirit, but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.) Perhaps the best way to test the correctness of our position is to go back once more to elements and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having criminal laws is to purgue the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so rigid as to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person should be afraid of the use of any method which will tend to establish the truth. For instance, under the facts before us, to use torture to make the defendant admit her guilt might only result in including her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to be detrimental to the accused except in so far as the truth is to be avoided in order to acquit a guilty person. Obviously a stirring plea can be made showing that under the due process of law cause of the Constitution every person has a natural and inherent right to the possession and control of his own body. It is extremely abhorrent to one's sense of decency and propriety to have the decide that such inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well suggested by the same court, even superior to the complete immunity of a person to be let alone is the inherent which the public has in the orderly administration of justice. Unfortunately, all too frequently the modesty of witnesses is shocked by forcing them to answer, without any mental evasion, questions which are put to them; and such a tendency to degrade the witness in public estimation does not exempt him from the duty of disclosure. Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate. The protection of accused persons has been carried to such an unwarranted extent that criminal trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against such a loose extension of constitutional guaranties we are here prepared to voice our protest. Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental influences. Once again we lay down the rule that the constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible. The proviso is that torture of force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be decided as cases arise. It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will be taken not to use violence and not to embarass the patient any more than is absolutely necessary. Indeed, no objection to the physical examination being made by the family doctor of the accused or by doctor of the same sex can be seen. Although the order of the trial judge, acceding to the request of the assistant fiscal for an examination of the person of the defendant by physicians was phrased in absolute terms, it should, nevertheless, be understood as subject to the limitations herein mentioned, and therefore legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the petitioner. So ordered. Mapa, C.J., Araullo, Avancea, Moir and Villamor, JJ., concur.

G.R. No. 32025

September 23, 1929

FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of Isabela, respondents. Gregorio P. Formoso and Vicente Formoso for petitioner. The respondents in their own behalf. ROMUALDEZ, J.: This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent judge ordered him to appear before the provincial fiscal to take dictation in his own handwriting from the latter. The order was given upon petition of said fiscal for the purpose of comparing the petitioner's handwriting and determining whether or not it is he who wrote certain documents supposed to be falsified. There is no question as to the facts alleged in the complaint filed in these proceedings; but the respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the order prayed for by the provincial fiscal and later granted by the court below, and again which the instant action was brought, is based on the provisions of section 1687 of the Administrative Code and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in question. Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon motion of the fiscal, may compel witnesses to be present at the investigation of any crime or misdemeanor. But this power must be exercised without prejudice to the constitutional rights of persons cited to appear. And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the constitutional provision contained in the Jones Law and incorporated in General Orders, No. 58. Therefore, the question raised is to be decided by examining whether the constitutional provision invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order against which these proceedings were taken. Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated in our Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56. As to the extent of the privilege, it should be noted first of all, that the English text of the Jones Law, which is the original one, reads as follows: "Nor shall be compelled in any criminal case to be a witness against himself." This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned with a principle contained both in the Federal constitution and in the constitutions of several states of the United States, but expressed differently, we should take it that these various phrasings have a common conception. In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial that the witness is protected by one constitution from 'testifying', or by another from 'furnishing evidence', or by another from 'giving evidence,' or by still another from 'being a witness.' These various phrasings have a common conception, in respect to the form of the protected disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.) As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or furnishing of evidence.

The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself is so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and the evidence obscure, that is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.) The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by the petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote certain documents supposed to be falsified, constitutes evidence against himself within the scope and meaning of the constitutional provision under examination. Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain writing or signature is in his own hand, he may on cross-examination be compelled to write in open court in order that the jury maybe able to compare his handwriting with the one in question. It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the defendant, in offering himself as witness in his own behalf, waived his personal privileges. Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the defendant to write his name during the hearing, and the latter did so voluntarily. But the cases so resolved cannot be compared to the one now before us. We are not concerned here with the defendant, for it does not appear that any information was filed against the petitioner for the supposed falsification, and still less as it a question of the defendant on trial testifying and under cross-examination. This is only an investigation prior to the information and with a view to filing it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed the act voluntarily. We have also come upon a case wherein the handwriting or the form of writing of the defendant was obtained before the criminal action was instituted against him. We refer to the case of People vs. Molineux (61 Northeastern Reporter, 286). Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse vs. Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting. We cite this case particularly because the court there gives prominence to the defendant's right to decline to write, and to the fact that he voluntarily wrote. The following appears in the body of said decision referred to (page 307 of the volume cited): The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the latter's request, and we can discover no ground upon which the writings thus produced can be excluded from the case. (Emphasis ours.) For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write his name, the doctrine being stated as follows: The defendant being sworn in his own behalf denied the endorsement. He was then cross-examined the question in regard to his having signed papers not in the case, and was asked in particular whether he would not produce signatures made prior to the note in suit, and whether he would not write his name there in the court. The judge excluded all these inquiries, on objection, and it is of these rulings that complaint is made. The object of the questions was to bring into the case extrinsic signatures, for the purpose of comparison by the jury, and we think that the judge was correct in ruling against it. It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says: Measuring or photographing the party is not within the privilege. Nor it is the removal or replacement of his garments or shoes. Nor is the requirement that the party move his body to enable the foregoing things to be done. Requiring him to make specimens of handwriting is no more than requiring him to move his body . . ." but he cites no case in

support of his last assertion on specimens of handwriting. We note that in the same paragraph 2265, where said authors treats of "Bodily Exhibition." and under preposition "1. A great variety of concrete illustrations have been ruled upon," he cites many cases, among them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has no application to the case at bar because there the defendant voluntary gave specimens of his handwriting, while here the petitioner refuses to do so and has even instituted these prohibition proceedings that he may not be compelled to do so. Furthermore, in the case before us, writing is something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we believe the present case is similar to that of producing documents or chattels in one's possession. And as to such production of documents or chattels. which to our mind is not so serious as the case now before us, the same eminent Professor Wigmore, in his work cited, says (volume 4, page 864): . . . 2264. Production or Inspection of Documents and Chattels. 1. It follows that the production of documents or chattels by a person (whether ordinary witness or party-witness) in response to a subpoena, or to a motion to order production, or to other form of process treating him as a witness ( i.e. as a person appearing before a tribunal to furnish testimony on his moral responsibility for truthtelling), may be refused under the protection of the privilege; and this is universally conceded. (And he cites the case of People vs. Gardner, 144 N. Y., 119; 38 N.E., 1003) We say that, for the purposes of the constitutional privilege, there is a similarity between one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself. And we say that the present case is more serious than that of compelling the production of documents or chattels, because here the witness is compelled to write and create, by means of the act of writing, evidence which does not exist, and which may identify him as the falsifier. And for this reason the same eminent author, Professor Wigmore, explaining the matter of the production of documents and chattels, in the passage cited, adds: For though the disclosure thus sought be not oral in form, and though the documents or chattels be already in existence and not desired to be first written and created by testimonial act or utterance of the person in response to the process, still no line can be drawn short of any process which treats him as a witness; because in virtue it would be at any time liable to make oath to the identity or authenticity or origin of the articles produced. (Ibid., pp. 864865.) (Emphasis ours.) It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's handwriting is not granted, the crime would go unpunished. Considering the circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to obtain specimen or specimens without resorting to the means complained herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are accidental and do not constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection of innocent persons. With respect to the judgments rendered by this court and cited on behalf of the respondents, it should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear that the defendants and other witnesses were questioned by the fiscal against their will, and if they did not refuse to answer, they must be understood to have waived their constitutional privilege, as they could certainly do. The privilege not to give self-incriminating evidence, while absolute when claimed, maybe waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases noted.) The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the defendant did not oppose the extraction from his body of the substance later used as evidence against him. In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest its decision on the reason of the case rather than on blind adherence to tradition. The said reason of the case there consisted in that it was the case of the

examination of the body by physicians, which could be and doubtless was interpreted by this court, as being no compulsion of the petitioner therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute any positive act, much less a testimonial act; she was only enjoined from something preventing the examination; all of which is very different from what is required of the petitioner of the present case, where it is sought to compel him to perform a positive, testimonial act, to write and give a specimen of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers, it was sought to exhibit something already in existence, while in the case at bar, the question deals with something not yet in existence, and it is precisely sought to compel the petitioner to make, prepare, or produce by this means, evidence not yet in existence; in short, to create this evidence which may seriously incriminate him. Similar considerations suggest themselves to us with regard to the case of United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial act, but to take out of his mouth the morphine he had there. It was not compelling him to testify or to be a witness or to furnish, much less make, prepare, or create through a testimonial act, evidence for his own condemnation. Wherefore, we find the present action well taken, and it is ordered that the respondents and those under their orders desist and abstain absolutely and forever from compelling the petitioner to take down dictation in his handwriting for the purpose of submitting the latter for comparison. Without express pronouncement as to costs. So ordered. Avancea, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur. G.R. No. L-29169 August 19, 1968

ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents. Estanislao E. Fernandez and Fausto Arce for petitioner. Office of the Solicitor General for respondents. SANCHEZ, J.: The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he 1 is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law. The indictment in the court below the third amended information upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis 2 Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe. Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described. Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1wph1.t On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:. COURT: The parties may proceed. FISCAL GRECIA: Our first witness is Roger Chavez [one of the accused]. ATTY. CARBON [Counsel for petitioner Chavez]: I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object. COURT: On what ground, counsel? . ATTY. CARBON: On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution. COURT (To the Fiscal): You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?. FISCAL GRECIA: I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness. ATTY. CARBON: As a matter of right, because it will incriminate my client, I object. COURT: The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony. xxx COURT: [after the recess] Are the parties ready? . FISCAL: We are ready to call on our first witness, Roger Chavez. xxx xxx

ATTY. CARBON: As per understanding, the proceeding was suspended in order to enable me to confer with my client. I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire. COURT: What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witnessstand. ATTY. CARBON: I submit. xxx xxx xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: . MAY IT PLEASE THE COURT: This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel. This representation has been apprised of the witnesses embraced in the information. For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing. COURT: The court will give counsel time within which to prepare his cross-examination of this witness. ATTY. CRUZ: I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information. I did not know until this morning that one of the accused will testify as witness for the prosecution. COURT:

That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness. The court will not defer the taking of the direct examination of the witness. Call the witness to the witness stand. EVIDENCE FOR THE PROSECUTION ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows: ATTY. IBASCO [Counsel for defendant Luis Asistio]: WITH THE LEAVE OF THE COURT: This witness, Roger Chavez is one of the accused in this case No. Q-5311. The information alleges conspiracy. Under Rule 123, Section 12, it states: 'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.' COURT: That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness to the witness stand. ATTY. IBASCO: I submit. COURT: The Fiscal may proceed.
3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia". Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows: A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1wph1.t In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they

went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto. As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee. At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to 4 exhibit the deed of sale of the car to the note bearer. Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it. Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan. From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows: In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00. To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note. On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor. The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez. At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang. When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel. Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded. The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted. As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court. As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his 5 testimony as witness for the prosecution establishes his guilt beyond reasonable doubt." The trial court branded him "a self6 confessed culprit". The court further continued: It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez' accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full 7 credence to his words even if they concerned a man no less notorious than himself. The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame. The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car. The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals. On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed. On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is 8 erroneous. On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14

resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment. It was at this stage that the present proceedings were commenced in this Court. Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented. We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here. 1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right constitutionally entrenched against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness 9 against himself," fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." . It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican 10 government"; that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty 11 and personal freedom." Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 12 40 Law. ed., 819, 821)." Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the 13 14 early days "in a revolt against the thumbscrew and the rack." An old Philippine case [1904] speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; 15 it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that 16 "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every 17 species and degree of which the law abhors.

Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the 18 unwilling lips of the defendant." 2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be 19 compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 20 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the 21 purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his 22 23 conviction." This rule may apply even to a co-defendant in a joint trial. And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence 24 against himself "is not the probability of the evidence but it is the capability of abuse." Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:. What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witness stand. Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" to conviction. The judge's words heretofore quoted "But surely counsel could not object to have the accused called on the witness stand" wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent. 3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents 26 on July 17, 1963 at 5:00 o'clock in the afternoon. And this statement detailed the plan and execution thereof by Sumilang
25

(Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same 27 anew in open court. He identified the Thunderbird car involved in the case. The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1wph1.t 4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial. It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1wph1.t There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a 28 witness cannot properly be held to have waived his privilege on vague and uncertain evidence." The teaching in Johnson vs. 29 Zerbst is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we 30 say again, is a rampart that gives protection - even to the guilty. 5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are 32 33 disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and the consequent 34 conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by 35 collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less 36 effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals 37 38 does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. For, as explained in 39 40 Johnson vs. Zerbst, the writ of habeas corpus as an extraordinary remedy must be liberally given effect so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise: Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and 41 one imprisoned thereunder may obtain release of habeas corpus.
31

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The 42 parties attempting to enforce it may be responsible as trespassers. ... " 6. Respondents' return shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted. Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs in a separate opinion. G.R. No. L-25018 May 26, 1969
43

ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants. Conrado B. Enriquez for petitioner-appellee. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor Pedro A. Ramirez for respondent-appellant. Bausa, Ampil and Suarez for intervenors-appellants. FERNANDO, J.: The broad, all-embracing sweep of the self-incrimination clause, whenever appropriately invoked, has been accorded due 2 3 recognition by this Court ever since the adoption of the Constitution. Bermudez v. Castillo, decided in 1937, was quite categorical. As we there stated: "This Court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed, would 4 be construed with the utmost liberality in favor of the right of the individual intended to be served." Even more relevant, considering the precise point at issue, is the recent case of Cabal v. Kapunan, where it was held that 6 a respondent in an administrative proceeding under the Anti-Graft Law cannot be required to take the witness stand at the instance of the complainant. So it must be in this case, where petitioner was sustained by the lower court in his plea that he could not be compelled to be the first witness of the complainants, he being the party proceeded against in an administrative charge for malpractice. That was a correct decision; we affirm it on appeal.
5 1

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was 7 alleged therein that at the initial hearing of an administrative case for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner-appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority. Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect the constitutional right against self-incrimination, the administrative proceeding against him, which could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion that he was entitled to the relief demanded consisting of perpetually restraining the respondent Board from compelling him to testify as witness for his adversary and his readiness or his willingness to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of prohibition. On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the respondent Board commanding it to refrain from hearing or further proceeding with such an administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a bond in the amount of P500.00. The answer of respondent Board, while admitting the facts stressed that it could call petitioner-appellee to the witness stand and interrogate him, the right against self-incrimination being available only when a question calling for an incriminating answer is asked of a witness. It further elaborated the matter in the affirmative defenses interposed, stating that petitionerappellee's remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore, denied that it acted with grave abuse of discretion. There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the complainants in the administrative case for malpractice against petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such a motion was granted and an answer in intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board, which for them is limited to compelling the witness to take the stand, to be distinguished, in their opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the right against self-incrimination cannot be availed of in an administrative hearing. A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation without his consent and against himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for the petitioner-appellee. 1. We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by us in Cabal v. 8 Kapunan. In that proceeding for certiorari and prohibition to annul an order of Judge Kapunan, it appeared that an 9 administrative charge for unexplained wealth having been filed against petitioner under the Anti-Graft Act, the complainant requested the investigating committee that petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand." It was noted in the opinion penned by the present Chief Justice that while the matter referred to an a administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of whatever property a public officer or employee may acquire, manifestly out proportion to his salary and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. The case before us is not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of his license as a medical practitioner, for some an even greater deprivation.

To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an American Supreme Court 10 opinion highly persuasive in character. In the language of Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." We reiterate that such a principle is equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession. 2. The appeal apparently proceeds on the mistaken assumption by respondent Board and intervenors-appellants that the constitutional guarantee against self-incrimination should be limited to allowing a witness to object to questions the answers to which could lead to a penal liability being subsequently incurred. It is true that one aspect of such a right, to follow the 11 language of another American decision, is the protection against "any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." If that were all there is then it becomes diluted.lawphi1.et The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: "The 12 accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt." Only last year, in 13 Chavez v. Court of Appeals, speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free genuine will." Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the 14 privilege is the respect a government ... must accord to the dignity and integrity of its citizens." It is likewise of interest to note that while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his 15 detriment." So also with the observation of the late Judge Frank who spoke of "a right to a private enclave where he may lead 16 a private life. That right is the hallmark of our democracy." In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person proceeded against to take the witness stand without his consent. WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement as to costs. G.R. No. L-5793 August 27, 1953

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO ESTOISTA, defendant-appellant. Ramon Diokno and Jose W. Diokno for appellant. First Assistant Solicitor General Ruperto Kapunan Jr. and Acting Solicitor Antonio Consing for appellee. TUAZON, J.: Prosecuted in the Court of First Instance of Lanao for homicide through reckless imprudence and illegal possession of firearm under one information, the appellant was acquitted of the first offense and found guilty of the second, for which he was sentenced to one year imprisonment. This appeal is from that sentence raising factual legal and constitutional questions. The constitutional question, set up after the submission of the briefs, has to do with the objection that the penalty from 5 to 10 years of imprisonment and fines provided by Republic Act No. 4 is cruel and unusual.

As to the facts. The firearms with which the appellant was charged with having in his possession was a rifle and belonged to his father, Bruno Estoista, who held a legal permit for it. Father and son lived in the same house, a little distance from a 27-hectare estate belonging to the family which was partly covered with cogon grass, tall weeds and second growth trees. From a spot in the plantation 100 to 120 meters from the house, the defendant took a shot at a wild rooster and hit Diragon Dima a laborer of the family who was setting a trap for wild chicken and whose presence was not perceived by the accused. The evidence is somewhat conflicting on whether the owner of the rifle was with the accused at the time of the accidental killing. Bruno Estoista testified that on the morning of the accident, February 10, 1949, his son told him that there were wild chickens on the plantation "scratching palay and corn" plants and asked if he might shoot them; that Bruno told his son to wait, got the rifle from the house or locker, handed it over to Alberto who is a "sharp-shooter" and "shoots better," and walked about 20 meters behind the young man; that Bruno was that far from Alberto when the latter fired and accidentally wounded their servant. The defendant's key testimony is: "When I heard wild rooster crowing I told my father about the said wild rooster crowing near our house and he told me to shoot the said wild rooster, so I went to shoot it." Bruno's testimony at the trial is in direct contradiction to his and his son's statements at the Constabulary headquarters on the same morning of the shooting, and sworn to by them before the justice of the peace soon after. Bruno related on that occasion that Alberto "went to hunt for wild rooster;" that "later on my son Alberto came to inform me that he had accidentally hit our laborer;" Queried "who was with Alberto when he went out hunting," Bruno replied, " He was alone." On his part, the defendant declared on the same occasion that Diragon Dima, after being shot, requested to be taken to his (Dima's) house; that as the accused was able to carry the wounded man only about 50 meters, Dima asked the defendant to call Bruno "who was in the house" which Alberto did. To the question who his companion was when he shot at a rooster, Alberto said, "I was alone." There is not the slightest ground to believe that these affidavits contained anything but the truth, especially that part regarding Bruno's whereabouts when the defendant used the rifle. Both affiants are very intelligent, the affidavits were executed immediately upon their arrival at the Constabulary headquarters, there is no hint of any undue pressure brought to bear upon either of them, and, above all, they stood to gain nothing from the statement that the accused was unaccompanied. In contrast, Bruno's testimony in court was interested, given with his son's acquittal in view. And especially is the father's veracity in court to be distrusted because by Alberto's unsolicited admission, he had been in the habit of going out hunting in other places and for target practices, and because by Bruno's unwitting admission, his son, who had no gun of his own, is a sharpshooter and shoots better. It being established that the defendant was alone when he walked to the plantation with his father's gun, the next question that presents itself is: Does this evidence support conviction as a matter of law? In United States vs. Samson (16 Phil., 323), cited by defense counsel, it was held that carrying a gun by order of the owner does not constitute illegal possession of firearm. The facts in that case were that a shotgun and nine cartridges which belonged to one Pablo Padilla, who had a proper permit to possess them, were seized by the police from Samson while walking in the town of Santa Rosa, Nueva Ecija. Padilla was to use the shotgun in hunting that day and, as he was coming along on horseback, sent Samson on ahead. Republic Act No. 4, amending section 2692 of the Revised Administrative Code, in it pertinent provision is directed against any person who possesses any firearm, ammunition therefor, etc. A point to consider in this connection is the meaning of the word "possesses." It goes without saying that this word was employed in its broad sense as to include "carries" and "holds." This has to be to is the manifest intent of the Act is to be effective. The same evils, the same perils to public security, which the Act penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the

proprietary concept of the possession can have no bearing whatever. "Ownership of the weapon is necessary only insofar as the ownership may tend to establish the guilt or intention of the accused." It is remarkable that in the United States, where the right to bear arms for defense is ensured by the federal and many state constitutions, legislation has been very generally enacted severely restricting the carrying of deadly weapons, and the power of state legislatures to do so has been upheld. In the light of these considerations, it is a mistake to point to United States vs. Samson, supra, as authority for the appellant's plea for acquittal. The implied holding in that case that the intention to possess is an essential element of a violation of the Firearms Law was not intended to imply title or right to the weapon to the exclusion of everyone else. The court did not mean only intention to own but also intention to use. From the very nature of the subject matter of the prohibition control or dominion of the use of the weapon by the holder regardless of ownership is, of necessity, the essential factor. The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition, and opinions on the degree and character of control or dominion sufficient to constitute a violation vary. The rule laid down by United States courts rule which we here adopt is that temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon. A typical example of such possession is where "a person picks up a weapon or hands it to another to examine or hold for a moment, or to shoot at some object." (Sanderson vs. State, 5 S.W., 138; C.J., 22) Appellant's case does not meet the above test. His holding or carrying of his father's gun was not incidental, casual, temporary or harmless. Away from his father's sight and control, he carried the gun for the only purpose of using it, as in fact he did, with fatal consequences. Incidentally, herein lies a fundamental difference between the case at bar and the Samson case. Although Samson had physical control of his employer's shotgun and cartridges, his possession thereof was undoubtedly harmless and innocent, as evidenced by the fact that, apparently, he bore them in full view of the people he met and of the authorities. Unlike the appellant herein, Samson carried the gun solely in obedience to its owner's order or request without any inferable intention to use it as a weapon. It is of interest to note that even in the United States where, as stated, the right to bear arms as a means of defense is guaranteed, possession such as that by Samson is by the weight of authority considered a violation of similar statutes. Without deciding whether the prohibition of the Constitution against infliction of cruel and unusual punishment applies both to the form of the penalty and the duration of imprisonment, it is our opinion that confinement from 5 to 10 years for possessing of carrying firearm is not cruel or unusual, having due regard to the prevalent conditions which the law proposes to suppress or curb. The rampant lawlessness against property, person, and even the very security of the Government, directly traceable in large measure to promiscuous carrying and use of powerful weapons, justify imprisonment which in normal circumstances might appear excessive. If imprisonment from 5 to 10 years is out of proportion to the present case in view of certain circumstances, the law is not to be declared unconstitutional for this reason. The constitutionality of an act of the legislature is not to be judged in the light of exceptional cases. Small transgressors for which the heavy net was not spread are like small fishes, bound to be caught, and it is to meet such a situation as this that courts are advised to make a recommendation to the Chief Executive for clemency or reduction of the penalty. (Art. 5, Revised Penal Code; People vs. De la Cruz, 92 Phil., 906.) The sentence imposed by the lower court is much below the penalty authorized by Republic Act No. 4. The judgment is therefore modified so as to sentence the accused to imprisonment for five years. However, considering the degree of malice of the defendant, application of the law to its full extent would be too harsh and, accordingly, it is ordered that copy of this decision be furnished to the President, thru the Secretary of Justice, with the recommendation that the imprisonment herein imposed be reduced to six months. the appellant will pay the costs of both instances. Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo, and Labrador, JJ., concur. G.R. No. 120034 August 20, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSEFINA A. ESPARAS and RODRIGO O. LIBED, accused-appellant. RESOLUTION

PUNO, J.:p Accused Josefina A. Esparas was charged with violation of R.A. No. 6425 as amended by R.A. No. 759 for importing into the country twenty (20) kilograms of "shabu" in Criminal Case No. 94-5897 before the RTC of Pasay City, Br. 114. After arraignment, the accused escaped from jail and was tried in absentia. On March 13, 1995, the trial court found her guilty as charged and imposed on her the death penalty. As the accused remains at large up to the present time, the issue that confronts the Court is whether or not it will proceed to automatically review her death sentence. The issue need not befuddle us. In the 1910 ground-breaking case of U.S. vs. Laguna, 1 et al., we already held thru Mr. Justice Moreland, that the power of this Court to review a decision imposing the death penalty cannot be waived either by the accused or by the courts, viz.: xxx xxx xxx It is apparent from these provisions that the judgment of conviction and sentence thereunder by the trial court does not, in reality, conclude the trial of the accused. Such trial is not terminated until the Supreme Court has reviewed the facts and the law as applied thereto by the court below. The judgment of conviction entered on the trial is not final, can not be executed, and is wholly without force or effect until the case has been passed upon by the Supreme Court. In a sense the trial court acts as a commissioner who takes the testimony and reports thereon to the Supreme Court with his recommendation. While in practice he enters a judgment of conviction and sentences the prisoner thereunder, in reality, until passed upon by the Supreme Court, it has none of the attributes of a final judgment and sentence. It is a mere recommendation to the Supreme Court, based upon the facts on the record which are presented with it. This is meant in no sense to detract from the dignity and power of Courts of First Instance. It means simply that that portion of Spanish procedure which related to cases where capital punishment was imposed still survives. xxx xxx xxx The requirement that the Supreme Court pass upon a case in which capital punishment has been imposed by the sentence of the trial court is one having for its object simply and solely the protection of the accused. Having received the highest penalty which the law imposes, he is entitled under the law to have the sentence and all the facts and circumstances upon which it is founded placed before the highest tribunal of the land to the end that its justice and legality may be clearly and conclusively determined. Such procedure is merciful. It gives a second chance for life. Neither the courts nor the accused can waive it. It is a provision of the law that brooks no interference and tolerates no evasions. (emphasis supplied) The Laguna case interpreted section 50 of General Orders No. 58 as amended, which provides: xxx xxx xxx It shall not be necessary to forward to the Supreme Court the record, or any part thereof, of any case in which there shall have been an acquittal, or in which the sentence imposed is not death, unless such case shall have been duly appealed; but such sentence shall be executed upon the order of the court in which the trial was had. The records of all cases in which the death penalty shall have been imposed by any Court of First Instance, whether the defendant shall have appealed or not, and of all cases in which appeals shall have been taken shall be forwarded to the Supreme Court for investigation and judgment as law and justice shall dictate. The records of such cases shall be forwarded to the clerk of the Supreme Court within twenty days, but not earlier than fifteen days after the rendition of sentence. The 1935 Constitution did not prohibit the imposition of the death penalty. Its section 2(4) of Article VIII provided for review by 2 3 this Court of death penalty cases. Both our Rules of Court of 1940 and 1964 require the transmission to this Court of the records of all cases in which the death penalty shall have been imposed by the trial court, whether the defendant shall have

appealed or not, for review and judgment as the law and justice shall dictate. It will be noted that these rules were taken from 4 the second part of General Orders No. 58, as amended by Section 4 of Act No. 194. Necessarily, our case law under the 1935 Constitution reiterated the Laguna ruling. Thus, in the 1953 case of People vs. 5 Villanueva, we held that the withdrawal of an appeal by a death convict does not deprive this Court of its jurisdiction to review his conviction, viz.: An accused appealing from a decision sentencing him to death may be allowed to withdraw his appeal like any other appellant, in an ordinary criminal case before the briefs are filed, but his withdrawal of the appeal does not remove the case from the jurisdiction of this court which under the law is authorized and called upon to review the decision though unappealed. Consequently, the withdrawal of the appeal in this case could not serve to render the decision of the People's Court final. In fact, as was said by this court through Justice Moreland in the case of U. S. vs. Laguna, 17 Phil. 532, speaking on the matter of review by this court of a decision imposing the death penalty, the judgment of conviction entered in the trial court is not final, and cannot be executed and is wholly without force or effect until the case has been passed upon by the Supreme Court en consulta; that although a judgment of conviction is entered by the trial court, said decision has none of the attributes of a final judgment and sentence; that until it has been reviewed by the Supreme Court which finally passes upon it, the same is not final and conclusive; and that this automatic review by the Supreme Court of decisions imposing the death penalty is something which neither the court nor the accused could waive or evade. The 1971 case of People vs. Cornelio, et al., involves the escape of a death convict. In no uncertain terms, we held that the escape of a death convict does not relieve this Court of its duty of reviewing his conviction. In the 1972 case of People vs. 7 Daban, et al., the ponencia of former Chief Justice Fernando further stressed, to wit: xxx xxx xxx Now, as to the law. It would appear that respondent Demaisip is unaware of Section 9 of Rule 122. Thus: "The records of all cases in which the death penalty shall have been imposed by any Court of First Instance, whether the defendant shall have appealed or not, shall be forwarded to the Supreme Court for review and judgment as law and justice shall dictate. The records of such cases shall be forwarded to the clerk of the Supreme Court within twenty (20) days but not earlier than fifteen (15) days, after rendition or promulgation of the sentence in the form prescribed by section 11 of Rule 41. The transcript shall also be forwarded as provided in section 12 of Rule 41 within five (5) days after the filing thereof by the stenographer." The penalty imposed on appellant Daban y Ganzon in the judgment of November 21, 1969 being one of death, the case was properly elevated to this Court. Moreover, until after this Court has spoken, no finality could be attached to lower court decision. As explained in former Chief Justice Moran's Comments on the Rules of Court: "In this connection, it must be emphasized that the judgment of conviction imposing the death penalty entered in the trial court, is not final, and cannot be executed and is wholly without force or effect until the case has been passed upon by the Supreme Court en consulta; that although a judgment of conviction is entered by the trial court, said decision has none of the attributes of a final judgment and sentence; and that until it has been reviewed by the Supreme Court which finally passes upon it, the same is not final and conclusive; and this automatic review by the Supreme Court is something which neither the court nor the accused could waive or evade." The mere fact of escape of appellant; therefore, could not be relied upon by respondent Demaisip as sufficient cause for his failure to file appellant's brief. Then came the 1973 Constitution which likewise did not prohibit the death penalty. Section 9, Rule 122 continued to provide the procedure for review of death penalty cases by this Court. Section 10, Rule 122 of the 1985 Rules on Criminal Procedure even reenacted this procedure of review. Significantly, it expressly used the term "automatic review and judgment" by this 9 Court. Our case law continued its fealty to the Laguna rule. Thus, in the 1976 case of People vs. Saliling, et al., we held, thru former Chief Justice Aquino, that this Court is not precluded from reviewing the death sentence of an accused who is at large. 10 In the 1984 case of People vs. Buynay, et al., we reiterated the rule that the escape of a death convict will not automatically result in the dismissal of his appeal. Finally, we have the 1987 Constitution which prohibits the imposition of the death penalty unless for compelling reasons 11 involving heinous crimes Congress so provides. On December 13, 1993, Congress reimposed the death penalty in cases
8 6

involving the commission of heinous crimes. This revived the procedure by which this Court reviews death penalty cases pursuant to the Rules of Court. It remains automatic and does not depend on the whims of the death convict. It continues to be 12 mandatory, and leaves this Court without any option. With due respect to the dissenting opinions of our esteemed colleagues, section 8 of Rule 124 of the Rules of Court which, inter alia, authorizes the dismissal of an appeal when the appellant jumps bail, has no application to cases where the death penalty has been imposed. In death penalty cases, automatic review is mandatory. This is the text and tone of section 10, Rule 122, which is the more applicable rule, viz.: Sec. 10. Transmission of Records in Case of Death Penalty. In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment, within twenty (20) days but not earlier than (15) days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter. Similarly, the reliance in People vs. Codilla, by our dissenting colleagues is misplaced. Codilla is not a death penalty case. Only the penalty of reclusion perpetua was imposed on appellant. Consequently, we ruled that the escape of the appellant or his refusal to surrender to the proper authorities justifies dismissal of his appeal. Our dissenting brethren also make a distinct cut between ". . . a death convict, i.e. one convicted to death by a trial court who remains in the custody of the law, and who voluntarily withdraws his appeal and a death convict, i.e., one convicted to death by the trial court but who escapes from the custody of the law during the pendency of the appeal." They rationalize the distinction by holding: It should be clear in the first case, that even if the death convict withdraws his appeal from the trial court's judgment convicting him to death, the appellate court may still and nonetheless review the judgment of conviction for the convict-appellant has at least remained in the custody of the law to await final verdict in his case. In the second case, however, the accused no longer recognizes and respects the authority of law and the duly-constituted authorities in general and this Court in particular. Such supercilious conduct of an escapee cannot and should not be taken lightly by the Court. Respect for and recognition of the authority of the Court is an essential and implicit element in an effective and credible judicial system. No one, it should be stressed, should be allowed to make a mockery of the justice system by, in one breath, seeking its protection and even vindication via an automatic review of a death sentence and, in another breath continuing to be a fugitive from justice and repudiating the very authority of the system whose protection he seeks and invokes. We hold, however, that there is more wisdom in our existing jurisprudence mandating our review of all death penalty cases, regardless of the wish of the convict and regardless of the will of the court. Nothing less than life is at stake and any court decision authorizing the State to take life must be as error-free as possible. We must strive to realize this objective, however elusive it may be, and our efforts must not depend on whether appellant has withdrawn his appeal or has escaped. Indeed, an appellant may withdraw his appeal not because he is guilty but because of his wrong perception of the law. Or because he may want to avail of the more speedy remedy of pardon. Or because of his frustration and misapprehension that he will not get justice from the authorities. Nor should the Court be influenced by the seeming repudiation of its jurisdiction when a convict escapes. Ours is not only the power but the duty to review all death penalty cases. No litigant can repudiate this power which is bestowed by the Constitution. The power is more of a sacred duty which we have to discharge to assure the People that the innocence of a citizen is our concern not only in crimes that slight but even more, in crimes that shock the conscience. This concern cannot be diluted. The Court is not espousing a "soft, bended, approach" to heinous crimes for as discussed above, we have always reviewed the imposition of the death penalty regardless of the will of the convict. Our unyielding stance is dictated by the policy that the State should not be given the license to kill without the final determination of this Highest Tribunal whose collective wisdom is the last, effective hedge against an erroneous judgment of a one-judge trial court. This enlightened policy ought to continue as our beacon light for the taking of life ends all rights, a matter of societal concern that transcends the personal interest of a convict. The importance of this societal value should not be blurred by the escape of a convict which is a problem of law enforcement. Neither should this Court be moved alone by the outrage of the public in the multiplication of heinous crimes for
13

our decisions should not be directed by the changing winds of the social weather. Let us not for a moment forget that an accused does not cease to have rights just because of his conviction. This principle is implicit in our Constitution which recognizes that an accused, even if he belongs to a minority of one has the right to be right, while the majority, even if overwhelming, has no right to be wrong. IN VIEW WHEREOF, the counsel for the accused is given a new period of thirty (30) days from notice hereof within which to file the Brief of the accused Josefina A. Esparas. SO ORDERED. G.R. No. 132601 January 19, 1999 LEO ECHEGARAY, petitioner, vs. SECRETARY OF JUSTICE, ET AL., respondents. RESOLUTION

PUNO, J.: For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that: 1. The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive authority; The issuance of the temporary restraining order . . . creates dangerous precedent as there will never be an end to litigation because there is always a possibility that Congress may repeal a law. Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable Court had in all probability been fully debated upon . . . Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, . . . the Honorable Court in issuing the TRO has transcended its power of judicial review. At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of the law imposing death penalty has become nil, to wit: a. b. c. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. The resolution of Congressman Golez, et al., that they are against the repeal of the law; The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.

2. 3.

4. 5.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representative to reject any move to review Republic Act No. 7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter, and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Resolution was concurred in by one hundred thirteen (113) congressman. In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of judicial power and duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters involved or arising from the

petition; (4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress convenes and considers all the various resolutions and bills filed before it. Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor General. We shall now resolve the basic issues raised by the public respondents. I First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as important that there should be a place to 1 end as there should be a place to begin litigation." To start with, the Court is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz: ENTRY OF JUDGMENT This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the dispositive part of which reads as follows: WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision. SO ORDERED. and that the same has, on November 6, 1988 become final and executory and is hereby recorded in the Book of Entries of Judgment. Manila, Philippine. Clerk of Court By: (SGD) TERESITA G. DIMAISIP

Acting Chief Judicial Records Office The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has caused the publication of the said Amended Rules and Regulations as required by the Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well established jurisprudence on this issue as 2 follows: xxx xxx xxx the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the 3 judgment has become final the court retains its jurisdiction to execute and enforce it. There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former continues even after the judgment has become final for the purpose of enforcement 4 of judgment; the latter terminates when the judgment becomes final. . . . For after the judgment has 5 become final facts and circumstances may transpire which can render the execution unjust or impossible. In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed out by the petitioner, as 6 early as 1915, this Court has unequivocably ruled in the case of Director of Prisons v. Judge of First Instance, viz: This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same cannot change or alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out of the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible that assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the (court) has performed its ministerial duty of ordering the execution . . . and its part is ended, if however a circumstance arises that ought to delay the execution, and there is an imperative duty to investigate the emergency and to order a postponement. Then the question arises as to whom the application for

postponing the execution ought to be addressed while the circumstances is under investigation and so to who has jurisdiction to make the investigation. The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial 7 subtraction for our Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and 8 justice. For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonable time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law enacted by Congress.1wphi1.nt The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which, among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption that courts have the inherent, necessary and incidental power to control and supervise the process of execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust 9 so essential to the maintenance of their vigor as champions of justice." Hence, our Constitutions continuously vested this power to this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides: Sec.13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers 11 Act of 1953 which considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these department would be a clear usurpation of its function, as is the case with the law in 12 question." The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:
10

xxx xxx xxx Sec.5. The Supreme Court shall have the following powers. xxx xxx xxx (5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the 13 additional power to promulgate rules governing the integration of the Bar. The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides: xxx xxx xxx Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial. To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state:

xxx xxx xxx 5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief. 6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed. 7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date at execution set by the President would be earlier than that designated by the court. 8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall, be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest. 9. The "right to information" provision is self-executing. It supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature (Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of

the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534535 [1987]. The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998. There was not a whimper of protest from the public respondents and they are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the convenience of litigants. II Second. We likewise reject the public respondents' contention that the "decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive department . . .. By granting the TRO, the 14 Honorable Court has in effect granted reprieve which is an executive function." Public respondents cite as their authority for this proposition, Section 19, Article VII of the Constitution which reads: Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. The text and tone of this provision will not yield to the interpretation suggested by the public respondents. The provision is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also provides the authority for the President to grant amnesty with the concurrence of a majority of all the members of the Congress. The provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after their finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who 15 become insane after his final conviction cannot be executed while in a state of insanity. As observed by Antieau, "today, it is generally assumed that due process of law will prevent the government from executing the death sentence upon a person who 16 is insane at the time of execution." The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effects is the same the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the power of the President to commute final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Indeed, in various States in the United States, laws have even been enacted expressly granting courts the power to suspend execution of convicts and their constitutionality has been upheld over arguments that they infringe upon the power of the President to grant reprieves. For the public respondents therefore to contend that only the Executive can protect the right to life of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three branches of our government. III Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume session on 17 January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on January 4, 1991 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new members whose views on capital punishment are still unexpressed. The present Congress is therefore different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and equitable considerations demand no less before allowing the State to take the life of one its citizens. The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law. He names these supervening events as follows: xxx xxx xxx a. b. c. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. The resolution of Congressman Golez, et al., that they are against the repeal of the law; The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator 18 Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659 which provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Golez resolution was signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended up 3 o'clock in the morning, the House of Representative with minor, the House of Representative with minor amendments formally adopted the Golez resolution by an overwhelming vote. House Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these developments, the Court's TRO should now be lifted as it has served its legal and humanitarian purpose. A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital punishment had been the subject 19 of endless discussion and will probably never be settled so long as men believe in punishment." In our clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the very purpose of the Constitution and particularly the Bill of 20 Rights to declare certain values transcendent, beyond the reach of temporary political majorities." Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the

mob which is the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus 21 test only when they can be fair to him who is momentarily the most hated by society. IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999. The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and Pardo, JJ., concur. Vitug and Panganiban, JJ., Please see Separate Opinion. Buena and Gonzaga-Reyes, JJ., took no part.

G.R. No. L-24447

June 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. WILLY OBSANIA, defendant-appellee. Office of the Solicitor General for plaintiff-appellant. Maximo V. Cuesta, Jr. for defendant-appellee. CASTRO, J.: Before us for review, on appeal by the People of the Philippines, is an order, dated January 8, 1965, of the Court of First Instance of Pangasinan dismissing, upon motion of the defense, an indictment for rape against Willy Obsania. On November 22, 1964, barely a day after the occurence of the alleged crime, Erlinda Dollente, the 14-year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the municipal court of Balungao, Pangasinan a complaint for rape with 1 robbery, alleging That on or about the 21st day of November 1964, at around 2:00 to 3:00 in the afternoon, particularly in sitio Cawakalan, barrio of Capulaan, municipality of Balungao, Province of Pangasinan, Philippines and within the jurisdiction of the Honorable Court, the said accused Willy Obsania, armed with a dagger, by means of violence and intimidation, willfully, unlawfully and feloniously did then and there have carnal knowledge of the complainant Erlinda Dollente, against her will and on the roadside in the ricefields at the above-mentioned place while she was alone on her way to barrio San Raymundo. After the case was remanded to the Court of First Instance of Pangasinan for further proceedings, the assistant provincial fiscal filed an information for rape against the accused, embodying the allegations of the above complaint, with an additional averment that the offense was committed "with lewd designs". The accused pleaded not guilty upon arraignment, and forthwith his counsel moved for the dismissal of the case, contending that the complaint was fatally defective for failure to allege "lewd designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did not cure the jurisdictional infirmity. The court a quo granted the motion and ordered dismissal of the action, ruling that "the failure of the complaint filed by the offended party to allege that the acts committed by

the accused were with 'lewd designs' does not give this Court jurisdiction to try the case." From this order, the fiscal brought the instant appeal. Two issues are tendered for resolution, namely: first, are "lewd designs" an indispensable element which should be alleged in the complaint?, and, second, does the present appeal place the accused in double jeopardy? Both must be answered in the negative. The accused, in his motion to dismiss, as well as the trial judge, in his order of dismissal, rely basically on the ruling in People vs. Gilo (L-18202, April 30, 1964). In the case which involved a prosecution for acts of lasciviousness this Court, in passing, opined that "lewd design" is ... an indispensable element of all crimes against chastity, such as abduction, seduction and rape, including acts of lasciviousness ... an element that characterizes all crimes against chastity, apart from the felonious or criminal intent of the offender, and such element must be always present in order that they may be considered in contemplation of law. Nothing in the foregoing statement can be reasonably interpreted as requiring an explicit allegation of "lewd design" in a complaint for rape. We hold in no uncertain terms that in a complaint for rape it is not necessary to allege "lewd design" or "unchaste motive", for to require such averment is to demand a patent superfluity. Lascivious intent inheres in rape and the unchaste design is manifest in the very act itself the carnal knowledge of a woman through force or intimidation, or when 2 the woman is deprived of reason or otherwise unconscious, or when the woman is under twelve years of age. It is clear that the complaint here satisfies the requirements of legal sufficiency of an indictment for rape as it unmistakably alleges that the accused had carnal knowledge of the complainant by means of violence and intimidation. We therefore hold that the trial judge erred in dismissing the case on the proffered grounds that the complaint was defective for failure to allege "lewd design" and, as a consequence of such infirmity, that the court a quo did not acquire jurisdiction over the case. The error of the trial judge was in confusing the concept of jurisdiction with that of insufficiency in substance of an indictment. We come now to the more important issue of double jeopardy. The accused maintains that "assuming, arguendo, that the argument is right that the court a quo has jurisdiction, the appeal of the Government constitutes double jeopardy." An appeal by the prosecution in a criminal case is not available if the defendant would thereby be placed in double jeopardy. Correlatively, section 9, Rule 117 of the Revised Rules of Court provides:
3

When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant 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. In order that the protection against double jeopardy may inure in favor of an accused, the following requisites must have obtained in the original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. The complaint filed with the municipal court in the case at bar was valid; the court a quo was a competent tribunal with jurisdiction to hear the case; the record shows that the accused pleaded not guilty upon arraignment. Hence, the only remaining and decisive question is whether the dismissal of the case was without the express consent of the accused. The accused admits that the controverted dismissal was ordered by the trial judge upon his motion to dismiss. However, he vehemently contends that under the prevailing jurisprudence, citing People vs. Bangalao, et al. (94 Phil. 354, February 17, 1954), People vs. Labatete (L-12917, April 27, 1960), People vs. Villarin (L-19795, July 31, 1964), and People vs. Cloribel (L-20314,

August 31, 1964), an erroneous dismissal of a criminal action, even upon the instigation of the accused in a motion to quash or dismiss, does not bar him from pleading the defense of double jeopardy in a subsequent appeal by the Government or in a new prosecution for the same offense. The accused suggests that the above-enumerated cases have abandoned the previous ruling of this Court to the effect that when a case is dismissed, other than on the merits, upon motion of the accused personally or through counsel, such dismissal is to be regarded as with the express consent of the accused and consequently he is deemed to 4 5 have waived his right to plead double jeopardy and/or he is estopped from claiming such defense on appeal by the Government or in another indictment for the same offense. This particular aspect of double jeopardy dismissal or termination of the original case without the express consent of the defendant has evoked varied and apparently conflicting rulings from this Court. We must untangle this jurisprudential maze and fashion out in bold relief a ruling not susceptible of equivocation. Hence, a searching extended review of the pertinent cases is imperative. The doctrine of waiver of double jeopardy was enunciated and formally labelled as such for the first time in 1949 in People vs. Salico, supra, with three justices dissenting. 6 In that case, the provincial fiscal appealed from the order of the trial court dismissing, upon motion of the defendant made immediately after the prosecution had rested its case, an indictment for homicide, on the ground that the prosecution had failed to prove that the crime was committed within the territorial jurisdiction of the trial court, or, more specifically, that the municipality of Victorias in which the crime was allegedly committed was compromised within the province of Negros Occidental. Rejecting the claim of the accused that the appeal placed him in double jeopardy, this Court held that the dismissal was erroneous because the evidence on record showed that the crime was committed in the town of Victorias and the trial judge should have taken judicial notice that the said municipality was included within the province of Negros Occidental and therefore the offense charged was committed within the jurisdiction of the court of first instance of the said province. In ruling that the appeal by the Government did not put the accused in peril of a second jeopardy, this Court stressed that with "the dismissal of the case by the court below upon motion of the defendant, the latter has not been in jeopardy," and "assuming, arguendo, that the defendant had been already in jeopardy in the court below and would be placed in double jeopardy by the appeal, the defendant has waived his constitutional right not to be put in danger of being convicted twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the majority, reasoned that ... when the case is dismissed with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. The Salico doctrine was adhered to and affirmed in People vs. Marapao (85 Phil. 832, March 30, 1950), Gandicela vs. Lutero (88 Phil. 299, March 5, 1951), People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952), Co Te Hue vs. Encarnacion (94 Phil. 258, January 26, 1954), and People vs. Desalisa (L-15516, December 17, 1966). In Marapao, the defendant was indicted for slight physical injuries in the municipal court of Sibonga, Cebu. After the prosecution had rested its case, a continuance was had, and when trial was resumed, the court, upon motion of the defense, ordered the case dismissed for failure of the prosecution to appear. However, the court reconsidered this order upon representation of the fiscal who appeared moments later, and ordered the defense to present its evidence. The accused moved to get aside the latter order on the ground that it placed him in double jeopardy. Acceding to this motion, the court dismissed the case. Subsequently, the accused was charged in the Court of First Instance of Cebu with the offense of assault upon a person in authority, based on the same facts alleged in the former complaint for slight physical injuries. Again, upon motion of the accused, the trial court dismissed the new indictment on the ground of double jeopardy. From this order, the prosecution appealed. In upholding the appeal of the Government, this Court observed that although the information for assault necessarily embraced the crime of slight physical injuries for which the accused was indicted in the justice of the peace court, ... it appears that the appellee was neither convicted nor acquitted of the previous charge against him for slight physical injuries, for that case was dismissed upon his own request before trial could be finished. Having himself asked for such dismissal, before a judgment of conviction or acquittal could have been rendered, the appellee is not entitled to invoke the defense of double jeopardy... In Gandicela, this Court had occasion to reiterate the Salico ruling:

But where a defendant expressly consents to, by moving for, the dismissal of the case against him, as in the present case, even if the court or judge states in the order that the dismissal is definite or does not say that the dismissal is without prejudice on the part of the fiscal to file another information, the dismissal will not be a bar to a subsequent prosecution of the defendant for the same offense. (People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil. 722.). And in denying the motion for reconsideration filed by the accused in that case, this Court held: According to Section 9 of Rule 13, if a criminal case is dismissed otherwise than upon the merits at any stage before judgment, without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant has pleaded to the charge, the dismissal of the case shall be definite or a bar to another prosecution for the same offense; but if it is dismissed upon the petition or with the express consent of the defendant, the dismissal will be without prejudice or not a bar to another prosecution for the same offense, because, in the last case, the defendant's action in having the case dismissed constitutes a waiver of his constitutional right not to be prosecuted again for the same offense. In Pinuela, as in Salico, the prosecution had presented its evidence against the defendant, and the trial court, upon motion of the accused, dismissed the criminal action for lack of evidence showing that the crime charged was committed within its territorial jurisdiction. On appeal by the Government, this Court found that the evidence showed otherwise and, like in Salico, the majority rejected the plea of double jeopardy interposed by the accused on the ground that his virtual instigation of the erroneous dismissal amounted to a waiver of his right against a second jeopardy. In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed against him having been dismissed, albeit provisionally, without his express consent, its revival constituted double jeopardy which bars a subsequent prosecution for the same offense. This claim was traversed by the Solicitor General who contended that considering what had transpired in the conference between the parties, the provisional dismissal was no bar to the subsequent prosecution for the reason that the dismissal was made with the defendant's express consent. This Court sustained the view of the Solicitor General, thus: We are inclined to uphold the view of the Solicitor General. From the transcript of the notes taken at the hearing in connection with the motion for dismissal, it appears that a conference was held between petitioner and the offended party in the office of the fiscal concerning the case and that as a result of that conference the offended party filed the motion to dismiss. It also appears that as no action has been taken on said motion, counsel for petitioner invited the attention of the court to the matter who acted thereon only after certain explanation was given by said counsel. And when the order came the court made it plain that the dismissal was merely provisional in character. It can be plainly seen that the dismissal was effected not only with the express consent of the petitioner but even upon the urging of his counsel. This attitude of petitioner, or his counsel, takes this case out of the operation of the rule. In essence, this Court held that where a criminal case is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there can be no double jeopardy under section 9, Rule 113, if the indictment against him is revived by the fiscal. This decision subscribes substantially to the doctrine on waiver established in Salico. The validity and currency of the Salico doctrine were intimated in the recent case of People vs. Fajardo (L-18257, June 29, 1966), and six months later were reaffirmed in People vs. Desalisa, supra. In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed: The record does not reveal that appellees expressly agreed to the dismissal of the information as ordered by the trial Judge or that they performed any act which could be considered as express consent within the meaning of the rule. While they did file a motion asking that the case be quashed or that a reinvestigation thereof be ordered, the court granted neither alternative. What it did was to order the prosecution to amend the complaint. This order was in effect a denial of the motion to quash, and it was only after the prosecution failed to amend that the court dismissed the case on that ground. Consequently, even under the theory enunciated in some decisions of this Court (People vs. Salico, etc.) that if a valid and sufficient information is erroneously dismissed upon motion of the defendant he is deemed to have waived the plea of double jeopardy in connection with an appeal from the order of dismissal, appellees here are not precluded from making such plea.

To paraphrase, had the dismissal been anchored on the motion to dismiss, the defendants would not have been entitled to protection against double jeopardy. Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice Jesus Barrera, held that ... The ruling in the case of Salico, that the act of the defendant in moving for the dismissal of the case constitutes a waiver of the right to avail of the defense of double jeopardy, insofar as it applies to dismissals which do not amount to acquittal or dismissal of the case on the merits, cannot be considered to have been abandoned by the subsequent decisions on the matter. (Emphasis supplied) xxx xxx xxx

... an appeal of the prosecution from the order of dismissal (of the criminal complaint) by the trial court will not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent, of the defendant, and (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal; so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant. (Emphasis supplied) The doctrine of estoppel in relation to the plea of double jeopardy was first enunciated in Acierto which held that when the trial court dismisses a case on a disclaimer of jurisdiction, upon the instigation of the accused, the latter is estopped on appeal from asserting the jurisdiction of the lower court in support of his plea of second jeopardy. The doctrine of estoppel is in quintessence the same as the doctrine of waiver: the thrust of both is that a dismissal, other than on the merits, sought by the accused in a motion to dismiss, is deemed to be with his express consent and bars him from subsequently interposing the defense of double jeopardy on appeal or in a new prosecution for the same offense. In Acierto, the defendant was charged before a United States court-martial with having defrauded the Government of the United States, through falsification of documents, within a military base of the United States in the Philippines. The challenge by the accused against the jurisdiction of the military tribunal was brushed aside, and he was convicted. On review, the verdict was reversed by the Commanding General who sustained Acierto's position on the ground of lack of jurisdiction. Subsequently, he was convicted of estafa and falsification based on the same facts by the Court of first Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the court-martial proceedings, asserting that the military court actually had jurisdiction. In 7 a unanimous decision, this Court, through Mr. Justice Pedro Tuason, ruled: This is the exact reverse of the position defendant took at the military trial. As stated, he there attacked the courtmartial's jurisdiction with the same vigor that he now says the court-martial did have jurisdiction; and thanks to his objections, so we incline to believe, the Commanding General, upon consultation with, and the recommendation of, the Judge Advocate General in Washington, disapproved the court-martial proceedings. xxx xxx xxx

Irrespective of the correctness of the views of the Military authorities, the defendant was estopped from demurring to the Philippine court's jurisdiction and pleading double jeopardy on the strength of his trial by the court-martial, A party will not be allowed to make a mockery of justice by taking inconsistent positions which if allowed would result in brazen deception. It is trifling with the courts, contrary to the elementary principles of right dealing and good faith, for an accused to tell one court that it lacks authority to try him and, after he has succeeded in his effort, to tell the court to which he has been turned over that the first has committed error in yielding to his plea. (Emphasis supplied) The Acierto ruling was reiterated in People vs. Amada Reyes, et al. (96 Phil. 827, April 30, 1955); People vs. Reyes, et al. (98 Phil. 646, March 23, 1956); People vs. Casiano (L-15309, February 16, 1961), and People vs. Archilla (L-15632, February 28, 1961). The defendants in People vs. Amada Reyes, et al., were charged as accessories to the crime of theft committed by their brother, Anselmo, the principal accused. The latter pleaded guilty to simple theft and was sentenced accordingly. The former pleaded not guilty and subsequently filed a motion to quash on the ground that being brothers and sisters of the principal accused, they were exempt from criminal responsibility for the acts charged against them in the information. Thereupon, the prosecution

moved to amend the information so as to allege that the defendants profited from the effects of the crime. In view of this development, counsel for the defendants moved to withdraw their motion to quash, and objected to the proposed amendment which sought to change materially the information after plea without the consent of the accused. Without acting on the petition to withdraw the motion to quash, the trial court denied the motion of the prosecution on the ground that the proposed amendment would substantially affect the fundamental rights of the accused who were exempt from liability under the information because of their relation to the principal culprit. Then the prosecution moved for the dismissal of the case against the alleged accessories with reservation to file a new information. The court ordered the dismissal without ruling on the reservation. Subsequently, a new information was filed virtually reproducing the previous one except that now there was an added allegation of intent to gain. The lower court quashed the new information upon motion of the accused on the ground of double jeopardy. On appeal by the prosecution, this Court, thru Mr. Justice J. B. L. Reyes, held that the plea of double jeopardy was erroneously sustained because In the first place, the accused-appellees herein filed a motion to quash on the ground that they incurred no criminal liability under the facts alleged in the information in the preceding case, No. Q-972, and the trial court instead of allowing the withdrawal of the motion to quash, virtually sustained the same when it denied the fiscal's motion to amend, thereby forcing the latter to dismiss the case; hence, it can not be held that the former case was terminated without the express consent of the accused. Secondly, the defendants themselves showed that the information in the previous case was insufficient to charge them with any criminal offense, in view of their relationship with the principal accused; and it is well established doctrine that for jeopardy to attach, there must be an information sufficient in form and substance to sustain a conviction. Lastly, the herein accused having successfully contended that the information in the former case was insufficient to sustain a conviction, they cannot turn around now and claim that such information was after all, sufficient and did place them in danger of jeopardy of being convicted thereunder. If, as they formerly contended, no conviction could be had in the previous case, they are in estoppel to contend now that the information in the second case places them in jeopardy for the second time. Their case comes within the spirit of the rule laid down in People vs. Acierto. Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief Justice Paras, reiterated the Acierto ruling thus: Where the complaint or information is in truth valid and sufficient, but the case is dismissed upon the petition of the accused on the ground that the complaint or information is invalid and insufficient, such dismissal will not bar another prosecution for the same offense and the defendant is estopped from alleging in the second information that the former dismissal was wrong because the complaint or information was valid. In this particular case, upon motion of the defendants, the trial court dismissed the information because it did not allege the use of violence, notwithstanding the fact that the offense charged was coercion under article 287 of the Revised Penal Code. On appeal, however, this Court ruled that the dismissal was erroneous because "although the offense named in the information is coercion, it does not necessarily follow that the applicable provision is the first paragraph, since the second paragraph also speaks of 'coercions'. Inasmuch as the recitals in the information do not include violence, the inevitable conclusion is that the coercion contemplated is that described and penalized in the second paragraph." We come now to the case of People vs. Casiano. In this case the accused was charged with estafa in a complaint filed with the justice of the peace court of Rosales, Pangasinan. The accused waived her right to preliminary investigation and the record was accordingly forwarded to the Court of First Instance of Pangasinan where the provincial fiscal filed an information for "illegal possession and use of false treasury or bank notes." Upon arraignment the defendant pleaded not guilty. Subsequently, the defense filed a motion to dismiss on the thesis that there had been no preliminary investigation of the charge of illegal possession and use of false treasury or bank notes, and that the absence of such preliminary investigation affected the jurisdiction of the trial court. The motion was granted on the ground that the waiver made by the defendant in the justice of the peace court did not deprive her of the right to a preliminary investigation of an entirely different crime. On appeal to this Court, it was held that the dismissal was erroneous because the allegations of the information filed in the Court of First Instance were included in those of the complaint filed in the justice of the peace court where the defendant had already waived her right to a preliminary investigation. On the question of whether the appeal placed the defendant in double jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice) Concepcion, observed that the situation of Casiano was identical to that of the accused in Acierto ... were she to plead double jeopardy in this case, for such plea would require the assertion of jurisdiction of the court of first instance to try her and that the same erred in yielding to her plea therein for lack of authority therefor. In the language of our decision in the Acierto case, it is immaterial whether or not the court a quo had said authority. It,

likewise, makes no difference whether or not the issue raised by defendant in the lower court affected its jurisdiction. The fact is that she contested its jurisdiction and that, although such pretense was erroneous, she led the court to believe that it was correct and to act in accordance with such belief. The elementary principles of fair dealing and good faith demand, accordingly, that she be estopped now from taking the opposite stand in order to pave the way for a plea of double jeopardy, unless the rule of estoppel laid down in the Acierto case is revoked. As a matter of fact, said rule applies with greater force to the case at bar than to the Acierto case, because the same involved two (2) separate proceedings before courts deriving their authority from different sovereignties, whereas the appeal in the case at bar is a continuation of the proceedings in the lower court, which like this Supreme Court, is a creature of the same sovereignty. In short the inconsistency and impropriety would be more patent and glaring in this case than in that of Acierto, if appellant herein pleaded double jeopardy in this instance. This Court then forthnightly stated that "the rule of estoppel applied in the Acierto case should be maintained, because: 1. It is basically and fundamentally sound and just. 2. It is in conformity with the principles of legal ethics, which demand good faith of the higher order in the practice of law. 3. It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court. xxx xxx xxx

4. The operation of the principle of estoppel on the question of jurisdiction seemingly depends whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel" (5 C.J.S. 861-863). However, if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. Here, the principle of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing thereon. Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked anew the doctrine of estoppel. In this case Alfreda Roberts, together with Jose Archilla, was charged with bigamy. After pleading not guilty, Roberts, through his counsel, filed a motion praying that the complaint be quashed with regard to her on the ground that the facts alleged therein did not constitute the offense charged for failure to aver that "insofar as Alfreda Roberts is concerned, her marriage to Jose Luis Archilla was her second marriage ..." On appeal, the prosecution contended that the trial court erred in granting the motion to quash, because the complaint was sufficient and at least charged the accused as an accomplice. The defendant maintained that even if that were true, the quashing of the information amounted to her acquittal which prevented the prosecution from taking the said appeal as it would place her in double jeopardy. Mr. Justice Felix Bautista Angelo, writing for the majority, ruled that the trial court erred, and proceeded to emphasize that the accused ... cannot now be allowed to invoke the plea of double jeopardy after inducing the trial court to commit an error which otherwise it would not have committed. In other words, appellee can not adopt a posture of double dealing without running afoul with the doctrine of estoppel. It is well-settled that the parties to a justiciable proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court (Williams v. McMicking, 17 Phil. 408; Molina v. Somes, etc.). Consequently, appellee is now estopped from invoking the plea of double jeopardy upon the theory that she would still be convicted under an information which she branded to be insufficient in the lower court. The accused in this case now before us nevertheless insists that the Salico doctrine and "necessarily analogous doctrines" were abandoned by this Court in Bangalao, Labatete, Villarin and Cloribel. In Bangalao, the complaint filed by the victim's mother alleged that the rape was committed "by means of force and intimidation" while the information filed by the fiscal alleged that the offended party was a "minor and demented girl" and that the defendants "successively had sexual intercourse with her by means of force and against the will of Rosita Palban." After the

accused had pleaded not guilty, the defense counsel moved for the dismissal of the case on the ground that the trial court lacked jurisdiction to try the offense of rape charged by the fiscal since it was distinct from the one alleged in the complaint which did not aver that the victim was a demented girl". The lower court sustained the motion and dismissed the case for lack of jurisdiction. On appeal by the prosecution, this Court held that the trial judge erred in dismissing the case for lack of jurisdiction, but ruled, however, that the appeal could not prosper because it placed the accused in double jeopardy. As the court below had jurisdiction to try the case upon the filing of the complaint by the mother of the offended party, the defendants-appellees would be placed in double jeopardy if the appeal is allowed. After mature analysis, we cannot agree that this Court in Bangalao impliedly abandoned the Salico doctrine on waiver. Bangalao was decided solely on the question of jurisdiction. This Court, however, after holding that the lower tribunal had jurisdiction, decided outright to repress the appeal by the Government on the ground of double jeopardy without considering whether the appealed order of dismissal was issued with or without the express consent of the accused (this aspect of double jeopardy not being in issue). Hence, the ruling in Salico that the dismissal was with the express consent of the accused because it was granted upon his instigation thru a motion to dismiss was not passed upon in Bangalao. A case of striking factual resemblance with Salico is People vs. Ferrer (100 Phil. 124, October 23, 1956). In this case, after the prosecution had rested, the accused filed a motion to dismiss on the ground that the territorial jurisdiction of the trial court had not been published. Acting on this motion, the lower court dismissed the case. The prosecution appealed. This Court found that the evidence on record, contrary to the finding of the trial court, amply proved the jurisdiction of the lower tribunal. However, without the defendant interposing the plea of double jeopardy, this Court held that "the Government however meritorious its case cannot appeal the order of dismissal without violating the right of the defendant not to be placed in double jeopardy." Again, like in Bangalao, this Court did not consider the nature of dismissal whether it was with or without the express consent of the defendant. The accused in the case at bar avers that the Salico doctrine was formally and expressly abandoned in People vs. Labatete, supra. In the latter case, the trial court, upon motion of the defendant, dismissed the original information for estafa on the ground that it did not allege facts constituting the offense charged. The information recited that the accused had contracted a loan from the complainant, giving as security the improvements and products of his property (a piece of land), without averring that the said property, which was allegedly mortgaged by the accused to the Rehabilitation Finance Corporation, formed part of the security. Consequently, the fiscal filed an amended complaint alleging that the accused also gave as security the land in question, which he later mortgaged to the damage and prejudice of the complaining creditor. This amended information was also dismissed upon motion of the defendant on the ground of double jeopardy. This Court, in sustaining the appealed order of dismissal, held: If the amended information were to be admitted, the accused will be deprived of his defense of double jeopardy because by the amended information he is sought to be made responsible for the same act of borrowing on a mortgage for which he had already begun to be tried and acquitted by the dismissal of the original information. xxx xxx xxx

... the trial court found that the accused could not be found guilty of any offense under the information. The judgment entered was not one of dismissal but of acquittal, and whether the judgment is correct or incorrect, the same constitutes a bar to the presentation of the amended information sought to be introduced by the fiscal. (Emphasis supplied) In not applying the Salico doctrine, this Court, through Mr. Justice Alejo Labrador, expounded: ... The judgment of the trial court (in People vs. Salico) was in fact an acquittal because of the failure on the part of the fiscal to prove that the crime was committed within the jurisdiction of the court. The judgment was in fact a final judgment of acquittal. The mere fact that the accused asked for his acquittal after trial on the merits (after the prosecution had rested its case) is no reason for saying that the case was "dismissed" with his express consent and he may again be subjected to another prosecution. From the above named statement, it is clear that what in Salico was repudiated in Labatete was the premise that the dismissal therein was not on the merits and not the conclusion that a dismissal, other than on the merits, sought by the accused, is

deemed to be with his express consent and therefore constitutes a waiver of his right to plead double jeopardy in the event of an appeal by the prosecution or a second indictment for the same offense. This Court, in Labatete, merely pointed out that the controverted dismissal in Salico was in fact an acquittal." Reasoning a contrario, had the dismissal not amounted to acquittal, then the doctrine of waiver would have applied and prevailed. As a matter of fact we believe with the majority in Salico that the dismissal therein was not on the merits and therefore did not amount to an acquittal: If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted for the same offense before a court of competent jurisdiction; and it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction. Granting, however, that the Salico doctrine was abandoned in Labatete, it was resurrected in Desalisa. Moreover, Labatete never mentioned the doctrine of estoppel enunciated in Acierto which had been repeatedly reaffirmed. To bolster his contention that the Salico doctrine has been dropped from the corpus of our jurisprudence, the accused cites People vs. Villarin, supra. Here the accused appealed to the Court of First instance his conviction in the inferior court for acts of lasciviousness with consent. After conducting the preliminary investigation, the fiscal charged the accused with corruption of minors. Villarin pleaded not guilty, and before the case could be heard, his counsel filed a motion to dismiss on the ground that the information did not allege facts constituting the crime charged. Acting on this motion, the trial court dismissed the case. On appeal by the prosecution, this Court thru Mr. Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that this error ... cannot now be remedied by setting aside the order dismissal of the court a quo and by remanding the case to it for further proceedings as now suggested by the prosecution considering that the case was dismissed without the express consent of the accused even if it was upon the motion of his counsel, for to do so would place the accused in double jeopardy. The only exception to the rule on the matter is when the dismissal is with the consent of the accused, and here this consent has not been obtained. (Emphasis supplied) Villarin gives the impression, as gleaned from the above statement, that this Court therein sustained the plea of double jeopardy on the ground that dismissal was without the express consent of the defendant as it was ordered "upon the motion of his counsel" and not upon motion of the defendant himself. This conclusion is rather unfortunate and must be rectified, for the settled rule is that the acts of counsel in a criminal prosecution bind his client. Thus, in People vs. Romero (89 Phil. 672, July 31, 1951), this Court held categorically that The fact that the counsel for the defendant, and not the defendant himself personally moved for the dismissal of the case against him, had the same effect as if the defendant had personally moved for such dismissal, inasmuch as the act of the counsel in the prosecution of the defendant's cases was the act of the defendant himself , for the only case in which the defendant cannot be represented by his counsel is in pleading guilty according to Section 3, Rule 114, of the Rules of Court. (Emphasis supplied) On this consideration alone, we cannot agree with the accused in the case at bar that this Court in Villarin intended to abandon the Salico ruling. Had the motion to dismiss filed by Villarin's counsel been considered as one made by the defendant himself, as should have been done, the Villarin case should have been resolved consistent with the doctrine of waiver in Salico and/or that of estoppel in Acierto. As a final citation in support of his theory, the accused in the case at bar invokes People vs. Clolibel, supra, where this Court, in sustaining the plea of double jeopardy interposed by the defendants, stated inter alia: In asserting that Criminal Case No. 45717 may still be reinstated, the petitioner adopts the ruling once followed by the Court to the effect that a dismissal upon the defendant's own motion is a dismissal consented to by him and, consequently, will not be a bar to another prosecution for the same offense, because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. (People v. Salico, 84 Phil. 772) But, this authority has long been abandoned and the ruling therein expressly repudiated.

Thus, in the case of People v. Robles, G.R. No. L-12761, June 29, 1959, citing People v. Bangalao, L-5610, February 17, 1954; People v. Diaz, L-6518, March 30, 1954; People v. Abano, L-7862, May 17, 1955; and People v. Ferrer, L-9072, October 23, 1956, We said: ... In reaching the above conclusion, this Court has not overlooked the ruling in People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal was not without the express consent of the defendant, which ruling the prosecution now invokes in support of its appeal; but said ruling is not now controlling, having been modified or abandoned in subsequent cases wherein this Court sustained the theory of double jeopardy despite the fact that dismissal was secured upon motion of the accused. (Emphasis supplied) Also, the rule that a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal is not without the express consent of the defendant, has no application to a case where the dismissal, as here, is predicated on the right of a defendant to a speedy trial. (People vs. Tacneng, et al., G.R. No. L12082, April 30, 1959). (emphasis supplied) The above statements must be taken in the proper context and perspective. As previously explained, Bangalao, Ferrer, and even Labatete, did not actually abandon the doctrine of waiver in Salico (and not one of the said cases even implied the slightest departure from the doctrine of estoppel established in Acierto). In Diaz, Abao, Tacneng and Robles which are cited above, like in Cloribel, the dismissals therein, all sought by the defendants, were considered acquittals because they were all predicated on the right of a defendant to a speedy trial and on the failure of the Government to prosecute. Therefore, even if such dismissals were induced by the accused, the doctrines of waiver and estoppel were obviously inapplicable for these doctrines presuppose a dismissal not amounting to an acquittal. This Court, through Mr. Justice Marceliano Montemayor, held in People vs. Diaz (94 Phil. 714, March 30, 1954): Here the prosecution was not even present on the day of trial so as to be in a position to proceed with the presentation of evidence to prove the guilt of the accused. The case was set for hearing twice and the prosecution without asking for postponement or giving any explanation, just failed to appear. So the dismissal of the case, though at the instance of defendant Diaz may, according to what we said in the Gandicela case, be regarded as an acquittal. (emphasis supplied) A similar result was reached by this Court thru Mr. Justice Sabino Padilla, in People vs. Abano (97 Phil. 28, May 27, 1955), in this wise: After a perusal of the documents attached to the petition for a writ of certiorari, we fail to find an abuse of discretion committed by the respondent judge. He took pains to inquire about the nature of the ailment from which the complaining witness claimed she was suffering. He continued the trial three times, to wit: on 27 May, 1 and 12 June. The defendant was entitled to a speedy trial. When on 15 June, the last day set for the resumption of the trial, the prosecution failed to secure the continuance thereof and could not produce further evidence because of the absence of the complaining witness, the respondent judge was justified in dismissing the case upon motion of the defense ... The defendant was placed in jeopardy for the offense charged in the information and the annulment or setting aside of the order of dismissal would place him twice in jeopardy of punishment for the same offense. (emphasis supplied) Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor Endencia, speaking for a unanimous Court, stressed that ... when criminal case No. 1793 was called for hearing for the third time and the fiscal was not ready to enter into trial due to the absence of his witnesses, the herein appellees had the right to object to any further postponement and to ask for the dismissal of the case by reason of their constitutional right to a speedy trial; and if pursuant to that objection and petition for dismissal the case was dismissed, such dismissal ammounted to an acquittal of the herein appellees which can be invoked, as they did, in a second prosecution for the same offense. (emphasis supplied) And this Court proceeded to distinguish the case from People vs. Salico, thus:

We are fully aware that pursuant to our ruling in the case of Peo. v. Salico, 45 O.G. No. 4, 1765-1776, and later reiterated in Peo vs. Romero, L-4517-20, July 31, 1951, a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal was not without the express consent of the defendant. This ruling, however, has no application to the instant case, since the dismissal in those cases was not predicated, as in the case at bar, on the right of a defendant to a speedy trial, but on different grounds. In the Salico case, the dismissal was based on the ground that the evidence for the prosecution did not show that the crime was committed within the territorial jurisdiction of the court which, on appeal, we found that it was, so the case was remanded for further proceedings; and in the Romero case the dismissal was due to the non-production of other important witnesses by the prosecution on a date fixed by the court and under the understanding that no further postponement at the instance of the government would be entertained. In both cases, the right of a defendant to a speedy trial was never put in issue. (emphasis supplied) The gravamen of the foregoing decisions was reiterated in People vs. Robles (L-12761, June 29, 1959) where the trial court, upon motion of the defendant, dismissed the case on the ground that the failure of the prosecution to present its evidence despite several postponements granted at its instance, denied the accused a speedy trial. In rejecting the appeal of the Government, this Court held: In the circumstances, we find no alternative than to hold that the dismissal of Criminal Case No. 11065 is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense. In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held "that the dismissal here complained of was not truly a 'dismissal' but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial." (Emphasis supplied.) Considering the factual setting in the case at bar, it is clear that there is no parallelism between Cloribel and the cases cited therein, on the one hand, and the instant case, on the other. Here the controverted dismissal was predicated on the erroneous contention of the accused that the complaint was defective and such infirmity affected the jurisdiction of the court a quo, and not on the right of the accused to a speedy trial and the failure of the Government to prosecute. The appealed order of dismissal in this case now under consideration did not terminate the action on the merits, whereas in Cloribel and in the other related cases the dismissal amounted to an acquittal because the failure to prosecute presupposed that the Government did not have a case against the accused, who, in the first place, is presumed innocent. The application of the sister doctrines of waiver and estoppel requires two sine qua non conditions: first, the dismissal must be sought or induced by the defendant personally or through his counsel; and second, such dismissal must not be on the merits and must not necessarily amount to an acquittal. Indubitably, the case at bar falls squarely within the periphery of the said doctrines which have been preserved unimpaired in the corpus of our jurisprudence. ACCORDINGLY, the order appealed from is set aside. This case is hereby remanded to the court of origin for further proceedings in accordance with law. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ., concur. G.R. No. 103323 January 21, 1993 RAMON S. PAULIN, ANGELA F. PAULIN and JOSE BACHO, petitioners, vs. HON. CELSO M. GIMENEZ (In his capacity as Presiding Judge of RTC, Cebu City, Branch 5), HON. MAMERTO Y. COLIFLORES (In his capacity as Judge of the MTC of Talisay, Branch IX, Cebu); CASTRO BELME, and The PEOPLE OF THE PHILIPPINES, respondents. Mari V. Andres and Romarie G. Villonco for petitioners.

Garcia, Garcia, Ong, Vano & Associates for respondent Castro Belme Mabuyo.

MELO, J.: The petition before us arose from a November 10, 1989 incident when the jeep ridden by private respondent and Barangay Captain Castro Belme Mabuyo was overtaken by the Nissan Patrol ridden by herein petitioners, the spouses Dr. Ramon and Angela Paulin, smothering the former with dust. Irked by this incident, Mabuyo followed the Nissan Patrol until it entered the back gate of Rattan Originals in Tanke, Talisay Cebu. Inquiring from a nearby security guard as to who owns the Nissan Patrol, he was informed that it belonged to and was driven by petitioner Dr. Ramon Paulin. Later, while Mabuyo was investigating some problems of his constituents in Kilawan at Tanke, Cebu, Dr. Ramon Paulin and his wife, Angie, allegedly pointed their guns at Mabuyo while Jose Bacho, a companion of the spouses, acted as back-up. Mabuyo instructed one of the barangay tanods to call the police in Talisay and the rest to block the exit of the spouses and their lone companion. Sensing that they were outnumbered, the spouses put their guns down and upon the arrival of the police officers, they were brought to the police station. On the same date, Station Commander P/Lt. Ariel Palcuto filed a complaint for "grave threats," against the spouses Paulin and Bacho, herein petitioners, which was later docketed as Criminal Case No. 5204. On November 20, 1989, the station commander filed a complaint for, "grave threats and oral defamation," against private respondent Mabuyo, docketed as Criminal Case No. 5213. The cases were jointly tried and, on June 13, 1990, the Municipal Trial Court of Talisay, Cebu (Branch IX), acting on a motion of the spouses Paulin and Jose Bacho, dismissed Criminal Case No. 5204. On July 2, 1990, Mabuyo filed a, "Motion for Reconsideration," of the said dismissal order which the court granted in a resolution dated July 3, 1990. At the hearing of Criminal Case No. 5213 on July 5, 1990, petitioners vigorously sought the setting aside of the July 3, 1990 resolution in Criminal Case No. 5204, but the same was denied in another resolution. Not satisfied with the resolution of respondent Judge Mamerto Y. Coliflores, petitioners filed on July 31, 1990 a petition for "certiorari, prohibition, damages, with relief for preliminary injunction and the issuance of a temporary restraining order" with the Regional Trial Court of the Seventh Judicial Region, which was thereafter docketed as Special Civil Action No. CEB-9207 and later re-raffled to Branch 5 stationed in Cebu City presided over by respondent Judge Celso M. Gimenez, who dismissed the petition in a decision dated December 19, 1991. The decretal portion of the decision states: All the foregoing considered, for lack of merit and for being a prohibited pleading under the Rule on Summary Procedure, as revised, the instant petition is hereby dismissed. Public respondent is hereby ordered to proceed with the trial of Crim. Case Nos. 5204 and 5213 and to decide both cases on their merits within the period provided under the Revised Rule on Summary Procedure. The preliminary injunction heretofore issued dated May 9, 1991, is hereby lifted and set aside. (p. 118, Rollo.) Still not contented, petitioners have now resorted to the instant petition, arguing that (a) the decision of the municipal trial court dated June 13, 1990 dismissing the case against them was a judgment of acquittal, and may no longer be set aside without violating petitioners' right against double jeopardy; and (b) the regional trial court, in dismissing the petition in CEB9207 abused its discretion as it ignored petitioners' right against double jeopardy. The main issue to be resolved is whether or not the municipal trial court's dismissal of Criminal Case No. 5204 against petitioners precludes a subsequent reconsideration or reversal of such dismissal as the same would violate petitioners' right against double jeopardy. The secondary issue dwells on the applicability of the Rule on Summary Procedure prohibiting motions to dismiss and petitions for certiorari.

For double jeopardy to be validly invoked by petitioners, the following requisites must have been obtained in the original prosecution; a) a valid complaint or information; b) a competent court; c) the defendant had pleaded to the charge; and d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]: Caes v. IAC, 179 SCRA 54 [1989]). Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid down by this Court as follows: . . . However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent of the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant. (People v. Villalon, 192 SCRA 521 [1990], at p. 529.) For double jeopardy to attach, the dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [1949]), where Justice Felicisimo Feria stated: . . . when the case is dismissed, with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero (88 Phil. 299 [1951]), People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino (199 SCRA 610 [1991]). Petitioners insist that the June 13, 1990 decision of the Municipal Trial Court (MTC) is an acquittal since it was issued after it had allegedly considered the merits of the prosecution's evidence. In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit: . . . Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. . . . (at pp. 732-733.) The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was made as to the guilt or innocence of the petitioners. Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated: Sec. 14. Amendments. . . .

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Sec. 11 . . . In Section 11 of the same Rule, it is provided: When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Id., Sec. 11, Rule 119.) In the case at bar, the original case was dismissed without the proper information having been filed, it appearing that the proper charge should have been, "disturbance of public performance," punishable under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same penal code. Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on motion of the accused himself, to wit: 1. Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal. 2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.) Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case, especially so because when the municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present several witnesses. Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction. Hence, the violation of the State's right to due process raises a serious jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in disregard of the right is void for lack of jurisdiction. (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.) Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in the Bocar case, holding that the trial court exceeded it's jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby violating its fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot constitute a proper basis for a claim of double jeopardy.

In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the prosecution to due process. The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception of further evidence by the prosecution because it merely corrected its error when it prematurely terminated and dismissed the case without giving the prosecution the right to complete the presentation of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion. The Rule on Summary Procedure was correctly applied by the public respondents in this case. Petitioners argue that public respondents gravely abused their discretion in applying the provision prohibiting the filing of motions to dismiss and petitions for certiorari provided under the Rule on Summary Procedure. They claim that the prohibition under Section 15 of the Rule on Summary Procedure refers to motions to dismiss or to quash filed before the accused enters his plea. In any event, petitioners insist that they filed a demurrer to evidence which is not a prohibited pleading under the Rule on Summary Procedure. Demurrer to evidence due to its insufficiency pre-supposes that the prosecution had already rested its case (Sec. 15, Rule 119, 1985, Rules on Criminal Procedure). Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case. Petitioners, of course, maintain that all the prosecution's evidence was already on record since the affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that, therefore, no other evidence could have been introduced by the prosecution. Submission of the affidavits to the court does not warrant the interference that the prosecution had already finished presenting its evidence because the affiants are still required to testify and affirm the contents thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. The Rule on Summary Procedure states: Sec. 14. Procedure of Trial. Upon a plea of not guilty being entered, the trial shall immediately proceed. The affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. No witness shall be allowed to testify unless he had previously submitted an affidavit to the court in accordance with Sections 9 and 10 hereof. WHEREFORE, the petition is DISMISSED and the decision of the Regional Trial Court dated December 19, 1991 AFFIRMED. SO ORDERED. Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur. G.R. No. L-26376 August 31, 1966

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellant, vs. AURELIO BALISACAN, defendant and appellee.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and T. M. Dilig for plaintiff and appellant. Rolando de la Cuesta for defendant and appellee. BENGZON, J.P., J.: This is an appeal by the prosecution from a decision of acquittal. On February 1, 1965, Aurelio Balisacan was charged with homicide in the Court of First Instance of Ilocos Norte. The information alleged: That on or about December 3, 1964, in the Municipality of Nueva Era, province of Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab one, Leonicio Bulaoat, inflicting upon the latter wounds that immediately caused his death. CONTRARY TO LAW. To this charge the accused, upon being arraigned, entered a plea of guilty. In doing so, he was assisted by counsel. At his de oficio counsel's petition, however, he was allowed to present evidence to prove mitigating circumstances. Thereupon the accused testified to the effect that he stabbed the deceased in self-defense because the latter was strangling him. And he further stated that after the incident he surrendered himself voluntarily to the police authorities. Subsequently, on March 6, 1965, on the basis of the above-mentioned testimony of the accused, the court a quo rendered a decision acquitting the accused. As stated, the prosecution appealed therefrom. This appeal was first taken to the Court of Appeals. Appellant filed its brief on September 9, 1965. No appellee's brief was filed. After being submitted for decision without appellee's brief, the appeal was certified to Us by the Court of Appeals on July 14, 1966, as involving questions purely of law (Sec. 17, Republic Act 296). And on August 5, 1966, We ordered it docketed herein.1wph1.t The sole assignment of error is: THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE OFFENSE CHARGED DESPITE THE LATTER'S PLEA OF GUILTY WHEN ARRAIGNED. Appellant's contention is meritorious. A plea of guilty is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed by law under the circumstances. (People v. Ng Pek, 81 Phil. 563). In this case, the defendant was only allowed to testify in order to establish mitigating circumstances, for the purposes of fixing the penalty. Said testimony, therefore, could not be taken as a trial on the merits, to determine the guilt or innocence of the accused. In view of the assertion of self-defense in the testimony of the accused, the proper course should have been for the court a quo to take defendant's plea anew and then proceed with the trial of the case, in the order set forth in Section 3 of Rule 119 of the Rules of Court: SEC. 3. Order of trial. The plea of not guilty having been entered, the trial must proceed in the following order: (a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges. (b) The defendant or his attorney may offer evidence in support of the defense. (c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question.

(d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written, or partly written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case. In deciding the case upon the merits without the requisite trial, the court a quo not only erred in procedure but deprived the prosecution of its day in court and right to be heard. This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy." The present state of jurisprudence in this regard is that the above provision applies even if the accused fails to file a brief and raise the question of double jeopardy (People v. Ferrer, L9072, October 23, 1956; People v. Bao, L-12102, September 29, 1959; People v. De Golez, L-14160, June 30, 1960). The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is settled that the existence of a plea is an essential requisite to double jeopardy (People v. Ylagan, 58 Phil. 851; People v. Quimsing, L-19860, December 23, 1964). In the present case, it is true, the accused had first entered a plea of guilty. Subsequently, however, he testified, in the course of being allowed to prove mitigating circumstances, that he acted in complete self-defense. Said testimony, therefore as the court a quo recognized in its decision had the effect of vacating his plea of guilty and the court a quo should have required him to plead a new on the charge, or at least direct that a new plea of not guilty be entered for him. This was not done. It follows that in effect there having been no standing plea at the time the court a quo rendered its judgment of acquittal, there 1 can be no double jeopardy with respect to the appeal herein. Furthermore, as afore-stated, the court a quo decided the case upon the merits without giving the prosecution any opportunity to present its evidence or even to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental prerequisite, its action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy (People v. Cabero, 61 Phil. 121; 21 Am. Jur. 2d. 235; McCleary v. Hudspeth 124 Fed. 2d. 445). It should be noted that in rendering the judgment of acquittal, the trial judge below already gave credence to the testimony of the accused. In fairness to the prosecution, without in any way doubting the integrity of said trial judge, We deem it proper to remand this case to the court a quo for further proceedings under another judge of the same court, in one of the two other branches of the Court of First Instance of Ilocos Norte sitting at Laoag. Wherefore, the judgment appealed from is hereby set aside and this case is remanded to the court a quo for further proceedings under another judge of said court, that is, for plea by the defendant, trial with presentation of evidence for the prosecution and the defense, and judgment thereafter, No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Zaldivar, Sanchez and Castro, JJ., concur. Regala and Makalintal, JJ., took no part. G.R. No. L-54110 February 20, 1981 GENEROSO ESMEA and ALBERTO ALBA, petitioners, vs. JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Cebu City, respondents.

AQUINO, J.: This case poses the issue of whether the revival of a grave coercion case, which was provisionally dismissed (after the accused had been arraigned) because of complainant's failure to appear at the trial, would place the accused in double jeopardy, considering their constitutional right to have a speedy trial.

Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five thousand pesos from the bank and to give that amount to the accused because the priest lost it in a game of cards. The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the telegraphic request of Father Tibudan the case was reset on December 13, 1978. Because Esmea and Alba were not duly notified of that hearing, they were not able to appear. The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the arraignment because complainant Father Tibudan requested the transfer of the hearing to another date. In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last time on August 16, 1979, at 8:30 o'clock in the morning" (p. 21, Rollo). When the case was called on that date, the fiscal informed the court that the private prosecutor received from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmea and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy trial. Their counsel told the court: " ... we are now invoking the constitutional right of the accused to a speedy trial of the case. ... We are insisting on our stand that the case be heard today; otherwise, it will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused particularly accused Alberto Alba and Generoso Esmea (pp. 50 and 52, Rollo). Respondent judge provisionally dismissed the case as to the four accused who were present because it "has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with his witness. The court noted that there was no medical certificate indicating that the complainant was really sick. The case was continued as to the fifth accused who did not appear at the hearing. His arrest was ordered (p. 23, Rollo). Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the case. He attached to his motion a medical certificate under oath attesting to the fact that Father Tibudan was sick of influenza on August 16, 1979. The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the impress of finality and, therefore, the case could be revived without the filing of a new information (Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175). The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979 (p. 26, Rollo). On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence, the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would place them in double jeopardy. The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had appeared in court several times but the hearing was not held. The court denied the motion to dismiss. That order denying the motion to dismiss is assailed in this special civil action of certiorari. The Solicitor General agrees with the petitioners that the revival of the case would place the accused in double jeopardy since the provisional dismissal of the case without their consent was in effect an acquittal. The rule on double jeopardy (non bis in Idem or not twice for the same) is found in section 22, Article IV Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which provides as follows: SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the

defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant 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. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is 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 included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or termination of the case without his consent precludes his subsequent indictment for the same offense as defined in section 9. In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal of the grave coercion case. That provisional dismissal would not have place the petitioners in jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the case. It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the accused had already been arraigned to require the accused and his counsel to sign the minutes of the session or any available part of the record to show the conformity of the accused or his lack of objection to the provisional dismissal. The judge specifies in the order of provisional dismissal that the accused and his counsel signified their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes jeopardy from attaching to the dismissal. The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy trial. The fiscal was not ready because his witness was not in court. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714-717). The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilia vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao 97 Phil. 28; People vs. Labatete, 107 Phil. 697). WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case against the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss, are reversed and set aside. No costs.

SO ORDERED. G.R. No. 44205 February 16, 1993 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. GREGORIO G. PINEDA, Branch XXI, Court of First Instance of Rizal, and CONSOLACION NAVAL, respondents. The Solicitor General for petitioner. Salonga. Ordoez, Yap & Associates for private respondent.

MELO, J.: When Consolacion Naval, the herein private respondent, was separately accused of having committed the crime of estafa in Criminal Case No. 15795 before Branch 19, and of falsification in Criminal Case No. 15796 before Branch 21, both of the then Court of First Instance of Rizal of the Seventh Judicial District stationed at Pasig, Rizal, she sought the quashal of the latter charge on the supposition that she is in danger of being convicted for the same felony (p. 16, Record). Her first attempt in this respect did not spell success (p. 34, Record) but the Honorable Gregorio G. Pineda, Presiding Judge of Branch 21 was persuaded to the contrary thereafter on the belief that the alleged falsification was a necessary means of committing estafa (p. 149, Record). It is this perception, along with the denial of the motion for re-evaluation therefrom (p. 66, Record) which the People impugns via the special civil action for certiorari now before Us. The indictment for estafa against Consolacion Naval and her co-accused Anacleto Santos, reads: That on or about March 23, 1973 and soon thereafter, in the municipality of Pasig, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, by means of deceit and with intent to defraud, knowing that their parcel of land among others, situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal, and more particularly described as follows, to wit: OJA No. 5851 Isang lagay na lupa (bulubundukin) na nasa lugar ng Malaking Bundok, Bo. Dolores, Taytay, Rizal, na may lawak na 14,615.5 metrong parisukat na may tasang P580.00 at may hanggahang gaya ng sumusunod: Hilagaan-Hermogenes Naval (now part of Rev. Tax Dec. 9284; Silanganan-Nicolas del Rosario (now Jaime del Rosario); TimuganEduvigis, Consolacion, Apolinaria, Naval; Kanluran-Creek (sapang bato) was already sold and encumbered to one Edilberto V. Ilano as can be gleaned from a document entitled "Kasulatan ng Bilihan Ng Lupa Na May Pasubali O Condicion" sometime on August 12, 1969; and the latter having paid the partial amount of P130,850.00 to the herein accused and without informing said Edilberto V. Ilano, the herein accused Consolacion Naval executed and filed an Application for Registration over the same parcel of land among others, which document is designated as LRC Case No. N-7485, "Consolacion, Eduvigis and Apolinaria, all surnamed Naval" of the Court of First Instance of Rizal, Pasig, Rizal, as a result of which the Presiding Judge of Branch XIII to which said case was assigned issued Original Certificate of Title No. 9332 in her name, which area was reduced to 10,075 sq. meters as appearing in item No. 2 in said OCT and subsequently referred to in TCT No. 370870 in favor of said accused Naval through Rodolfo Mendoza, sold more than one-half (1/2) of said parcel of land in her name in favor of Maria, Anacleto, Carmelo, Mariano, Cecilia and Teodorica, all surnamed Santos and Iluminada Tambalo, Pacita Alvarez and Pedro Valesteros which sales were registered and annotated with the Register of Deeds of Rizal at Pasig, Rizal; and likewise a portion of which was partitioned to herein accused Anacleto Santos; that despite repeated

demands the accused refused and still refuse to return said amount and/or fulfill their obligations under said "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion", to the damage and prejudice of said Edilberto V. Ilano in the aforementioned amount of P130,850.00. (pp. 44-45, Rollo) while the charge for falsification narrates: That on or about the 17th day August, 1971, in the municipality of Pasig, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then private individual did then and there wilfully, unlawfully and feloniously falsify a public document by making untruthful statements in a narration of facts, committed as follows: the said accused on August 17, 1971, executed a document entitled "Application For Registration" for parcels of land located at Taytay, Rizal, to the effect that "She is the exclusive owner in fee simple of a parcel of land situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal with Psu-248206 and that she "does not know any mortgage or encumbrance of any kind whatsoever affecting said land or that any person has estate or interest therein, legal or equitable, in possession remainder, reversion or expectancy", as a result of which the Court in its Decision of March 22, 1972 declared the herein accused the true and absolute owner of said parcel of land free from all liens and encumbrances of any nature, when in truth and in fact the herein accused has already sold and encumbered to one Edilberto V. Ilano said parcel of land referred to above as can be gleaned from a document entitled "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion" dated August 12, 1969 and said Edilberto V. Ilano has already paid partial amount of P130,850.00 to the herein accused. Contrary to law. (p. 2, Rollo) The confluence of the foregoing assertions disclose that Consolacion Naval sold the subject realty on August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About two years later, or on August 17, 1971, an application for registration under the Land Registration Act was submitted by Consolacion wherein she stated that she owned the same lot and that it was unencumbered. For those reasons, the corresponding title was issued in her name but she allegedly disposed of the half portion of the property to nine other persons. These antecedents spawned the simultaneous institution of the charges on September 17, 1975. On October 28, 1975, private respondent Consolacion Naval moved to quash the information for falsification, premised, among other things, on the apprehension that she is in danger of being condemned for an identical offense. The following day, Naval pleaded not guilty to the charge levelled against her for falsification (p. 22, Record) and on December 22, 1975, the court a quo denied her motion to quash (p. 34, Record). As earlier intimated, the magistrate below thereafter reconsidered his order of denial which gave rise to the corresponding unsuccessful bid by the People for reinstatement of the information for falsification. Hence the instant petition, which practically reiterates the same disqualification put forward in the proceedings below (p. 7, Petition; p. 47, Rollo). The issue of whether the court below correctly quashed the information for falsification must be answered in the negative for the following reasons: 1. Assuming in gratia argumenti that falsification was indeed necessary to commit estafa, which ordinarily constitutes a complex crime under Article 48 of the Revised Penal Code and thus susceptible to challenge via a motion to quash under Section 2 (e), Rule 117 vis-a-vis Section 12, Rule 110 (Moran, Rules of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was serious error on the part of the magistrate below to have appreciated this discourse in favor of private respondent since this matter was not specifically raised in the motion to quash filed on October 28, 1975 (p. 16, Record). It was only in the motion for reconsideration where private respondent pleaded this additional ground after her motion to quash was denied (p. 39, Record). The legal proscription against entertaining another saving clause to abate the charge for falsification is very explicit under Section 3, Rule 117 of the Revised Rules of Court:

Sec. 3. Motion to quash Form and contents Failure to state objection Entry of record Failure to record. The motion to quash shall be in writing signed by the defendant or his attorney. It shall specify distinctly the ground of objection relied on and the court shall hear no objection other than that stated in the motion. It shall be entered of record but a failure to so enter it shall not affect the validity of any proceeding in the case. It must be observed that the denial of the motion to quash was re-examined not in the light of "res judicata dressed in prison grey" but on the aspect of whether falsification was supposedly perpetrated to commit estafa. The course of action pursued by the trial court in this context may not even be justified under Section 10 of Rule 117 which says that: Sec. 10. Failure to move to quash Effect of Exceptions. If the defendant does not move to quash the complaint or information before he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash except when the complaint or information does not charge an offense, or the court is without jurisdiction of the same. If, however, the defendant learns after he has pleaded or has moved to guash on some other ground that the offense for which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy, the court may in its discretion entertain at any time before judgment a motion to quash on the ground of such pardon, conviction, acquittal or jeopardy. for the simple reason that the theory of a single crime advanced by private respondent in her belated, nay, "second" motion to quash couched as motion for reconsideration is not synonymous with "pardon, conviction, acquittal or jeopardy". In effect, therefore, respondent judge accommodated another basis for the quashal of the information albeit the same was not so stated in the motion therefor. This should not have been tolerated because it is anathema to the foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People, 49 O.G. 967). This caveat is now amplified in Section 8 of Rule 117 as amended, thus: Sec. 8. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule. At any rate, it is virtually unacceptable to suppose that private respondent concocted the sinister scheme of falsification in 1971 precisely to facilitate the commission of estafa in 1973 such that both crimes emanated from a single criminal impulse. Otherwise, an unfounded verisimilitude of this nature will run afoul with what this Court already observed in People vs. Penas (68 Phil. 533 [1939]; 1 Aquino, Revised Penal Code, 1976 Ed., p. 574) to the effect that the eleven estafas through falsification which the same accused therein committed between November 24, 1936 and January 3, 1937 including the falsification which he committed on January 8, 1937 were considered distinct offenses, not one complex crime, because they were committed on different dates, not to mention the discrepancy in places where they were accomplished. In the same breath, it necessarily follows that the suspended hiatus, between 1971 and 1973 in the case at bar will not afford the occasion to buttress the unwarranted submission that the first is an integral part of or intimately interwoven with the second felony. A simple perusal of the two informations will disclose, and this cannot be gainsaid, that the recitals thereof radically differ with each other. The indictment for falsification allegedly perpetrated in 1971 was levelled against private respondent because of the pretense in the application for registration of her exclusive dominion over a parcel of land notwithstanding the previous sale of the same lot in 1969 to Edilberto V. Ilano. By contrast, the inculpatory aspersions against private respondent in 1973 for estafa have their roots in the overt act of disposing the same piece of lot in favor of other persons subsequent to the conveyance in favor of Edilberto V. Ilano in 1969. Indeed, the intent to prevaricate on a piece of document for the purpose of securing a favorable action for registration within the context of Article 171 (4) in conjunction with Article 172 of the Revised Penal Code is definitely distinct from the perceived double sale contemplated by the first paragraph under Article 316 of the same code. 2. It was similarly fallacious for the lower court to have shared the notion that private respondent is in danger of being convicted twice for the same criminal act, a circumstance recognized under Section 2(h) Rule 117 of the Old Rules as suggested in the motion to quash, because this plea is understood to presuppose that the other case against private respondent has been dismissed or otherwise terminated without her express consent, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant had pleaded to the charge (People of the Philippines versus Hon. Maximiano C. Asuncion,

et al., G.R. Nos. 83837-42, April 22, 1992; Section 7, Rule 117, 1985 Rules on Criminal Procedure, as amended). In the Asuncion case, Justice Nocon said that: . . . 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 had pleaded to the charge. Withal, the mere filing of two informations charging the same offense is not an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused (People vs. Miraflores, 115 SCRA 586 [1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]). In People vs. Miraflores (supra), the accused therein, after he had pleaded to the charge of multiple frustrated murder in Criminal Case No. 88173 and subsequent to his arraignment on a separate charge of Murder in Criminal Case No. 88174, invoked the plea of double jeopardy but Justice Barredo who spoke for the Court was far from convinced: But the more untenable aspect of the position of appellant is that when he invoked the defense of double jeopardy, what could have been the first jeopardy had not yet been completed or even began. It is settled jurisprudence in this Court that the mere filing of two informations or complaints charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his consent. (Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs. Military Commission No. 21, No. L-46366, March 8, 1978, Buscayno vs. Military Commissions Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19, 1981, 109 SCRA 273). Moreover, it appears that private respondent herein had not yet been arraigned in the previous case for estafa. Thus, there is that other missing link, so to speak, in the case at bar which was precisely the same reason utilized by Justice Davide, Jr. in Lamera vs. Court of Appeals (198 SCRA 186 [1991]) when he brushed aside the claim of double jeopardy of the accused therein who was arraigned in the previous case only after the judgment of conviction was promulgated in the other case. The ponente cited a plethora of cases in support of the proposition that arraignment of the accused in the previous case is a condition sine qua non for double jeopardy to attach (at page 13: People vs. Ylagan, 58 Phil. 851; People vs. Consulta, 70 SCRA 277; Andres v. Cacdac, 113 SCRA 216; People vs. Bocar, et al., 132 SCRA 166; Gaspar vs. Sandiganbayan, 144 SCRA 415) and echoed the requisites of legal jeopardy as announced in People vs. Bocar thus: Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (at p. 193.) To be sure, Chief Justice Moran said in his treatise on the subject under consideration that: Where there is no former conviction, acquittal, dismissal or termination of a former case for the same offense, no jeopardy attaches. (Comments on the Rules of Court, by Moran, Vol. 4, 1980 Ed., p. 281) Of course, We are not unmindful of the erudite remarks of Mr. Justice Florenz D. Regalado, in his Remedial Law Compendium that: It would now appear that prior conviction or acquittal in the first case, as long as the accused had entered his plea therein is no longer required in order that the accused may move to quash a second prosecution for the same offense on the ground of double jeopardy. (Volume 2, 1988 Edition, page 323; 339) xxx xxx xxx

Jeopardy attaches from the entry of his plea at the arraignment (People vs. City Court of Manila, et al., L3642, April 27, 1983). (Vide page 327). The sentiments expressed in this regard by Our distinguished colleague which rest on the ruling of this Court in People vs. City Court of Manila, Branch XI (121 SCRA 637 [1983], cited by Regalado, Vide, at p. 339 to the effect that jeopardy would already attach when the accused enters his plea due to the obiter dictum of the ponente in that case, based on the following factual backdrop: The question presented in this case is whether a person who has been prosecuted for serious physical injuries thru reckless imprudence and convicted thereof may be prosecuted subsequently for homicide thru reckless imprudence if the offended party dies as a result of the same injuries he had suffered. xxx xxx xxx In the case at bar, the incident occurred on October 17, 1971. The following day, October 18, an information for serious physical injuries thru reckless imprudence was filed against private respondent driver of the truck. On the same day, the victim Diolito de la Cruz died. On October 20, 1972, private respondent was arraigned on the charge of serious physical injuries thru reckless imprudence. He pleaded guilty, was sentenced to one (1) month and one (1) day of arresto mayor, and commenced serving sentence. On October 24, 1972, an information for homicide thru reckless imprudence was filed against private respondent. On November 17, 1972, the City Court of Manila, upon motion of private respondent, issued an order dismissing the homicide thru reckless imprudence case on the ground of double jeopardy. where it was opined, thus: Well-settled is the rule that one who has been charged [implying that there is no need to show previous conviction, acquittal, or dismissal of a similar or identical charge] with an offense cannot be charged again with the same or identical offense though the latter be lesser or greater than the former. (Emphasis supplied.) From the conclusion thus reached, it would appear that one simply "charged" may claim possible jeopardy in another case. However, a closer study of the case adverted to reveals that the ponente may have overlooked the fact that the accused therein was not only charged, but he actually admitted his guilt to the charge of serious physical injuries through reckless imprudence and more importantly, he was convicted of such crime and commenced serving sentence. Verily, there was no occasion in said case to speak of jeopardy being properly invoked by a person simply charged with an offense if he is again charged for the same or identical offense. It may be observed that in City Court of Manila the accused therein pleaded on the first offense of which he was charged and subsequently convicted, unlike in the scenario at bar where private respondent entered her plea to the second offense. But the variance on this point is of no substantial worth because private respondent's plea to the second offense is, as aforesaid, legally incomplete to sustain her assertion of jeopardy for probable conviction of the same felony, absent as there is the previous conviction, acquittal, or termination without her express consent of the previous case for estafa, and it being plain and obvious that the charges did not arise from the same acts. In short, in order for the first jeopardy to attach, the plea of the accused to the charge must be coupled with either conviction, acquittal, or termination of the previous case without his express consent thereafter. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]). Justice Oscar Herrera, in his book "Remedial Law" enumerates the elements constitutive of first jeopardy, to wit: 1. Court of competent jurisdiction; 2. Valid complaint or information; 3. Arraignment and a

4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853) 5. The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Declaro, G.R. No. 64362, February 9, 1989, 170 SCRA 142; See also People vs. Santiago, 174 SCRA 143; People vs. Gines, G.R. No. 83463, May 27, 1991, 197 SCRA 481; Que vs. Cosico, 177 SCRA 410 [1989]; Caes vs. Intermediate Appellate Court, 179 SCRA 54; Lamera vs. Court of Appeals, 198 SCRA 186 [1991]). (Herrera, Remedial Law, 1992 Ed., Volume 4, p. 417). Citing cases, both old and of recent vintage, Justice Herrera continues to submit the idea that: The first jeopardy is said to have validly terminated upon conviction, acquittal or dismissal of the case or otherwise terminated without the express consent of defendant (People vs. Garcia, 30 SCRA 150; People vs. Ledesma, 73 SCRA 77; People vs. Pilpa, 79 SCRA 81; Buscayno vs. Military Commission, 109 SCRA 273; People vs. Cuevo, 104 SCRA 319; Galman, et al. vs. Sandiganbayan, G.R. No. 72670, September 12, 1987.) (Vide, at page 423). In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin declared in no uncertain terms: . . . In the case before Us, accused-appellee was charged with estafa in Criminal Case No. 439 before a competent court under a valid information and was duly convicted as charged. He was therefore placed in legal jeopardy for the crime of estafa in Criminal Case No. 439 for having failed to turn over the proceeds of the sale of an Avegon radio in the amount of P230.00 to the offended party. . . . (at p. 81) The same observation was made by then Justice, later Chief Justice Aquino in People vs. Pilpa (79 SCRA 81 [1977]): In synthesis, there is former jeopardy when in the first case there was a valid complaint or information filed in a court of competent jurisdiction, and after the defendant had pleaded to the charge, he was acquitted or convicted or the case against him was terminated without his express consent (People vs. Consulta, L41251, March 31, 1976, 70 SCRA 277; People vs. Ylagan, 58 Phil. 851, 853). (86) At any rate, and inasmuch as this Court has spoken quite recently in People vs. Asuncion, (G.R. Nos. 83837-42, April 22, 1992), the ambiguity stirred by the imprecise observation in People vs. City Court of Manila, a 1983 case, can now be considered modified in that a prior conviction, or acquittal, or termination of the case without the express acquiescence of the accused is still required before the first jeopardy can be pleaded to abate a second prosecution. While We are at a loss as to the status of the progress of the estafa case on account of private respondent's apathy towards Our order for the parties herein to "MOVE IN THE PREMISES" (p. 125, Rollo) which information could substantially affect the results of this case, from all indications it appears that the estafa case has not yet been terminated. WHEREFORE, the petition is GRANTED and the Orders of respondent judge dated January 23, 1976 quashing the information for falsification, and March 23, 1976 denying the People's motion for reconsideration therefrom are hereby REVERSED and SET ASIDE. Let the information for falsification be reinstated and this case be remanded to the lower court for further proceedings and trial. No special pronouncement is made as to costs. SO ORDERED. G.R. No. L-41863 April 22, 1977 PEOPLE OF THE PHILIPPINES, and ASST. PROV'L FISCAL F. VISITACION, JR., petitioners, vs. HONORABLE MIDPANTAO L. ADIL, Presiding Judge, Court of First Instance of Iloilo, Branch II, and MARGARITO FAMA, JR., respondents. Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for petitioners.

Fama & Jimenea for private respondent.

BARREDO, J: Petition for certiorari; to set aside the orders of respondent judge dated September 22, 1975 and October 14, 1975 dismissing Criminal Case No. 5241 of the Court of First Instance of Iloilo against private respondent Margarito Fama, Jr., said dismissal being predicated on the ground of double jeopardy, in view of the dismissal of a previous charge of slight physical injuries against the same respondent for the same incident by the Municipal Court of Janiuay, Iloilo in Criminal Case No. 3335, notwithstanding that in the information in the first-mentioned case, it was alleged that the injuries sustained by the offended party, aside from possibly requiring medical attendance from 6 to 9 days barring complications", as was alleged in the information in Criminal Case No. 3335, had left "a permanent sear and deform(ed) the right face of (said offended party) Miguel Viajar." The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335) was as follows: That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino Nobleza St., Municipality of January, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, while armed with a piece of stone, did then and there willfully, unlawfully and feloniously, assault, attack and use personal violence upon one Miguel Viajar by then hurling the latter with a stone, hitting said Miguel Viajar on the right cheek, thereby inflicting physical injuries which would have required and will require medical attendance for a period from 5 to 9 days barring complication as per medical certificate of the physician hereto attached. CONTRARY TO LAW. (Pp. 93-94, Record) Arraigned on July 7, 1975, the accused entered a plea of not guilty. Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with serious physical injuries arising from the same incident alleged in above Criminal Case No. 3335. After conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of First Instance of Iloilo an information, but only against respondent Fama Jr., (Case No. 5241) for serious physical injuries as follows: That on or about April 12, 1975, in the Municipality of January, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the said accused, with deliberate intent, and without any justifiable motive, armed with pieces of stone did then and there willfully, unlawfully and feloniously attack, assault and throw pieces of stone at Miguel Viajar, hitting him on the lower right eye which would heal from five (5) to nine (9) days barring complications but leaving a permanent scar and deforming on the right face of said Miguel Viajar. CONTRARY TO LAW. (Pp. 94-95, Record) On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No. 5241, claiming that since he was already charged and pleaded not guilty in Criminal Case No. 3335, he would be in double jeopardy, if Case No. 5241 were to be prosecuted. This motion was opposed by the Fiscal and the Court required both parties to file their respective memorandum on the issue of double jeopardy. In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case No. 3335, but the Municipal Court did not act on said motion. Instead, the case was set for hearing, and in view of the postponements asked by the Fiscal in order to await the resolution of the issue of double jeopardy in Case No. 5241, on September 11, 1975, the following order was entered: Under our democratic and constituted system of government litigants before our courts of justice, plaintiffs and defendants, complainants and accused are entitled to the equal protection of our laws. More is an accused, the trial of his case has been repeatedly postponed for several times by this Court in the exercise

of its sound discretion at the instance of the prosecution. So, when this case was called for hearing on the afternoon of September 1, 1975 the accused through counsel vigorously objected to another postponement and moved for the dismissal of the case against him. To grant another postponement as sought by the Fiscal against the vehement, strong and vigorous objection of the accused is to the mind of the Court, no longer an exercise of sound discretion consistent with justice and fairness but a clear and palpable abuse of discretion amounting to a serious denial to, and a grave violation of, the right of the accused to a speedy trial to which he is rightfully entitled to under Section 16 of Article IV, (Bill of Rights) of the Philippine Constitution. IN VIEW OF THE FOREGOING, the above-entitled case is hereby ordered dismissed. The Cash Bond posted by the accused is hereby ordered cancelled and released (Pp. 96-97, Record.) Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in Case No. 5241 inviting attention to the above dismissal order and reiterating his theory of double jeopardy. On September 22, 1975, respondent court issued the impugned order sustaining the contention of double jeopardy and dismissing Case No. 5241. The prosecution's motion for reconsideration was denied in the other assailed order of October 14, 1975, respondent judge relying on the ruling laid down in Peo. vs. Silva, 4 SCRA 95. In brief, what happened here was that when Case No. 3335 was filed in the inferior court of January, the charge against Fama Jr. had to be for slight physical injuries only, because according to the certification of the attending physician, the injuries suffered by the offended party Viajar, would require medical attendance from 5 to 9 days only "baring complications." Indeed, when the complaint was filed on April 15, 1975, only three days had passed since the incident in which the injuries were sustained took place, and there were yet no indications of a graver injury or consequence to be suffered by said offended party. Evidently, it was only later, after Case No. 3335 had already been filed and the wound on the face of Viajar had already healed, that the alleged deformity became apparent. Now, expert evidence is not needed for anyone to understand that the scar or deformity that would be left by a wound on the face of a person cannot be pre-determined. On the other hand, whether or not there is actually a deformity on the face of Viajar is a question of fact that has to be determined by the trial court. The only issue We are to resolve here is whether or not the additional allegation of deformity in the information in Case No. 5241 constitutes a supervening element which should take this case out of the ruling in People vs. Silva cited by respondent court. In Silva, there was no question that the extent of the damage to property and physical injuries suffered by the offended parties therein were already existing and known when the prior minor case was prosecuted, What is controlling then in the instant case is Melo vs. People, 85 Phil. 766, in which it was held: This rule of identity does not apply, however, when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case there is no possibility for the accused during the first prosecution, to be convicted for an offense that was then inexistent Thus, where the accused was charged with physical injuries and after conviction the injured dies, the charge of homicide against the same accused does not put him twice in jeopardy. So also is People vs. Yorac, 42 SCRA, 230, to the following effect: Stated differently, if after the first. prosecution 'a new fact supervenes on which defendant may be held liable, resulting in altering the character of the crime and giving rise to a new and distinct offense, 'the accused cannot be said to be in second jeopardy if indicted for the new offense. In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a supervening fact. Referring to the decision in People vs. Manolong, 85 Phil. 829, We held: No finding was made in the first examination that the injuries had caused deformity and the loss of the use of the right hand. As nothing was mentioned in the first medical certificate about the deformity and the loss of the use of the right hand, we presumed that such fact was not apparent or could have been discernible at the time the first examination was made. The course (not the length) of the healing of an injury may not be determined before hand; it can only be definitely known after the period of healing has ended. That is the

reason why the court considered that there was a supervening fact occuring since the filing of the original information. In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private respondent Fama Jr., cannot hold. It was, therefore, a grave error correctible by certiorari for respondent court to have dismissed Criminal Case No. 5241. ACCORDINGLY, the orders of September 22, 1975 and October 14, 1975 herein complained of are hereby set aside and respondent court is ordered to proceed with the trial and judgment thereof according to law. Costs against private respondent Fama Jr. Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur. G.R. No. L-45129 March 6, 1987 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.

FELICIANO, J.: In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration. On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current 2 consumption in the electric meter of the said electric [ice and cold storage] plant." During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to 3 lower or decrease the readings of his electric meter. On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not 4 exceed thirty (30) days, or both, at the discretion of the court." This information reads as follows: The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows: That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering the

period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency. The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975. Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows: That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of Batangas, in the aforementioned sum of P41,062.16. The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash. In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, was not simply one of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices, etc." (Emphasis supplied), it was meant to include the P 41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations. When, therefore, he was arraigned and he faced the indictment before the City Court, he had already been exposed, or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16. (Emphases and parentheses in the original)

A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976. On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People. The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance which read as follows: Section 3.-Connection and Installation (a) x x x (b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance. would show that: The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of 5 electric fluid which is already covered by the Revised Penal Code. The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid. In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are: 1. That personal property be taken; 2. That the personal property (taken) belongs to another; 3. That the taking be done with intent of gain; 4. That the taking be done without the consent of the owner; and 5. That the taking be accomplished without violence against or intimidation of persons or force upon things.
6

The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: 1. Turning back the dials of the electric meter;

2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption; 3. Under-reading of electrical consumption; and 4. By tightening the screw of the rotary blade to slow down the rotation of the same. The petitioner concludes that: The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first 8 inforrnation The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved which reads as follows: 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 9 same act. (Emphasis supplied; Article IV (22), 1973 Constitution) and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11 In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: To begin with, the crime of damage to property through reckless driving with which Diaz stood charged in the court of first instance is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said Automobile Law. Hence from the view point of Criminal Law, as distinguished from political or Constitutional Law they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original)
7

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act provided that he is charged with different offenses, or the offense charged in one case is not included in or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein. Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only where an Identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities though one be subordinate to the other and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13 The question of Identity or lack of Identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of Identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as

set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute). In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices. It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harrassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951): While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or subtracting essential elements. Under the theory of appellant, the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin. (88 Phil. at 53; emphases supplied) By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15 It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence. WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs. SO ORDERED.