40. PEOPLE V DAMASO G.R. No. 93516 August 12, 1992 THE PEOPLE OF THE PH LL PP NES, plaintiff-appellee, vs.

!AS L O DAMASO " !#$%&$'o(!ERN E MENDO)A " *A DADO, accused-appellant. The Solicitor General for plaintiff-appellee.

MED ALDEA, J.: The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial Court of Dagupan City with violation of Presidential Decree o. !"## in furtherance of, or incident to, or in connection with the crime of subversion, together with $u%viminda &orados y 'alang ( )a &el, Teresita Calosa y &acabangon ( )a Tessie, Ricardo Calosa y Pere% ( )a Ric, &arites Calosa y *vangelista ( )a Tess, *ric Tanciangco y Capira ( )a Ric and $u% Tanciangco y Pencial ( )a $u% +Records, p. ,-. .uch information was later amended to e/clude all the above-enumerated persons e/cept the accused-appellant from the criminal charge. The amended information reads0 That an or about the !1th day of 2une, !1"", in the City of Dagupan, Philippines, and within the territorial 3urisdiction of this 4onorable Court, the above-named accused, Basilio D5&5.6 ( Bernardo7Bernie &endo%a ( )5 D5D6, did then and there, willfully, unlawfully and criminally, have in his possession, custody and control one +!- &!8 Rifle bearing .erial o. !9811,: with maga%ine and ;ifty-.even +:<- live ammunition, in furtherance of, or incident to, or in connection with the crime of subversion, filed against said accused in the above-entitled case for =iolation of Republic 5ct !<>>, as amended by */ecutive 6rder o. 9<#. Contrary to Third Paragraph of .ec. !, P.D. !"##. +Records, p. 9>?pon arraignment, the accused-appellant pleaded not guilty to the crime charged +Records, p. ,<-. Trial on the merits ensued. The prosecution rested its case and offered its e/hibits for admission. The counsel for accusedappellant interposed his ob3ections to the admissibility of the prosecution@s evidence on grounds of its being hearsay, immaterial or irrelevant and illegal for lacA of a search warrant. 6n these bases, he, thereafter, manifested that he was not presenting any evidence for the accused +T. , December 9", !1"1, p. !,1-. 6n 2anuary !<, !11>, the trial court rendered decision, the dispositive portion of which states0 B4*R*;6R*, the Court finds accused Basilio Damaso alias Bernardo7Bernie &endo%a alias )a Dado guilty beyond reasonable doubt of =iolation of Presidential Decree umber !"##, and considering that the =iolation is in furtherance of, or incident to, or in connection with the crime of subversion, pursuant to .ection !, Paragraph , of Presidential Decree umber !"## hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs of the proceedings. The &!8 Rifle bearing .erial umber !9811,: and live ammunition and all the articles and7or items sei%ed on 2une !1, !1"" in connection with this case and marAed and submitted in court as evidence are ordered confiscated and forfeited in favor of the government, the same to be turned over to the Philippine Constabulary Command at $ingayen, Pangasinan. .6 6RD*R*D. +Rollo, p. ,!Thus, this present recourse with the following assignment of errors0 5. T4* TRC5$ C6?RT *RR*D C ;C DC ' 5CC?.*D 5PP*$$5 T '?C$TD B*D6 D R*5.6 5B$* D6?BT 6; T4* CRC&* 6; C$$*'5$ P6..*..C6 6; ;CR*5R&. 5 D 5&&? CTC6 . C ;?RT4*R5 C* 6;, 6R C CCD* T T6, 6R C C6 *CTC6 BCT4 T4* CRC&* 6; .?B=*R.C6 D*.PCT* T4* B6*;?$$D C 5D*E?5T* *=CD* C* PR*.* T*D BD T4* PR6.*C?TC6 . B. T4* C6?RT *RR*D C C6 =CCTC ' T4* 5CC?.*D B4* .?B=*R.C6 B5. 6T PR6=* BD T4* PR6.*C?TC6 . T4* E?5$C;DC ' CCRC?&.T5 C*. 6;

C. T4* $6B*R C6?RT *RR*D C C6 .CD*RC ' 5. *=CD* C* T4* ;CR*5R&. D6C?&* T. 5 D CT*&. $C.T*D C *F4CBCT * 5;T*R T4*D B*R* D*C$5R*D C 5D&C..CB$* BCT4 ;C 5$CTD BD 5 6T4*R BR5 C4 6; T4* .5&* C6?RT 5 D T4* .5CD *=CD* C* 5R* T4* ;R?CT. 6; 5 C$$*'5$ .*5RC4. D. T4* TRC5$ C6?RT *RR*D C D* DC ' T4* &6TC6 . T6 E?5.4 ;C$*D BD 5CC?.*D-5PP*$$5 T B*C5?.* T4* .*P5R5T* C45R'* ;6R .?B=*R.C6 5'5C .T 4C& 5B.6RB*D T4* C45R'* ;6R C$$*'5$ P6..*..C6 6; ;CR*5R&. C ;?RT4*R5 C* 6; 6R C CCD* T T6, 6R C C6 *CTC6 BCT4 T4* CRC&* 6; .?B=*R.C6 . +pp. ::-##, RolloThe antecedent facts are set forth by the .olicitor 'eneral in his Brief, as follows0 6n 2une !", !1"", $t. Candido Eui3ardo, a Philippine Constabulary officer connected with the !:9nd PC Company at $ingayen, Pangasinan, and some companions were sent to verify the presence of CPP7 P5 members in Barangay Catacdang, 5rellano-Bani, Dagupan City. Cn said place, the group apprehended 'regorio ;lameniano, Berlina 5ritumba, Revelina 'amboa and Deogracias &ayaoa. Bhen interrogated, the persons apprehended revealed that there was an underground safehouse at 'racia =illage in ?rdaneta, Pangasinan. 5fter coordinating with the .tation Commander of ?rdaneta, the group proceeded to the house in 'racia =illage. They found subversive documents, a radio, a ! / < caliber .8: firearm and other items +pp. 8, #-<, tsn, 6ctober 9,, !1"1-. 5fter the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented apartment of Rosemarie 5ritumba, sister of Berlina 5ritumba whom they earlier arrested. They interviewed $u%viminda &orados, a visitor of Rosemarie 5ritumba. .he stated that she worAed with Bernie &endo%a, herein appellant. .he guided the group to the house rented by appellant. Bhen they reached the house, the group found that it had already been vacated by the occupants. .ince &orados was hesitant to give the new address of Bernie &endo%a, the group looAed for the Barangay Captain of the place and reGuested him to point out the new house rented by appellant. The group again reGuired &orados to go with them. Bhen they reached the house, the group saw $u% Tanciangco outside. They told her that they already Anew that she was a member of the P5 in the area. 5t first, she denied it, but when she saw &orados she reGuested the group to go inside the house. ?pon entering the house, the group, as well as the Barangay Captain, saw radio sets, pamphlets entitled H5ng Bayan,H /ero/ copiers and a computer machine. They also found persons who were companions of $u% Tanciangco +namely, Teresita Calosa, Ricardo Calosa, &aries Calosa, *ric Tanciangco and $u%viminda &orados-. The group reGuested the persons in the house to allow them to looA around. Bhen $u% Tanciangco opened one of the rooms, they saw booAs used for subversive orientation, one &-!8 rifle, bullets and ammunitions, )enwood radio, artificial beard, maps of the Philippines, Iambales, &indoro an+d- $aguna and other items. They confiscated the articles and brought them to their headGuarters for final inventory. They liAewise brought the persons found in the house to the headGuarters for investigation. .aid persons revealed that appellant was the lessee of the house and owned the items confiscated therefrom +pp. "-!9, tsn, ibidJ pp. 9-8, #, "-!>, ,!, tsn, 6ctober ,!, !1"1-. +p. :, Brief of Plaintiff-5ppellee, p. 1!, RolloBhile Be encourage and support law enforcement agencies in their drive against lawless elements in our society, Be must, however, stress that the latter@s efforts to this end must be done within the parameters of the law. Cn the case at bar, not only did Be find that there are serious flaws in the method used by the law officers in obtaining evidence against the accused-appellant but also that the evidence as presented against him is weaA to 3ustify conviction. Be reverse. The records of this case show that the accused-appellant was singled out as the sole violator of P.D. o. !"##, in furtherance of, or incident to, or in connection with the crime of subversion. Det, there is no substantial and credible evidence to establish the fact that the appellant is allegedly the same person as the lessee of the house where the &-!8 rifle and other subversive items were found or the owner of the said items. The prosecution presented two witnesses who attested to this fact, thus0 $ieutenant Candito Eui3ardo ;iscal E 4ow about this Bernie &endo%a, who was the one renting the houseK

5 4e was not around at that time, but according to Luz +Tanciangco- who mentioned the name Bernie &endo%a +asthe one who was renting the house and at the same time claiming that it was Bernie &endo%a who owns the said items. +T. of 6ctober ,!, !1"1, p. 8>/// /// /// E C am showing you another picture which we reGuest to be marAed as */hibit H)-9,H tell us if it has any connection to the houseK 5 The same house, sir. E ow, this person who according to you allegedly occupied the house at Bonuan 'ueset, by the name of Bernie &endo%a, in your capacity as a &ilitary officer, did you find out the identityK 5 I am not the proper (person) to tell the real identit of !ernie de Guzman . E Can you tell the 4onorable Court the proper person who could tell the true identity of Bernie &endo%aK 5 The Cntelligence of the Pangasinan PC Command. E Can you name these officersK 5 Captain Roberto Rosales and his assistant, ;irst $t. ;ederico Castro. +ibid, pp. :8-::"#S$t. %rtemio Gomez E That underground house, do you Anow who was the principal occupant of that houseK /// /// /// 5 During our conversation with the occupants, they revealed that a certain )a Bernie is the one occupying the house, Bernie &endo%a alias Basilio Damaso. . . . +T. , December 9<, !1"1, pp. !9#-!9"Clearly, the aforeGuoted testimonies are hearsay because the witnesses testified on matters not on their own personal Anowledge. The .olicitor 'eneral, however, argues that while the testimonies may be hearsay, the same are admissible because of the failure of counsel for appellant to ob3ect thereto. Ct is true that the lacA of ob3ection to a hearsay testimony results in its being admitted as evidence. But, one should not be misled into thinAing that since these testimonies are admitted as evidence, they now have probative value. 4earsay evidence, whether ob3ected to or not, cannot be given credence. Cn People &s. 'alero, Be emphatically declared that0 The failure of the defense counsel to ob3ect to the presentation of incompetent evidence, liAe hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to asA for the striAing out of the same does not give such evidence any probative value. The lacA of ob3ection may maAe any incompetent evidence admissible. But admissibilit of e&idence should not be e$uated (ith (eight of e&idence. )earsa e&idence (hether ob*ected to or not has no probati&e &alue. +$-8:9",-"8, &arch !1, !1"9, !!9 .CR5 #<:, emphasis suppliedCt is unfortunate that the prosecution failed to present as witnesses the persons who Anew the appellant as the lessee and owner of the &-!8 rifle. Cn this way, the appellant could have e/ercised his constitutional right to confront the witnesses and to cross-e/amine them for their truthfulness. $iAewise, the records do not show any other evidence which could have identified the appellant as the lessee of the house and the owner of the subversive items. To give probative value to these hearsay statements and convict the appellant on this basis alone would be to render his constitutional rights useless and without meaning. *ven assuming for the saAe of argument that the appellant is the lessee of the house, the case against him still will not prosper, the reason being that the law enforcers failed to comply with the reGuirements of a valid search and sei%ure proceedings.

The right against unreasonable searches and sei%ures is enshrined in the Constitution +5rticle CCC, .ection 9-. The purpose of the law is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home by officers of the law acting under legislative or 3udicial sanction and to give remedy against such usurpations when attempted +see 5lvero v. Di%on, <# Phil. #,<, #8#-. 4owever, such right is not absolute. There are instances when a warrantless search and sei%ure becomes valid, namely0 +!- search incidental to an arrestJ +9- search of a moving vehicleJ and +,- sei%ure of evidence in plain view +&anipon, 2r. v. .andiganbayan, $:"""1, 2uly ,!, !1"#, !8, .CR5 9#<, 9<#-. one of these e/ceptions is present in this case. The .olicitor 'eneral argues otherwise. 4e claims that the group of $t. Eui3ardo entered the appellant@s house upon invitation of $u% Tanciangco and $u%viminda &orados, helper of the appellantJ that when $u% Tanciangco opened one of the rooms, they saw a copier machine, computer, &-!8 rifle, bullets and ammunitions, radio set and more subversive itemsJ that technically speaAing, there was no search as the group was voluntarily shown the articles used in subversionJ that besides, a search may be validly conducted without search warrant with the consent of the person searched in this case, appellant@s helper and $u% Tanciangco allowed them to enter and to looA around the appellant@s houseJ and that since the evidence sei%ed was in plain view of the authorities, the same may be sei%ed without a warrant. Be are not persuaded. The constitutional immunity from unreasonable searches and sei%ures, being personal one, cannot be waived by anyone e/cept the person whose rights are invaded or one who is e/pressly authori%ed to do so in his or her behalf +De 'arcia v. $ocsin, #: Phil. #"1, #1:-. Cn the case at bar, the records show that appellant was not in his house at that time $u% Tanciangco and $u% &orados, his alleged helper, allowed the authorities to enter it +T. , 6ctober ,!, !1"1, p. !>-. Be ;ind no evidence that would establish the fact that $u% &orados was indeed the appellant@s helper or if it was true that she was his helper, that the appellant had given her authority to open his house in his absence. The prosecution liAewise failed to show if $u% Tanciangco has such an authority. Bithout this evidence, the authorities@ intrusion into the appellant@s dwelling cannot be given any color of legality. Bhile the power to search and sei%e is necessary to the public welfare, still it must be e/ercised and the law enforced without transgressing the constitutional rights of the citi%ens, for the enforcement of no statute is of sufficient importance to 3ustify indifference to the basic principles of government +Rodrigue% v. *vangelista, #: Phil. 9,>, 9,:-. 5s a conseGuence, the search conducted by the authorities was illegal. Ct would have been different if the situation here demanded urgency which could have prompted the authorities to dispense with a search warrant. But the record is silent on this point. The fact that they came to the house of the appellant at nighttime +*/h. 2, p. <, Records-, does not grant them the license to go inside his house. Cn %lih &. +astro, Be ruled that0 The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They Anew where the petitioners were. They had every opportunity to get a search warrant before maAing the raid. Cf they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes reGuired by the Constitution and instead insist on arbitrarily forcing their way into the petitioner@s premises with all the menace of a military invasion. +'.R. o. #18>!, 2une 9,, !1"<, !:! .CR5 9<1, 9"#5nother factor which illustrates the weaAness of the case against the accused-appellant is in the identification of the gun which he was charged to have illegally possessed. Cn the amended information + supra, pp. !-9-, the gun was described as an &-!8 rifle with serial no. ,-.//01. Det, the gun presented at the trial bore a different serial number thus0 ;C.C5$ E Bill you Aindly restate again the items that you found inside the houseK $t. Eui3ardo0 5 Bhen she opened the doors of the rooms that we reGuested for, we immediately saw different Ainds of booAs of which we believed to be used for subversive orientation and the &-!8 rifle. E Cn what portion of the house did you find this &-!8 rifle which you mentionedK 5 Cn the same room of which the subversive documents were placed. E Cf this firearm would be shown to you would you be able to identify the sameK 5 Des, sir.

E C am showing to you a rifle bearing a serial number ,-.//21 which for purposes of identification, may we reGuest your 4onor, that this rifle be marAed as */hibit HD.H C6?RT0 &arA it. ;C.C5$0 E )indly e/amine the said firearm and tell the 4onorable Court the relation of that firearm to the firearm which according to you you found inside the room allegedly occupied by one Bernie &endo%aK 5 This is the same rifle which was discovered during our raid in the same house. +T. , 6ctober ,!, !1"1, pp. ,#-,", emphasis supplied-. The .olicitor 'eneral contends that the discrepancy is merely a typographical error. Be do not thinA so. This glaring error goes into the substance of the charge. Cts correction or lacA of it could spell the difference between freedom and incarceration of the accused-appellant. Cn crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the e/istence of the firearm and that the accused who possessed or owned the firearm does not have the corresponding license for it. .ince the gun as identified at the trial differs from the gun described in the amended information, the corpus delicti +the substance of the crime, the fact that a crime has actually been committed- has not been fully established. This circumstance coupled with dubious claims of appellant@s connection to the house +where the gun was foundhave totally emasculated the prosecution@s case. But even as Be find for the accused-appellant, Be, taAe e/ception to the argument raised by the defense that the crime of subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with the crime of subversion. Ct appears that the accused-appellant is facing a separate charge of subversion. The defense submits that the trial court should have peremptorily dismissed this case in view of the subversion charge. Cn People of the Philippines &. %suncion3 et al., Be set forth in no uncertain terms the futility of such argument. Be Guote0 Cf Be are to espouse the theory of the respondents that force and violence are the very essence of subversion, then it loses its distinction from rebellion. Cn People &. Li(anag +'.R. o. 9<#",, !1<#, <, .CR5 8<,, 8"> L!1<#M-, the Court categorically distinguished subversion from rebellion, and held0 =iolation of Republic 5ct o. !<>>, or subversion, as it is more commonly called, is a crime distinct from that of actual rebellion. The crime of rebellion is committed by rising publicl and ta4ing up arms against the Go&ernment for any of the purposes specified in 5rticle !,8 of the Revised Penal CodeJ while the 5nti-.ubversion 5ct +Republic 5ct o. !<>>- punishes affiliation or membership in a subversive organi%ation as defined therein. Cn rebellion, there must be a public uprising and taAing of arms against the 'overnmentJ whereas, in subversion, mere membership in a subversive association is sufficient and the taAing up of arms by a member of a subversive organi%ation against the 'overnment is but a circumstance which raises the penalty to be imposed upon the offender. +*mphasis supplied;urthermore, in the case of Buscayno v. &ilitary Commission +'.R. :"9"8, !>1 9"1 +!1"!M-, this Court said that subversion, liAe treason, is a crime against national security, while rebellion is a crime against public order. Rising publicly and taAing arms against the 'overnment is the very element of the crime on rebellion. 6n the other hand, R.5. !<>> was enacted to outlaw the Communist Party of the Philippines +CPP- , other similar associations and its successors because their e/istence and activities constitute a clear, present and grave danger to national security. The first Bhereas clause of R.5. !<>> states that the CPP is an organi%ed conspiracy to overthrow the 'overnment, not only by force and violence but also b deceit3 sub&ersion3 and other illegal means . This is a recognition that subversive acts do not only constitute force and violence +contrary to the arguments of private respondents-, but may partaAe of other forms as well. 6ne may in fact be guilty of subversion by authoring subversive materials, where force and violence is neither necessary or indispensable. Private respondents contended that the Court in "isolas &. Panga impliedly ruled that if an accused is simultaneously charged with violation of P.D. !"## and subversion, the doctrine of absorption of common crimes as applied in rebellion would have found application therein. The respondents relied on the opinion of this Court when it said0

. . . in the present case, petitioner is being charged specifically for the Gualified offense of illegal possession of firearms and ammunition under PD !"##. 4* C. 6T B*C ' C45R'*D BCT4 T4* C6&P$*F CRC&* 6; .?B=*R.C6 BCT4 C$$*'5$ P6..*..C6 6; ;CR*5R&.. *CT4*R C. 4* B*C ' .*P5R5T*$D C45R'*D ;6R .?B=*R.C6 5 D ;6R C$$*'5$ P6..*..C6 6; ;CR*5R&.. Thus, the rulings of the Court in)ernandez3 Geronimo and Rodriguez find no application in this case. This is however a mere obiter. Cn the above case, the Court upheld the validity of the charge under the third paragraph of .ection ! of P.D. !"##. The Court opined that the dictum in the 4ernande% case is not applicable in that case, considering that the legislature deemed it fit to provide for two distinct offenses0 +!- illegal possession of firearms Gualified by subversion +P.D. !"##- and +9- subversion Gualified by the taAing up of arms against the 'overnment +R.5. !<>>-. The practical result of this may be harsh or it may pose grave difficulty on an accused in instances similar to those that obtain in the present case, but the wisdom of the legislature in the lawful e/ercise of its power to enact laws is something that the Court cannot inGuire into . . . +'.R. os. ",",<-89, 5pril 99, !119-. onetheless, the evidence in hand is too weaA to convict the accused-appellant of the charge of illegal possession of firearm in furtherance of, or incident to or in connection with the crime of subversion, Be are therefore, left with no option, but to acGuit the accused on reasonable doubt. 5CC6RDC '$D, the decision appealed from is hereby R*=*R.*D and the appellant is 5CE?CTT*D with costs de oficio. .6 6RD*R*D. Gri5o-%$uino and !ellosillo3 66.3 concur.

S#+&$&t# O+,%,o%s -R.), J., concurring0 C concur, sub3ect to my reservations in !a losis &. +ha&ez, 9>9 .CR5 8>:.

S#+&$&t# O+,%,o%s -R.), J., concurring0 C concur, sub3ect to my reservations in !a losis &. +ha&ez, 9>9 .CR5 8>:.