[G.R. No. 113930. March 5, 1996.] PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR.

, LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as Members of the Department of Justice "349" Committee, and the CITY PROSECUTOR OF QUEZON CITY, respondents.ROBERTO DELGADO, petitioner-intervenor.

Poblador Bautista & Reyes for petitioner Paul G. Roberts, Jr. De Jesus & Associates for other petitioners. Laqui Palma Tiuseco Contreras Law Office, Gregorio Fabros, and Jose A. Espina for private respondents. The Solicitor General for public respondent. Chavez Laureta & Associates for Intervenor.
SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; RULING IN CRESPO VS. MOGUL MERELY ADVISED THE DOJ TO, "AS FAR AS PRACTICABLE, REFRAIN FROM ENTERTAINING A PETITION FOR REVIEW OR APPEAL FROM THE ACTION OF THE FISCAL, WHEN THE COMPLAINT OR INFORMATION HAS ALREADY BEEN FILED IN COURT." There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigation prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court." More specifically, it stated: In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the

action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. 2.ID.; ID.; ISSUANCE OF A WARRANT OF ARREST; CONSTITUTIONAL BASIS; WHO MAY ISSUE; PROCEDURE. Section 2, Article III of the present Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Court (MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), in cases falling within their exclusive original jurisdiction; in cases covered by the rule on summary procedure where the accused fails to appear when required; and in cases filed with them which are cognizable by the Regional Trial Courts (RTCs); and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs, and MCTCs. As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. As to the second, this Court held in Soliven vs. Makasiar that the judge is not required to personally examine the complainant and the witnesses, but [f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy supports this procedure, "otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts." It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting documents. 3.ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN CASE AT BAR. Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the

information upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the certification of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among others things, the issuance of warrants of arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor's finding of probable cause. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest "after June 21, 1993." It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic. 4.ID.; ID.; DEPARTMENT OF JUSTICE DISMISSAL OF THE PETITION FOR REVIEW; AN ACT OF GRAVE ABUSE OF DISCRETION; CASE AT BAR. The Department of Justice committed grave abuse of discretion when it executed on 23 July 1993 a unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end, by dismissing the petition for review. It dismissed the petition simply because it thought that a review of the Joint Resolution would be an exercise in futility in that any further action on the part of the Department would depend on the sound discretion of the trialcourt, and that the latter's denial of the motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or was, in effect, a signal to the Department that the determination of the case is within the court's exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason adduced by the respondent judge for his denial of the motions to suspend proceedings and hold in abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo. 5.ID.; ID.; ID.; DID NOT RENDER MOOT AND ACADEMIC THE ISSUE OF WHETHER OR NOT THERE WAS AN IMPROPER ISSUANCE OF THE WARRANTS OF ARREST. If the only issue before the Court of Appeals were the denial of the petitioners' Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP NO.

31226 on the basis of the dismissal by the DOJ of the petition for review might have been correct. However, the petition likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in ordering the issuance of warrants of arrest despite want of basis. The DOJ's dismissal of the petition for review did not render moot and academic the latter issue. 6.ID.; ID.; ID.; CASE AT BAR, AN EXCEPTION TO THE GENERAL RULE THAT CRIMINAL PROSECUTIONS MAY NOT BE RESTRAINED OR STAYED BY INJUNCTION. There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-43198 and several thousands more in different parts of the country who are similarly situated as the former for being holders of "349" Pepsi crowns, any affirmative holding of probable cause in the said case may be cause or provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premiums on bailbonds and for travels from one court to another throughout the length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions a situation already long conceded by this Court to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by injunction. NARVASA, C.J., separate opinion: THE DETERMINATION OF WHETHER OR NOT PROBABLE CAUSE EXISTS TO WARRANT THE PROSECUTION OF CRIMES IN COURT SHOULD BE CONSIGNED AND ENTRUSTED TO THE DEPARTMENT OF JUSTICE, AS REVIEWER OF THE FINDINGS OF THE PUBLIC PROSECUTORS CONCERNED. C.J. Narvasa agrees with the disposition of the case proposed by ponente, that the determination of whether or not probable cause exists to warrant the prosecution in court of the petitioners should be consigned and entrusted to the Department of Justice, as reviewer of the findings of the public prosecutors concerned. In this special civil action, this Court is being asked to assume the function of a public prosecutor. It is being asked to determine whether probable cause exists as regards petitioners. More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as to whether or not it suffices "to engender a well

founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial." It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory, and cannot lead to a final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime. Whether or not that function has been correctly discharged by the public prosecutor i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case is a matter that the trial court itself does not and may not be compelled to pass upon. There is no provision of law authorizing an aggrieved party to a petition for such a determination. It is not for instance permitted for an accused, upon the filing of an information against him by the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quashal or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth adequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused. Besides, the function that this Court is asked to perform is that of a trier of facts which it does not generally do, and if at all, only exceptionally, as in an appeal in a criminal action where the penalty of life imprisonment, reclusion perpetua, or death has been imposed by a lower court (after due trial, of course), or upon a convincing showing of palpable error as regards a particular factual conclusion in the judgment of such lower court. What, in sum, is being attempted in this Court is to reverse the established and permanent order of things for the Court to act before trial and judgment by a lower tribunal; to require it to perform the role of trier of facts which, to repeat, it does not generally do, the issues properly cognizable by it being normally limited exclusively to questions of law; to make it do something that even the trial court may not do at this stage of the proceedings itself to determine the existence of probable cause; to usurp a duty that exclusively pertains to an executive official to conduct a preliminary investigation or review the findings and conclusions of the public prosecutor who conducted one. The matter is not within the review jurisdiction of the Court as this is clearly specified in the Constitution, a jurisdiction which even the Congress may not increase "without . . . (the Court's) advice and concurrence." From the

pragmatic aspect, it is also an undesirable thing, for the result could well be an increase the already considered work load of the Court. Furthermore, any judgment of this Court in this action would be inconclusive, as above intimated. It would not necessarily end the case. It would not, for instance, prevent the complaining witnesses from presenting additional evidence in an effort to have the information ultimately filed in the proper court against the accused, or the respondents from asking for a reinvestigation and presenting additional or other evidence warranting the dropping of the case. The Court would thus have wielded judicial power without a definite settlement of rights and liabilities. There are set rules, and procedural mechanisms in place for the determination of probable cause at the level of the public prosecutor, the Department of Justice and, to a certain extent, the Regional Trial Court. No recourse to this Court should normally be allowed to challenge their determinations and dispositions. Chief Justice Narvasa therefore vote to refer to the Department of Justice for resolution, the petition for the review of the Joint Resolution issued by Investigating Prosecutor Ramon Gerona.

PUNO, J., dissenting opinion: 1.REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; A FINDING OF PROBABLE CAUSE NEEDS ONLY TO REST ON EVIDENCE SHOWING THAT MORE LIKELY THAN NOT A CRIME HAS BEEN COMMITTED AND WAS COMMITTED BY THE SUSPECTS. The concept of probable cause is not a high level legal abstraction to be the subject of warring thoughts. It is well established that "a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt." 2.ID.; ID.; ID.; THE CASE OF SOLIVEN VS. MAKASIAR AND OTHER RELATED CASES DID NOT ESTABLISH THE ABSOLUTE RULE THAT UNLESS A JUDGE HAS THE COMPLETE RECORDS OF THE PRELIMINARY INVESTIGATION BEFORE HIM HE CANNOT LAWFULLY DETERMINE PROBABLE CAUSE AND ISSUE A WARRANT OF ARREST. Soliven and other related cases did not establish the absolute rule that unless a judge has the complete recordsof the preliminary investigation before him, he cannot lawfully determine probable cause and issue a warrant of arrest. Soliven only held that it is thepersonal responsibility of the judge to determine probable cause on the basis of the report and supporting documents

submitted by the fiscal; that he must independently evaluate the report and supporting documents submitted by the fiscal; and, if he finds no probable cause on the basis thereof, he can require submission of additional supporting affidavits of witnesses. There is nothing in Soliven that requires prosecutors to submit to the judge thecomplete records of the preliminary investigation especially if they are voluminous. Nor is there anything in Soliven that holds that the omission tophysically submit the complete records of the case would constitutionally infirm a finding of probable cause by a judge even if it was made on the basis of an exhaustive prosecutor's report or resolution. Indeed, in Webb vs. de Leon, (G.R. No. 121234) we sustained the finding of probable cause made by the trial judge even if the complete records of the preliminary investigation were not elevated to the said judge. 3.ID.; ID.; ID.; CASE AT BAR DOES NOT INVOLVE THE OUTLAWED PROFORMA CERTIFICATION. A revisit of our case law will reveal that what we condemned in the past as constitutionally impermissible was the practice of judges of totally relying on pro forma certifications of fiscals that they conducted a preliminary investigation and found probable cause that the accused committed the crime charged in the Information. These pro formacertifications usually consisted of a short sentence. They did not relate the relevant proceedings in the preliminary investigation nor did they calibrate the weight of diverse and dueling evidence submitted by the parties. These bare certifications carried no findings of fact and made no legal analysis which could be used by judges as a rational basis for a determination of probable cause. Thus, we laid down the jurisprudence that a judge who determines probable cause by relying on such meaningless certifications violates the constitutional provision prohibiting issuance of warrants of arrest ". . . except upon probable cause to be determined personally by the judge . . . ." The case at bar does not involve these outlawed certifications. 4.ID.; ID.; ID.; FORWARDING OF COMPLETE RECORDS IS NOT NECESSARY WHEN THE PROSECUTOR'S REPORT IS EXHAUSTIVE AND ACCURATE. With due respect to the majority, the ruling that a judge should always order the elevation of the complete records of a preliminary investigation before proceeding with the task of reviewing the finding of probable cause made by prosecutors will exacerbate the mischief of delays in the disposition of criminal cases. This will not sit well with our people who are complaining that their continuing calls for speedy justice are only receiving dial tones from courts. The transcription of stenographic notes and the transfer of physical and documentary evidence, especially when voluminous, will consume time, result in loss of valuable evidence and aggravate the burden of litigants. It is Justice Puno's

humble submission that the forwarding of complete records is not necessary when the prosecutor's report is exhaustive and accurate as in the case at bar.
5.ID.; ID.; ID.; THE CONSTITUTIONAL DUTY OF THIS COURT IN CRIMINAL LITIGATIONS IS NOT ONLY TO ACQUIT THE INNOCENT AFTER TRIAL BUT TO INSULATE, FROM THE START, THE INNOCENT FROM UNFOUNDED CHARGES. The majority has deviated from the general rule when it set aside the finding of probable cause made by the respondent Court of Appeals and the respondent trial judge. To be sure, this Court can restrain the prosecution of criminal prosecutions in exceptional cases. It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice.The constitutional duty of

this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is
aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless.Innocence ought to be enough and the business of

this Court is to shield the innocent from senseless suits right from the start. J. Puno respectfully submits, however, that the peculiar facts obtaining in

the case at bar do not warrant us to take the exceptional step of setting aside the finding of probable cause made by the respondent appellate court and the trial court. Their finding is supported by substantial evidence and the issuance of warrants of arrest against the petitioners to hold them for trial for estafa does not constitute misuse of prosecutorial powers. To be sure, petitioners will be exposed to the inconvenience of facing numerous similar criminal suits but so long as the inconvenience is no more than what is necessary to dispense justice, they have no cause to gripe for justice equally belongs to the private respondents. 6.ID.; ID.; ID.; ONLY THE COURTS AS ULTIMATE ARBITER OF RIGHTS IN CONFLICT CAN WRITE FINIS TO CONTROVERSIES. Petitioners justify the need for DOJ to review their case in view of the latter's alleged contradictory rulings on cases brought by different parties involving the same controversy. The DOJ has denied the charge that it has issued contradictory rulings. But if these contradictory rulings were truly rendered by DOJ, there is more reason for DOJ

to let the issue be resolved by the courts. As ultimate arbiters of rights in conflict, only the courts can write finis to the controversy between petitioners and private respondents. DECISION DAVIDE, JR., J :
p

We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226 1 , which dismissed the petition therein on the ground that it has been "mooted with the release by the Department of Justice of its decision . . . dismissing petitioners' petition for review"; (b) the resolution of the said court of 9 February 1994 2 denying the petitioners' motion to reconsider the decision; (c) the order of 17 May 1993 3 of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying petitioners' motion to suspend proceedings and to hold in abeyance the issuance of the warrants of arrest and the public prosecutor's motion to defer arraignment; and (d) the resolution of 23 July 1993 and 3 February 1994 4 of the Department of Justice, (DOJ) dismissing petitioners' petition for the review of the Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider the dismissal, respectively. The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition:
I Respondent Judge acted with grave abuse of discretion when he ordered the arrest of the petitioners without examining the record of the preliminary investigation and in determining for himself on the basis thereof the existence of probable cause. II The Department of Justice "349'' Committee acted with grave abuse of discretion when it refused to review the City Prosecutor's Joint Resolution and dismissed petitioner's appeal therefrom. III

The Court of Appeals acted with grave abuse of discretion when it upheld the subject order directing the issuance of the warrants of arrest without assessing for itself whether based on such records there is probable cause against petitioners. IV The facts on record do not establish prima facie probable cause and Criminal Case No. Q-93-43198 should have been dismissed. 5

The antecedents of this petition are not disputed. Several thousand holders 6 of "349" Pepsi crowns in connection with the Pepsi Cola Products Phils., Inc.'s (PEPSI's) Number Fever Promotion 7 filed with the Office of the City Prosecutor of Quezon City complaints against the petitioners in their respective capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913; 8 and (d) violation of Act No. 2333, entitled "An Act Relative to Untrue, Deceptive and Misleading Advertisements," as amended by Act No. 3740. 9

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a Joint Resolution 10 where he recommended the filing of an information against the petitioners and others for the violation of Article 318 of the Revised Penal Code and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that: 1.The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for estafa under Article 318, Revised Penal Code, while the complaint for violation of Article 315, 2(d), Revised Penal Code against

same respondents Juanito R. Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda O. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex O. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed; 2.The complaints against all respondents for violation of R.A. 7394 otherwise known as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act 3740 and E.O. 913 be also dismissed for insufficiency of evidence, and 3.I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further investigated to afford respondents a chance to submit their counter-evidence. 11

On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground of insufficiency of evidence. 12 The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-9343198. 13 The information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of ESTAFA, committed as follows: That in the month of February, 1992, in Quezon City, Philippines and for sometime prior and subsequent thereto, the above-named accused

Paul G. Roberts, Jr.)being then the Presidents

Rodolfo G. Salazarand Executive Officers

Luis F. Lorenzo, Sr.)being then the Chairman of the Board of Directors

Luis P. Lorenzo, Jr.)being then the Vice Chairman of the Board

J. Roberto Delgado)being then Members of Amaury R. Gutierrezthe Board Bayani N. Fabic) Jose Yulo, Jr.) Esteban B. Pacannuayan,) Jr. and Wong Fong Fui)

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one another, with intent of gain, by means of deceit, fraudulent acts or false pretenses, executed prior to or simultaneously with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud the private complainants whose names with their prizes claimed appear in the attached lists marked as Annexes "A" to "A-46"; "B" to "B33"; "C" to "C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244" in the following manner: on the date and in the place aforementioned, said accused pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc. "Number Fever Promotion" from February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and announced and advertised in the media that "all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-up bearing the winning 3-digit

number will win the full amount of the prize printed on the crowns/caps which are marked with a seven-digit security code as a measure against tampering or faking of crowns and each and every number has its own unique matching security code", enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive advertisements to become millionaires, and by virtue of such representations made by the accused, the said complainants bought Pepsi softdrinks, but, the said accused after their TV announcement on May 25, 1992 that the winning number for the next day was "349", in violation of their aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi crowns and/or caps presented to them by the complainants, who, among others, were able to buy Pepsi softdrinks with crowns/caps bearing number "349" with security codes L-2560-FQ and L-3560-FQ, despite repeated demands made by the complainants, to their damage and prejudice to the extent of the amount of the prizes respectively due them from their winning "349" crowns/caps, together with such amounts they spent in going to and from the Office of Pepsi to claim their prizes and such other amounts used in buying Pepsi softdrinks which the complainants normally would not have done were it not for the false, fraudulent and deceitful posters of Pepsi Cola Products Philippines, Inc. CONTRARY TO LAW.

On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the reconsideration of the Joint Resolution 14 alleging therein that (a) there was neither fraud in the Number Fever Promotion nor deviation from or modification of the promotional rules approved by the Department of Trade and Industry (DTI), for from the start of the promotion, it had always been clearly explained to the public that for one to be entitled to the cash prize his crown must bear both the winning number and the correct security code as they appear in the DTI list; (b) the complainants failed to allege, much less prove with prima facie evidence, the specific overt criminal acts or omissions purportedly committed by each of the petitioners; (c) the compromise agreement entered into by PEPSI is not an admission of guilt; and (d) the evidence establishes that the promo was carried out with utmost good faith and without malicious intent. On 15 April 1993, the petitioners filed with the DOJ a Petition for Review 15 wherein, for the same grounds adduced in the aforementioned motion for reconsideration, they prayed that the Joint Resolution be reversed and the complaints dismissed. They further stated that the approval of the Joint Resolution by the City Prosecutor was not the result of a careful scrutiny and independent evaluation of the relevant facts and the applicable law but of the

grave threats, intimidation, and actual violence which the complainants had inflicted on him and his assistant prosecutors. On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review. 16 On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. de Guia issued a 1st Indorsement, 17 directing the City Prosecutor of Quezon City to inform the DOJ whether the petitioners have already been arraigned, and if not, to move in court for the deferment of further proceedings in the case and to elevate to the DOJ the entire records of the case, for the case is being treated as an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January 1990. On 22 April 1993, Criminal Case No. Q-93-41398 was raffled to Branch 104 of the RTC of Quezon City. 18 In the morning of 27 April 1993, private prosecutor Julio Contreras filed an ExParte Motion for Issuance of Warrants of Arrest. 19 In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings. 20 He stressed that the DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an essential part of the petitioners' right to a preliminary investigation. The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued an order advising the parties that his courtwould "be guided by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the petition for review undertaken by the accused." 21 On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to Defer Arraignment wherein he also prayed that "further proceedings be held in abeyance pending final disposition by the Department of Justice." 22 On 4 May 1993, Gavero filed an Amended Information, 23 accompanied by a corresponding motion 24 to admit it. The amendments merely consist in the statement that the complainants therein were only "among others" who were

defrauded by the accused and that the damage or prejudice caused amounted "to several billions of pesos, representing the amounts due them from their winning '349' crowns/caps." The trial court admitted the amended information on the same date. 25 Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion to Defer Arraignment, 26 and Objection and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest. 27

On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest. 28 On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the petitioners' Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer Arraignment and (2) directing the issuance of the warrants of arrest "after 21 June 1993" and setting the arraignment on 28 June 1993. 29 Pertinent portions of the order read as follows:
In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a petition for review seeking the reversal of the resolution of the City Prosecutor of Quezon City approving the filing of the case against the accused, claiming that: 1.The resolution constituting [sic] force and duress; 2.There was no fraud or deceit therefore there can be no estafa; 3.No criminal overt acts by respondents were proved; 4.Pepsi nor the accused herein made no admission of guilt before the Department of Trade and Industry; 5.The evidence presented clearly showed no malicious intent on the part of the accused. Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is a pending petition for review with the Department of Justice filed by the accused and the Office of the City Prosecutor was

directed, among other things, to cause for the deferment of further proceedings pending final disposition of said petition by the Department of Justice. The motions filed by the accused and the Trial Prosecutor are hereby DENIED. This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471472) stated as follows: "In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court." WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be set aside on June 28, 1993, at 9:30 in the morning.

On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and prohibition with application for a temporary restraining order, 30 which was docketed as CA-G.R. SP No. 31226. They contended therein that respondent Judge Asuncion had acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the aforementioned order of 17 May 1993 because
I.RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS. II.THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.

III.THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT THE SECRETARY OF JUSTICE'S RESOLUTION OF PETITIONERS' APPEAL, AND IV.THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.

On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the status quo. 31 In view thereof, respondent Judge Asuncion issued an order on 28 June 1993 32 postponing indefinitely the arraignment of the petitioners which was earlier scheduled on that date. On 28 June 1993, the Court of Appeals heard the petitioners' application for a writ of preliminary injunction, granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate the original records of Criminal Case No. Q-93-43198.33 Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of the Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993, which fact belied the petitioners' claim that the respondent Judge had not the slightest basis at all for determining probable cause when he ordered the issuance of warrants of arrest. It ruled that the Joint Resolution "was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest"; and that the "mere silence of the records or the absence of any express declaration" in the questioned order as to the basis of such finding does not give rise to an adverse inference, for the respondent Judge enjoys in his favor the presumption of regularity in the performance of his official duty. The Court ofAppeals then issued a resolution 34 denying the application for a writ of preliminary injunction. On 8 June 1993, the petitioners filed a motion to reconsider 35 the aforesaid resolution. The Court of Appeals required the respondents therein to comment on the said motion. 36 On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a Manifestation 37 informing the court that the petitioners' petition for review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A copy 38 of the resolution was attached to the Manifestation.

On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss the petition 39 on the ground that it has become moot and academic in view of the dismissal by the DOJ of the petitioners' petition to review the Joint Resolution. The dismissal by the DOJ is founded on the following exposition:
You questioned the said order of the RTC before the Court of Appeals and prayed for the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing any warrant of arrest and from proceeding with the arraignment of the accused. The appellate court in a resolution dated July 1, 1993, denied your petition. In view of the said developments, it would be an exercise in futility to continue reviewing the instant cases for any further action on the part of the Department would depend on the sound discretion of the Trial Court. The denial by the said court of the motion to defer arraignment filed at our instance was clearly an exercise of its discretion. With the issuance of the order dated May 17, 1993, the Trial Court was in effect sending a signal to this Department that "the determination of the case is within its exclusive jurisdiction and competence." The rule is that '. . . once a complaint or information is filed in Court, any disposition of the case as to dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. . . .' (Crespo vs. Mogul, 151 SCRA 462). 40

On 28 September 1993, the Court of Appeals promulgated a decision 41 dismissing the petition because it had been "mooted with the release by the Department of Justice of its decision . . . dismissing petitioners' petition for review by inerrantly upholding the criminal court's exclusive and unsupplantable authority to control the entire course of the case brought against petitioners, reiterating with approval the dictum laid down in the 'Crespo' case." The petitioners filed a motion to reconsider the DOJ's dismissal of the petition citing therein its resolutions in other similar cases which were favorable to the petitioners and adverse to other "349" Pepsi crown holders. In its resolution of 3 February 1994, the DOJ, through its "349" Committee, denied the motion and stated: "The instant petition is different from the other petitions resolved by this Department in similar cases from the provinces. In the latter petitions, the complaints against herein respondents [sic] 42 were

dismissed inasmuch as the informations have not yet been filed or even if already filed in court, the proceedings have been suspended by the courts to await the outcome of the appeal with this Department." 43 The petitioners likewise filed a motion to reconsider 44 the aforesaid Court of Appeals' decision, which the said court denied in its resolution 45 of 9 February 1994. Hence, the instant petition. The First Division of this Court denied due course to this petition in its resolution of 19 September 1994. 46 On 7 October 1994, the petitioners filed a motion for the reconsideration the aforesaid resolution. Acting thereon, the First Division required the respondents to comment thereon.
47

of

Later, the petitioners filed a supplemental motion for reconsideration 48 and a motion to refer this case to the Court en banc. 49 In its resolution of 14 November 1994, 5 0 the First Division granted the latter motion and required the respondents to comment on the supplemental motion for reconsideration. In the resolution of 24 November 1994, the Court en banc accepted the referral. On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent pleadings in relation thereto, the Court en banc granted the motion for reconsideration; reconsidered and set aside the resolution of 19 September 1994; and reinstated the petition. It then considered the case submitted for decision, "since the parties have exhaustively discussed the issues in their pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and both the petitioners and the Office of the Solicitor General pray, in effect, that this Courtresolve the issue of probable cause on the basis thereof."

The pleadings of the parties suggest for this Court's resolution the following key issues:
1.Whether public respondent Judge Asuncion committed grave abuse of discretion in denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and to defer arraignment until after

the petition for review filed with the DOJ shall have been resolved. 2.Whether public respondent Judge Asuncion committed grave abuse of discretion in ordering the issuance of warrants of arrest without examining the records of the preliminary investigation. 3.Whether the DOJ, through its "349" Committee, gravely abused its discretion in dismissing the petition for review on the following bases: (a) the resolution of public respondent Court of Appeals denying the application for a writ of preliminary injunction and (b) of public respondent Asuncion's denial of the abovementioned motions. 4.Whether public respondent Court of Appeals committed grave abuse of discretion (a) in denying the motion for a writ of preliminary injunction solely on the ground that public respondent Asuncion had already before him the Joint Resolution of the investigating prosecutor when he ordered the issuance of the warrants of arrest, and (b) in ultimately dismissing the petition on the ground of mootness since the DOJ has dismissed the petition for review. 5.Whether this Court may determine in this proceedings the existence of probable cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa.

We resolve the first four issues in the affirmative and the fifth, in the negative. I. There is nothing in Crespo vs. Mogul 51 which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court." More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already

been filed in Court. The matter should be left entirely for the determination of the Court. 52

In Marcelo vs. Court of Appeals,

53

this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court.

Crespo could not have intended otherwise without doing violence to, or

repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court 54 which recognizes the authority of the Secretary of Justice to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a proper party. Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from resolutions in preliminary investigation. At the time the petitioners filed their petition for the review of the Joint Resolution of the investigating prosecutor, the governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided that only resolutions dismissing a criminal complaint may be appealed to the Secretary of Justice. Its Section 4, 55 however, provided an exception, thus allowing, upon a showing of manifest error or grave abuse of discretion, appeals from resolutions finding probable cause, provided that the accused has not been arraigned. The DOJ gave due course to the petitioners' petition for review as an exception pursuant to Section 4 of Circular No. 7. Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223 56 which superseded Circular No. 7. This Order, however, retained the provisions of Section 1 of the Circular on appealable cases and Section 4 on the non-appealable cases and the exceptions thereto. There is nothing in Department Order No. 223 which would warrant a recall of the previous action of the DOJ giving due course to the petitioners' petition for review. But whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of guesswork. Accordingly, it was premature for

respondent Judge Asuncion to deny the motions to suspend proceedings and to defer arraignment on the following grounds:
This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice.

The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the following pronouncement in Crespo did not yet truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. 57

However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals: 58
Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency.

As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul.

II. Section 2, Article III of the present Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction; 59 in cases covered by the rule on summary procedure where the accused fails to appear when required; 60 and in cases filed with them which are cognizable by the Regional Trial Courts (RTCs); 61 and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCsNCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs and MCTCs. 62 As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not required to personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 64

Sound policy supports this procedure, "otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts." It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting documents. In this sense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as follows:
4.In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the judge, following established doctrine and procedure, may either: (a)Rely upon the fiscal's certification of the existence of probable cause whether or not the case is cognizable only by the Regional TrialCourt and on the basis thereof, issue a warrant of arrest. . . .

This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting documents was further explained in People vs. Inting, 65 where this Court specified what the documents may consist of, viz., "the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination of probable cause. Thus:
We emphasize the important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution). First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the

Prosecutor's certification which are material in assisting the Judge to make his determination.

In adverting to a statement in People vs. Delgado 66 that the judge may rely on the resolution of the Commission on Elections (COMELEC) to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest, this Court stressed in Lim vs. Felix 67 that
Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the

recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.

And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule "in greater detail and hopefully clearer terms." It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge. The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief as or detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever, necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.

This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on the basis of the prosecutor's

certification in the informations that there existed probable cause "without having before him any other basis for his personal determination of the existence of a probable cause." In Allado vs. Diokno, 68 this Court also ruled that 'before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." In the recent case of Webb vs . De Leon, 69 this Court rejected the thesis of the petitioners of absence probable cause and sustained the investigating panel's and the respondent Judge's findings of probable cause. After quoting extensively from Soliven vs. Makasiar, 70 this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counteraffidavits of the petitioners. Apparently, the painstaking recital and
analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges

a few hours to review and affirm the Probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. (emphasis supplied)

The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating prosecutor's certification in an information or his resolution which is made the basis for the filing of the information, or both,

would suffice in the judicial determination of probable cause for the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not only the 26-page resolution of the investigating panel but also the affidavits of the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made personal evaluation of the evidence attached to the records of the case. Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. As found by theCourt of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the certification 71 of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor's finding of probable cause. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest "after June 21, 1993." It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic. III. As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the petitioners' petition for review pursuant to the exception provided for in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of Quezon City to forward to the Department the records of the cases and to file in court a motion for the deferment of the proceedings. At the time it issued the indorsement, the DOJ already knew that the information had been filed in court, for which reason it directed the City Prosecutor to inform the Department whether the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either as a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review of the records of the investigation is addressed to the trial court, which has the option to grant or to deny it. Also, it must have been

still fresh in its mind that a few months back it had dismissed for lack of probable cause other similar complaints of holders of "349" Pepsi crowns. 72 Thus, its decision to give due course to the petition must have been prompted by nothing less than an honest conviction that a review of the Joint Resolution was necessary in the highest interest of justice in the light of the special circumstances of the case. That decision was permissible within the "as far as practicable" criterion in Crespo.

Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end, by dismissing the petition for review. It dismissed the petition simply because it thought that a review of the Joint Resolution would be an exercise in futility in that any further action on the part of the Department would depend on the sound discretion of the trial court, and that the latter's denial of the motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or was, in effect, a signal to the Department that the determination of the case is within the court's exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo. IV. If the only issue before the Court of Appeals were the denial of the petitioners' Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutor's Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the petition for review might have been correct. However, the petition likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in ordering the issuance of warrants of arrest despite want of basis. The DOJ's dismissal of the petition for review did not render moot and academic the latter issue. In denying in its resolution of 1 July 1993 the petitioner's application for a writ of preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of Appeals, justified its action in this wise:

The Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest. The mere silence of the records or the absence of any express declaration in the questioned Order of May 17, 1993 as to where the respondent Judge based his finding of probable cause does not give rise to any adverse inference on his part. The fact remains that the Joint Resolution was at respondent Judge's disposal at the time he issued the Order for the issuance of the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of regularity in the performance of official actuations. And this presumption prevails until it is overcome by clear and convincing evidence to the contrary. Every reasonable intendment will be made in support of the presumption, and in case of doubt as to an officer's act being lawful or unlawful it should be construed to be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil. 338).

We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced that probable cause exists for the issuance of the warrants of arrest against the petitioners. Nothing in the records provides reasonable basis for these assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of warrants of arrest only "after June 21, 1993." If he did read the Joint Resolution and, in so reading, found probable cause, there was absolutely no reason at all to delay for more than one month the issuance of warrants of arrest. The most probable explanation for such delay could be that the respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for review. It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever doubts may have lingered on the issue of probable cause was dissolved when no less than the Court of Appeals sustained the finding of probable cause made by the respondent Judge after an evaluation of the Joint Resolution. We are not persuaded with that opinion. It is anchored on erroneous premises. In its 1 July 1993 resolution, the Court of Appealsdoes not at all state that it either sustained respondent Judge Asuncion's finding of probable cause, or found by itself probable cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint Resolution and found probable cause

from a reading thereof. Then too, that statement in the dissenting opinion erroneously assumes that the Joint Resolution can validly serve as sufficient basis for determining probable cause. As stated above, it is not. V. In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. xxx xxx xxx We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. . .

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or With grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this rule. Among the exceptions are enumerated in Brocka vs. Enrile 74 as follows:

a.To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b.When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L38383, May 27, 1981, 104 SCRA 607); c.When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d.When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); e.Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f.When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); g.Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); h.Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); i.Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and j.When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438). 7.Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)

In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation, as it did in Salonga vs. Pao, 75 Allado, and Webb. There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-43198 and several thousands more in different parts of the country who are similarly situated as the former for being holders of "349" Pepsi crowns, any affirmative holding of probable cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premiums on bailbonds and for travels from one court to another throughout the length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions a situation already long conceded by this Court to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by injunction. 76

We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the issuance of warrants of arrest in Criminal Case No. Q-9343298. For, as earlier stated, the respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latter's 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty. WHEREFORE, the instant petition is granted and the following are hereby SET ASIDE: (a)Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent Court of Appeals in CA-G.R. SP No. 31226;

(b)The Resolution of the "349" Committee of the Department of Justice of 23 July 1993 dismissing the petitioners' petition for review and of 3 February 1994 denying the motion to reconsider the dismissal; and (c)The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal Case No. Q-93-43198. The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice of this decision, the petitioners' petition for the review of the Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix, Allado vs. Diokno, and Webb vs. De Leon. In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioners. No pronouncement as to costs. SO ORDERED.

Padilla, Bellosillo and Hermosisima, Jr., JJ., concur. Narvasa, C.J., see separate concurring opinion. Regalado, J., joins the dissent of J. Puno, pro hac vice. Romero, Melo and Mendoza, JJ., join in the dissent of Justice Puno. Puno, J., dissents. Vitug, J., concurs in the opinions of the ponente and the Chief Justice. Francisco, J., took no part; ponente of the assailed decision. Kapunan, J., concurs in the result. Panganiban, J., took no part; Daughter is a management officer of Pepsi Cola,
Head Office, NY, USA.

[G.R. No. 59436. August 28, 1992.] PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. DELFIN MOLINA AND ADOLFO MOLINA, accused-appellants.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellants.
SYLLABUS 1.CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; REQUISITES; BURDEN OF PROOF IS UPON ACCUSED WHO MUST ESTABLISH CLAIM OF SELFDEFENSE BY CLEAR AND CONVINCING EVIDENCE. Appellant Delfin Molina admitted the killing of the deceased Mariano Molina, but claimed that the same was made in self-defense. Having admitted the killing, the accused assumed the burden of showing legal justification therefor. He has to substantiate the justifying circumstance invoked (Sacay v. Sandiganbayan, 142 SCRA 597 [1986]). The three requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, R.P.C.; People v. Batas, 176 SCRA 46 [1989]). The burden of proof in self-defense is upon the accused (Peoplev. Picardal, 151 SCRA 170 [1987]). He must rely on the strength of his own evidence, and not on the weakness of the prosecution for even if it were weak, it could not be disbelieved after the accused admitted the killing (People v. Talaboc, 30 SCRA 87 [1969]). He must establish his claim by clear and convincing evidence (Andres v. Court of Appeals, 151 SCRA 268 [1987]). 2.ID.; ID.; ID.; CLAIM OF SELF-DEFENSE CANNOT BE SUSTAINED WHERE UNARMED WAS THE ONLY ONE WHO SUFFERED SERIOUS OR FATAL WOUNDS; CASE AT BAR. In the instant case, appellant Delfin Molina failed to establish his claim of self-defense by clear and convincing evidence. His version of the incident is unbelievable. It is undisputed that the victim was a 64-year-old man. His attackers were young men armed with bolos and stones while the victim though alleged to have been armed with a bolo, the supposed weapon was never found by the authorities, either at the scene of the crime or elsewhere. Neither was it shown that any effort was exerted to locate it. Not being able to establish convincingly that the deceased was armed at that time, the claim of

self-defense cannot be sustained. When the victim was not armed at the time of the incident, the claim of self-defense cannot be sustained (People v. Dollantes, 151 SCRA 592 [1987]), especially where the victim was the only one who sustained fatal or serious wounds while his attackers Delfin and Adolfo Molina emerged without even a scratch (People v. Salcedo, 151 SCRA 220 [1987]). 3.ID.; ID.; ID.; IN CASE AT BAR, APPELLANT'S CONDUCT INCONSISTENT WITH THAT OF ONE WHO KILLED IN SELF-DEFENSE; FLIGHT INDICATIVE OF GUILT. Moreover, the conduct of appellant Delfin Molina is not consistent with one who killed in self-defense. He was not even interested to verify the identity of his attacker, but instead fled to Siwasiw, Bucay, Abra. Verily, it is well established that the accused's flight from the scene of the crime is a strong indication of guilt (People v. Anquillano, 149 SCRA 442 [1987]; People v. Marquez, 153 SCRA 700 [1987]; People v. Astor, 149 SCRA 325 [1987]). 4.ID.; QUALIFYING AGGRAVATING CIRCUMSTANCES; TREACHERY; PRESENT IN SUDDEN AND UNEXPECTED ATTACK WHICH RENDERS VICTIM UNABLE TO DEFEND HIMSELF; CASE AT BAR. The trial court correctly appreciated the presence of the qualifying circumstance of treachery. The victim, a 64-year-old man, who ventured into the night alone and unarmed can be reasonably presumed not to have expected that he will be assaulted by his own nephews. As described by Clara Molina, Adolfo's stone hit the victim on the head and when the latter turned, Delfin hacked him with a bolo three or more times while Adolfo also hacked him with a bolo two or more times. In fact, the attack was so swift and sudden. Clara testified that everything happened around three (3) minutes (TSN, Hearing of August 24, 1981, p. 30; Records, p. 103). This Court had ruled that there is treachery in a sudden and unexpected attack which renders the victim unable to defend himself by reason of the suddenness and severity of the attack (People v. Fernandez, 154 SCRA 30 [1987). Likewise, it was also held that treachery was present when appellants took turns in stabbing the victim who was caught by surprise and did not have time to defend himself (People v. Dollantes, supra). 5.ID.; CONSPIRACY; PRESENT WHERE ATTACKERS ARE MEMBERS OF ONE FAMILY AND ATTACK WAS DONE SUDDENLY AND SIMULTANEOUSLY; CASE AT BAR. Taking into account their concerted action and the nature and location of the injuries inflicted upon the deceased, the trial court found Delfin Molina and Adolfo Molina equally guilty of the offense. As ruled by this Court, denial of conspiracy is belied where appellants are members of one family and the attack was done by them suddenly and simultaneously; all the appellants took part in

inflicting injuries upon the deceased which all proved to be fatal; and after the attack and seeing the victim lying prostrate on the ground, they all left at the same time. All the accused are guilty of murder qualified by treachery (People v. Paras, 147 SCRA 596 [1987]). 6.REMEDIAL LAW; EVIDENCE; ALIBI; WEAKEST OF ALL DEFENSES; CANNOT PREVAIL OVER CLEAR, POSITIVE AND PRECISE EVIDENCE IDENTIFYING THE CULPRIT; CASE AT BAR. On the other hand, appellant Adolfo Molina's defense is alibi, claiming to be in Tayum at the time of the incident. Alibi is the weakest of all defenses especially in the light of clear, positive, and precise evidence tending to identify the culprit and in the absence of motive on the part of the eye-witnesses (People v. Magdueno, 144 SCRA 210 [1986]; People v. Parilla, 144 SCRA 454 [1986]; People v. Arbois, 24 SCRA 141 [1985]). Clara Molina recounted in detail how Adolfo stoned and hacked the victim to death barely two (2) armslength away from her house where she was. She could not be mistaken in her identification because there was an electric bulb inside her house illuminating the scene of the crime as well as the light from the flashlight held by one of the appellants. Aside from the absence of any evidence of ill-motive on her part to implicate appellants in the commission of such a grave offense, her forthright testimony was corroborated by Beato Molina, brother of the appellants. Considering the close family ties among Filipinos, it is quite inconceivable that a witness would attribute the commission of a grave offense as murder to his own brother and/or brother-in-law if such is not true. Such testimony can only proceed out of a sense of righteous indignation and a desire to see that justice be done. On the other hand, the defense witnesses themselves admitted that it is only 12 kms. from Cabaroan, Tayum, Abra to Pagala, Bucay, Abra. Hence, it was correctly observed by the trial court that it was not physically impossible for Adolfo to be at the scene of the crime considering the availability of transportation vehicles plying between Cabaroan, Tayum and Pagala, Bucay, Abra. 7.ID.; ID.; AFFIDAVIT TAKEN EX-PARTE; ALMOST ALWAYS INCOMPLETE AND OFTEN INACCURATE; REASONS THEREFOR; CONTRADICTIONS THEREIN EXPLAINED BY FAILURE TO DISCLOSE WHOLE FACTS. An affidavit being taken ex parte is almost always incomplete and often inaccurate, sometimes from partial suggestion, and sometimes from want of suggestion and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject (People v. Alcantara and Guinto, 151 SCRA 327 [1987]). The contradictions, if any, may be explained by the fact that an affidavit will not always disclose the

whole facts and will oftentimes and without design incorrectly describe without the deponent detecting it, some of the occurrences narrated (People v. Andaya, 152 SCRA 571 [1987]). 8.ID.; ID.; CREDIBILITY OF WITNESSES; RULE THAT TESTIMONY OF WITNESS MAY BE BELIEVED IN PART AND DISBELIEVED IN PART WELL-ESTABLISHED. Assuming that Clara Molina's statement regarding Sotero Molina's participation in the offense charged should be discredited as false the same does not render the rest of her testimony false. The rule is already well-established that the testimony of a witness may be believed in part and disbelieved in part depending upon the corroborative evidence and the probabilities and improbabilities of the case. The court may accept such part of the witness' testimony as it may deem proper notwithstanding his false statements. If a part of a witness' testimony is found true, it cannot be disregarded entirely (People v. Pacabes, 137 SCRA 159 [1985]). 9.ID.; ID.; ID.; EYEWITNESS ACCOUNT THAT JIBES WITH AUTOPSY FINDINGS CREDIBLE; CASE AT BAR. As correctly observed by the trial court, the narrations of Clara Molina and Beato Molina are confirmed by the testimony of Dr. Isabelo Lucas and his autopsy report. The latter stated that wounds Nos. 1 and 2 were caused by a blunt instrument, while the rest of the wounds were caused by a bolo. Furthermore, the number, nature and locations of the wounds are positive indications that the culprit is more than one (Rollo, p. 12). Thus as ruled by this Court, an eyewitness' account that jibes with the autopsy findings is credible (People v. Encipido, 146 SCRA 478 [1986]). 10.ID.; ID.; ID.; FACTUAL FINDINGS OF TRIAL COURT GENERALLY NOT DISTURBED ON APPEAL; EXCEPTION. Finally, it is a well-settled rule that where the issue is one of credibility of the witness, the appellate court will generally not disturb the findings of the trial court unless some facts or circumstances may have been overlooked that may otherwise affect the result of the case for it is the peculiar province of the trial court to determine the credibility of the witness while testifying because of its superior advantage in observing the conduct and demeanor of the witness while testifying (Peoplev. Caoile, 61 SCRA 73; People v. Ligon, 152 SCRA 419 [1987]). Hence, as a general rule, where a factual issue hinges on the credibility of witnesses, the factual findings of the trial court will not be disturbed (People v. Garufil, 152 SCRA 468 [1987]).

DECISION BIDIN, J :
p

This is an appeal from the November 7, 1981 decision of the then Court of First Instance of Abra, Second Judicial District, Branch II, presided by Hon. Leopoldo L. Gironela, finding herein appellants Adolfo Molina and Delfin Molina guilty beyond reasonable doubt as principals of the crime of Murder, the decretal portion of which reads:
"IN VIEW OF THE FOREGOING, the Court finds and holds Adolfo Molina and Delfin Molina guilty beyond reasonable doubt as principals of the crime of Murder, as charged in the Information, and are hereby sentenced to suffer the penalty of RECLUSION PERPETUA, and to indemnify jointly the heirs of the victim the sum of P14,000.00, plus P4,000.00 as actual damages and P4,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency, and to pay the costs of the proceedings. "For lack of sufficient evidence, Sotero Molina is Acquitted."
LLphil

In an Information dated March 5, 1981, the Provincial Fiscal of Abra charged Sotero Molina and his two (2) sons, Adolfo Molina and Delfin Molina, of the crime of Murder, allegedly committed as follows:
"That on or about November 9, 1980, in Barangay Cabaroan, Municipality of Tayum, Province of Abra, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, confederating and mutually helping one another, without any justifiable cause, with intent to kill, with treachery and evident premeditation and while armed with stones and bolo (unrecovered), did then and there, wilfully, unlawfully and feloniously stone, hack and bolo one Mariano Molina, hitting him on the head and other parts of his body, causing multiple chop wounds and lacerations, which injuries caused his death shortly there-after."

When arraigned on June 30, 1981, all accused, assisted by counsel, pleaded not guilty. At the trial, the prosecution presented five (5) witnesses who testified as follows:

1.Beato Molina testified that accused Sotero Molina is his father and accused Delfin Molina and Adolfo Molina are his brothers, while deceased Mariano Molina is his uncle because he (Mariano) is the brother of his father; that at around 7:00 o'clock in the evening of November 9, 1980, while in their house, he noticed that some persons were maltreating someone near the house of his brother Eugenio Molina. To ascertain the identity of the person being maltreated, he went out from their house, but while still in their porch, or about 40 meters distance from them, he saw his brothers, Delfin and Adolfo, maltreating a person whom he failed to recognize. He was able to see them because of the light of the electric bulb coming from an open window in the house of Clara Molina illuminating the place. When he was about 15 meters from them, he was met by Delfin who flashed a flashlight at him. When he moved back, he fell down to the ground and Delfin hacked him, hitting his feet. He immediately stood up and ran to their house but Delfin followed him to the foot of their stairs. He did not know the reason why Delfin hacked him. He did not see his father Sotero Molina that evening but he saw his brother Adolfo Molina. After about half an hour, policemen arrived and he learned from them that his uncle Mariano Molina was killed and that his body was near the house of his brother Eugenio Molina. He confirmed that he gave a written statement in connection with the incident to Pat. Constancio Echave on November 11, 1980 (TSN, Hearing of July 14, 1981, pp. 2-18).
prLL

2.Clara Molina testified that accused Sotero Molina is her father-in-law, and accused Delfin Molina and Adolfo Molina are her brothers-in-law. Her husband, Eugenio Molina, is the son of Sotero Molina, and the brother of Delfin and Adolfo, while deceased Mariano Molina is her uncle-in-law, being the brother of accused Sotero Molina. Around 7:00 o'clock in the evening of November 9, 1980, while she was putting her small child to sleep, her brother-in-law Delfin arrived in their house where he spat three times, after which he went down southward. Later, Delfin returned and challenged her husband to come out. Sotero Molina, the father, took Delfin away and when they were beside the house of Adolfo, another son, Sotero called Adolfo. A few moments thereafter, Delfin and Adolfo were beside their house and Delfin shouted to her husband "Vulva of your mother, you are only squatter here" after which stones were thrown at their house. Later, there was silence. Hearing footsteps from the western side of their house, she peeped through their window and saw Delfin and Adolfo stoning Mariano Molina about two armslength away from their house. Adolfo's stone hit Mariano in the head; and when Mariano turned around, Delfin hacked him with a bolo three (3) or more times. Adolfo also hacked Mariano two (2) or more times. She was able to observe the incident because one of them was holding a flashlight, although she was not sure who was holding the flashlight and their

electric bulb above the window where she was peeping was lighted. She did not know where Sotero Molina was when Delfin and Adolfo were hacking Mariano. While the incident was taking place, she shouted "They killed Tata Mariano." She shouted for help three times, but nobody responded. About an hour later, police officers called at their house to inform them of the death of Mariano. They then took Mariano's cadaver to his house. The following morning, she was investigated at the Municipal Hall of Tayum by the same policemen who came to their house on the night of the incident and she gave a sworn statement (Exhibit "D"). Despite rigid cross-examination, Clara Molina insisted that during the hacking incident, she did not see Sotero Molina at the scene of the crime. Reminded of her supposed answer to Question No. 10 in Exhibit "D", that Sotero Molina was the one who held the flashlight while Delfin and Adolfo hacked and stoned Mariano Molina to death, she admitted that she read Exhibit "D" and after reading, she signed it but she steadfastly declared that she did not make that portion of her supposed statement. In fact, she does not know why it was typewritten there. She ventured that they must have made a mistake (TSN, Hearing of August 24, 1981, pp. 93-120). On the other hand, she was positive that she saw Delfin Molina hack Mariano and Adolfo stoned Mariano because of the light from the window of her house and from the flashlight focused towards Mariano (Ibid., p. 123). 3.Dr. Isabelo Lucas testified that around 9:45 in the evening of November 9, 1980, upon request of the police authorities, he conducted an autopsy on the remains of the late Mariano Molina and found the following:
"1.Lacerated wound, Y-shaped 1 inch long per extremely located at the hair line center of the forehead. Scalp deep. "2.Lacerated wound 2 x 3 inches located at the left parietal region fracturing the underlying bone. "3.Chop wound 4 inches long along the left parietal region chopping the parietal bone and reached the brain substance. "4.Stab wound 1 inch long at the right mastoid exposing the underlying bone. "5.Chop wound 4 inches long starting from the left cheek going downward towards the area below left corner of the mouth. Skin deep.

"6.Chop wound starting from the left lower jaw going downwards, forward and backward cutting a portion of the left ear and completely cutting the mandibular bone and into the neck cutting the carotid artery and jugular vein. "7.Chop wound 3 inches long running along the right shoulder towards the tip of the right scapula. Depth limited to the musculature. "8.Chop wound 3 inches long at the left scapular region cutting the underlying bone and reached the thoracic cavity.
cdll

"9.Chop wound 6 inches in length going perpendicular to the long axis of the body at the lumbar region, left, starting from the left vertebral line towards the left flank reaching the abdominal cavity and where the descending portion of the large intestine comes out";

that the injuries were inflicted with the use of three (3) instruments; the lacerated wounds were caused by a blunt instrument like a stone or a piece of wood; but the chop wounds were caused by a bolo, and the stab wounds may have been caused by a sharp-pointed instrument. He attributed the cause of death to hemorrhage. On cross-examination, he stated that it is possible that wound No. 1 could have been caused when the victim stumbled on a stone, if he fell directly on it, but opined that wound No. 2 on the head cannot be caused by a fall because then the wound would be limited only to the scalp and not a fracture. In this case, the skull was broken; and that wounds No. 4, 5, 6 to 9 may also be caused by the same bolo if that bolo has a 1 inch width at the end. He opined that the victim could have died even if attended to by a physician because he had only a few minutes to live due to hemorrhage (Ibid., pp. 57-66). 4.Constancio Echave testified that he is a member of the INP stationed at Tayum, Abra; that on November 9, 1980, between 7:30 to 8:00 o'clock, while he was on duty, he received a report from Danilo Castillo that there was a stabbing incident at Barangay Cabaroan, Tayum. He proceeded to the crime scene with Pat. Mariano Jarquias and Edwardo Bringas. Beato Molina pointed to them the spot where the victim was and they saw the cadaver sprawled more or less two (2) meters away from the post of the house of Clara Molina. They called for Dr. Lucas and brought the cadaver to the house of the victim. At the Office of the Station Commander at Tayum, he conducted a written investigation and questioned Martina Molina, Clara Molina and BeatoMolina. He brought them to

the Municipal Judge for subscription of their statement and after preparing all the papers, he filed the complaint (Ibid., pp. 133-151). 5.Martina Molina testified that her husband Mariano died on November 9, 1980. Around 7:00 P.M. of the said date, she was in their house when she heard people shouting. From them, she learned that her husband died. The peace officer brought the cadaver of her husband beside the house of EugenioMolina, to their house. She recalled that her husband and his brother Sotero Molina have a misunderstanding about a piece of land which her husband delivered to Sotero Molina for the latter to work on but when her husband wanted to take back the land, Sotero Molina refused to return it. The case was referred to the Agrarian Reform Office. Sotero Molina won and her husband acceded, so that she does not know the reason why her husband was killed. She narrated that during a pre-wedding celebration in their neighborhood, there was a stone-throwing incident. When the stone-throwing incident subsided, her husband went out of the house and there and then met his brutal fate. Her husband was 64 years old when he died. She spent more than P4,000.00 up to the time of the burial; and she gave a sworn statement to the police in connection with the death of her husband (Ibid., pp. 76-91).

The defense of Sotero Molina is denial; that is, he did not participate in the act. Adolfo Molina's defense is alibi; that is, at the time of the incident, he was at Pagala, Bucay, Abra; while Delfin Molina admitted having killed his uncle but in self-defense. The defense presented seven (7) witnesses, including the accused themselves:
cdrep

1.Accused Sotero Molina testified that the two (2) other accused, Delfin Molina and Adolfo Molina are his sons, while deceased Mariano Molina was his brother; that he has no participation in the killing of his brother because at about 7:00 o'clock in the evening of November 9, 1980, he and his wife were in the house of their neighbor Benito Brioso, about 200 meters away from their house, attending the in-innapet (pre-wedding) ceremony. When they left their house to attend the ceremony, Delfin was in their house but when they returned, he was no longer in the house. Instead, they saw peace officers in their place and he came to know of the death of his brother on the following day. He saw Delfin Molina also on the following day at the house of CHDF Bernardino Tabaniag in Siwasiw, Bucay who surrendered Delfin at Camp Juan Villamor. He filed a case against his brother in the Agrarian Office because his brother wanted

to get back the land he is working on and the Agrarian Office ruled in his favor. Before the death of his brother, they were in good terms. Clara Molina is married to his son Eugenio Molina. She testified against the appellants because she is not close to them; she is closer to the deceased Mariano. He did not know the reason why Delfin killed his brother, and that he did not see his son Adolfo on the night of the incident (Ibid., pp. 157-179). 2.Accused Delfin Molina testified that on the night of November 9, 1980, while he was on his way to see the fishnets in the river and near the house of his brother Eugenio and his sister-in-law Clara Molina, somebody whose face he did not recognize, appeared from behind the trunk of a mango tree and hacked the flashlight he was holding. When he dropped the flashlight, he unsheathed his bolo. The person rushed to him and tried to hack him but he grappled with him and hacked him several times. He left the place without identifying the person he had hacked and quickly returned to his house but on his way, he was met by his brother Beato. When Beato was about 3 armslength, he raised his hand holding a stone. Seeing his brother Beato about to throw the stone, he tried to evade it and in the process he fell down. While thus lying down on the ground, his brother Beato came near him and kicked him. He tried to evade his kicks, and he used his bolo to parry the kicks but he did not hack Beato. When Beato left him, he went to their house. While he was already in their house, he heard someone shouting "Tata Anno was killed." Afraid of his brothers and of his father, he left and went to the house of their relative Junior Tagura at Asito, Tayum, Abra. Early in the morning of the following day, he went to the house of his friend CHDF Bernardo Tabaniag at Nagbalitangan, Bucay, a neighboring barrio of Siwasiw, and told Tabaniag that he had mistakenly killed his uncle Mariano Molina. He requested Tabaniag to accompany him to surrender. He surrendered to Captain Mariano at Camp Juan Villamor on November 13, 1980. At Camp Juan Villamor, he saw his brother Adolfo Molina, although on the night of November 9, 1980, he had not seen Adolfo. He assailed the statement of Clara Molina that Adolfo killed Mariano Molina as not true and alleged that Clara Molina implicated his father Sotero and his brother Adolfo because she and her husband are jealous of Adolfo who is closer to the family. On cross-examination, he stated that his house is three (3) meters from the house of the spouses Eugenio and Clara Molina; and that Mariano Molina'shouse is around 30 meters away. When he moved backward and tried to unsheathe his bolo, he did not know the identity of the person who tried to harm him because the flashlight was put off. He admitted that there was a light inside the house of Clara Molina but outside the house, it was dark. He did not know how many times he hacked the person who tried to harm him because he only stopped

hacking when said person fell to the ground. However, aside from hacking, he did nothing more. He reiterated that his brother Adolfo was not present then; that the injury on his head apparently was caused by a blunt instrument maybe, due to a fall when his head struck a stone. He did not try to ascertain the identity of the person he hacked because of fear and self-preservation. He left their place after the incident and when the peace officers arrived, he was not there anymore. He did not surrender the bolo because it got lost when he went away from their place. It did not occur to him to surrender himself to the peace officers in their place because of fear of Beato Molina who testified against him and his brother Adolfo (Ibid., pp . 19-43). 3.Bernardo Tabaniag, a CHDF of Bucay, Abra since 1978, corroborated the testimony of Delfin Molina, that on November 10, 1980, the latter went to see him in Bucay, and told him that he had mistakenly killed his uncle. Delfin requested that he be brought to the P.C. Headquarters to surrender. Hence, the witness surrendered Delfin to Captain Mariano at Camp Juan Villamor (Ibid., pp. 181-189).
cdrep

4.Accused Adolfo Molina testified that it is not true that he helped and confederated with his brother Delfin Molina and his father Sotero Molina in killing his uncle Mariano Molina. On November 9, 1980, he was invited by Felix Tambalong to accompany him to Pagala, Bucay, Abra, to get Felix's share of corn from his in-laws. They started at around 3:00 o'clock p.m. and reached Pagala at 6:00 o'clock p.m. However, they were not able to get the corn because Tambalong's in-laws were not present. They returned to Tayum at past 6:00 o'clock p.m. and reached the place at around 9:00 o'clock p.m. On their way from Bucay to Tayum, they met Fred de la Cruz, his wife and a lady from Wayya, aboard their Ford Fiera. They were invited to ride on the jeep but they could not wait and so they continued walking. They reached Tayum and proceeded to the house of Felix Tambalong. At 6:00 o'clock in the morning of November 10, 1980, he went home but near their house, he met Pat. Echave who asked him where he came from. Pat. Echave also told him that his younger brother, Delfin, killed their uncle. Not able to find his brother, he went home. From their house, he went to see the cadaver of his uncle, but he was called by Pat. Echave who took him to Tayum, where he was detained for one (1) night. The following morning, he was brought to Camp Juan Villamor. On November 13, 1980, Delfin Molina surrendered. Delfin was surprised to see him there because Delfin knew he (Delfin) was the one responsible for the death of their uncle. He assailed as not true the testimony of Clara Molina that he and his brother Delfin killed their uncle, and attributed the same to Clara's anger and jealousy because Adolfo is close to his father and could help the latter in working on the land.

Likewise, he claimed that the testimony of Beato Molina is not true, as Beato has resentment against him because Beato is jealous of him for working with his father on the land, the produce of which Beato would like to take for himself (Ibid., pp. 189-202: 44-54). 5.Felix Tambalong corroborated the testimony of Adolfo Molina; that they were indeed at Pagala at 6:00 o'clock p.m. on November 9, 1980 but were unable to get corn from his father-in-law; that on their way home, they met Flora de la Cruz and company who offered to pick them up on their return trip but they arrived at Tayum ahead at about 9:00 o'clock p.m. because they continued walking and that Adolfo slept in their house and left at 6:00 o'clock the following morning. Later, he heard that Adolfo was apprehended by the police (Ibid., pp. 204-217). 6.Flora de la Cruz further corroborated the testimonies of Adolfo Molina and Felix Tambalong that she and her husband met the two in Barrio Pinpinas and invited them for a ride back to Tayum but the latter could not wait and went ahead. She later learned that Adolfo was charged with the death of his uncle. It did not occur to her mind, however, to tell the Barangay Captain or the police that she saw Adolfo Molina at Pinpinas at that time (TSN, pp. 68-73). 7.Josefina B. Molina, wife of the accused Adolfo Molina, also tried to corroborate the testimony of her husband; that around 3:00 o'clock in the afternoon of November 9, 1980, Felix Tambalong fetched her husband and they went to Pagala, Bucay, Abra to get corn; that her husband did not sleep in their house that night, but the following morning, when she arrived from the pre-wedding ceremony, her husband was already in their house. When she asked where he slept, he answered that he slept in Tayum. After they had taken their lunch, a policeman arrived to pick up her husband. She followed them to the municipal building in Tayum. Her husband was detained without any Warrant of Arrest, because according to them, he was one of the suspects. They told her that if Delfin Molina will appear, they will release her husband, but when Delfin surrendered, they did not release her husband. She also alleged that Clara Molina and Beato Molina testified against her husband because they are nursing a grudge against him (TSN, pp. 218-226). After trial, the court a quo rendered a decision dated November 7, 1981, acquitting Sotero Molina, but convicting herein appellants Delfin Molina and Adolfo Molina.
LLphil

From the said decision, appellants assigned the following errors:

1.THE COURT A QUO GRAVELY ERRED IN NOT TAKING INTO CONSIDERATION THE PLEA OF SELF-DEFENSE OF ACCUSED DELFINMOLINA AND IN FINDING HIM GUILTY OF THE CRIME OF MURDER AND SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION PERPETUA; 2.THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED ADOLFO MOLINA OF THE CRIME OF MURDER WITHOUT TAKING INTO CONSIDERATION HIS DEFENSE OF ALIBI AND IN SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION PERPETUA; AND

3.THE COURT A QUO GRAVELY ERRED IN TAKING INTO CONSIDERATION THE BIASED TESTIMONY OF CLARA MOLINA AND FAILED TO CONSIDER THE CONTRADICTORY STATEMENTS MADE BY HER IN COURT AND HER STATEMENT DURING THE PRELIMINARY EXAMINATION.

Appellant Delfin Molina admitted the killing of the deceased Mariano Molina, but claimed that the same was made in self-defense. Having admitted the killing, the accused assumed the burden of showing legal justification therefor. He has to substantiate the justifying circumstance invoked (Sacay v. Sandiganbayan, 142 SCRA 597 [1986]). The three requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, R.P.C.; People v. Batas, 176 SCRA 46 [1989]). The burden of proof in selfdefense is upon the accused (People v. Picardal, 151 SCRA 170 [1987]). He must rely on the strength of his own evidence, and not on the weakness of the prosecution for even if it were weak, it could not be disbelieved after the accused admitted the killing (People v. Talaboc, 30 SCRA 87 [1969]). He must establish his claim by clear and convincing evidence (Andres v. Court of Appeals, 151 SCRA 268 [1987]). In the instant case, appellant Delfin Molina failed to establish his claim of selfdefense by clear and convincing evidence. His version of the incident is unbelievable. It is undisputed that the victim was a 64-year-old man. His attackers were young men armed with bolos and stones while the victim though alleged to have been armed with a bolo, the supposed weapon was never found by the authorities, either at the scene of the crime or elsewhere. Neither was it shown that any effort was exerted to locate it. Not being able to establish

convincingly that the deceased was armed at that time, the claim of self-defense cannot be sustained. When the victim was not armed at the time of the incident, the claim of self-defense cannot be sustained (People v. Dollantes, 151 SCRA 592 [1987]), especially where the victim was the only one who sustained fatal or serious wounds while his attackers Delfin and Adolfo Molina emerged without even a scratch (People v. Salcedo, 151 SCRA 220 [1987]). Moreover, the conduct of appellant Delfin Molina is not consistent with one who killed in self-defense. He was not even interested to verify the identity of his attacker, but instead fled to Siwasiw, Bucay, Abra. Verily, it is well established that the accused's flight from the scene of the crime is a strong indication of guilt (People v. Anquillano, 149 SCRA 442 [1987]; People v. Marquez, 153 SCRA 700 [1987]; People v. Astor, 149 SCRA 325 [1987]). On the other hand, appellant Adolfo Molina's defense is alibi, claiming to be in Tayum at the time of the incident. Alibi is the weakest of all defenses especially in the light of clear, positive, and precise evidence tending to identify the culprit and in the absence of motive on the part of the eye-witnesses (People v. Magdueno, 144 SCRA 210 [1986]; People v. Parilla, 144 SCRA 454 [1986]; People v. Arbois, 24 SCRA 141 [1985]).
LLpr

Clara Molina recounted in detail how Adolfo stoned and hacked the victim to death barely two (2) armslength away from her house where she was. She could not be mistaken in her identification because there was an electric bulb inside her house illuminating the scene of the crime as well as the light from the flashlight held by one of the appellants. Aside from the absence of any evidence of ill-motive on her part to implicate appellants in the commission of such a grave offense, her forthright testimony was corroborated by Beato Molina, brother of the appellants. Considering the close family ties among Filipinos, it is quite inconceivable that a witness would attribute the commission of a grave offense as murder to his own brother and/or brother-in-law if such is not true. Such testimony can only proceed out of a sense of righteous indignation and a desire to see that justice be done. On the other hand, the defense witnesses themselves admitted that it is only 12 kms. from Cabaroan, Tayum, Abra to Pagala, Bucay, Abra. Hence, it was correctly observed by the trial court that it was not physically impossible for Adolfo to be at the scene of the crime considering the availability of

transportation vehicles plying between Cabaroan, Tayum and Pagala, Bucay, Abra. Appellants try to impeach the testimony of Clara Molina, the eyewitness for the prosecution, by alleging inconsistency in her statements given to Pat. Constancio Echave on November 10, 1980 and those taken by the Municipal Judge during the preliminary examination which read as follows:
"10. Q.What is the participation of Sotero Molina in the death of Mariano Molina? A.He was the one with a flashlight when Delfin and Alfredo hacked and stoned him, sir. (SS of Clara Molina y Vasquez given to Pat. Constancio Echave on Nov. 10, 1980 - Exh. D, Translation, p. 7, Records). Q.Who of the two was holding the flashlight when they were hacking Mariano Molina? A.At that time, it was Adolfo Molina who was holding the flashlight. (SS of Clara Molina taken by the Municipal Judge during preliminary examination on January 1, 1981 - Exh. 2-A, p. 18, Record). Q.While they were inflicting injuries on the person of Mariano Molina, did not (sic) their father Sotero Molina get (sic) down from the house to stop them from killing Mariano Molina? A.No sir, I did not see him to (sic) go to the place where they killed Mariano Molina." (SS of Clara Molina taken on Jan. 12, 1981; Exh. 2-B; p. 18, Rec.)
LLjur

Appellants alleged that the foregoing inconsistencies create a doubt as to whether or not there was positive identification of the assailants. But as earlier stated, on cross-examination, Clara Molina clearly stated that there was error in her supposed statement in Exhibit "D" because she did not see SoteroMolina at the scene of the crime. She testified as follows:
"Q.You stated during the direct examination that during the hacking of Mariano Molina, this Sotero Molina, one of the accused was not there, am I right? A.I did not see him sir.

Q.But in your statement Exhibit "D", question No. 10 and I read: (See question No. 10 in Exhibit "D"). Do you remember if this question was asked of you Madam witness? Translation. Q.What was the participation of Sotero Molina in the death or Mariano Molina? And your answer was: He was the one who held the flashlight while Delfin and Adolfo hacked and stoned him. That was your answer, is it not, Madam witness? A.I did not see Sotero Molina at the time, sir. Q.So that this question No. 10 and answer No. 10 in your statement is not correct, am I right? (p. 46, t.s.n., Aug. 24, 1981) A.That is not true because I did not see Sotero Molina. Q.So that this statement made by you here, is it not true? "Fiscal Flores: Already answered, not correct question No. 10. Court: Q.Or the truth of the matter is, you just wanted to save now Sotero Molina, your father-in-law from being implicated in the offense with which they are charged? A.No, sir. I really did not know why that was typewritten there. "Atty. Barbero: Q.But before you signed this you read your statement? A.That portion of my statement, I did not make that portion of that statement perhaps they may have committed a mistake, sir.

LLpr

Q.So they were only two (2) at that time, Adolfo and Delfin Molina? A.Yes, sir." (p. 47, tsn, id.). (Emphasis supplied)

Pertinent to the foregoing testimony is the ruling of this Court that an affidavit being taken ex parte is almost always incomplete and often inaccurate,

sometimes from partial suggestion, and sometimes from want of suggestion and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject (People v. Alcantara and Guinto, 151 SCRA 327 [1987]). The contradictions, if any, may be explained by the fact that an affidavit will not always disclose the whole facts and will oftentimes and without design incorrectly describe without the deponent detecting it, some of the occurrences narrated (People v. Andaya, 152 SCRA 571 [1987]). Furthermore, assuming that Clara Molina's statement regarding Sotero Molina's participation in the offense charged should be discredited as false the same does not render the rest of her testimony false. The rule is already well-established that the testimony of a witness may be believed in part and disbelieved in part depending upon the corroborative evidence and the probabilities and improbabilities of the case. The court may accept such part of the witness' testimony as it may deem proper notwithstanding his false statements. If a part of a witness' testimony is found true, it cannot be disregarded entirely (People v. Pacabes, 137 SCRA 159 [1985]). As correctly observed by the trial court, the narrations of Clara Molina and Beato Molina are confirmed by the testimony of Dr. Isabelo Lucas and his autopsy report. The latter stated that wounds Nos. 1 and 2 were caused by a blunt instrument, while the rest of the wounds were caused by a bolo. Furthermore, the number, nature and locations of the wounds are positive indications that the culprit is more than one (Rollo, p. 12). Thus as ruled by this Court, an eyewitness' account that jibes with the autopsy findings is credible (People v. Encipido, 146 SCRA 478 [1986]). Finally, it is a well-settled rule that where the issue is one of credibility of the witness, the appellate court will generally not disturb the findings of the trial court unless some facts or circumstances may have been overlooked that may otherwise affect the result of the case for it is the peculiar province of the trial court to determine the credibility of the witness while testifying because of its superior advantage in observing the conduct and demeanor of the witness while testifying (People v. Caoile, 61 SCRA 73; People v. Ligon, 152 SCRA 419 [1987]). Hence, as a general rule, where a factual issue hinges on the credibility of witnesses, the factual findings of the trial court will not be disturbed (People v. Garufil, 152 SCRA 468 [1987]).
prcd

The trial court correctly appreciated the presence of the qualifying circumstance of treachery. The victim, a 64-year-old man, who ventured into the night alone and unarmed can be reasonably presumed not to have expected that he will be assaulted by his own nephews. As described by Clara Molina, Adolfo's stone hit the victim on the head and when the latter turned, Delfin hacked him with a bolo three or more times while Adolfo also hacked him with a bolo two or more times. In fact, the attack was so swift and sudden. Clara testified that everything happened around three (3) minutes (TSN, Hearing of August 24, 1981, p. 30; Records, p. 103). This Court had ruled that there is treachery in a sudden and unexpected attack which renders the victim unable to defend himself by reason of the suddenness and severity of the attack (People v. Fernandez, 154 SCRA 30 [1987). Likewise, it was also held that treachery was present when appellants took turns in stabbing the victim who was caught by surprise and did not have time to defend himself (People v. Dollantes, supra). Hence, taking into account their concerted action and the nature and location of the injuries inflicted upon the deceased, the trial court found Delfin Molina and Adolfo Molina equally guilty of the offense. As ruled by this Court, denial of conspiracy is belied where appellants are members of one family and the attack was done by them suddenly and simultaneously; all the appellants took part in inflicting injuries upon the deceased which all proved to be fatal; and after the attack and seeing the victim lying prostrate on the ground, they all left at the same time. All the accused are guilty of murder qualified by treachery (People v. Paras, 147 SCRA 596 [1987]).
cdrep

WHEREFORE, finding no reversible error committed by the trial court, the judgment of conviction is AFFIRMED but modified as to the amount of civil liability for the victim's death which should be increased to P50,000.00. SO ORDERED.

Gutierrez, Jr., Davide, Jr. and Romero, JJ ., concur. Feliciano, J ., is on leave.

[G.R. No. 120915. April 13, 1998.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSA ARUTA y MENGUIN, accused-appellant.

The Solicitor General for plaintiff-appellee. Norberto de la Cruz for accused-appellant.

SYNOPSIS Rosa Aruta was arrested, charged and then convicted with violation of Section 4, Article II of the Dangerous Drugs Act. It appears that on December 13, 1998, P/Lt. Abello was tipped off by his informant that a certain "Aling Rosa" would be arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, a team was assembled and proceeded to West Bajac-Bajac, Olongapo City. At around 4:00 P.M. of December 14, 1988, when a bus stopped two females got off, the informant pointed out to the team "Aling Rosa" who was then carrying a travelling bag. The team approached the woman and introduced themselves as NARCOM agents. When they asked about the contents of her bag, Aling Rosa handed it to them. Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag. On trial, instead of presenting its evidence, the defense filed a "Demurrer to Evidence" alleging the illegality of the search and seizure conducted. The same was denied without the trial court ruling on thereon. Instead, the trial court continued to hear the case. But after the prosecution made a formal offer of evidence, the defense filed its Comment contesting the admissibility of the items seized as they were allegedly a product of an unreasonable search and seizure.
THAICD

A search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge. Articles which are the product of unreasonable searches and seizures are inadmissible as evidence. To legitimize the warrantless search and seizure of accused-appellant's bag, she must have been validly arrested under Section 5 of Rule 113. However, accused-appellant cannot be said to be committing a crime. Neither was she about to commit nor had she just committed a crime. It was only when the informant pointed to accused-appellant and identified her as the carrier of the marijuana that she was singled out as the suspect. This is a clear violation of the constitutional guarantee against unreasonable search and seizure. Hence, the arrest being incipiently illegal, it logically follows that the subsequent

search was similarly illegal, it being not incidental to a lawful arrest. As such, the articles seized could not be used as evidence against accused-appellant. Also, her lack of objection to the search is not tantamount to a voluntary submission to the warrantless search because to constitute a waiver, there should be an actual intention to relinquish the right.
HSaIDc

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE; NECESSITY OF SEARCH WARRANT OPERATIVE AGAINST UNREASONABLE SEARCH AND SEIZURE. A search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the Constitution. This constitutional guarantee however, is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. The plain import of the language of the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the same time prescribes the requisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorized by validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. Further, articles which are the product of unreasonable searches and seizures are inadmissible as evidence.
TAacCE

2.ID.; ID.; ID.; ID.; EXCEPTIONS TO THE REQUIREMENT OF WARRANT. The State cannot simply intrude indiscriminately into the houses, papers, effects, and most importantly, on the person of the individual. The constitutional provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects the privacy and sanctity of the person himself against unlawful arrest and other forms of restraint. The right of a person to be secured against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construed and their application limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon personal liberty and would set back a right so basic and deserving of full protection and vindication yet often violated. The following cases are specifically provided or allowed by law: 1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by

prevailing jurisprudence; 2. Seizure of evidence in "plain view, " the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent, and (d) "plain view" justified mere seizure of evidence without further search; 3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and Emergency

Circumstances.

cCSEaA

3.ID.; ID.; ID.; ID.; ID.; PROBABLE CAUSE, REQUIRED. The exceptions should not become unbridled licenses for law enforcement officers to trample upon the constitutionality guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown by substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. In searches and seizures effected without a warrant, it is necessary for probable to be present. Absent any probable cause, the article(s) seized could not be admitted and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed.

4.ID.; ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To legitimize the warrantless search and seizure of accused-appellant's bag, accused-appellant must have been validly arrested under Section 5 of Rule 113. However, accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant's bag, there being no probable cause and the accusedappellant not having been lawfully arrested. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accusedappellant. As such, the articles seized could not be used as evidence against accused-appellant. The law requires that the search be incidental to a lawful arrest in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and hi belongings. Where a search is first undertaken, and an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law. 5.ID.; ID.; ID.; ID.; ID.; WAIVER TO THE UNREASONABLE SEARCH, NOT PRESENT IN CASE AT BAR. The act of herein accused-appellant in handling over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search.While in

principle we agree that the consent will validate an otherwise illegal search, we believe that appellant did not voluntarily consent to the search of her belongings. Appellant's silence should not be lightly taken as consent to such search. The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent
based merely on the presumption of regularity of the performance of duty." Thus, accused-appellant's lack of objection to the search is not tantamount to a waiver of her constitutional rights or a voluntary submission to the warrantless search. To constitute a waiver, there should be an actual intention to relinquish the right.
cCSEaA

6.ID.; ID.; ID.; ID.; SEARCH WARRANT; WANTING IN CASE AT BAR. Search warrants to be valid must particularly describe the place to be searched and the persons or things to be seized. The purpose of this rule is to limit the things to those and only those, particularly described in the warrant so as to leave the officers of the law with no discretion regarding what articles they shall seize to the end that unreasonable searches and seizures may not be made. Had the NARCOM agents only applied for a search warrant, they could have secured one without too much difficulty. The person intended to be searched has been particularized and the thing to be seized specified. The time was also sufficiently ascertained. And in any case, this Court has held that the police should particularly describe the place to be searched and the person or thing to be seized, wherever and whenever it is feasible. 7.ID.; ID.; ID.; ID.; ID.; ID.; ENTERING A PLEA DURING ARRAIGNMENT AND ACTIVELY PARTICIPATING IN TRIAL, NOT A WAIVER TO THE ILLEGAL SEARCH AND TO THE INADMISSIBILITY OF THE EVIDENCE OBTAINED THEREIN. While it may be argued that by entering a plea during arraignment and by actively participating in the trial, accused-appellant may be deemed to have waived objections to the illegality of the warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not apply in the instant case for the following reasons: 1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of "not guilty" and participation in the trial are indications of her voluntary submission to the court's jurisdiction. The plea and active participation in the trial would not cure the illegality of the search and transform the inadmissible evidence into objects of proof. The waiver simply does not extend this far. 2. Granting that evidence obtained through a warrantless search becomes admissible upon failure to object thereto during the trial of the case, records show that accused-appellant filed a Demurrer to Evidence and objected and opposed the prosecution's Formal Offer of Evidence.
AIHECa

DECISION ROMERO, J :
p

With the pervasive proliferation of illegal drugs and its pernicious effects on our society, our law enforcers tend at times to overreach themselves in apprehending drug offenders to the extent of failing to observe well-entrenched constitutional guarantees against illegal searches and arrests. Consequently,

drug offenders manage to evade the clutches of the law on mere technicalities.
LLjur

Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads:
"That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being lawfully authorized, did then and there willfully, unlawfully and knowingly engage in transporting approximately eight (8) kilos and five hundred (500) grams of dried marijuana packed in plastic bag marked 'Cash Katutak' placed in a travelling bag, which are prohibited drugs."

Upon arraignment, she pleaded "not guilty." After trial on the merits, the Regional Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos. 1 The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officer-in-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on their testimonies, the court a quo found the following: On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that a certain "Aling Rosa" would be arriving from Baguio City the following day, December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin. Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon of December 14, 1988 and deployed themselves near the Philippine National Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the PNB building while the other group waited near the Caltex gasoline station. While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on its front and back bumpers stopped in front of the PNB building at around 6:30 in the evening of the same day from where two females and a

male got off. It was at this stage that the informant pointed out to the team "Aling Rosa" who was then carrying a travelling bag. Having ascertained that accused-appellant was "Aling Rosa," the team approached her and introduced themselves as NARCOM agents. When P/Lt. Abello asked "Aling Rosa" about the contents of her bag, the latter handed it to the former. Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag marked "Cash Katutak." The team confiscated the bag together with the Victory Liner bus ticket to which Lt. Domingo affixed his signature. Accused-appellant was then brought to the NARCOM office for investigation where a Receipt of Property Seized was prepared for the confiscated marijuana leaves. Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report stating that said specimen yielded positive results for marijuana, a prohibited drug. After the presentation of the testimonies of the arresting officers and of the above technical report, the prosecution rested its case. Instead of presenting its evidence, the defense filed a "Demurrer to Evidence" alleging the illegality of the search and seizure of the items thereby violating accused-appellant's constitutional right against unreasonable search and seizure as well as their inadmissibility in evidence. The said "Demurrer to Evidence" was, however, denied without the trial court ruling on the alleged illegality of the search and seizure and the inadmissibility in evidence of the items seized to avoid pre-judgment. Instead, the trial court continued to hear the case. In view of said denial, accused-appellant testified on her behalf. As expected, her version of the incident differed from that of the prosecution. She claimed that immediately prior to her arrest, she had just come from Choice Theater where she watched the movie "Balweg." While about to cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office.

During investigation at said office, she disclaimed any knowledge as to the identity of the woman and averred that the old woman was nowhere to be found after she was arrested. Moreover, she added that no search warrant was shown to her by the arresting officers. After the prosecution made a formal offer of evidence, the defense filed a "Comment and/or Objection to Prosecution's Formal Offer of Evidence" contesting the admissibility of the items seized as they were allegedly a product of an unreasonable search and seizure. Not convinced with her version of the incident, the Regional Trial Court of Olongapo City convicted accused-appellant of transporting eight (8) kilos and five hundred (500) grams of marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11 of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her to life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency. 2 In this appeal, accused-appellant submits the following: 1.The trial court erred in holding that the NARCOM agents could not apply for a warrant for the search of a bus or a passenger who boarded a bus because one of the requirements for applying a search warrant is that the place to be searched must be specifically designated and described. 2.The trial court erred in holding or assuming that if a search warrant was applied for by the NARCOM agents, still no court would issue a search warrant for the reason that the same would be considered a general search warrant which may be quashed. 3.The trial court erred in not finding that the warrantless search resulting to the arrest of accused-appellant violated the latter's constitutional rights. 4.The trial court erred in not holding that although the defense of denial is weak yet the evidence of the prosecution is even weaker. These submissions are impressed with merit.

In People v. Ramos, 3 this Court held that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the Constitution which provides:
"SEC. 2.The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."

This constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. The plain import of the language of the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the same time prescribes the requisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. 4

Further, articles which are the product of unreasonable searches and seizures are inadmissible as evidence pursuant to the doctrine pronounced inStonehill v. Diokno. 5 This exclusionary rule was later enshrined in Article III, Section 3(2) of the Constitution, thus:
"SEC. 3(2).Any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding."

From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the houses, papers, effects, and most importantly, on the person of an individual. The constitutional provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint. 6

Therewithal, the right of a person to be secured against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construed and their application limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon personal liberty and would set back a right so basic and deserving of full protection and vindication yet often violated. 7 The following cases are specifically provided or allowed by law: 1.Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 8 and by prevailing jurisprudence; 2.Seizure of evidence in "plain view," the elements of which are: (a)a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b)the evidence was inadvertently discovered by the police who had the right to be where they are; (c)the evidence must be immediately apparent, and (d)"plain view" justified mere seizure of evidence without further search; 3.Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4.Consented warrantless search; 5.Customs search; 6.Stop and Frisk;
9

10

and
11

7.Exigent and Emergency Circumstances.

The above exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. 12 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown by substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. 13 In searches and seizures effected without a warrant, it is necessary for probable cause to be present. Absent any probable cause, the article(s) seized could not be admitted and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. In our jurisprudence, there are instances where information has become a sufficient probable cause to effect a warrantless search and seizure. In People v. Tangliben, 14 acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but

he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest. In instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their "business address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously. In People v. Malmstedt, 15 the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Aruta's identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street. In People v. Bagista, 16 the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accused-appellant's belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of

a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant. In Manalili v. Court of Appeals and People, 17 the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts. In all the abovecited cases, there was information received which became the bases for conducting the warrantless search. Furthermore, additional factors and circumstances were present which, when taken together with the information, constituted probable causes which justified the warrantless searches and seizures in each of the cases. In the instant case, the determination of the absence or existence of probable cause necessitates a reexamination of the facts. The following have been established: (1) In the morning of December 13, 1988, the law enforcement officers received information from an informant named "Benjie" that a certain "Aling Rosa" would be leaving for Baguio City on December 14, 1988 and would be back in the afternoon of the same day carrying with her a large volume of marijuana; (2) At 6:30 in the evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus carrying a travelling bag even as the informant pointed her out to the law enforcement officers; (3) The law enforcement officers approached her and introduced themselves as NARCOM agents; (4) When asked by Lt. Abello about the contents of her travelling bag, she gave the same to him; (5) When they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then brought to the NARCOM office for investigation.

This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was

identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him. Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada's constitutional right. In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To legitimize the warrantless search and seizure of accusedappellant's bag, accused-appellant must have been validly arrested under Section 5 of Rule 113 which provides inter alia:
"SEC. 5.Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a)When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; xxx xxx xxx"

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime,

except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests. Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant's bag, there being no probable cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution. Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Where a search is first undertaken, and an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.18 As previously discussed, the case in point is People v. Aminnudin Court observed that:
19

where, this

". . . accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him."

In the absence of probable cause to effect a valid and legal warrantless arrest, the search and seizure of accused-appellant's bag would also not be justified as seizure of evidence in " plain view" under the second exception. The marijuana was obviously not immediately apparent as shown by the fact that the NARCOM

agents still had to request accused-appellant to open the bag to ascertain its contents. Neither would the search and seizure of accused-appellant's bag be justified as a search of a moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant was apprehended several minutes after alighting from the Victory Liner bus. In fact, she was accosted in the middle of the street and not while inside the vehicle.

People v. Solayao, 20 applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals. 21 In said case, Solayao attempted to flee when

he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk" accusedappellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime.
LLjur

The warrantless search and seizure could not likewise be categorized under exigent and emergency circumstances, as applied in People v. De Gracia. 22 In said case, there were intelligence reports that the building was being used as headquarters by the RAM during a coup d'etat. A surveillance team was fired at by a group of armed men coming out of the building and the occupants of said building refused to open the door despite repeated requests. There were large quantities of explosives and ammunitions inside the building. Nearby courts were closed and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being committed. In short, there was probable cause to effect a warrantless search of the building. The same could not be said in the instant case. The only other exception that could possibly legitimize the warrantless search and seizure would be consent given by the accused-appellant to the warrantless search as to amount to a waiver of her constitutional right. The Solicitor General argues that accused-appellant voluntarily submitted herself to search and inspection citing People v. Malasugui 23 where this Court ruled:
"When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.)

The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly."

In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus:
"QWhen this informant by the name of alias Benjie pointed to Aling Rosa, what happened after that? AWe followed her and introduced ourselves as NARCOM agents and confronted her with our informant and asked her what she was carrying and if we can see the bag she was carrying. QWhat was her reaction? AShe gave her bag to me. QSo what happened after she gave the bag to you? AI opened it and found out plastic bags of marijuana inside."
24

This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. 25 On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her. Aside from the inapplicability of the abovecited case, the act of herein accusedappellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada, 26 where this Court held:
"[T]he Republic's counsel avers that appellant voluntarily handed the chairs containing the package of marijuana to the arresting officer and thus effectively waived his right against the warrantless search. This he gleaned from Bolonia's testimony.

Q:After Roel Encinada alighted from the motor tricycle, what happened next? A:I requested to him to see his chairs that he carried. Q:Are you referring to the two plastic chairs? A:Yes, sir. Q:By the way, when Roel Encinada agreed to allow you to examine the two chairs that he carried, what did you do next? A:I examined the chairs and I noticed that something inside in between the two chairs."

We are not convinced. While in principle we agree that consent will validate an otherwise illegal search, we believe that appellant based on the transcript quoted above did not voluntarily consent to Bolonia's search of his belongings. Appellant's silence should not be lightly taken as consent to such search. The implied acquiescence to the search, if there was any, could not have

been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. Furthermore, considering that the search was
conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the presumption of regularity of the performance of duty." (Emphasis supplied)

Thus, accused-appellant's lack of objection to the search is not tantamount to a waiver of her constitutional rights or a voluntary submission to the warrantless search. As this Court held in People v. Barros: 27
". . . [T]he accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest "simply because he failed to object" ". . . To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80

Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): 'xxx xxx xxx . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.' (Citation omitted). We apply the rule 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.'" 28 (Emphasis supplied)

To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As clearly illustrated in People v. Omaweng, 29 where prosecution witness Joseph Layong testified thus:
"PROSECUTOR AYOCHOK: QWhen you and David Fomocod saw the travelling bag, what did you do? AWhen we saw that travelling bag, we asked the driver if we could see the contents. QAnd what did or what was the reply of the driver, if there was any? AHe said ''you can see the contents but those are only clothings (sic).' QWhen he said that, what did you do? AWe asked him if we could open and see it. QWhen you said that, what did he tell you? AHe said ' you can see it.' QAnd when he said 'you can see and open it,' what did you do?

AWhen I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the bag. QAnd when you saw that it was not clothings (sic), what did you do? AWhen I saw that the contents were not clothes, I took some of the

contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana." (Emphasis supplied)

In the above-mentioned case, accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court." He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and traveling bag, which is not the case with Aruta. In an attempt to further justify the warrantless search, the Solicitor General next argues that the police officers would have encountered difficulty in securing a search warrant as it could be secured only if accused-appellant's name was known, the vehicle identified and the date of its arrival certain, as in the Aminnudin case where the arresting officers had forty-eight hours within which to act. This argument is untenable. ARTICLE IV, SECTION 3 of the Constitution provides:
". . . [N]o search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, andparticularly describing the place to be searched and the persons or things to be seized." (Emphasis supplied)

Search warrants to be valid must particularly describe the place to be searched and the persons or things to be seized. The purpose of this rule is to limit the things to be seized to those and only those, particularly described in the warrant so as to leave the officers of the law with no discretion regarding what articles they shall seize to the end that unreasonable searches and seizures may not be made. 30

Had the NARCOM agents only applied for a search warrant, they could have secured one without too much difficulty, contrary to the assertions of the Solicitor General. The person intended to be searched has been particularized and the thing to be seized specified. The time was also sufficiently ascertained to be in the afternoon of December 14, 1988. "Aling Rosa" turned out to be accused-appellant and the thing to be seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the NARCOM agents purposely positioned themselves near the spot where Victory Liner buses normally unload their passengers. Assuming that the NARCOM agents failed to particularize the vehicle, this would not in any way hinder them from securing a search warrant. The above particulars would have already sufficed. In any case, this Court has held that the police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. 31 (Emphasis supplied) While it may be argued that by entering a plea during arraignment and by actively participating in the trial, accused-appellant may be deemed to have waived objections to the illegality of the warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not apply in the instant case for the following reasons: 1.The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of "not guilty" and participation in the trial are indications of her voluntary submission to the court's jurisdiction. 32 The plea and active participation in the trial would not cure the illegality of the search and transform the inadmissible evidence into objects of proof. The waiver simply does not extend this far. 2.Granting that evidence obtained through a warrantless search becomes admissible upon failure to object thereto during the trial of the case, records show that accused-appellant filed a Demurrer to Evidence and objected and opposed the prosecution's Formal Offer of Evidence. It is apropos to quote the case of People v. Barros,
33

which stated:

"It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a detective warrant of arrest may be waived by applying for and posting

of bail for provisional liberty, so as to estop an accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter necessarily constitutes, or carries with it, waiver of the former an argument that the Solicitor General appears to be making impliedly.Waiver of the non-admissibility of the " fruits" of an invalid

warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people. In the case at bar, defense counsel had expressly objected

on constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when these were formally offered in evidence by the prosecution. We consider that appellant's objection to the

admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during the trial."(Emphasis supplied)

In fine, there was really no excuse for the NARCOM agents not to procure a search warrant considering that they had more than twenty-four hours to do so. Obviously, this is again an instance of seizure of the "fruit of the poisonous tree," hence illegal and inadmissible subsequently in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The nonexclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. 34

While conceding that the officer making the unlawful search and seizure may be held criminally and civilly liable, the Stonehill case observed that most jurisdictions have realized that the exclusionary rule is "the only practical means of enforcing the constitutional injunction" against abuse. This approach is based on the justification made by Judge Learned Hand that "only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed." 35 Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the

citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. 36 Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. 37 WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTED and ordered RELEASED from confinement unless she is being held for some other legal grounds. No costs. SO ORDERED.
LLjur

Narvasa, C .J ., Kapunan and Purisima, JJ ., concur.

[G.R. No. 125299. January 22, 1999.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA Y BOLADO and VIOLETA GADDAO Y CATAMA @ "NENETH," accused-appellants.

Singson Valdez & Associates for Gaddao. Arias Law Office for Doria.
SYNOPSIS Accused-appellants were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972. After trial, the Regional Trial Court, Branch 156, Pasig City convicted accused-appellants. The trial court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to death and pay a fine of P500,000.00 each. In the present appeal, accused-appellant Doria contend that the trial court gravely erred in admitting as evidence the marijuana fruitings found inside the carton box because they were obtained through a warrantless search and does not come within the plain view doctrine. Accused-appellant Gaddao, on the other hand, assails the validity of warrantless search leading to the seizure of the marijuana inside her house. The Supreme Court reversed and modified the decision of the trial court. Accused-appellant Doria's sentence was reduced from death to reclusion perpetua and appellant Gaddao was acquitted. Accused Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113 of the Rules of Court. She was not committing any crime. Since the warrantless arrest of Gaddao was illegal, it follows that the search of her person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. The Court, however, upheld appellant Doria's warrantless arrest. The Court also upheld the validity of the buy-bust operation wherein Doria was caught in the act of selling marijuana. The Court reiterated the doctrine that when an, accused is apprehended in flagrante delicto as a result of a buy-bust operation, the law enforcement agents are not only authorized but also duty-bound, to arrest him even without a warrant.
EITcaH

SYLLABUS 1.CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972; THE "OBJECTIVE TEST" IN BUY BUST OPERATIONS DEMANDS THAT THE DETAILS OF THE PURPORTED TRANSACTION MUST BE CLEARLY AND ADEQUATELY SHOWN. We stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual deliquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.
CaTSEA

2.ID.; ID.; ID.; NON-PRESENTATION OF THE CONFIDENTIAL INFORMANT IS NOT FATAL TO THE PROSECUTION'S CAUSE IN CASE AT BAR. In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed the marked money to accused-appellantDoria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later returned and handed the brick of marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police. It is well-settled that except when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to testify falsely against the

appellant, or that only the informant was the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies. There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses. 3.ID.; ID.; ID.; SOURCE OF MONEY FOR THE BUY-BUST OPERATION IS NOT A CRITICAL FACT; IT IS ENOUGH THAT THE PROSECUTION PROVED THAT THE MONEY WAS PAID TO THE ACCUSED IN CONSIDERATION OF WHICH HE SOLD AND DELIVERED THE PROHIBITED EFFECTS. The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution proved that money was paid to accused-appellant Doria in consideration of which he sold and delivered the marijuana. 4.ID.; ID.; ID.; NO RULE OF LAW WHICH REQUIRES THAT IN BUY-BUST OPERATIONS THERE MUST BE A SIMULTANEOUS EXCHANGE OF MARKED MONEY AND PROHIBITED DRUG BETWEEN THE BUYER AND THE POSEURBUYER; THE DECISIVE FACT IS THAT THE POSEUR-BUYER RECEIVED THE MARIJUANA FROM THE ACCUSED. We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher. Again, the decisive fact is that the poseur-buyer received the marijuana from the accusedappellant. 5.REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; ACCUSEDAPPELLANT'S ARREST DOES NOT FALL UNDER ANY OF INSTANCES ENUMERATED IN SECTION 5 OF RULE 113 OF THE 1985 RULES OF CRIMINAL PROCEDURE. To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime.

Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit." In fact, she was going about her daily chores when the policemen pounced on her. Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts,i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 6.ID.; ID.; WARRANTLESS SEIZURE; "PLAN VIEW" DOCTRINE; NOT APPLICABLE IN CASE AT BAR. In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself checked and marked the said contents. On cross-examination, however, he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the

box was individually wrapped in old newspaper and placed inside plastic bags white, pink or blue in color. PO3 Manlangit himself admitted on crossexamination that the contents of the box could be items other than marijuana. He did not know exactly what the box contained that he had to ask appellant Gaddao about its contents. It was not immediately apparent to PO3 Manlangit that the content of the box was marijuana.The marijuana was not in plain view
and its seizure without the requisite search warrant was in violation of the law and the Constitution. It was fruit of the poisonous tree and should have been excluded and never considered by the trial court. PANGANIBAN, J ., concurring opinion:

1.REMEDIAL LAW; CRIMINAL PROCEDURE; VALID ARRESTS WITHOUT WARRANTS; "IN FLAGRANTE DELICTO" ARREST; IT IS NOT SUFFICIENT THAT THE SUSPECT EXHIBITS UNUSUAL OR STRANGE ACTS OR SIMPLY APPEARS SUSPICIOUS; THE BEHAVIOR OR CONDUCT OF THE PERSON TO BE ARRESTED MUST BE CLEARLY INDICATIVE OF A CRIMINAL ACT. Section 5(a) of Rule 113 is commonly referred to as the rule on in flagrante delictoarrests. The accused is

apprehended at the very moment he is committing or attempting to commit or has just committed an offense in the presence of the arresting officer. There are two elements that must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. It is not sufficient that the suspect exhibits unusual or strange acts or simply appears suspicious. Thus, in the recent en banc case of Malacat vs. Court of Appeals, the Court, through now Chief Justice Hilario G. Davide, Jr., held that the fact that the appellant's eyes were "moving very fast" and looking at every approaching person were not sufficient to suspect him of "attempting to commit a crime," much less to justify his arrest and subsequent search without a warrant. The Court said that "there was nothing in [Malacat's] behavior or conduct which could have reasonably elicited even mere suspicion" that he was armed with a deadly weapon. In other words, there was no overt physical act on the part of the suspect, positively indicating that he had just committed a crime or was committing or attempting to commit one. There was, therefore, no valid reason for the police officers to arrest or search him. The same was true in People v. Mengote, where the arresting police tried to justify the warrantless arrest of the appellant on the ground that he appeared suspicious. The "suspicious" acts consisted of his darting eyes and the fact that his hand was over his abdomen. The Court, rejecting such justification, stated: "By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence." In other words, the behavior or conduct of the person to be arrested must be clearly indicative of a criminal act. If there is no outward indication at all that calls for an arrest, the suspect cannot be validly apprehended under this paragraph, notwithstanding a tip from an informant that he would at the time be undertaking a felonious enterprise.

2.ID.; ID.; ID.; "HOT PURSUIT" ARRESTS; ELEMENTS; PERSONAL KNOWLEDGE OF FACTS INDICATING THAT THE PERSON TO BE ARRESTED HAS COMMITTED AN OFFENSE; WHILE THE LAW ENFORCERS MAY NOT ACTUALLY WITNESS THE ACTS CONSTITUTING THE OFFENSE, THEY MUST HAVE DIRECT KNOWLEDGE OR VIEW OF THE CRIME RIGHT AFTER ITS COMMISSION; THEY MUST ALSO PERCEIVED ACTS EXHIBITED BY THE PERSON TO BE ARRESTED, INDICATING THAT HE PERPETRATED THE CRIME. Section 5 (b) of Rule 113 is otherwise known as the rule on "hot pursuit" arrests. Here, two elements must also concur prior to the arrest: (1) an "offense has in fact just been committed," and (2) the

arresting officer "has personal knowledge of facts indicating that the person to be arrested . . . committed [the offense]." In effecting this type of arrest, "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. . . . The fact of the commission of the offense must be undisputed." Thus, while the law enforcers may not actually witness the execution of acts constituting the offense, they must have direct knowledge or view of the crime right after its commission. They should know for a fact that a crime was committed. AND they must also perceive acts exhibits by the person to be arrested, indicating that he perpetrated the crime. Again, mere intelligence information that the suspect committed the crime will not suffice. The arresting officers themselves must have personal knowledge of facts showing that the suspect performed the criminal act. Personal knowledge means actual belief or reasonable grounds of suspicion, based on actual facts, that the person to be arrested is probably guilty of committing the crime.
CHcETA

3.ID.; ID.; WARRANTLESS ARRESTS, SEARCHES AND SEIZURES; THE EXCEPTIONS TO THE GENERAL RULE ON THE NECESSITY OF A JUDICIAL WARRANT FOR ANY ARREST, SEARCH AND SEIZURE MUST ALL BE STRICTLY CONSTRUED. I must reiterate that the above exceptions to the general rule on the necessity of a judicial warrant for any arrest, search and seizure must all be strictly construed. Foremost in our minds must still be every person's prized and fundamental right to liberty and security, a right protected and guaranteed by our Constitution. DECISION PUNO, J :
p

On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972. 1 The information reads:
"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer, deliver and give away to another eleven (11)

plastic bags of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law. CONTRARY TO LAW."
2

The prosecution contends the offense was committed as follows: In November 1995, members of the North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City. On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set aside P1,600.00 a one thousand peso bill and six (6) one hundred peso bills 3 as money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial numbers in the police blotter. 4 The team rode in two cars and headed for the target area.
prLL

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got the marijuana from his associate. 5 An hour later, "Jun" appeared at the agreed place where PO3 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth." 6 "Jun" led the police team to "Neneth's" house nearby at Daang Bakal. The team found the door of "Neneth's" house open and at woman inside. "Jun" identified the woman as his associate. 7 SPO1 Badua asked "Neneth" about the

P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried marijuana leaves. Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." 8 The policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned them over to the investigator at headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at the PNP Crime Laboratory. 9 The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams. 10 The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in their community. When accused-appellant denied the charge, the men led him to their car outside and ordered him to point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house.
LibLex

Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as PO3 Manlangit, pushed open the door and he and his companions entered and looked around the house for about three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered her house, three men were already inside. Accused-appellantDoria, then still at the door, overheard one of the men say that they found a carton box. Turning towards them, Doria saw a box on top of the table. The box was open and had something inside. PO3 Manlangit ordered him and Violeta to go outside

the house and board the car. They were brought to police headquarters where they were investigated. Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife. 11 Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and took her to her house. She found out later that the man was PO3 Manlangit.

Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the table. This was the first time she saw the box. The box was closed and tied with a piece of green straw. The men opened the box and showed her its contents. She said she did not know anything about the box and its contents.
cdll

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and that her husband never returned to their house after he left for Pangasinan. She denied the charge against her and Doria and the allegation that marked bills were found in her person. 12 After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to

death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both CONVICTED of the present charge against them. According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which explicitly state that: 'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime.' the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs.
cda

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for destruction in accordance with law. Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City. Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review. SO ORDERED."
13

Before this Court, accused-appellant Doria assigns two errors, thus:

"I THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER. II THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE." 14

Accused-appellant Violeta Gaddao contends:

"I THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST WAS CONDUCTED. II THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY. III THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST. IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSEDAPPELLANT." 15
cdasia

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her person and house, and the admissibility of the pieces of evidence obtained therefrom. Accused-appellants were caught by the police in a buy-bust operation. A buybust operation is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of an offense. 16 Entrapment has received judicial sanction when undertaken with due regard to constitutional and legal safeguards. 17 Entrapment was unknown in common law. It is a judicially created twentiethcentury American doctrine that evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses. 18 Entrapment sprouted from the doctrine of estoppel and the public interest in the formulation and application of decent standards in the enforcement of criminal law. 19 It also took off from a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist. 20 In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. 21 The classic definition of entrapment is that articulated by Justice Roberts in Sorrells v. United States, 22 the first Supreme Court decision to acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer." 23 It consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of the government officials rather than that of the innocent defendant, such that the crime is the product of the creative activity of the law enforcement officer. 24
cdtai

It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not every

deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a criminal career. 25 Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had. 26 Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted. 27 The law tolerates the use of decoys and other artifices to catch a criminal. Entrapment is recognized as a valid defense 28 that can be raised by an accused and partakes of the nature of a confession and avoidance. 29 It is a positive defense. Initially, an accused has the burden of providing sufficient evidence that the government induced him to commit the offense. Once established, the burden shifts to the government to show otherwise. 30 When entrapment is raised as a defense, American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United States 31 to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his state of mind and inclination before his initial exposure to government agents. 32 All relevant facts such as the accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of mind before the crime. 33 The predisposition test emphasizes the accused's propensity to commit the offense rather than the officer's misconduct 34 and reflects an attempt to draw a line between a "trap for the unwary innocent and the trap for the unwary criminal." 35 If the accused was found to have been ready and willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement. 36 Some states, however, have adopted the "objective" test. 37 This test was first authoritatively laid down in the case of Grossman v. State 38 rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct. 39 The inquiry is focused on the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct. 40 The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-

abiding person, other than one who is ready and willing, to commit the offense; 41 for purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully.42 Official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or importuning, 43 or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not. 44 Proponents of this test believe that courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on behalf of the government to bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should not become tainted by condoning law enforcement improprieties. 45 Hence, the transactions leading up to the offense, the interaction between the accused and law enforcement officer and the accused's response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are considered in judging what the effect of the officer's conduct would be on a normal person. 46
cdrep

Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the "subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory practices will be deemed impermissible. 47 Delving into the accused's character and predisposition obscures the more important task of judging police behavior and prejudices the accused more generally. It ignores the possibility that no matter what his past crimes and general disposition were, the accused might not have committed the particular crime unless confronted with inordinate inducements. 48 On the other extreme, the purely "objective" test eliminates entirely the need for considering a particular accused's predisposition. His predisposition, at least if known by the police, may have an important bearing upon the question of whether the conduct of the police and their agents was proper. 49 The undisputed fact that the accused was a dangerous and chronic offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy. 50 Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now combine both the "subjective" and "objective" tests. 51 In Cruz v. State, 52 the Florida Supreme Court declared that the permissibility of police conduct must first be determined. If this objective test is satisfied, then the analysis turns to whether the accused was predisposed to

commit the crime. 53 In Baca v. State, 54 the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation. 55 The hybrid approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently. As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught in flagrante delicto. In United States v.Phelps, 56 we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug. 57 The conduct of the BIR agent was condemned as "most reprehensible." 58 In People v. Abella, 59 we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, . . . a very high one" causing the accused to sell the explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused. 60 In People v. Lua Chu and Uy Se Tieng, 61 we convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers. 62 It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down the distinction between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris, 64 we held:
prcd

"ENTRAPMENT AND INSTIGATION. While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as

distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorized by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are cases holding the contrary." 65

The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia, 66 the appellate court declared that "there is a wide difference between entrapment and instigation." The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan. 67 In People v. Tan Tiong, 68 the Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker." 69 The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua. 70 Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal. 71 It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is considered an absolutory cause. 72 To determine whether there is entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not the predisposition of the accused to commit the

crime. The "objective" test first applied in United States v. Phelps has been followed in a series of similar cases. 73Nevertheless, adopting the "objective" approach has not precluded us from likewise applying the "subjective" test. In People v. Boholst, 74 we applied both tests by examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous convictions of other crimes 75 and held that his opprobrious past and membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc 76 thereby sustaining his defense that led to his acquittal.
llcd

The distinction between entrapment and instigation has proven to be very material in anti-narcotics operations. In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory statutes. 77 They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. 78 They are not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and immoral. 79 Laws defining crimes mala prohibita condemn behavior directed, not against particular individuals, but against public order. 80 Violation is deemed a wrong against society as a whole and is generally unattended with any particular harm to a definite person. 81 These offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that the police must be present at the time the offenses are committed either in an undercover capacity or through informants, spies or stool pigeons. 82

Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds abominable abuse. Frequently, a person who accepts payment from the police in the apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the police. The

informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses underworld characters to help maintain law and order is not an inspiring one. 83 Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous law enforcers' motivations are legion harassment, extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of cases 84 where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and hapless persons, particularly unsuspecting provincial hicks. 85 The use of shady underworld characters as informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be extra-vigilant in deciding drug cases. 86 Criminal activity is such that stealth and strategy, although necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza, 87
"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the employment of illegal means." 88
cdpr

It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of innocence and the constitutionallyprotected rights of the individual. 89 It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless enforcement. 90 Courts should not allow themselves to be used as an instrument of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug offenses. 91 We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of

the sale. 92 The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buybust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement. In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed the marked money to accusedappellant Doria as advance payment for one (1) kilo of marijuana. Accusedappellant Doria was apprehended when he later returned and handed the brick of marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police. 93 It is well-settled that except when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, 94 or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant, 95 or that only the informant was the poseur-buyer who actually witnessed the entire transaction, 96 the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies. 97 There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses. 98
LLphil

The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-

bust operation is not a critical fact in the case at bar. It is enough that the prosecution proved that money was paid to accused-appellant Doria in consideration of which he sold and delivered the marijuana. Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each of the ten (10) bricks, however, were identified and marked in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria: Mr. Police Officer, when you identified that box, Tell the court, how were you able to identify that box? AThis is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana brick we confiscated from the suspect, sir. QPlease open it and show those eleven bricks. PROSECUTOR Witness bringing out from the said box . . . ATTY. VALDEZ, Counsel for Violeta Gaddao: Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when the question posed to the witness was what was handed to him by Jun? COURT So be it. ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box showed to him and brought in front of him. COURT

Noted. QNow tell the court, how did you know that those are the eleven bricks? xxx xxx xxx. AI have markings on these eleven bricks, sir. QPoint to the court, where are those markings? AHere, sir, my signature, my initials with the date, sir. PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature. QWhose signature is that? ATTY. VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to him by the accused Jun, your Honor? PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration.
LLjur

COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court. ATTY. VALDEZ We submit, your Honor. AThis brick is the one that was handed to me by the suspect Jun, sir. COURT

Why do you know that that is the thing? Are you sure that is not "tikoy?" AYes, your Honor. QWhat makes you so sure? AI am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to the PCCL, your Honor. QWhat are you sure of ? AI am sure that this is the brick that was given to me by one alias Jun, sir. QWhat makes you so sure? ABecause I marked it with my own initials before giving it to the investigator and before we brought it to the PCCL, your Honor. xxx xxx xxx. PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked as Exhibit "D?" COURT Mark it as Exhibit "D." QTo stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic? AThis one, the signature, I made the signature, the date and the time and this Exhibit "A." QHow about this one? AI don't know who made this marking, sir. PROSECUTOR

May it be of record that this was just entered this morning. QI am asking you about this "itim" and not the "asul." AThis CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir. PROSECUTOR May we place on record that the one that was enclosed. . . ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other entries included in the enclosure.
LexLib

COURT Noted. The court saw it. QNow, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?" COURT Tag it. Mark it. QThis particular exhibit that you identified, the wrapper and the contents was given to you by whom? AIt was given to me by suspect Jun, sir. QWhereat? AAt the corner of Boulevard and Jacinto St., sir. QHow about the other items that you were able to recover? xxx xxx xxx.

AThese other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth sir. xxx xxx xxx."
99

The first brick identified by PO3 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were marked as Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams. 100 We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher. 101 Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant. 102 We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:
prLL

"Sec. 5.Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c)When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

xxx xxx xxx."

103

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant. 104 The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of marijuana and marked bills are different matters. Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is inadmissible for any purpose in any proceeding. 105 The rule is, however, not absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: 106 (1) search incident to a lawful arrest; 107 (2) search of a moving motor vehicle; 108 (3) search in violation of customs laws; 109 (4) seizure of evidence in plain view; 110 (5) when the accused himself waives his right against unreasonable searches and seizures.111 The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the search was an incident to her lawful arrest.
LibLex

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise:
"ATTY. VALDEZ, Counsel for appellant Gaddao: We submit at this juncture, your Honor, that there will be no basis for that question. QThis particular exhibit that you identified, the wrapper and the contents was given to you by whom? AIt was given to me by suspect Jun, sir.

QWhereat? AAt the corner of Boulevard and Jacinto Street, sir. QHow about the other items that you were able to recover? ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that question. COURT: There is. Answer. AThese other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. QWhereat? AAt Daang Bakal near the crime scene at Shaw Boulevard, sir. QAnd what happened upon arrival thereat? AWe saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir. QYou mentioned "him?" AHer, sir. We asked her to give us the money, the marked money which Jun gave her, sir. QAnd what happened? AAt this instance, it was SPO1 Badua who can testify regarding this buybust money, sir.
cdlex

xxx xxx xxx."

112

SPO1 Badua testified on cross-examination that:

QWhat was your intention in going to the house of Aling Neneth?

ATo arrest her, sir. QBut the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there? AYes, sir. QAs far as you can see, she was just inside her house? AI saw her outside, sir. QShe was fetching water as a matter of fact? AShe was 'sa bandang poso.' QCarrying a baby? ANo, sir. QAt that particular time when you reached the house of Aling Neneth and saw her outside the house, she was not committing any crime, she was just outside the house? ANo, sir. QShe was not about to commit any crime because she was just outside the house doing her daily chores. Am I correct? AI just saw her outside, sir. QAnd at that point in time you already wanted to arrest her. That is correct, is it not? AYes, sir. QNow, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her? APO3 Manlangit, sir. QYou did not approach her because PO3 Manlangit approached her? AYes, sir.

QDuring all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just in the side lines? AI was just watching, sir. QSo you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this buy-bust operation was as a back-up? AYes, sir. QWho got the alleged marijuana from inside the house of Mrs. Neneth? APO3 Manlangit, sir. QManlangit got the marijuana? AYes, sir. QAnd the money from Aling Neneth? AI don't know, sir. QYou did not even know who got the money from Aling Neneth? PROSECUTOR: There is no basis for this question, your Honor. Money, there's no testimony on that. ATTY. VALDEZ: I was asking him precisely. PROSECUTOR: No basis. COURT: Sustained. QAlright. I will ask you a question and I expect an honest answer. According to the records, the amount of P1,600.00 was recovered from the person of Aling Neneth. That's right?
cdll

AYes, sir, the buy-bust money. QWhat you are now saying for certain and for the record is the fact that you were not the one who retrieved the money from Aling Neneth, it was Manlangit maybe? AI saw it, sir. QIt was Manlangit who got the money from Aling Neneth? AThe buy-bust money was recovered from the house of Aling Neneth, sir. QIt was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to tell the Court? ANo, sir. ATTY. VALDEZ: I am through with this witness, your Honor." 113

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit." 114 In fact, she was going about her daily chores when the policemen pounced on her. Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." 115 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 116 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 117 Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his

direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as to where the marked money was. 118Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, 119 with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable. 120

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of marijuana was in plain view, making its warrantless seizure valid.
cdasia

Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence. 121 The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. 122 The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area.123 In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. 124 The object must be open to eye and hand 125 and its discovery inadvertent. 126 It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view

and may be seized. 127 In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. 128 It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. 129 PO3 Manlangit, the Narcom agent who found the box, testified on crossexamination as follows:
"ATTY. VALDEZ: So here we are. When you and Badua arrived, Aling Neneth was inside the house? AYes, sir. QBadua demanded from Aling Neneth the buy-bust money? AYes, sir. QAt that particular instance, you saw the carton? AYes, sir. QThis carton, according to you was under a table? AYes, sir, dining table. QI noticed that this carton has a cover? AYes, sir. QI ask you were the flaps of the cover raised or closed? AIt was open, sir. Not like that. COURT Go down there. Show to the court. INTERPRETER Witness went down the witness stand and approached a carton box.
cda

ALike this, sir. PROSECUTOR Can we describe it? ATTY. VALDEZ Yes. PROSECUTOR One flap is inside and the other flap is standing and with the contents visible. COURT Noted. QAt this juncture, you went inside the house? AYes, sir. QAnd got hold of this carton? AYes, sir. QDid you mention anything to Aling Neneth? AI asked her, what's this . . . QNo, no. no. did you mention anything to Aling Neneth before getting the carton? AI think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir. QMaking reference to the marijuana that was given by alias Jun? AYes, sir. QWhen you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]?

AI just don't know if she was frisked already by Badua, sir. QWho got hold of this? AI was the one, sir. QYou were the one who got this? AYes, sir. QAt that particular point in time, you did not know if the alleged buybust money was already retrieved by Badua? AYes, sir. QYou went inside the house? AYes, sir. QYou did not have any search warrant? AYes, sir. QIn fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in possession of the buy-bust money because according to you, you did not know whether Badua already retrieved the buy-bust money from her? AYes, sir. QHow far was this from the door? ATwo and a half meters from the door, sir. It was in plain view. QUnder the table according to you? AYes, sir, dining table. QSomewhere here? AIt's far, sir. PROSECUTOR May we request the witness to place it, where he saw it?
cdtai

AHere, sir. QWhat you see is a carton? AYes, sir, with plastic. QMarked "Snow Time Ice Pop?" AYes, sir. QWith a piece of plastic visible on top of the carton? AYes, sir. QThat is all that you saw? AYes, sir. PROSECUTOR For the record, your Honor. . . QYou were only able to verify according to you . . . PROSECUTOR Panero, wait. Because I am objecting to the words a piece of plastic. By reading it. . . ATTY. VALDEZ That's a piece of plastic. PROSECUTOR By reading it, it will connote . . . this is not a piece of plastic. ATTY. VALDEZ What is that? What can you say, Fiscal? I'm asking you? PROSECUTOR

With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one, for record purposes. COURT Leave that to the court. PROSECUTOR Leave that to the court. QThe only reason according to you, you were able to . . . Look at this, no even Superman . . . I withdraw that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the Court, it could be "tikoy," is it not [sic]? AYes, sir. QSiopao? AYes, sir. QCanned goods? AYes, sir. QIt could be ice cream because it says Snow Pop, Ice Pop? AI presumed it was also marijuana because it may . . . QI am not asking you what your presumptions are. I'm asking you what it could possibly be. AIt's the same plastic, sir. ATTY. VALDEZ: I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for you.
cdrep

COURT: Continue. Next question.

xxx xxx xxx."

130

PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria named her and led them to her. 131 Standing by the door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two and a half meters away was the dining table and underneath it was a carton box. The box was partially open and revealed something wrapped in plastic. In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself checked and marked the said contents. 132 On cross-examination, however, he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was individually wrapped in old newspaper and placed inside plastic bags white, pink or blue in color. 133 PO3 Manlangit himself admitted on cross-examination that the contents of the box could be items other than marijuana. He did not know exactly what the box contained that he had to ask appellant Gaddao about its contents. 134 It was not immediately apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant was in violation of the law and the Constitution. 135 It was fruit of the poisonous tree and should have been excluded and never considered by the trial court. 136 The fact that the box containing about six (6) kilos of marijuana 137 was found in the house of accused-appellant Gaddao does not justify a finding thatshe herself is guilty of the crime charged. 138 Apropos is our ruling in People v. Aminnudin, 139 viz:
cdphil

"The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its

protection the innocent and the guilty alike against any manner of highhandedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some criminals should escape than that the government should play an ignoble part.' It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself." 140

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit:
"Sec. 4.Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions.
prLL

xxx xxx xxx."

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus delicti, as evidence in court. 141 The prosecution has clearly established the fact that in consideration of P1,600.00 which he received, accusedappellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-appellant Gaddao conspired with accusedappellantDoria in the sale of said drug. There being no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed. 142 IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is reversed and modified as follows:

1.Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five hundred thousand pesos (P500,000.00). 2.Accused-appellant Violeta Gaddao y Catama is acquitted. SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Martinez, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur. Panganiban, J., please see concurring opinion.

[G.R. No. 158763. March 31, 2006.] JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B. OCON, petitioners, vs. VIRGILIO M. TULIAO, respondent. DECISION CHICO-NAZARIO, J :
p

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the 18 December 2002 Decision 1 of the Court of Appeals in CA-G.R. SP No. 67770 and its 12 June 2003 Resolution denying petitioners' Motion for Reconsideration. The dispositive portion of the assailed decision reads as follows:
WHEREFORE, finding public respondent Judge Anastacio D. Anghad to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Orders, the instant petition for certiorari, mandamus and prohibition is hereby GRANTED and GIVEN DUE COURSE, and it is hereby ordered: 1.The assailed Joint Order dated August 17, 2001, Order dated September 21, 2001, Joint Order dated October 16, 2001 and Joint Order dated November 14, 2001 dismissing the two (2) Informations for Murder, all issued by public respondent Judge Anastacio D. Anghad in Criminal Cases Nos. 36-3523 and 36-3524 are hereby REVERSED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and another entered UPHOLDING, AFFIRMING[,] and REINSTATING the Order dated June 25, 2001 and Joint Order dated July 6, 2001 issued by the then acting Presiding Judge Wilfredo Tumaliuan; 2.Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered REINSTATED in the docket of active criminal cases of Branch 36 of the Regional Trial Court of Santiago City, Isabela; and 3.Public respondent Judge Anastacio D. Anghad is DIRECTED to ISSUE forthwith Warrants of Arrest for the apprehension of private respondents Jose "Pempe" Miranda, SPO3 Alberto

P. Dalmacio, PO3 Romeo B. Ocon and accused Rodel T. Maderal in said Criminal Cases Nos. 36-3523 and 363524. 2

The factual and procedural antecedents of the case are as follows: On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan, Ramon, Isabela, which were later identified as the dead bodies of Vicente Bauzon and Elizer Tuliao, son of private respondent Virgilio Tuliao who is now under the witness protection program. Two informations for murder were filed against SPO1 Wilfredo Leao, SPO1 Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court (RTC) of Santiago City. The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila convicted all of the accused and sentenced them to two counts ofreclusion perpetua except SPO2 Maderal who was yet to be arraigned at that time, being at large. The case was appealed to this Court on automatic review where we, on 9 October 2001, acquitted the accused therein on the ground of reasonable doubt. Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he executed a sworn confession and identified petitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe, as the persons responsible for the deaths of Vicente Bauzon and Elizer Tuliao. Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela Cruz, and Amado Doe, and submitted the sworn confession of SPO2 Maderal. On 25 June 2001, Acting Presiding Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners and SPO2 Maderal. On 29 June 2001, petitioners filed an urgent motion to complete preliminary investigation, to reinvestigate, and to recall and/or quash the warrants of arrest. In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the absence of petitioners and issued a Joint Order denying said urgent motion on the ground that, since the court did not acquire jurisdiction over their persons, the motion cannot be properly heard by the court. In the meantime, petitioners

appealed the resolution of State Prosecutor Leo T. Reyes to the Department of Justice. On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took over the case and issued a Joint Order reversing the Joint Order of Judge Tumaliuan. Consequently, he ordered the cancellation of the warrant of arrest issued against petitioner Miranda. He likewise applied this Order to petitioners Ocon and Dalmacio in an Order dated 21 September 2001. State Prosecutor Leo S. Reyes and respondent Tuliao moved for the reconsideration of the said Joint Order and prayed for the inhibition of Judge Anghad, but the motion for reconsideration was denied in a Joint Order dated 16 October 2001 and the prayer for inhibition was denied in a Joint Order dated 22 October 2001. On 25 October 2001, respondent Tuliao filed a petition for certiorari, mandamus and prohibition with this Court, with prayer for a Temporary Restraining Order, seeking to enjoin Judge Anghad from further proceeding with the case, and seeking to nullify the Orders and Joint Orders of Judge Anghad dated 17 August 2001, 21 September 2001, 16 October 2001, and 22 October 2001. On 12 November 2001, this Court issued a Resolution resolving to grant the prayer for a temporary restraining order against Judge Anghad from further proceeding with the criminal cases. Shortly after the aforesaid resolution, Judge Anghad issued a Joint Order dated 14 November 2001 dismissing the two Informations for murder against petitioners. On 19 November 2001, this Court took note of respondent's cash bond evidenced by O.R. No. 15924532 dated 15 November 2001, and issued the temporary restraining order while referring the petition to the Court of Appeals for adjudication on the merits.
SHTcDE

Respondent Tuliao filed with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals in view of the previous referral to it of respondent's petition for certiorari, prohibition andmandamus. On 18 December 2002, the Court of Appeals rendered the assailed decision granting the petition and ordering the reinstatement of the criminal cases in the RTC of Santiago City, as well as the issuance of warrants of arrest against petitioners and SPO2 Maderal. Petitioners moved for a reconsideration of this Decision, but the same was denied in a Resolution dated 12 June 2003.

Hence, this petition. The facts of the case being undisputed, petitioners bring forth to this Court the following assignments of error:
FIRST ASSIGNMENT OF ERROR With all due respect, the Honorable Court of Appeals gravely erred in reversing and setting aside the Joint Order of Judge Anastacio D. Anghad dated August 17, 2001, September 21, 2001, October 16, 2001 and November 14, 2001 issued in criminal cases numbered 36-3523 and 36-3524; and, erred in upholding, affirming and reinstating the Order dated July 6, 2001 issued by then Acting Presiding Judge Wilfredo Tumaliuan, on the alleged rule that an accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. SECOND ASSIGNMENT OF ERROR With all due respect, the Honorable Court of Appeals gravely erred in directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in the docket of Active Criminal Cases of Branch 36 of the Regional Trial Court of Santiago City, Philippines, and in ordering the public respondent to re-issue the warrants of arrest against herein petitioners. THIRD ASSIGNMENT OF ERROR Wit all due respect, the Honorable Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 363523 and No. 36-3524 in the docket of active criminal cases of Branch 36 of the regional trial court of Santiago City, Philippines, and in ordering the public respondent to issue warrants of arrest against herein petitioners, the order of dismissal issued therein having become final and executory.

Adjudication of a motion to quash a warrant of arrest requires neither jurisdiction over the person of the accused, nor custody of law over the body of the accused. The first assignment of error brought forth by the petitioner deals with the Court of Appeals' ruling that:

[A]n accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. Jurisdiction over the person of the accused may be acquired either through compulsory process, such as warrant of arrest, or through his voluntary appearance, such as when he surrenders to the police or to the court. It is only when the court has already acquired jurisdiction over his person that an accused may invoke the processes of the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M. No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in the custody of the law before the court may validly act on his petition for judicial reliefs. 3

Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda, Ocon and Dalmacio cannot seek any judicial relief since they were not yet arrested or otherwise deprived of their liberty at the time they filed their "Urgent Motion to complete preliminary investigation; to reinvestigate; to recall and/or quash warrants of arrest." 4 Petitioners counter the finding of the Court of Appeals by arguing that jurisdiction over the person of the accused is required only in applications for bail. Furthermore, petitioners argue, assuming that such jurisdiction over their person is required before the court can act on their motion to quash the warrant for their arrest, such jurisdiction over their person was already acquired by the court by their filing of the above Urgent Motion. In arguing that jurisdiction over the person is required only in the adjudication of applications for bail, petitioners quote Retired Court of Appeals Justice Oscar Herrera:

Except in applications for bail, it is not necessary for the court to first acquire jurisdiction over the person of the accused to dismiss the case or grant other relief. The outright dismissal of the case even before the court acquires jurisdiction over the person of the accused is authorized under Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the Revised Rules on Summary Procedure (Sec. 12a). In Allado vs. Diokno (232 SCRA 192), the case was dismissed on motion of the accused for lack of probable cause without the accused having been arrested. In Paul Roberts vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the issuance of a warrant of arrest in abeyance pending review by the Secretary of Justice. And in Lacson vs. Executive Secretary (301 SCRA 102 5 ), the Court ordered the

case transferred from the Sandiganbayan to the RTC which eventually ordered the dismissal of the case for lack of probable cause. 6

In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez
The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the court's jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person. Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused. 8 Custody of the law is accomplished either by arrest or voluntary surrender, 9 while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. 10 One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. 11 Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. 12 Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention. The statement in Pico v. Judge Combong, Jr., 13 cited by the Court of Appeals should not have been separated from the issue in that case, which is the application for admission to bail of someone not yet in the custody of the law. The entire paragraph of our pronouncement in Pico reads:
A person applying for admission to bail must be in the custody of the law or otherwise deprived of his liberty. A person who has not submitted

himself to the jurisdiction of the court has no right to invoke the processes of that court. Respondent Judge should have diligently ascertained the whereabouts of the applicant and that he indeed had jurisdiction over the body of the accused before considering the application for bail. 14

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. 15 As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance.
HTDCAS

Pico deals with an application for bail, where there is the special requirement of the applicant being in the custody of the law. In Feliciano v. Pasicolan, 16we held
that "[t]he purpose of bail is to secure one's release and it would be incongruous to grant bail to one who is free. Thus, 'bail is the security required and given for the release of a person who is in the custody of law.'" The rationale behind this special rule on bail is that it discourages and prevents resort to the former pernicious practice wherein the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 17 There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one's person to the jurisdiction of the court. This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance. These pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; 18 (2) in criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a warrant of arrest. The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest. To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special appearances, an accused can invoke

the processes of the court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law. In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief. Notwithstanding this, there is no requirement for him to be in the custody of the law. The following cases best illustrate this point, where we granted various reliefs to accused who were not in the custody of the law, but were deemed to have placed their persons under the jurisdiction of the court. Note that none of these cases involve the application for bail, nor a motion to quash an information due to lack of jurisdiction over the person, nor a motion to quash a warrant of arrest: 1.In Allado v. Diokno, 19 on the prayer of the accused in a petition for certiorari on the ground of lack of probable cause, we issued a temporary restraining order enjoining PACC from enforcing the warrant of arrest and the respondent judge therein from further proceeding with the case and, instead, to elevate the records to us. 2.In Roberts, Jr. v. Court of Appeals, 20 upon the accused's Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they filed a Petition for Review with the Department of Justice, we directed respondent judge therein to cease and desist from further proceeding with the criminal case and to defer the issuance of warrants of arrests against the accused. 3.In Lacson v. Executive Secretary, 21 on the prayer of the accused in a petition for certiorari on the ground of lack of jurisdiction on the part of the Sandiganbayan, we directed the Sandiganbayan to transfer the criminal cases to the Regional Trial Court even before the issuance of the warrants of arrest. We hold that the circumstances forcing us to require custody of the law in applications for bail are not present in motions to quash the warrant of arrest. If we allow the granting of bail to persons not in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at large, and

could elude being held to answer for the commission of the offense if ever he is proven guilty. On the other hand, if we allow the quashal of warrants of arrest to persons not in the custody of the law, it would be very rare that a person not genuinely entitled to liberty would remain scot-free. This is because it is the same judge who issued the warrant of arrest who will decide whether or not he followed the Constitution in his determination of probable cause, and he can easily deny the motion to quash if he really did find probable cause after personally examining the records of the case. Moreover, pursuant to the presumption of regularity of official functions, the warrant continues in force and effect until it is quashed and therefore can still be enforced on any day and at any time of the day and night. 22 Furthermore, the continued absence of the accused can be taken against him in the determination of probable cause, since flight is indicative of guilt. In fine, as much as it is incongruous to grant bail to one who is free, it is likewise incongruous to require one to surrender his freedom before asserting it. Human rights enjoy a higher preference in the hierarchy of rights than property rights, 23 demanding that due process in the deprivation of liberty must come before its taking and not after.

Quashing a warrant of arrest based on a subsequently filed petition for review with the Secretary of Justice and based on doubts engendered by the political climate constitutes grave abuse of discretion. We nevertheless find grave abuse of discretion in the assailed actions of Judge Anghad. Judge Anghad seemed a little too eager of dismissing the criminal cases against the petitioners. First, he quashed the standing warrant of arrest issued by his predecessor because of a subsequently filed appeal to the Secretary of Justice, and because of his doubts on the existence of probable cause due to the political climate in the city. Second, after the Secretary of Justice affirmed the prosecutor's resolution, he dismissed the criminal cases on the basis of a decision of this Court in another case with different accused, doing so two days after this Court resolved to issue a temporary restraining order against further proceeding with the case.

After Judge Tumaliuan issued warrants for the arrest of petitioners, petitioner Miranda appealed the assistant prosecutor's resolution before the Secretary of Justice. Judge Anghad, shortly after assuming office, quashed the warrant of arrest on the basis of said appeal. According to Judge Anghad, ". . . prudence dictates (that) and because of comity, a deferment of the proceedings is but proper." 24 Quashal on this basis is grave abuse of discretion. It is inconceivable to charge Judge Tumaliuan as lacking in prudence and oblivious to comity when he issued the warrants of arrest against petitioners just because the petitioners might, in the future, appeal the assistant prosecutor's resolution to the Secretary of Justice. But even if the petition for review was filed before the issuance of the warrants of arrest, the fact remains that the pendency of a petition for the review of the prosecutor's resolution is not a ground to quash the warrants of arrest.
cCEAHT

In Webb v. de Leon, 25 we held that the petitioners therein cannot assail as premature the filing of the information in court against them on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. Similarly, the issuance of warrants of arrest against petitioners herein should not have been quashed as premature on the same ground. The other ground invoked by Judge Anghad for the quashal of the warrant of arrest is in order if true: violation of the Constitution. Hence, Judge Anghad asked and resolved the question:
In these double murder cases, did this Court comply or adhere to the above-quoted constitutional proscription, which is Sec. 2, Article III Bill of Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the above-cited decisional cases? To this query or issue, after a deep perusal of the arguments raised, this Court, through [its] regular Presiding Judge, finds merit in the contention of herein accused-movant, Jose "Pempe"Miranda. 26

Judge Anghad is referring to the following provision of the Constitution as having been violated by Judge Tumaliuan:
Sec. 2.The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to

be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 27

However, after a careful scrutiny of the records of the case, including the supporting evidence to the resolution of the prosecutor in his determination of probable cause, we find that Judge Anghad gravely abused his discretion. According to petitioners:
In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the petitioners is apparent from the face of the order itself, which clearly stated that the determination of probable cause was based on the certification, under oath, of the fiscal and not on a separate determination personally made by the Judge. No presumption of regularity could be drawn from the order since it expressly and clearly showed that it was based only on the fiscal's certification. 28

Petitioners' claim is untrue. Judge Tumaliuan's Joint Order contains no such indication that he relied solely on the prosecutor's certification. The Joint Order even indicated the contrary:
Upon receipt of the information and resolution of the prosecutor, the Court proceeded to determine the existence of a probable cause by personally evaluating the records . . . . 29

The records of the case show that the prosecutor's certification was accompanied by supporting documents, following the requirement under Lim, Sr. v. Felix 30 and People v. Inting. 31 The supporting documents are the following:
1.Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes; 2.Affidavit dated 22 May 2001 of Modesto Gutierrez; 3.Affidavit dated 19 May 2001 of Romeo B. Ocon; 4.Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C. Miranda and Reynaldo de la Cruz; 5.Affidavit dated 19 May 2001 of Alberto Dalmacio; 6.Decision dated 22 April 1999 of the Regional Trial Court of Manila, Branch 41 in Criminal Case No. 97-160355; 7.Sworn statement dated 27 April 2001 of Rodel Maderal; 8.Information dated 22 June 2001;

9.Affidavit-complaint of Virgilio Tuliao; and 10.Medico-legal Reports of the cadavers of Elezer Tuliao and Vicente Buazon.

Hence, procedurally, we can conclude that there was no violation on the part of Judge Tumaliuan of Article III, Section 2, of the Constitution. Judge Anghad, however, focused on the substantive part of said section, i.e., the existence of probable cause. In failing to find probable cause, Judge Anghad ruled that the confession of SPO2 Maderal is incredible for the following reasons: (1) it was given after almost two years in the custody of the National Bureau of Investigation; (2) it was given by someone who rendered himself untrustworthy for being a fugitive for five years; (3) it was given in exchange for an obvious reward of discharge from the information; and (4) it was given during the election period amidst a "politically charged scenario where "Santiago City voters were pitted against each other along the lines of the Miranda camp on one side and former City Mayor Amelita S. Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the other." 32 We painstakingly went through the records of the case and found no reason to disturb the findings of probable cause of Judge Tumaliuan. It is important to note that an exhaustive debate on the credibility of a witness is not within the province of the determination of probable cause. As we held in Webb 33 :
A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. . . . Probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial . . . .

Dismissing a criminal case on the basis of a decision of this Court in

another case with different accused constitutes grave abuse of discretion. Judge Anghad had quashed the warrant of arrest on the ground, among other things, that there was a petition for review of the assistant prosecutor's resolution before the Secretary of Justice. However, after the Secretary of Justice affirmed the prosecutor's resolution, Judge Anghad summarily dismissed the two criminal cases against the petitioners on the basis of the following explanation:
Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al., RTC, Branch 41, Manila, and based from his sworn statements, he pinpointed to Mr. Miranda the mastermind and with him and the other police officers as the direct perpetrators, the October 9, 2001 Decision of the Supreme Court absolving the five cops of murder, certainly makes his sworn Statements a "narration of falsehood and lies" and that because of the decision acquitting said officers "who were likewise falsely linked by said Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value." This Court agrees with the defense's views. Indeed, of what use is Maderal's statements when the Supreme Court rejected the prosecution's evidence presented and adduced in Criminal Case No. 97160355. Rodel Maderal is supposed to turn state witness in these two (2) cases but with the Supreme Court decision adverted to, the probative value of his statements is practically nil.
EaCDAT

xxx xxx xxx This Court finds merit to the manifestation of the accused Miranda dated October 18, 2001, praying for the summary dismissal of the two (2) murder charges in view of the latest decision of the Supreme Court in People of the Philippines vs. Wilfredo Leao, et al., G.R. No. 13886, acquitting the accused therein and in effect disregarding all the evidence presented by the prosecution in that case. Accordingly, the two (2) informations [for] murder filed against Jose Miranda are ordered dismissed. 34

This is a clear case of abuse of discretion. Judge Anghad had no right to twist our decision and interpret it to the discredit of SPO2 Maderal, who was still at large when the evidence of the prosecution in the Leao case was presented. A decision, even of this Court, acquitting the accused therein of a crime cannot be the basis of the dismissal of criminal case against different accused for the same

crime. The blunder of Judge Anghad is even more pronounced by the fact that our decision in Leao was based on reasonable doubt. We never ruled in Leao that the crime did not happen; we just found that there was reasonable doubt as to the guilt of the accused therein, since the prosecution in that case relied on circumstantial evidence, which interestingly is not even the situation in the criminal cases of the petitioners in the case at bar as there is here an eyewitness: Rodel Maderal. The accused in Leaofurthermore had no motive to kill respondent Tuliao's son, whereas petitioners herein had been implicated in the testimony of respondent Tuliao before the Senate Blue Ribbon Committee.

It is preposterous to conclude that because of our finding of reasonable doubt in Leao, "it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value." 35 On the contrary, if we are to permit the use of our decision inLeao, an acquittal on the ground of reasonable doubt actually points to the probability of the prosecution's version of the facts therein. Such probability of guilt certainly meets the criteria of probable cause. We cannot let unnoticed, too, Judge Anghad's dismissal of the informations two days after we resolved to issue, upon the filing of a bond, a temporary restraining order prohibiting him from further proceeding with the case. The bond was filed the day after the informations were dismissed. While the dismissal of the case was able to beat the effectivity date of the temporary restraining order, such abrupt dismissal of the informations (days after this Court's resolve to issue a TRO against Judge Anghad) creates wild suspicions about the motives of Judge Anghad. Nullification of a proceeding necessarily carries with it the reinstatement of the orders set aside by the nullified proceeding. In their second assignment of error, petitioners claim that the Court of Appeals did not recall or reinstate the warrants of arrest issued by Judge Tumaliuan, but instead directed Judge Anghad to issue apparently new warrants of arrest. 36 According to the petitioners, it was an error for the Court of Appeals to have done so, without a personal determination of probable cause.

We disagree. Whether the Court of Appeals ordered the issuance of new warrants of arrest or merely ordered the reinstatement of the warrants of arrest issued by Judge Tumaliuan is merely a matter of scrupulous semantics, the slight inaccuracy whereof should not be allowed to affect the dispositions on the merits, especially in this case where the other dispositions of the Court of Appeals point to the other direction. Firstly, the Court of Appeals had reinstated the 25 June 2001 Order of Judge Tumaliuan, 37 which issued the warrants of arrest. Secondly, the Court of Appeals likewise declared the proceedings conducted by Judge Anghad void. Certainly, the declaration of nullity of proceedings should be deemed to carry with it the reinstatement of the orders set aside by the nullified proceedings. Judge Anghad's order quashing the warrants of arrest had been nullified; therefore those warrants of arrest are henceforth deemed unquashed. Even if, however, the Court of Appeals had directed the issuance of new warrants of arrest based on a determination of probable cause, it would have been legally permissible for them to do so. The records of the preliminary investigation had been available to the Court of Appeals, and are also available to this Court, allowing both the Court of Appeals and this Court to personally examine the records of the case and not merely rely on the certification of the prosecutor. As we have ruled in Allado v. Diokno and Roberts v. Court of Appeals, the determination of probable cause does not rest on a subjective criteria. As we had resolved in those cases to overrule the finding of probable cause of the judges therein on the ground of grave abuse of discretion, in the same vein, we can also overrule the decision of a judge reversing a finding of probable cause, also on the ground of grave abuse of discretion. There is no double jeopardy in the reinstatement of a criminal case dismissed before arraignment In their third assignment of error, petitioners claim that the Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524, alleging that the order of dismissal issued therein had become final and executory. According to petitioners:
It is also worthy to point out at this juncture that the Joint Order of Judge Anghad dated November 14, 2001 is NOT ONE of those Orders which were assailed in the private respondent Tuliao's Petition for Certiorari, Mandamus and Prohibition filed by the private respondent before the Court of Appeals. As carefully enumerated in the first page of

the assailed Decision, only the following Orders issued by Judge Anghad were questioned by private respondent, to wit: 1.)Joint Order dated August 17, 2001; 2.)Order dated September 21, 2001; 3.)Joint Order dated October 16, 2001; and 4.)Joint Order dated October 22, 2001. Obviously, the Joint Order dated November 14, 2001 of Judge Anghad, which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is NOT included in the list of the assailed Order/Joint Orders. Hence, the Court of Appeals should not have passed upon the validity or nullity of the Joint Order of November 14, 2001. 38

Petitioners must have forgotten that respondent Tuliao's Petition for Certiorari, Prohibition and Mandamus was filed not with the Court of Appeals, but with this Court. The Court of Appeals decided the case because we referred the same to them in our 19 November 2001 Resolution. Such petition was filed on 25 October 2001, around three weeks before the 14 November 2001 Order. Upon receipt of the 14 November 2001 Order, however, respondentTuliao lost no time in filing with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals, in view of the previous referral of respondent Tuliao's petition for certiorari, prohibition and mandamus.
EDATSI

Our referral to the Court of Appeals of the Motion to Cite Public Respondent in Contempt places the 14 November 2001 Order within the issues of the case decided by the Court of Appeals. In claiming that Judge Anghad committed contempt of this Court in issuing the 14 November 2001 Order, respondentTuliao had ascribed to Judge Anghad an act much more serious than grave abuse of discretion. Respondent Tuliao claims that Judge Anghad issued the 14 November 2001 Order on 15 November 2001, antedating it so as to avoid the effects of our 12 November 2001 Resolution. In said 12 November 2001 Resolution, we resolved to issue a temporary restraining order enjoining Judge Anghad from further proceeding with the criminal cases upon the respondent Tuliao's filing of a bond

in the amount of P20,000.00. Respondent Tuliao had filed the bond on 15 November 2005. While we cannot immediately pronounce Judge Anghad in contempt, seeing as disobedience to lawful orders of a court and abuse of court processes are cases of indirect contempt which require the granting of opportunity to be heard on the part of respondent, 39 the prayer to cite public respondent in contempt and for other reliefs just and equitable under the premises should be construed to include a prayer for the nullification of said 14 November 2001 Order. In any case, the reinstatement of a criminal case dismissed before arraignment does not constitute double jeopardy. Double jeopardy cannot be invoked where the accused has not been arraigned and it was upon his express motion that the case was dismissed. 40 As to respondent Tuliao's prayer (in both the original petition for certiorari as well as in his motion to cite for contempt) to disqualify Judge Anghad from further proceeding with the case, we hold that the number of instances of abuse of discretion in this case are enough to convince us of an apparent bias on the part of Judge Anghad. We further resolve to follow the case of People v. SPO1 Leao, 41 by transferring the venue of Criminal Cases No. 36-3523 and No. 363524 to the City of Manila, pursuant to Article VIII, Section 4, of the Constitution. WHEREFORE, the petition is DENIED. The Decision dated 18 December 2002 and the Resolution dated 12 June 2003 of the Court of Appeals are hereby AFFIRMED, with the modification that Criminal Cases No. 36-3523 and No. 363524 be transferred to and raffled in the Regional Trial Court of the City of Manila. In this connection, 1)Let a copy of this decision be furnished the Executive Judge of the RTC of the City of Santiago, Isabela, who is directed to effect the transfer of the cases within ten (10) days after receipt hereof; 2)The Executive Judge of the RTC of the City of Santiago, Isabela, is likewise directed to report to this Court compliance hereto within ten (10) days from transfer of these cases; 3)The Executive Judge of the City of Manila shall proceed to raffle the criminal cases within ten (10) days from the transfer;

4)The Executive Judge of the City of Manila is likewise directed to report to this Court compliance with the order to raffle within ten (10) days from said compliance; and 5)The RTC Judge to whom the criminal cases are raffled is directed to act on said cases with reasonable dispatch.
HAEIac

6)Finally, Judge Anastacio D. Anghad is directed to issue forthwith warrants of arrest for the apprehension of petitioners Jose C.Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel T. Maderal, conformably with the decision of the Court of Appeals dated 18 December 2002. The Temporary Restraining Order issued by this Court dated 4 August 2003 is hereby LIFTED. Costs against Petitioners. SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.