1 = G.R. No. 79094 June 22, 1988 MANOLO P. FULE, petitioner, vs. THE HONORABLE COURT OF APPEALS, respondent.

Balagtas P. Ilagan for petitioner. The Solicitor General for respondent.

Stipulation of Facts. Without said evidence independent of the admission, the guilt of the accused cannot be deemed established beyond reasonable doubt. Consequently, under the circumstances obtaining in this case, the ends of justice require that evidence be presented to determine the culpability of the accused. When a judgment has been entered by consent of an attorney without special authority, it will sometimes be set aside or reopened (Natividad vs. Natividad, 51 Phil. 613 [1928]). WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is hereby ordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of Lucena City, for further reception of evidence. SO ORDERED.

MELENCIO-HERRERA, J.: This is a Petition for Review on certiorari of the Decision of respondent Appellate Court, which affirmed the judgment of the Regional Trial Court, Lucena City, Branch LIV, convicting petitioner (the accused-appellant) of Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on the basis of the Stipulation of Facts entered into between the prosecution and the defense during the pre-trial conference in the Trial Court. The facts stipulated upon read: a) That this Court has jurisdiction over the person and subject matter of this case;

Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur. Paras, J., took no part. Gutierrez, Jr., J., is on leave.

Footnotes b) That the accused was an agent of the Towers Assurance Corporation on or before January 21, 1981; 1 Per Justice Gloria C. Paras; Justices Jose C. Campos, Jr. and Conrado T. Limcaoco, concurring. c) That on January 21, 1981, the accused issued and made out check No. 26741, dated January 24, 1981 in the sum of P2,541.05; d) That the said check was drawn in favor of the complaining witness, Roy Nadera; e) That the check was drawn in favor of the complaining witness in remittance of collection; f) That the said check was presented for payment on January 24, 1981 but the same was dishonored for the reason that the said checking account was already closed; g) That the accused Manolo Fule has been properly Identified as the accused party in this case. At the hearing of August 23, 1985, only the prosecution presented its evidence consisting of Exhibits "A," "B" and "C." At the subsequent hearing on September 17, 1985, petitioner-appellant waived the right to present evidence and, in lieu thereof, submitted a Memorandum confirming the Stipulation of Facts. The Trial Court convicted petitioner-appellant. On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the judgment of conviction. Hence, this recourse, with petitioner-appellant contending that: The Honorable Respondent Court of Appeals erred in the decision of the Regional Trial Court convicting the petitioner of the offense charged, despite the cold fact that the basis of the conviction was based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel. Finding the petition meritorious, we resolved to give due course. The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable to this case since the pre-trial was held on August 8, 1985, provides: SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel. (Rule 118) [Emphasis supplied] By its very language, the Rule is mandatory. Under the rule of statutory construction, negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory (McGee vs. Republic, 94 Phil. 820 [1954]). The use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced (Bersabal vs. Salvador, No. L-35910, July 21, 1978, 84 SCRA 176). And more importantly, penal statutes whether substantive and remedial or procedural are, by consecrated rule, to be strictly applied against the government and liberally in favor of the accused (People vs. Terrado No. L23625, November 25, 1983, 125 SCRA 648). The conclusion is inevitable, therefore, that the omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. The fact that the lawyer of the accused, in his memorandum, confirmed the Stipulation of Facts does not cure the defect because Rule 118 requires both the accused and his counsel to sign the Stipulation of Facts. What the prosecution should have done, upon discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of relying solely on the supposed admission of the accused in the
1

2 = G.R. No. L-35910 July 21, 1978 PURITA BERSABAL, petitioner, vs. HONORABLE JUDGE SERAFIN SALVADOR, as Judge of the Court of First Instance of Caloocan City, Branch XIV, TAN THAT and ONG PIN TEE, respondents.

As a general rule, the word "may" when used in a statute is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced (Dizon vs. Encarnacion, L-18615, Dec. 24, 1963, 9 SCRA 714, 716-717). The implication is that the Court is left with no choice but to decide the appealed case either on the basis of the evidence and records transmitted to it, or on the basis of the latter plus memoranda and/or brief with oral argument duly submitted and/or made on request. Moreover, memoranda, briefs and oral arguments are not essential requirements. They may be submitted and/or made only if so requested. Finally, a contrary interpretation would be unjust and dangerous as it may defeat the litigant's right to appeal granted to him by law. In the case of Republic vs. Rodriguez (L-26056, May 29, 1969, 28 SCRA 378) this Court underscored "the need of proceeding with caution so that a party may not be deprived of its right to appeal except for weighty reasons." Courts should heed the rule in Municipality of Tiwi, Albay vs. Cirujales (L-37520, Dec. 26, 1973, 54 SCRA 390, 395), thus: The appellate court's summary dismissal of the appeal even before receipt of the records of the appealed case as ordered by it in a prior mandamus case must be set aside as having been issued precipitously and without an opportunity to consider and appreciate unavoidable circumstances of record not attributable to petitioners that caused the delay in the elevation of the records of the case on appeal. In the instant case, no notice was received by petitioner about the submission of the transcript of the stenographic notes, so that his 30-day period to submit his memorandum would commence to run. Only after the expiration of such period can the respondent Judge act on the case by deciding it on the merits, not by dismissing the appeal of petitioner. WHEREFORE, THE CHALLENGED ORDERS OF RESPONDENT JUDGE DATED AUGUST 4, 1971, OCTOBER 30, 1971 AND MARCH 15, 1971 ARE HEREBY SET ASIDE AS NULL AND VOID AND THE RESPONDENT COURT IS HEREBY DIRECTED TO DECIDE CIVIL CASE NO. C-2036 ON THE MERITS. NO COSTS. Muoz Palma, Fernandez and Guerrero, JJ., concur.

MAKASIAR, J.: On March 23, 1972, petitioner Purita Bersabal seeks to annul the orders of respondent Judge of August 4, 1971, October 30, 1971 and March 15, 1972 and to compel said respondent Judge to decide petitioner's perfected appeal on the basis of the evidence and records of the case submitted by the City Court of Caloocan City plus the memorandum already submitted by the petitioner and respondents. Since only questions of law were raised therein, the Court of Appeals, on October 13, 1972, issued a resolution certifying said case to this Court pursuant to Section 17, paragraph (4) of the Judiciary Act of 1948, as amended. As found by the Court of Appeals, the facts of this case are as follows: It appears that private respondents Tan That and Ong Pin Tee filed an ejectment suit, docketed as Civil Case No. 6926 in the City Court of Caloocan City, against the petitioner. A decision was rendered by said Court on November 25, 1970, which decision was appealed by the petitioner to the respondent Court and docketed therein as Civil Case No. C-2036. During the pendency of the appeal the respondent court issued on March 23, 1971 an order which reads: Pursuant to the provisions of Rep. Act No. 6031, the Clerk of Court of Caloocan City, is hereby directed to transmit to this Court within fifteen (15) days from receipt hereof the transcripts of stenographic notes taken down during the hearing of this case before the City Court of Caloocan City, and likewise, counsels for both parties are given thirty (30) days from receipt of this order within which to file their respective memoranda, and thereafter, this case shall be deemed submitted for decision by this Court. which order was apparently received by petitioner on April 17, 1971. The transcript of stenographic notes not having yet been forwarded to the respondent court, petitioner filed on May 5, 1971 a 'MOTION EXPARTE TO SUBMIT MEMORANDUM WITHIN 30 DAYS FROM RECEIPT OF NOTICE OF SUBMISSION OF THE TRANSCRIPT OF STENOGRAPHIC NOTES TAKEN DURING THE HEARING OF THE CASE BEFORE THE CITY COURT OF CALOOCAN CITY' which was granted by respondent court on May 7, 1971. However, before the petitioner could receive any such notice from the respondent court, the respondent Judge issued an order on August 4, 1971 which says: For failure of the defendant-appellant to prosecute her appeal the same is hereby ordered DISMISSED with costs against her. Petitioner filed a motion for reconsideration of the order on September 28, 1971, citing as a ground the granting of his ex-parte motion to submit memorandum within 30 days from notice of the submission of the stenographic notes taken before the City Court. Private respondents filed their opposition to the motion on September 30,1971. In the meantime, on October 20,1971, petitioner filed her memorandum dated October 18, 1971. On October 30, 1971 the respondent Court denied the motion for reconsideration. Then on January 25, 1972, petitioner filed a motion for leave to file second motion for reconsideration which was likewise denied by the respondent court on March 15, 1972. Hence this petition. The sole inquiry in the case at bar can be stated thus: Whether, in the light of the provisions of the second paragraph of Section 45 of Republic Act No. 296, as amended by R.A. No. 6031, the mere failure of an appellant to submit on nine the memorandum mentioned in the same paragraph would empower the Court of First Instance to dismiss the appeal on the ground of failure to Prosecute; or, whether it is mandatory upon said Court to proceed to decide the appealed case on the basis of the evidence and records transmitted to it, the failure of the appellant to submit a memorandum on time notwithstanding. The second paragraph of Section 45 of R.A. No. 296, otherwise known as the Philippine Judiciary Act of 1948, as amended by R.A. No. 6031 provides, in part, as follows: Courts of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts: Provided, That the parties may submit memoranda and/or brief with oral argument if so requested ... . (Emphasis supplied). The foregoing provision is clear and leaves no room for doubt. It cannot be interpreted otherwise than that the submission of memoranda is optional on the part of the parties. Being optional on the part of the parties, the latter may so choose to waive submission of the memoranda. And as a logical concomitant of the choice given to the Parties, the Court cannot dismiss the appeal of the party waiving the submission of said memorandum the appellant so chooses not to submit the memorandum, the Court of First Instance is left with no alternative but to decide the case on the basis of the evidence and records transmitted from the city or municipal courts. In other words, the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the available evidence and records transmitted to it.

Separate Opinions TEEHANKEE, J, concurring: I concur with the setting aside of the questioned dismissal of petitioner's appeal on the ground that the record shows quite clearly that there was no failure on part of petitioner-appellant to prosecute her appeal in respondent judge's court. Petitioner had been granted in respondent judge's Order of May 7, 1971, 30 days from notice of submission of the transcripts within which to file her memorandum on appeal, yet her appeal was dismissed per his Order of August 4, 1971 for alleged failure to prosecute (by failure to file the memorandum) even before she had received any such notice. Upon receipt of the dismissal order, petitioner had promptly moved for reconsideration and filed her memorandum on appeal. I am not prepared at this stage to concur with the ratio decidendi of the decision penned by Mr. Justice Makasiar that the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the available evidence and records transmitted to it." I entertain serious doubts about such pronouncement, once when the court of first instance "requests" the party-appellant to submit a memorandum or brief on appeal under the provisions of Republic Act No. 6031 amending section 45 of Republic Act No. 296, such "request" is tantamount to a requirement for the proper prosecution of the appeal; thus, when the appellant willfuly fails to file such memorandum or brief, the judge should be empowered to dismiss the appeal, applying suppletorily the analogous provisions of Rule 50, section 1 for dismissal of appeal by the higher appellate courts and taking into account that Rule 40, section 9 of the Rules of Court now expressly authorizes the court of first instance to dismiss an appeal before it "for failure to prosecute."

4 = G.R. No. 78781-82 October 15, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants. The Solicitor General for plaintiff-appellee.

aiding one another armed with the deadly weapons such as pistols, armalite and carbine, did then and there wilfully, unlawfully and feloniously by means of force and at gun point stop the hauler truck of the South Sea Merchant Company which was on the way to Tandag, Surigao del Sur from sitio Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao del Sur and kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo then to the Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in pursuance of their conspiracy, with intent to kill, with evident premeditation and treachery and by taking advantage of their superior strength being armed with deadly weapon did then and there wilfully, unlawfully and feloniously assault, by hitting and inflicting upon the latter the following wounds or injuries: 1. Small abrasion and hematoma, both wrist and left ankle;

Robert J. Landas for acussed-appellants. 2. Multiple small abrasions, chest and right neck and right ankle; 3. Multiple small abrasions and small hematoma, back; GUTIERREZ, JR., J.:p 4. Abrasion, upper left lips. (Rollo, pp.18-19) The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the two (2) judgments of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of one Reynaldo Cabrera Gaurano and of frustrated murder of Joey Lugatiman. In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the penalty of reclusion perpetua and to severally pay an indemnity of P25,000.00 to the mother of the victim. In the frustrated murder case (Criminal Case No. 1194), each of them was sentenced to serve the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor as minimum to ten (10) years of prision mayor as maximum. The accused were all charged with kidnapping with murder and kidnapping with frustrated murder. However, the trial court found accusedappellants guilty only of murder and frustrated murder as convicted. The accused Josen Ravelo and Jerry Ravelo are still at large. The present petition was originally one that sought the issuance of a writ of habeas corpus. The Court instead resolved to treat it as an appeal in view of the near capital nature of the crimes for which the appellants were convicted. The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged that they stopped the two (2) victims for questioning on the suspicion that the latter were insurgents or members of the New People's Army. (NPA). In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping with murder in the following manner: That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San Agustin Sur, municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and mutually helping each other did, then and there, wilfully, unlawfully and feloniously take, pick-up, kidnap by meansof force, one REYNALDO CABRERA GAURANO, a minor, while the latter was walking along Tandag Bridge at barangay Dawis, San Agustin Sur, then the above-named accused carried away the said, Reynaldo Cabrera Gaurano to barangay Awasian and detained, kept and locked him in a room at the house of Pedro Ravelo, one of the accused herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock dawn, May 22, 1984, or a period of 10 hours under restraint and against the will of said minor, Reynaldo Cabrera Gaurano and that the above named accused during the said period of kidnapping, maltreated and refused to release said Reynaldo Cabrera Gaurano, and while on the same period of time at about 4:00 o'clock dawn, May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this Honorable Court, the above-named accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas Guadalupe, Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually helping each other, armed with a pistol, armalites, and carbines, with intent to kill, with treachery and evident premeditation did, then and there wilfully, unlawfully and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano, hitting and inflicting upon the latter, the following wounds or injuries: 1. Blisters formation noted all over the body reddish in color, which easily peel off on pressure; containing clear fluids; with hemorrhagic reaction beneath blisters; 2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear missing with circular incised wound around; 3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries and veins; up to the 2nd cervical bone in depth; 4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper and lower extremeties of different sizes and forms. (Rollo, pp. 8-9) In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as follows: That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian, municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above named accused PEDRO RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND JOSEN RAVELO, conspiring, confederating and mutually The trial court based its findings on evidence presented by the prosecution at the trial proper which commenced several months after the informations were filed. The prosecution evidence in Criminal Case No. 1187 are quoted from the judgment, thus: Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to attend a dance. The dance not having began being too early yet, they decided to go back to Dawis. On their way back while crossing the Tandag bridge across the Tandag river, the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas Guadalupe stopped them by pointing their guns. He and Diego Gallardo ran away towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano chased by all the accused. He saw Reynaldo Gaurano ran up to the house of a certain Fernando Cortes which was just opposite the tractors they were hiding, and which was just across the road in front of the house of Fernando Cortes. Reynaldo Gaurano was caught up in the house by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo Gaurano was loaded on the pick-up owned and driven by the accused Pedro Ravelo. All the accused, together with Reynaldo Gaurano rode on the pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano disappeared, he and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was brought by the accused to the airport. On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano under a mango tree near the Tandag airport and pointed to the investigator that that was the body of Reynaldo Gaurano with blisters, without ear and a big wound on the neck. Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao del Sur in that morning of May 23, 1984. Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he knew very well all the accused and that he personally saw them in the early dawn of May 22, 1984. He declared that he was at the Awasian creek near a mango tree catching crabs with the use of a "panggal", a bamboo knitted trap. From a distance of around twenty meters away, he saw a man hanging from the mango tree over a fire. He saw the accused Jerry Ravelo placed fire on the hanging person and the accused Romeo Aspirin placed a burning torch made of dried coconut leaves at the back of the hanging person. The man hanging was not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen Ravelo, Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes watching, he saw the clothing and body burned, he heard the moanings of the person and heard the laughters of the accused. After witnessing that horrible incident he went home hurriedly. On cross examination he further stated that he saw for the first time the man already hanging under a fire (sic). Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the accused are known to him for a long time. On May 21, 1984, with ten companions they went to a place in the interior called Maticdum, Tandag, Surigao del Sur. After five hours stay, he, together with his companions left Maticdum past midnight for Tandag on a loggingtruck. As soon as they passed by the airport, they were stopped by the accused and were told to go down from the truck for questioning. He was brought to the house of the accused Pedro Ravelo near the checkpoint. He was asked if he was Joey Lugatiman and if he knew Reynaldo Gaurano. There at the headquarters, he was asked if he was an NPA. For almost an hour stay at the headquarters he was boxed, kicked and manhandled by Pedro Ravelo and by the other accused with the use of their guns until he became almost unconscious. Then, from the headquarters at Mabua on that early dawn he was brought again back in the same pick-up to Awasian airport, to the house of Pedro Ravelo and then to the house of Bonifacio Padilla. Before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter away, already weak with bruises on his face, hands tied at the back and with a gag around the mouth, moving as if in the act of trying to free himself, with a bleeding mouth. When he reached the house of Bonifacio Padilla, he was chained and tied to the wall near the window of the house. Alone, he peeped through the window and saw Reynaldo Gaurano hanging up the mango tree with fire below him. He heard the moanings of Reynaldo Gaurano while hanging from the mango tree thirty meters away from the window of the house of Bonifacio Padilla. He saw Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00 o'clock a.m. May 22, 1984, when alone, after being told that he would be killed at 9:00 o'clock in the evening at the Awasian bridge, he escaped by being able to untie himself at 10:00 o'clock in the morning of May 22, 1984. He reported what happened to him and to Reynaldo Gaurano, to his parents and then to the police authorities and later submitted for physical examination on that day, May 22, 1984 and finally was investigated on May 23, 1984 in connection with this case. On cross examination he said that he knew all the accused. He knew that all the accused are members of the CHDF. Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12, 1984 for Tandag. On May 22, 1984 she received a telegram from her sister Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of the telegram and arrived at Tandag on May 24, 1984. Upon

her arrival she went to the Mata Funeral Parlor and then she found the dead body of her son Reynaldo Gaurano inside the coffin and she saw many parts of the body of her son with burns. She suffered moral damages and other expenses to the tune of P64,350.00. Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified that Reynaldo Gaurano is her nephew because his mother Zosima is her younger sister. Her nephew Reynaldo Gaurano was here in Tandag on vacation. On May 20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the house of her sister. After the second day, May 22, 1984 at around 5:00 o'clock in the afternoon Edilberto Salazar and Diego Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro Ravelo and his men. The message was relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. On the following day, May 23, 1984, Col. Hermosa, with other officers inspected the house of Pedro Ravelo and the nearby surroundings at Awasian. She was made to Identify an exhumed body at the back of the house of Pedro Ravelo near the Mango tree. She saw the dead body of her nephew Reynaldo Gaurano without an ear, the neck was almost cut, entire body with blisters, and naked. His body was pictured and later on brought to the Mata Funeral Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag Provincial Hospital to conduct an autopsy and after which the dead body of Reynaldo Gaurano was embalmed to await the arrival of the mother from Cebu City. Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial Hospital testified that he conducted an autopsy on the dead body of a certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation caused by fire burns throughout; the body was reddish and skin peels off easily; swollen face, hematoma, contusion, losing of hair, wound around the neck; and these injuries could have been inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was issued. The burns and the injuries above stated were suffered before Reynaldo Gaurano died. Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a photographer at Tandag, testified that he took the pictures of a dead man inside a hole upon orders of Col. Hermosa at Awasian near the airport. He took pictures as shown in Exhibit "C", "C1"; he took 8 positions of the dead body. While yet inside the holeexhibit "D" and as shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano near the mango tree; Exhibit "G", while the cadaver was inside the hole and Exhibit "H" is the picture while the body was lying on the mat. Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at around 8:00 o'clock in the morning of May 23, 1984, he was the assistant team leader of the group that proceeded to Tambacan, Awasian, Tandag to look for and inspect the place where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about 25 meters near the house of Bonifacio Padilla the group recovered a P.25 coin, a small comb, two zippers and burned pieces ofcloth and burned coconut leaves, together with new excavated soil. Further search under the mango tree led to the very place where the body of Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed the dead body which was buried under a depth of around one meter under the mango tree which was around 25 meters from the house of Bonifacio Padilla and around 150 meters from the house of Pedro Ravelo. The cadaver was first Identified to be that of Reynaldo Gaurano by Edilberto Salazar. A photographer was called and pictures were taken of the dead body of Reynaldo Gaurano from the hole and then the body was brought to the surface and placed on the mat. Not one of the accused was present during the period while the group was searching and exhuming the body of Reynaldo Gaurano. The body of Reynaldo Gaurano shows signs of burns and several injuries, and was finally brought to the funeral parlor at Tandag. As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian, Tandag, Surigao del Sur. His death was the result of the shock secondary to the wound around the neck, Exhibit "A", and occurred while he was hanged by the accused with hands tied to a branch of a mango tree. Sufferings of pains, through his moanings, were augmented and aggravated by the tortures inflicted as vividly seen through the removal of the right ear, the wound around the neck and placing of fires on his body, and the fire below his feet. Not only were these acts brutal and cruel but also heartless and savage acts of the accused, devoid of an iota of sympathy, who, instead, were happy and delighted to see the miseries suffered by their victim. Further, it was shown that they helped one another or conspired with one another in torturing with the use of their firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16) Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows: The evidence of the prosecution consisted of the testimonies of the witnesses and the Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del Sur testified that he personally knew all the accused for quite a long time. On May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao del Sur. After staying at Maticdum for five hours he went home on board on a cargo truck. On the way near the Tandag Airport they were stopped by all the accused. They, including himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then he was brought to the nearby house of Pedro Ravelo and there he was asked if he was Joey Lugatiman and if he knows Reynaldo Gaurano. His companions were ordered to proceed to Tandag while he was loaded on a service pick up driven by the accused Pedro Ravelo. He was brought by all the accused to the Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In the Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his denial of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro Ravelo and his co-accused. He was manhandled by the accused with the use of the firearms for almost an hour. Later he was brought back again to Awasian Airport to the house of Pedro Ravell (should be Ravelo) then to the house of Bonifacio Padilla. But before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano one meter away, already weak with bruises on the face, hands, tied at the back and gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the act to free himself and with a bleeding mouth. Upon arriving in the house of Bonifacio Padilla he was chained and hogtied near the open window by the companions of Pedro Ravelo. Not long after, through the window, he saw Reynaldo Gaurano hanging up the mango tree and a big fire was set on the ground. He heard the groaning and moaning of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right and left side of Reynaldo Gaurano with the use of dried coconut leaves. He saw all the accused surrounding and watching the hanging and burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also slashed the neck of Reynaldo Gaurano. He could not shout because he was afraid. While lying down after he saw the horrible incident he fell asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw Bonifacio Padilla bringing nylon line with which he was tied to a piece of wood; while Nicolas

Gaudalupe gagged him, and he was blind folded by Hermie Pahit. While the three were about to leave him behind, he heard them saying that they will kill him at the Awasian bridge at 9:00 o'clock in the evening of May 22, 1984. When he was left alone in that house he successfully freed himself. He jumped out of the window and escaped via the nipa palm grove. As consequences of the manhandling of the accused, he suffered several bruises on the breast, at the back and his mouth. He was physically examined by a doctor in the Provincial Hospital on that day, Exhibit "A", "A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he testified that he escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and that he knew all the accused to be members of the Civilian Home Defense Force (CHDF). He testified that the house of Pedro Ravelo and the house of Bonifacio Padilla is around one hundred (100) meters away from each other. Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial Hospital, and on May 22, 1984 she examined Joey Lugatiman and she issued a medical certificate, Exhibit "A". All her findings were placed down in Exhibit "A". Upon being cross-examined, she testified that the hematomas, small abrasions will not cause death. When she examined Joey Lugatiman, she found that he was weak and haggard caused by the injuries mentioned in Exhibit "A". Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that while he was tendering his carabao near the house of Bonifacio Padilla he was surprised to see Joey Lugatiman, wearing blue t-shirt and a jogging pants jumped out of the window of the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman ran towards the nipa palm then ran towards the airport. He knew Joey Lugatiman because during the barrio fiesta Joey used to stay in his house at Awasian. Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May 22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel, Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and a helper from 5:00 o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for Tandag. On the way, near the airport, he, together with his companions on a logging truck was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were ordered to come down and were made to identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of Pedro Ravelo. It was Pedro Ravelo who later brought Joey Lugatiman to the pick-up. They were ordered to board on the truck except Joey Lugatiman who loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla ordered the group to proceed to Tandag while Joey Lugatiman was left behind. He reported to the police authorities that his companion Joey Lugatiman was being held under arrest at Awasian and that he knows all the accused before this incident. (Rollo, pp. 2124) The accused-appellants were not able to or did not present evidence on their behalf, nor were they themselves able to confront the prosecution witnesses who testified against them except through a counsel de oficio appointed by the trial judge to represent them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty. Eliseo Cruz. The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests for postponements by telegrams stating his inability to appear for health reasons, led to the refusal by the accused-appellants to be present at the trial. The accused-appellants alleged that Atty. Cruz left an instruction that they will not submit themselves to trial without him. The accused-appellants now maintain that they did not "waive" their right to be present during the trial because their refusal was not done by their own free will but only in accordance with their lawyer's instructions. The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending telegraphic notes requesting for postponements. He filed a petition for change of place of detention and venue for trial before this Court, which denied it; a first petition for habeas corpus on the ground that they should be tried by a military tribunal, which petition was denied; and a motion for new trial on the ground of lack of due process due to improper waiver of presence at the trial. This motion for new trial was granted to give the accusedappellants a last chance to be heard and be present. Still, the defense counsel failed to appear and so did the appellants. In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file the required brief. The Court then appointed a new counsel de oficio for the accused-appellants. Accused-appellants raised the following alleged errors of the trial court: I THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW. II THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p. 144) It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent any proof of intent to kill, which is an essential element of the offense of frustrated murder. Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman was tied and gagged, the latter heard one of the accused-appellants utter that they would kill him at Awasianbridge.

The trial court made the following inference which we find to be erroneous: To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the morning of May 22, 1984 when the accused Bonifacio Padilla together with Hermie Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line and gagged him; and when the accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge. These final and parting words uttered to Joey Lugatiman eloquently expressed intent to kill. Killing, however, was not consummated because Joey Lugatiman was able to escape at around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25) The facts and evidence on record do not show anything from which intent to kill could be deduced to warrant a conviction for frustrated murder. A mere statement by the accused stating that Lugatiman would be killed is not sufficient proof of intent to kill to convict a person of frustrated murder. In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts. For there to be frustrated murder, the offender must perform all the acts of execution that would produce the felony as a consequence, but the felony is not thereby produced by reason of causes independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed sixteen (16) hours after such statement was made is not sufficient to show an actual design to perpetrate the act. Intent must be shown not only by a statement by the aggressor of the purpose to kill, but also by the execution of all acts and the use of means necessary to deliver a fatal blow while the victim is not placed in a position to defend himself. However, after the performance of the last act necessary, or after the subjective phase of the criminal act was passed, the crime is not produced by reason of forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]). Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house of accused-appellant, Bonifacio Padilla are not acts that would result in death. These were done only to restrain his liberty of movement for the period of time the accusedappellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30) meters away from where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to the wall, and blindfolding him were for the purpose of restraining his liberty until the evening of May 22, 1984 came. Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at the Headquarters of the Airborne Company were not fatal as stated by the prosecution's expert witness, Dr. Petronila Montero; hence, there can be no frustrated murder. This is supported by the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985, pp. 24-26) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31, 1985, p. 49, Record, p. 115) It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not even use as its basis, the manhandling of Lugatiman. The trial court in fact concedes that the real purpose of the manhandling or torture was to have Lugatiman admit and confess his being a member of the New People's Army (NPA) and the activities of the NPA's. It was the statement made by the accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was the basis of the court for inferring the commission of frustrated murder. According to the trial court, murder was not committed because of the timely escape. Escape from the aggressors cannot establish frustrated murder without first showing that the aggressors intended to kill and that they really attacked the victim. Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder. There was no commencement of the criminal act by over acts which have a direct connection with the crime of murder intended to be committed. As stated earlier the manhandling, express statement of purpose, and the restraint of liberty were not such as to put the victim in danger of an imminent death. The small abrasions and hematomas of the victim resulting from the torture by the accused were not mortal. After the victim was restrained of his liberty immediately before Gaurano was killed, he was able to watch how Gaurano was burned hanging upside down from a mango tree near the Awasian bridge. Due to his fatigue and extreme weakness, he was even able to lie down and sleep after looking at the horrible incident. (TSN, May 31, 1985, pp. 22-23) During the long period of time Lugatiman was informed that "he would be killed" and was left behind (5:00 in the morning) until he was able to escape at 10:00 in the morning, it was not certain whether or not appellants would really kill him as they did to Gaurano. Anything could have happened in between. There was no distinct evidence to prove that the accused appellants were really decided on killing him at the time specified. The records show that Lugatiman himself was not sure that the accused-appellants would pursue it. The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus: xxx xxx xxx Q. Why did you say a while ago that "I will be the next one to be hung and to be killed by Ravelo and his group"? A. I was just afraid that I will be the next. Q. Now, when you saw these persons burning the body of Reynaldo, did you hear also what the people around Reynaldo were talking of? A. What I heard was their laughing and the moaning. Q. And you heard their laughing?

A. Yes. Q. Why did you know that they were laughing? A. Because I heard it. Q. Their appearance you can see? A. Their appearance is clear because there is a big light. Q. And your name was never mentioned that you will be the next to be hung? A. I did not hear them saying. Q. There were also no other people like you who were apprehended or being detained by Pedro Ravelo and his group? A. I did not see. Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group on May 21, in the early morning rather, on May 22, 1984 dawn? A. Yes. (TSN, May 31, 1985, pp. 54-55) After a review of the allegations of the information in Criminal Case No. 1194 and the evidence received and admitted by the court a quo, the Court is of the view that accused-appellants are not guilty of frustrated murder but only the crime of slight physical injuries. There is evidence to show that the several small abrasions on the chest, right neck and right ankle of Lugatiman as well as the hemato ma at his back was due to the hitting by a rough, hard object like a butt of a gun. The prosecution witness, Dr. Montero testified that the injuries were inflicted by some other persons aside from the victim, and needed medical treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26) Accused-appellants aver that there was no deliberate waiver on their part of their right to be present at the scheduled hearing dates because they "did not appear to know the import of their decision not to appear in the trials." According to them, the judge should have explained to them the meaning and the consequences of their decision not to appear. The issue of due process had been fully considered by this Court when we acted on the habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the reasons for our finding of dilatory tactics on the part of the petitioners and their counsel and why the lower court correctly proceeded with trial. After stating the various incidents characterizing the initial proceedings and the trial of the case, we stated: xxx xxx xxx The petitioners are members of the Civilian Home Defense Force (CHDF) who have been convicted of murder and frustrated murder committed under particularly brutal circumstances. A notice of appeal was filed thirty-nine (39) days from the promulgation of judgment and was clearly out of time. A motion for new trial was also characterized by plainly dilatory tactics in its handling. Were it not for the effectivity of the present Constitution, there is a likelihood that the petitioners would have been sentenced to capital punishment. The near-capital nature of the crimes for which the petitioners were convicted and the rather unusual circumstances surrounding the trial of the two cases and the failure to appeal, however, call for a closer look at the judgments of conviction. This can best be done by calling for all the records of the case including the transcripts of stenographic notes. If, after the consideration of the cases as appealed cases, there appears to have been a miscarriage of justice or a need for further evidence, the case can always be remanded for further proceedings as instructed. Otherwise, the judgment will have to be affirmed or reversed on the basis of all the present records. (Rollo, p. 73) For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of the first day of the trial proper, or after five (5) postponements, the accused-appellants came to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and requesting a resetting of the hearing date. The several instances in which the Court received similar telegrams including one where he claimed a "very sick heart ailment" led the trial court to doubt and disregard the last request of the defense. The court had earlier categorically stated that it wouldentertain no further requests for postponement. The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2) counsels de oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should not be abused by the defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]). Despite their new counsels who appeared to be doing their best, the accused-appellants insisted on absenting themselves stating that they cannot and would not appear without Atty. Cruz and allegedly for fear that they would be harassed by members of the New People's Army. At this point, the Court informed them of (1) the

importance of the appointment of competent counsels de oficio considering the gravity of the offense and the difficulty of the questions that may arise during the trial; and (2) the fact that there is no legal obstacle to proceeding with the reception of prosecution evidence in their absence. Absence at the trial did not deprive the accused-appellants of cross-examination except the right to personally confront the prosecution witnesses face to face. Notwithstanding their absence, they were represented by the counsels de oficio who took turns in cross-examining each of the prosecution witnesses. Accused-appellants also maintain that they did not actually refuse to present evidence on their behalf. They argued that the counsels de oficio misapprehended a telegram of Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985 trial because he had a prior engagement in another court in Ilocos Sur on those dates. They also contend that their failure to appear and present evidence was "simply because of their misplaced trust and obedience to the instructions of their counsel, Atty. Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases, despite the seriousness of the crimes charged, had caused injustice to the accusedappellants." They ask this Court to take their case as an exception to the rule that a client shall suffer the consequences of negligence or incompetence of his counsel. The actual desire of the accused-appellants to testify and present other evidence is not manifest from a thorough review of the records of the case. If it were true that they wanted to present evidence, they should have taken advantage of the opportunity to be present, to be heard and to testify in open court with the assistance of their appointed lawyers. As a matter of fact, they were able to convince the lower court to grant them a chance to have a new trial. However, they still failed to make use of their last opportunity. They cannot now claim that they were denied their right to be present and to present evidence. This Court upholds the lower court's position that the accusedappellants were given more than generous time and opportunity to exercise their constitutional rights which should not be overemphasized at the expense of public policy. The circumstances of the case do not preclude the application of the rule that a client is bound by the acts of his counsel who represents him. Nevertheless, at the time when the lower court appointed the de oficio counsels, the court already had ample notice of the futility of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-appellants were represented by Atty. Montenegro and Atty. Cuartero, their decision not to attend the trial nor to present evidence is clearly a product of their own free will. WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby, respectively, affirmed and modified as to the crime proven. The accused-appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE and HERMIE PAHIT are hereby sentenced: (1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and (2) To serve the penalty of arresto menor in Criminal Case No. 1194. SO ORDERED. Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur.

5 = G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:p The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition: In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his coaccused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . (then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4 A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his coaccused was filed with this Court 5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx xxx xxx Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person.

In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, 9which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: . . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense. As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPPNPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen ( sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex. In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained." On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest, which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14and that an arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel. 16 On 30 July 1987 respondent Judge handed down the Order of which reads:
17

adverted to in the introductory portion of this decision the dispositive portion

WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58). In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues: THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS. in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the likelihood of flight. 18 In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private respondent.
21

. . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection. Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held: The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great! 34 Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 35 We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . . In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail. II.

The reply was filed on 18 September 1987. 22

In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolution of 19 November 1987 26 and 1 December 1987, 27 respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petitions, 28 which he complied with by filing his Manifestation on 30 May 1990 29 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge. And now on the issues presented in this case. I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Section 3, Rule 114 of the Rules of Court, as amended, also provides: Bail, a matter of right: exception. All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the right is absolute. 32 And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held:

It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: Article 135. Penalty for rebellion, insurrection or coup d'etat . Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua. xxx xxx xxx This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. 36 III.

We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case: 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows: When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately. Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release. Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave. 4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest: 1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement: a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance.

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed. 5. On 16 October 1986 We issued the following resolution: G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave. It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that: "Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306) He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38 When the parties in G.R. No. 76009 stipulated that: b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement.

In defining bail as: . . . the security given for the release of a person in custody of the law, . . . Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 40 Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part.

But, is such waiver valid? Article 6 of the Civil Code expressly provides: Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 41 As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitutionmay be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver. 42 In Commonwealth vs. Petrillo, 43 it was held: Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." 44 This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be heard. 47 Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel. This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent.

6 = G.R. No. 107798 November 16, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO LUTAO Y LOBOS AND JULIO MEDERA Y TURCIDO, accused-appellants, BATING NAZA, JOHN DOE, AND PETER DOE (at large), accused.

Then, Lutao's lust was aroused. He pulled down the skirt and panty of Lourdes and ordered her to lie down. Lourdes begged not to be abused because she was menstruating. Lutao ignored her pleas and poked a gun at her. 12 He shed off his fatigue jacket, maong pants, and green brief and forced his lust upon her. Lourdes' resistance was futile. Medera, Naza, and their two other companions joined the sexual orgy. They raped Lourdes in succession. Lourdes' youngest child awoke and cried unaware of his parents' harrowing experience. 13 Arturo, was a meter away when Lourdes was violated by the accused. Throughout the unfortunate ordeal of his wife, he was furious but helpless. The accused guarded him. Their lust satisfied, the accused set to flee. But before fleeing, Medera pointed his gun at Arturo and ordered him to run. Arturo rushed towards the bushes about fifteen (15) brazas away from his house. The malefactors then fled to Inanasan. Lourdes who passed out regained consciousness. Her abusers were no longer around and so was her husband. She cried and her weeping awakened her other children. Still shaking with fear, she and her four (4) children walked and sought immediate refuge at the house of Fausto Acero. The house of Acero is ten (10) kilometers away from her house. 14 Daylight broke. Arturo came out from the grasses and searched for his family. They were united at Acero's house. It was then that they revealed to Acero their ordeal. Initially, the spouses hesitated to report the incident to the police authorities for fear of reprisal from Lutao and Medera who were CAFGU members. They finally mustered courage and reported the crime to the Mondragon Police Station on December 31, 1991. 15 They named Orlando Lutao, Julio Medera, and Bating Naza as the culprits. Two (2) days thereafter or on January 2, 1992, they retold their story to the San Roque Philippine National Police Headquarters, 16 Petrified by the incident, the Siervo family abandoned their house and farm in Barangay Malobago and lived with Arturo's mother in Barangay Bantayan. Their physical and emotional disturbance were beyond doubt. Dr. Melodia Nerida, the Medical Officer of Northern Samar General Hospital, certified that there was no trace of irritation, sperm cells, and sexual coition in the genitalia of Lourdes. She, however, opined that the victim's menstrual flow could have washed-out the semen. 17 She added that it was difficult to detect the sexual assault since the victim's organ already experienced four (4) pregnancies and childbirth. Accused-appellants Medera and Lutao denied their involvement in the crime and anchored their defense on alibi. Medera testified that on December 29, 1991, Lt. Arismindo Dayaon ordered them on "red alert" because of an imminent raid by the New People's Army (NPA). 18 His tour of duty to guard the 19th IB Detachment Camp, Charlie Company, Philippine Army was from 10:00 to 12:00 p.m. He was relieved by Lutao at twelve midnight. Lutao corroborated Medera's testimony. He testified that on December 29, 1991, he guarded the camp from 12:00 p.m. till 2:00 a.m. He said he never left the barracks while on duty. 19 Lt. Arismindo Dayaon, Cpl. Manuelito Anata, and Cpl. Celso Mabascog likewise corroborated the alibi of accused-appellants. Lt. Dayaon confirmed that he ordered accused-appellants to guard the barracks on December 29, 1991. Cpl. Anata and Cpl. Mabascog testified that they supervised the assignments of the accused-appellants on the said date. 20 The trial court on June 30, 1992 convicted the accused-appellants of the crime of Robbery in Band with Multiple Rape. In this appeal, accused-appellants assail the Decision of the trial court as follows: I THE TRIAL COURT GRAVELY ERRED IN GIVING MORE WEIGHT AND CREDENCE TO THE EVIDENCE FOR THE PROSECUTION AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE. II

PUNO, J.: Bad elements of the Civilian Armed Forces and Geographic Unit (CAFGU) again take centerstage in the case at bar. ORLANDO LUTAO and JULIO MEDERA, members of the CAFGU, were convicted of Robbery in Band with Multiple Rape 1 in a Decision 2 of the Regional Trial Court of Catarman; Northern Samar. They were sentenced to suffer the penalty of reclusion perpetua, and to indemnify the amount of P30,000.00 to Lourdes Siervo or a total of P60,000.00 and to pay spouses Siervo jointly and severally the amount of P4,060.00 corresponding to the stolen money plus the costs of the suit. They insist on their alibi in their appeal to this Court. We reject their pretended innocence. The Amended Information against the five (5) accused Orlando Lutao, Julio Medera, Bating Naza, John Doe, and Peter Doe reads: That on or about the 29th day of December, 1991, at around 10:00 o'clock in the evening, in Sitio Camarino, Barangay Malobago, Municipality of San Rogue, Province of Northern Samar, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with M-14 and M-1 (Garand) riffles, conspiring with, and confederating together with two (2) persons (John Doe and Peter Doe) whose true names, identities and present whereabouts are still unknown, and mutually, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation take, rob and carry with them a cash money in the amount of FOUR THOUSAND SIXTY (P4,060.00) PESOS, Philippine Currency, belonging to spouses Arturo M. Siervo and Lourdes Siervo, against their will and this was committed inside their residence in the above-mentioned place, to the damage and prejudice of said owners in the aforesaid sum of FOUR THOUSAND SIXTY (P4,060.00) PESOS, Philippine Currency; that in the commission of the said offense the above named accused, Orlando Lutao, Julio Medera, Bating Naza, John Doe, and Peter Doe, with lewd design, conspiring, confederating together and mutually helping one another did then and there wilfully, unlawfully and feloniously by means of force, violence and intimidation took turns in lying down with and having carnal knowledge of Lourdes Siervo against her will and consent while accused Julio Medera stood guard and threatened with the use of his M-14 rifle the husband of Lourdes Siervo and thereafter watched his companions raped Lourdes Siervo. With the aggravating circumstance that accused Orlando Lutao had been sentenced by the Court of Appeals on January 22, 1987 to suffer imprisonment of 8 years and one day to 14 years, 8 months and one day in Criminal Case No. 323 for Murder. CONTRARY TO LAW.
3

Accused-appellants Lutao and Medera pleaded not guilty. Accused Bating Naza, John Doe, and Peter Doe remained at large. At the pre-trial, the parties agreed that the accused-appellants on trial are Orlando Lutao y Lobos and Julio Medera y Turcido, both members of the CAFGU under the command of Lt. Arismindo Dayaon of the Philippine Army and stationed in Barangay Malobago, Municipality of San Rogue, Northern Samar. At the trial, the evidence of the prosecution was given by witnesses ARTURO SIERVO, 4 LOURDES SIERVO, 5 and DR. MELODIA NERIDA. 6 The spouses Arturo and Lourdes Siervo lived in a one-room house with a floor area of two and a half (2 1/2) meters by three (3) meters. Their house is located in an isolated farm and about six (6) kilometers by feeder road from the poblacion of Barangay Malobago, San Roque, Northern Samar. On December 29, 1991, they and their four (4) children, ages two (2) to eight (8), went to bed at 7:00 p.m. They slept on the bamboo flooring with Arturo near the doorway. A sack draped at their door served as its shutter. At about 10:00 p.m., Arturo was awakened by a voice yelling, "Toring, Toring. Where is the trail going to Inanasan? 7 He did not hear the question well and he asked, "What is that?" The man repeated the question: "Where is the trail going to Inanasan, we are lost in our way." 8 Arturo recognized the voice of Julio Medera, who used to be a buyer of their chicken. A "pa-agahan" (kerosene lamp) hanged at the corner of their house. 9 With its light, Arturo saw Julio Medera, Orlando Lutao, Bating Naza, and their two (2) other companions who were unknown to him. 10 Medera and Lutao were armed with an M-14 rifle and M-1 garand, respectively. They wore military uniforms. Arturo groped his way to the doorway and asked them where they came from. Medera responded by dragging him downstairs. At the ground, Medera poked his gun at Arturo and ordered him to kneel while the others stood guard. Lutao then barged into the house, shook the left shoulder of Lourdes with his gun, and announced a "hold-up." He demanded money from Lourdes. Lourdes begged him to spare their money which was earmarked for the medical treatment of their child. Lutao answered her plea by hitting her chest with the butt of his gun. 11 Stricken with fright, Lourdes yielded the leather wallet under her pillow containing four thousand sixty pesos (P4,060.00) realized from the sale of their copra and pig. She handed it to Lutao who threw the coins on the floor.

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY IN BAND WITH RAPE. We affirm the conviction with modification. We shall first rule on accused-appellants' argument that they were not identified in court by the spouses Siervo, and hence, should be acquitted. They rely on People v. Hatton, 21 where we held that pre-trial identification is not sufficient. We reject accused-appellants' argument. The question of whether accused-appellants are the persons actually accused in the case at bar is a non-issue. The issue was settled during the pre-trial of the case where the parties agreed that the accused-appellants on trial are Orlando Lutao y Lobos and Julio Medera y Turcido. 22 They were even described as members of the CAFGU under the command of Lt. Arismindo Dayaon of the Philippine Army and stationed in Barangay Malobago, Municipality of San Rogue, Northern Samar. By their admission that they are the Orlando Lutao and the Julio Medera accused of committing the crime at bar, the prosecution witnesses were relieved of the burden of making an in court identification of accused-appellants as the malefactors. Throughout the proceedings, they

never claimed that their admission was an error. Indeed, they did not claim as defense that they are not the persons accused of the crime at bar. Their defense is alibi that they were at another place when the crime was committed. Quite clearly, accused-appellants cannot lean on the Hatton case. In Hatton, the accused did not admit he was the Hatton charged in the Information. During the trial, the witnesses for the prosecution failed to identify him. The prosecution tried to remedy the lapse by introducing the identification made by the victim of the accused in a police line-up, an out of court identification. The Court found this identification as infirmed as it was suggested by the police. It acquitted the accused, ruling: "The failure of the prosecution witnesses to positively identify the assailant in court is fatal to the prosecution's cause. Pre-trial identification is not sufficient." Hatton is, thus, distinguishable for in the case at bar, accused-appellants judicially admitted they are the persons charged with the offense. It is also inaccurate to contend that accused-appellant, Julio Medera was not identified in court. Lourdes Siervo positively identified him in the course of her testimony. We quote the relevant part of her direct testimony, viz.: xxx xxx xxx Q If that Julio is in court, will you point to us where he is? A (Witness pointing to a person with blue t-shirt and when asked his name, answered Julio Medera). 23 Next, accused-appellants urge that the spouses Siervo should not be believed because of inconsistencies in their testimonies, viz.: xxx xxx xxx (1) Lourdes Siervo, during her direct testimony, . . . point(ed) to . . . Julio Medera as the one who woke her up and demanded money. . . . (But) during her cross examination . . . she easily changed her answer from Julio Medera to Orlando Lutao . . . to conform with what she has declared in her affidavit. xxx xxx xxx (2) The spouses Siervo reported (to the Mondragon police) that they were robbed and Lourdes Siervo was raped by . . . Pating Naza, Orling Lutao, Jerry Medera, and two unidentified companions . . . (But) on January 2, 1992, the couple reported the incident before the San Roque (police) . . . that the two (2) of the five (5) malefactors were Orlando Lutao . . . and Julio Medera. xxx xxx xxx (3) Arturo Siervo testified that . . . he ran to the bushes . . . because he was told by the five (robbers) to run. . . . Whereas in his affidavit . . . he stated that he ran to the bushes to hide. 24 We hold that these inconsistencies are not malicious marks of falsehood. It is true that in her direct examination, Lourdes pointed to Medera as the one who announced the hold-up. On cross-examination, she changed her testimony and affirmed the content of her prior affidavit that it was Lutao who declared the hold-up. On questioning by the trial judge, Lourdes admitted her mistake, thus: xxx xxx xxx Q When you asserted that it was Julio Medera who awakened you by shaking you by your shoulder it was by mistake because it was Orlando Lutao who did that? A Yes, sir. 25

Accused-appellants also claim that it was unnatural for Arturo to run to the bushes and abandon his wife who has just been raped. We do not agree. Arturo was under the gun. It would have been foolhardy for him to disobey the order for him to run. He would have been shot dead if he did not. Even his family would have been further endangered. He did not have any rational choice except to run. The conduct of the Siervo spouses subsequent to the crime fortified their credibility. They promptly revealed their misfortune to Acero. They gathered their guts and reported the incident not only to the Mondragon police authorities but also to the San Roque police. Lourdes submitted herself to physical examination. These were all spontaneous actions. Indeed, it was far fetched for this rural couple, living in an isolated, unprotected house to falsely impute an atrocious crime against accused-appellants who were influential CAFGU members assigned in their barangay. They would not put their lives on the line except for a legitimate grievance. In checkered contrast, Medera self-destructed when he testified. He unabashedly admitted in court that Lt.Dayaon did not order them on "red alert" from December 26, 1991 to January 1, 1992 for the perceived NPA raid .27 He was with the other soldiers patrolling Barangay Malobago. 28 Nor does the testimony of Cpl. Mabascog inspire credence. He testified that he remembered the December 29, 1991 assignments of accused-appellants because he reported that day after his Christmas vacation. His assertion was negated by Lt. Dayaon's testimony that when a camp is on "red alert," it meant maximum vigilance and all leaves and furloughs are cancelled . 29 In addition, we cannot give full faith and credit to Exhibit "4" and Exhibit "5," the duty roster and guard detail, respectively, presented by accused-appellants. They were handwritten on papers when they should have been properly recorded in a logbook. The accusedappellants failed to explain this irregularity which was vital to the truth of their alibi. Easy to concoct, alibi is a weak defense. It cannot prevail over the positive identification of an accused. It cannot succeed when there is no showing that it is not physically impossible for the accused to be at the crime scene at the time of its commission. 30 At the trial, accused-appellants admitted that they patrolled Barangay Malobago when the crime happened on December 29, 1991. Their camp can be negotiated in ten (10) to fifteen (15) minutes walk to the locus criminis. Since accused-appellants were in Barangay Malobago from 10:00 p.m. to 2:00 a.m., it was not physically impossible for them to be at the Siervo's house and commit the crime. The probability that the Siervo spouses erred in identifying the accused-appellants is nil. Accused-appellants were not strangers to the spouses. They often patrolled Barangay Malobago. Medera was the couple's barriomate and a regular buyer of their chicken. There was also a kerosene lamp which illuminated the locus delicti. Accused-appellants wore no mask to hide their identity. Loose alibi must yield to and cannot prevail over the positive identification made by the spouses. 31 The trial court, however, erred in denominating the crime committed by accused-appellants as Robbery in Band with Multiple Rape. 32 In People v. Precioso, we held that there is no such composite crime of robbery in band with multiple rape. The crime is robbery with rape, with band as a mere aggravating circumstance. It is penalized under Article 294 (2) of the Revised Penal Code, as amended by Republic Act No. 7659 imposing the death penalty. Since the crime charged was committed on December 29, 1991 prior to the effectivity of R.A. No. 7659 on December 31, 1993, the said law cannot be applied retroactively and the death penalty cannot be given to accusedappellants. The trial court correctly imposed the penalty of reclusion perpetua. IN VIEW HEREOF, the appealed Decision dated June 30, 1992 is AFFIRMED with the MODIFICATION that accused-appellants are convicted of Robbery with Rape and ordered to pay in solidum Lourdes Siervo in the amount of fifty thousand pesos (P50,000.00) for moral damages and Arturo and Lourdes Siervo four thousand sixty pesos (P4,060.00) corresponding to the stolen money. With costs against accused-appellants. SO ORDERED. Narvasa, C.J., Regalado and Mendoza, JJ., concur. Francisco, J., is on leave.

Lourdes was candid in admitting her mistake. It was an honest mistake. One honest mistake in the course of a long testimony cannot dilute her credibility. To be sure, Arturo corroborated the testimony of Lourdes that it was Lutao who roused his wife from sleep, announced the hold-up, and carted the money away. There was also an initial confusion on whether the Medera involved in the case at bar was Jerry or Julio. We agree with the trial court's rationalization as it deflated the significance in the discrepancy of the names of Jerry Medera and Julio Medera, viz.: xxx xxx xxx The initial identification by name Jerry Medera before the police in Mondragon given only by Arturo Siervo as one of the criminals, it being shown that Julio Medera has a brother by said name and who is also a member of the CAFGU in San Roque (Exhs. "5" and "6" in relation to Exh. "9") detracts nothing from Lourdes Siervo's spontaneous court room identification when she pointed out to the person of Julio Medera upon his name being mentioned in the course of an answer while "Pating" Naza, instead of Bating Naza, as written in the police blotter 26 (Exh. "9") is so innocuous an error that it should be attributable to inaccuracy of the hearing and/or pronunciation.

7 = G.R. No. L-80778 June 20, 1989 PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE PEDRO T. SANTIAGO, in his capacity as Presiding Judge of Branch 101 of the Regional Trial Court of Quezon City and SEGUNDINA ROSARIO y SEMBRANO, respondents. U.P. Office of Legal Services for petitioner University of the Philippines. Candido G. Del Rosario & Associates for private respondent.

SECTION 1. Pre-trial: when proper.-To expedite the trial, where the accused and counsel agree, the court shall conduct a pretrial conference on the matters enumerated in Section 2 hereof, without impairing the rights of the accused. SEC. 2. Pre-trial conference; subjects.-The pre-trial conference shall consider the following: (a) Plea bargaining; (b) Stipulation of facts; (c) Marking for Identification of evidence of the parties; (d) Waiver of objections to admissibility of evidence; and

GANCAYCO, J.: In this special civil action for certiorari seeking to declare null and void the decision of the Regional Trial Court (RTC) of Quezon City dated October 27, 1987 in Criminal Case No. 051672 entitled "People of the Philippines vs. Segundina Rosario y Sembrano," the issues raised are (1) whether or not double jeopardy attaches in the event of a judgment of acquittal of the accused without a trial on the merits; and (2) whether or not the complainant or private offended party in a criminal case can file a special civil action for certiorari questioning the validity of said judgment of acquittal without the intervention of the Solicitor General. On June 2, 1987 an information for violation of P.D. No. 772 was filed by the Assistant City Fiscal of Quezon City, with the approval of the city fiscal, in the RTC of the same city against Segundina Rosario y Sembrano, which reads, among others, as follows: That on or about 16th day of December, 1986, and for sometime prior thereto and persisting up to the present, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the said accused taking advantage of the absence or tolerance of the University of the Philippines, the registered owner of a parcel of land covered by Transfer Certificate of Title No. 9462 of the Register of Deeds of Quezon City, did then and there, wilfully, unlawfully and feloniously succeed in occupying and/or possessing a portion of the said property, by then and there construct his/her house therein for residential purposes, without the consent and against the will of the said offended party. 1 Upon arraignment the accused pleaded not guilty and a pre-trial conference was held on August 14, 1987 wherein the accused informed the court that she has a title, a building permit and survey plan covering the subject land. The trial court then issued an order on the same day that reads as follows: Considering that the accused has a title, building permit and a survey plan on the subject land, the Court instructs both parties to submit their respective proffer of documentary exhibits together with their positions as to whether this case will be heard or dismissed. 2 The private prosecutor presented a position paper showing that the said property belongs to the University of the Philippines (U.P.) as shown by TCT No. 9462 covering about 493 hectares at Diliman, Quezon City which includes the area in question; that a plan was submitted of the entire area; 3 that the ownership of the so-called U.P. campus under TCT No. 9462 has been sustained by several decisions of the Supreme Court; that the supposed title of the accused, TCT No. 5762 has been cancelled by TCT No. 126671 in the name of Bughay Construction and Development Corporation; that granting the accused had a title thereto, the issue is whether or not the property described in the title is at Pook Amorsolo, U.P. Campus which is adjacent to Bo. Kruz-na-Ligas, Diliman, Quezon City; that the alleged title of the accused shows that the property is situated in Bo. Gulod, Municipality of Marikina, Province of Rizal; that this is also shown in the tax declaration presented by her; 4 that in fact the accused paid the corresponding real estate tax at Marikina; 5 and that the criminal case should proceed as it has been shown that the area on which the accused made the construction belongs to the U.P. without the knowledge and consent of the latter and in violation of P.D. No. 772. On the other hand, the accused submitted a proffer of exhibits with a manifestation tending to show that the accused applied for a building permit to construct on the lot; that the lot is covered by a title in the name of the accused; that a copy of the building permit was also submitted for which the accused paid for the fee; that the relocation plan of the land and the field notes were also submitted; and that she informed U.P. of her claim and asked them not to intrude into her property. An opposition thereto was filed by U.P. stating that the proffer of exhibits is irregular and without basis as in fact the evidence was not marked in the pre-trial; that the proffer of exhibits is not covered by Rule 118, Sections 1 and 2 of the 1985 Rules on Criminal Procedure; that what is allowed only in Section 2 thereof is the marking of the exhibits for Identification purposes of documentary evidence; that the manifestation submitting the case for resolution has no legal basis; and thus it is prayed that the proffer of exhibits and manifestation be denied for being irregular or not pursuant to the rules. On October 27, 1978, the questioned decision was rendered by the respondent judge acquitting the accused of the offense charged with costs de oficio. Hence, the herein petition for certiorari filed by the counsel for the private offended party, U.P., in behalf of the People of the Philippines. The petition seeks to render null and void the aforesaid decision for want of due process as the acquittal of the accused was rendered without a trial on the merits. The petition is impressed with merit. Sections 1, 2, and 3 of Rule 118 of the 1985 Rules on Criminal Procedure provide as follows:

(e) Such other matters as will promote a fair and expeditious trial. (n) SEC. 3. Pre-trial order.-After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of the action during the trial, unless modified by the court to prevent manifest injustice. From the foregoing provisions, it is clear that in criminal cases a pre-trial may be held by the trial court only where the accused and his counsel agree. Such pre-trial shall cover plea bargaining, stipulation of facts, marking for Identification of evidence of the parties, waiver of objections to admissibility of evidence and such other matters as may promote a fair and expeditious trial. After the pre-trial, the trial court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked, and thereafter the trial on the merits shall proceed which shall be limited to matters not disposed of during the pre-trial. In this case, a pre-trial was held wherein the accused alleged that she has a title covering the property in question. The respondent judge thus required the parties to submit their proffer of documentary exhibits and their position paper as to whether or not the case would be heard or dismissed. Under the aforestated provisions of the Rules on Criminal Procedure, particulary Section 2 thereof, what is specified is the marking for identification of evidence for the parties and the waiver of objections to admissibility of evidence. A proffer of exhibits or evidence is not among those enumerated. Such proffer of evidence or more specifically in offer of evidence is generally made at the time a party closes the presentation of his evidence in which case the adverse party is given the opportunity to object thereto and the court rules on the same. When evidence proposed to be presented is rejected by the court a proffer of evidence is usually made stating its nature and purpose had it been admitted. Assuming that such proffer of evidence, as directed by the respondent judge, may be made at the pre-trial in a criminal case, the prosecution should be given the opportunity to object to the admissibility. In this case, the prosecution filed its opposition to the proffer of its exhibits stating that it is not authorized under section 1 and 2 of Rule 118 of the 1985 Rules on Criminal Procedure; that the documentary evidence were not presented for marking at the pre-trial; and that the manifestation submitting the case for the resolution with the proffer of exhibits has no legal basis. In it position paper, U.P. also pointed out that the alleged title of the accused covers property in Marikina and not in U.P. Campus, Quezon City wherein the accused built her structure. The trial court did not even rule on the admissibility of the exhibits of the accused. The respondent judge despite the conflicting positions of the parties and the objection of the U.P. to the resolution of the case without a trial on the merits, nevertheless rendered a decision acquitting the accused by making the following disquisition: With all the documents of the prosecution and the defense on record, it may now be asked: MAY THE ACCUSED BE CONVICTED OF THE CRIME OF VIOLATION OF PRESIDENTIAL DECREE NUMBER 772? Prosecution of the accused is anchored on the postulate that accused built a structure over land belonging to the University of the Philippines and titled in the name of the latter. Documents presented by the defense established that accused has a title over the land on which she built the structure; that she has a building permit for the structure; that she paid the corresponding fees for the building permit; that she has a relocation plan with supporting data of field notes and lot data computation (Exhs. "1", "2", "2-A", "3", "4", "5", "5-A," "6-B", "5B-1", "5-B-2", and "5-B-3"). Actually, there is now a collision between the claim of the prosecution and the defense on rights of ownership to the land in question. It may be noted that both land titles are torrens titles. Under these well established facts, it cannot be stated with certainty that the accused built her structure illegally. If somehow it is discernible that it is more the inadequacy of details in the states evidence that makes it difficult for us to arrive at definite conclusions rather than, perhaps, the actual facts themselves, still we cannot pin responsibility on appellant (sic). That moral conviction that may serve as basis of a finding of guilt in criminal cases is only that and which is the logical and inevitable result of the evidence on record, exclusive of any other consideration. Short of this, it is not only the right of the accused to be freed, it is, even more, our constitutional duty to acquit him." So, said the Supreme Court in People vs. Maisug, 27 SCRA 753. The same holds true to the instant case. The scanty and/or inadequate evidence of the prosecution is insufficient to sustain conviction.

It may be added that the torrens title of accused over the property on which she built her structure cannot be collaterally attacked. The issue on the validity of her title can only be raised in an action expressly instituted for that purpose (Magay vs. Estiandan, 69 SCRA 456). The same doctrine has been reiterated in Director of Lands vs. CFI of Misamis Oriental, Br. 1, No. L-58823, March 18, 1985, 135 SCRA 392). 6 This Court finds that the respondent judge committed a grave abuse of discretion in rendering the aforestated decision without affording the prosecution the opportunity to have its day in court. The issue before the Court is whether or not the accused built the structure on the land belonging to U.P. At the pre-trial, U.P. presented its title and plan showing that the accused built a structure within its property. The accused by her proffer of exhibits and manifestation pretended to have a title to the questioned land. However, as stressed by U.P., the titled property of accused is located in Marikina and not in Quezon City and said title could not cover the very lot in question which is at Pook Amorsolo, U.P. Campus where the structure of accused was built. This issue cannot be determined by a mere examination of the titles and documents submitted by the parties. A trial on the merits should be undertaken to determine once and for all whether the place where the structure was built by the accused belongs to U.P. or to the accused. The conclusion of the trial court that the accused did not build her structure illegally as she has a title to the property in question is without any factual or legal basis. Indeed, the observation of respondent judge in the questioned decision as to "the inadequacy in details of the state's evidence" simply demonstrates that a trial on the merits should have been held to enable the prosecution to establish its case. No doubt, the acquittal of the accused is a nullity for want of due process. The prosecution was not given the opportunity to present its evidence or even to rebut the representations of the accused. The prosecution is as much entitled to due process as the accused in a criminal case. Double jeopardy cannot be invoked as a bar to another prosecution in this case. 7 There is double jeopardy only when: 1) there is a valid complaint or information; 2) filed before a competent court; 3) to which defendant had pleaded; and 4) of which he has previously been convicted or acquitted or which was dismissed or terminated without his express consent. 8 In this case, the prosecution was deprived of an opportunity to prosecute and prove its case. The decision that was rendered in disregard of such imperative is void for lack of jurisdiction. 9 It was not a court of competent jurisdiction when it precipitately rendered a decision of acquittal after a pre-trial. A trial should follow a pre-trial. That is the mandate of the rules. 10 Obviously, double jeopardy has not set in this case. The question as to whether or not U.P., as the private offended party, can file this special civil action for certiorari questioning the validity of said decision of the trial court should be answered in the affirmative. It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability. Thus, in the prosecution of the offense, the complainant's role is limited to that of a witness for the prosecution. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. 11 The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused. 12 In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action respondent court on jurisdictional grounds. In so doing, complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in name of said complainant. 13 In this case, the Solicitor General upheld the right of U.P. to file the petition as an aggrieved party. Inasmuch as the prosecution was deprived of due process, the questioned decision of the respondent judge acquitting the accused is null and void as it was rendered in grave abuse of discretion amounting to lack of jurisdiction. WHEREFORE, the petition is GRANTED and the questioned decision of the respondent judge dated October 27, 1987 is set aside and declared null and void. The respondent judge is hereby directed to proceed with the trial on the merits of the case, and thereafter, to decide the same on the basis of the evidence adduced, without pronouncement as to costs. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

5 Annex F, Position Paper. 6 Pages 27 and 28, Rollo. 7 People vs. Balisacan, 17 SCRA 1119 (1966). 8 People vs. Ylagan, 58 Phil. 851 (1933); Section 7, Rule 117, 1985 Rules on Criminal Procedure. 9 People vs. Bocar, 138 SCRA 166,170 (1985); People vs. Ruiz, 81 SCRA 453 (1978); and People vs. Court of Appeals, 92 SCRA 607 (1979). 10 Sections 1, 2 and 3, Rule 118, supra. 11 People vs. Ruiz, supra; People vs. Court of Appeals, supra; The City Fiscal of Tacloban vs. Hon. Pedro M. Espina, et al., G.R. No. 83996, October 21, 1988; and Republic vs. Partisala, 118 SCRA 370 (1982). 12 Padilla vs. Court of Appeals, 129 SCRA 558 (1984); People vs. Jalandoni, 131 SCRA 454 (1984); and Rule 122, Section 11(b), 1985 Revised Rules of Criminal Procedure. 13 Section 1, Rule 65, Rules of Court; Sections 1 and 2, Rule 3, supra.

Footnotes 1 Page 9, Rollo. 2 Page 11, Rollo. 3 Annex D to the Position Paper, xerox copy of the title. 4 Annex E, Position Paper.

8 = G.R. No. L-38756 November 13, 1984 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMUALDO CAPILLAS and AQUILINO PACALA, accused-appellants.

Accused Pacala is one of the followers of accused Capillas (p. 7, tsn, November 28, 1973). Before and up to September 9, 1971, Capillas' Batang Samar Leyte gang was fighting the Genuine Ilocano gang of Gallardo. (p. 12, tsn, November 28, 1973). Capillas had previously told Pacala that he entertained ill feelings against the victim (p. 8, tsn, November 28, 1973). When he saw Capillas stabbing the victim, and with his previous knowledge of the ill feeling entertained by Capillas against the victim, Pacala got out of his cell, took his weapon and also stabbed the victim (p. 8, tsn, November 28, 1973) on the chest. At the time that the victim was being stabbed by the accused, he was pleading for his life saying, 'Maawa na kayo sa akin' (p. 5, tsn, November 28, 1973), 'Huwag mo na akong patayin' (p. 11, tsn, November 11, 1973). The accused, nevertheless, disregarded his plea for mercy and proceeded to stab him. Because of the multiple wounds, death was immediate (p. 5, tsn, Oct. 27, 1973). An autopsy was conducted by Dr. Ricardo G. Ibarrola of the NBI who found the following wounds: Exhibit "A" (p. 96, Records) Aside from abrasives Inside wound, left hand, dorso-medial aspect, 6.5 cm, long running almost vertically, involving deeply the muscles. Stab wounds, elliptical in shape, with cleancut edges, one of the extremities of which is blunt and the other sharp. 1. Left mammary region, medial aspect, level of the third intercostal space along the parasternal line, 4.8 cm. from the anterior midline, 1.8 cm. long, running downwards medially, superior extremity, of which is sharp, directed slightly upwards, medially and backwards, involving among others the soft tissues ... 12.0 cm. depth. 2. Left inframary region ... 3. Left infraxillary region 15.0 cm. depth. 4. Left infra-axillary line 9.0 cm. depth.

ABAD SANTOS, J.: This is an automatic review of the decision rendered by the defunct Circuit Criminal Court at Pasig, Rizal, in CCC-VII-1335 Rizal, for murder. ROMUALDO CAPILLAS and AQUILINO PACALA were accused of the crime of murder alleged to have been committed as follows: That on or about September 9, 1971, in the New Bilibid Prison, Muntinlupa, Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused while then, confined at the said institution, conspiring, confederating and helping one another with treachery and evident premeditation, and each armed with improvised deadly weapons did then and there wilfully, unlawfully and feloniously assault and wound therewith one Patricio Gallardo, No. 39072-P a sentenced prisoner in the same institution, inflicting upon him the multiple stab wounds, while then unarmed and unable to defend himself/themselves from the attack launched by the accused, as a result of which the said Patricio Gallardo died instantly; That the offense when committed by the above accused was attended by the aggravating circumstances of recidivism in the case of both accused. (Expediente, p. 1.) When the accused were arraigned on July 5, 1973, with the assistance of counsel, both pleaded GUILTY. Thereafter, according to the trial court: The accused were apprised by the Court of the consequence of their plea of guilty that there is no other penalty to be meted upon them except death and the said accused manifested that although they are aware that they might be punished with death, still they are pleading guilty to the crime they have committed. Pursuant to the doctrine laid down by the Supreme Court in the case of People vs. Daeng, et al., G.R. No. L-34091, January 30, 1973, the Court ordered the presentation of evidence to determine the degree of culpability of the accused. ( Id, p. 113.) The trial court rendered the following judgment: WHEREFORE, in view of the spontaneous and voluntary confession of guilt made by the accused Romualdo Capillas and Aquilino Pacala, the Court finds them GUILTY, beyond reasonable doubt, of the crime of Murder in accordance with Article 248 of the Revised Penal Code, as charged in the information, and hereby sentences them to suffer the penalty of DEATH; to indemnify the heirs of the offended party in the amount of P12,000.00; to pay the amount of P5,000.00 as moral damages; another P5,000.00 as exemplary damages; and to pay the costs. (Id., p. 118.) The appellants do not dispute the factual findings of the trial court. The errors which they impute to said court relate to the propriety of imposing the death penalty on them and ordering the payment of moral and exemplary damages. The People's version of the facts is as follows: Romualdo Capillas and Aquilino Pacala are both inmates of the death row of the National Prisons at Muntinlupa (p. 2, tsn, November 28, 1973; p. 2, tsn, November 27, 1973). Romualdo Capillas has been confined in the national penitentiary since 1964. He was sentenced to death for the crime of robbery in band with homicide by the Court of First Instance of Samar (pp. 4-6, tsn, November 27, 1973; pp. 24 and 28, Records). Aquiline Pacala was sentenced to death together with his brother by the Court of First Instance of Samar (pp. 8-9, tsn, November 28, 1973) for robbery with homicide (p. 24, Records). As of September 9, 1971, the date of the slaying of the victim in the instant case, the decisions convicting both accused were still under automatic review by this Honorable Court (p. 6, tsn, November 27, 1973; pp. 24, 28 & 30, Records). Sometime before September 9, 1971, the victim Patricio Gallardo, also an inmate of Muntinlupa, was transferred from his original cell to the so-called death row dormitory. His leg was chained when he was transferred there (p. 9, tsn, November 27, 1973). Accused Capillas was the squad leader of dormitory 1-D, the dormitory to which the victim was transferred (p. 3, tsn, November 27, 1973). On September 9, 1971 at about 1 1:00 A.M., the victim was in cell 32, dormitory 1-D (p. 3, tsn, November 27, 1973). While the victim was seated near the door of his cell (Cell No. 32), accused Capillas stabbed him without any warning, first in the stomach, then successively in different parts of the body (pp. 8-9, tsn, November 27, 1973; Exhibit G).

5. Left hypochondriac region 11 cm. depth. 6. Umbilican region 9.0 cm. depth. 7. Right arm 2.3 cm. depth. 8. Left forearm 3.5 cm. depth. 9. Left thigh 7.0 cm. depth. 10. Left thigh 9.0 cm. depth. 11. Left thigh 6.0 cm. depth. 12. Left thigh 10.0 cm.depth. (Brief, pp. 3-6.) The trial court appreciated in favor of the accused the mitigating circumstances of voluntary surrender and plea of guilty. Nonetheless the death penalty was imposed on them because, according to the court, "this being a case of quasi-recidivism, as special aggravating circumstance, the same cannot be offset by any ordinary mitigating circumstance because of the mandatory provision of Article 160 of the Revised Penal Code which specifically provides that the offender shall be punished by the maximum period of the penalty prescribed by law for the new felony. (Pp. vs. Perete, 58 O.G. 8628)." (Expediente, p. 118.) The appellants claim, and the Solicitor General agrees, that Article 160 of the Revised Penal Code does not apply to them. The codal provision reads as follows: Art. 160. Commission of another crime during service of penalty imposed for another previous offense Penalty. Besides the provisions of rule 5 of article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. In the case at bar the appellants committed the crime of murder while they were confined at the New Bilibid Prison. But such fact does not justify the application of Article 160 of the Revised Penal Code to them because the record is bereft of any evidence introduced by the prosecution showing that they were serving sentence by virtue of finaljudgments.

Romualdo Capillas had been sentenced to death for robbery in band with homicide by the Court of First Instance of Samar but when he committed the murder on September 9, 1971, his sentence had not yet become final because it was still under review by this Court. As to Aquilino Pacala he admitted that he had been sentenced to death for a crime committed in Laya, Samar, and that he had been previously convicted of trespass. But there is no evidence to the effect that when he took part in killing Patricio Gallardo he was serving final sentence for the crime committed in Samar. (The death sentence imposed on Romualdo Capillas was reduced to reclusion perpetua for lack of necessary votes in a decision promulgated on October 21, 1981. See People vs. Capillas, L-27177, 108 SCRA 173. As to Aquiline Pacala the death sentence imposed on him was likewise reduced to reclusion perpetua in a decision promulgated on August 15, 1974. See People vs. Pacala, L-26647, 58 SCRA 370). It is true that the information alleges recidivism as an aggravating circumstance for the two accused. True it is also that a plea of guilty is deemed as an admission of all the material allegations in the information including the attendant circumstances. But in the instant case the trial court proceeded to receive evidence despite the plea of guilty because of the serious nature of the offense and the evidence shows that the appellants are not recidivists. The evidence, under the circumstances, must prevail over the admission. The Solicitor General concedes that Capillas is entitled to two mitigating circumstances: voluntary surrender and plea of guilty. The Solicitor General concedes that Pacala is entitled to the mitigating circumstance of plea of guilty but denies that he can invoke voluntary surrender because it is not supported by the evidence. The latter point is well-taken because Pacala himself stated during the hearing that he did not surrender; he merely waited in his cell until prison employees took him out. The penalty for murder is reclusion temporal in its maximum period to death. Capillas has two mitigating circumstances in his favor so that the penalty is reduced by one degree to prision mayor maximum to reclusion temporal medium. As to Pacala who has one mitigating circumstance in his favor, the minimum period of the penalty for murder is applicable. The appellants claim that the trial court erred in awarding moral and exemplary damages. This claim appears to be academic and would require no discussion in the light of their economic condition. Nonetheless, it is useful to state that the relevant provisions of the Civil Code do authorize the award not only of compensatory or actual damages in delicts and quasi-delicts but also of moral and exemplary damages. (See People vs. Pantoja, L-18793, Oct. 11, 1968, 25 SCRA 468.) WHEREFORE, the judgment of the court a quo is modified; Romualdo Capillas is sentenced to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum; Aquilino Pacala is sentenced to an indeterminate of reclusion temporal, as minimum, to twenty (20) years ofreclusion temporal, as maximum; both shall indemnify, jointly and severally, the heirs of the deceased in the amount of P30,000.00, and to pay the costs. SO ORDERED. Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente and Cuevas, JJ., concur. Fernando, C.J., is on leave. Gutierrez, Jr., J., took no part.

9 = G.R. No. 119220 September 20, 1996 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO, accused-appellant.

ROMERO, J.: Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition 1 defined and penalized under Presidential Decree No. 1866. The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. 2 From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met the group of accusedappellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accusedappellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. 3 Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade firearm locally know as "latong." When he asked accusedappellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. 4 Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. 5 Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. 6 On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging fromreclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term of reclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant did not contest the fact that SPO3 Nio confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his companions. 8 Accused-appellant comes to this Court on appeal and assigns the following errors: I. The trial court erred in admitting in evidence the homemade firearm. II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the maximum penalty against the accused-appellant. 9 This court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia: A peace officer or a private person may, without a warrant, arrest a person when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for being "the fruit of the poisonous tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant acquitted.

Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident 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. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law." Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardy tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. 14 The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspended that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant." This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made. In the present case, after SPO3 Nio told accused-appellant not to run away, the former identified himself as a government agents. 16 The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm. As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions filed upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license to possess the subject firearm. 17 Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 18 In People v. Tiozon, 19 this Court said: It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if "it is an essential ingredient of the offense charged," the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in committing the offense charged was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with "having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral. 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moral upholds this view as follows: The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a
15

business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, encumber upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him." (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8). Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine in People v. Macagaling: 20 We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegations must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged. In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the prosecution relied on accused-appellant's admission to prove the second element. Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accusedappellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged. This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof. Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." 24 Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." 25 In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. In view of the foregoing, this Court sees no need to discuss the second assigned error. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with cost de oficio. SO ORDERED. Regalado, Puno and Torres, Jr., JJ., concur. Mendoza, J., is on leave.

PEOPLE VS. JUDGE DONATO [198 SCRA 130; G.R. NO.79269; 5 JUN 1991] Thursday, February 12, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: Private respondent and his co-accused were charged of rebellion on October 2, 1986 for acts committed before and after February 1986. Private respondent filed with a Motion to Quash alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) thecriminal action or liability has been extinguished. This was denied. May 9, 1987 Respondent filed a petition for bail, which was opposed that the respondent is not entitled to bail anymore since rebellion became a capital offense under PD 1996, 942 and 1834 amending ART. 135 of RPC. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Judge Donato now granted the bail, which was fixed at P30,000.00 and imposed a condition that he shall report to the court once every two months within the first ten days of every period thereof. Petitioner filed a supplemental motion for reconsideration indirectly asking the court to deny bail to and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail. It was contended that: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; (Chairman of CPP-NPA) 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a rewardof P250,000.00 was offered and paid for his arrest. This however was denied. Hence the appeal.

Issue: Whether or Not the private respondent has the right to bail.

Held: Yes. Bail in the instant case is a matter of right. It is absolute since the crime is not a capital offense, therefore prosecution has no right to present evidence. It is only when it is a capital offense that the right becomes discretionary. However it was wrong for the Judge to change the amount of bail from 30K to 50K without hearing the prosecution. Republic Act No. 6968 approved on 24 October 1990, providing a penalty of reclusion perpetua to the crime of rebellion, is not applicable to the accused as it is not favorable to him. Accused validly waived his right to bail in another case(petition for habeas corpus). Agreements were made therein: accused to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately, with a condition that they will submit themselves in the jurisdiction of the court. Said petition for HC was dismissed. Bail is the security given for the release of a person in custody of the law. Ergo, there was a waiver. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.