PEOPLE v. ENDINO GR. No.

133026; Feb 20, 2001

The crime of murder was charged against accused Endino and accused-appellant Galgarin. Galgarin was arrested and convicted for the crime of murder qualified by treachery, while on the other hand Endino remained at large. HELD: Admission of videotaped confessions is proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation, as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public.

Habeas Corpus The Right to Bail MORALES V MONCUPA In April 1982, Morales and some others were arrested while driving a motor vehicle in Laong-Laan St, QC. They were charged in CFI Rizal for rebellion punishable under the RPC. Morales alleged that they were arrested without any warrant of arrest; that their constitutional rights were violated, among them the right to counsel, the right to remain silent, the right to a speedy and public trial, and the right to bail. Respondents countered that the group of Morales were already under surveillance for some time before they were arrested and that the warrantless arrest done is valid and at the same time the privilege of the writ of habeas corpus was already suspended. ISSUE: Whether or not Morales et al can post bail. HELD: Normally, rebellion being a non-capital offense is bailable. But because the privilege of the writ of habeas corpus remains suspended with respect to persons at present detained as well as other who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith, the natural consequence is that the right to bail for the commission of anyone of the said offenses is also suspended. To hold otherwise would defeat the very purpose of the suspension. Therefore, where the offense for which the detainee was arrested is anyone of the said offenses he has no right to bail even after the charges are filed in court. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct attacks on the life of the State. Just as an individual has right to self-defense when his life is endangered, so does the State. The suspension of the privilege of the writ is to enable the State to hold in preventive imprisonment pending investigation and trial those persons who plot against it and commit acts that endanger the States very existence. For this measure of self-defense to be effective, the right to bail must also be deemed suspended with respect to these offenses. However, there is a difference between preventive and punitive imprisonment. Where the filing of charges in court or the trial of such charges already filed becomes protracted without any justifiable reason, the detention becomes punitive in character and the detainee regains his right to freedom. Quite notable in

this case however is that the 2nd division of the SC reiterated the Lansang Doctrine as opposed to what they ruled in the Garcia-Padilla Case.

CUSTODIAL INVESTIGATION PEOPLE VS GALIT MARCH 20, 1985 FACTS: The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been detained and interrogated almost continuously for five days, to no avail. He consistently maintained his innocence. There was no evidence to link him to the crime. Obviously, something drastic had to be done. A confession was absolutely necessary. So the investigating officers began to maul him and to torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A confession must be obtained. So they continued to maltreat and beat him. 'They covered his face with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer. His will had been broken. He admitted what the investigating officers wanted him to admit and he signed the confession they prepared. Later, against his will, he posed for pictures as directed by his investigators, purporting it to be a reenactment. ISSUE: Whether or not the accused was informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. RULING: Such a long question followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights under the Constitution and our laws. Instead there should be several short and clear questions and every right explained in simple words in adialect or language known to the person under investigation. Accused is from Samar and there is no showing that he understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to communicate with his lawyer, a relative, or a friend. In fact, his sisters and other relatives did not know that he had been brought to the NBI for investigation and it was only about two weeks after he had executed the salaysay that his relatives were allowed to visit him. His statement does not even contain any waiver of right to counsel and yet during the investigation he was not assisted by one. At the supposed reenactment, again accused was not assisted by counsel of his choice. These constitute gross violations of his rights.

Sec. 12, par. 1 RIGHT TO REMAIN SILENT AND TO COUNSEL--NO DENIAL OF DUE PROCESS WHERE APPELLANT'S RIGHT AGAINST SELF-INCRIMINATION WAS NOT VIOLATED PEOPLE OF THE PHILIPPINES vs. CARLITO LINSANGAN [G.R. No. 88589. April 16, 1991.] FACTS: This is an appeal from the decision dated April 26, 1988, of the Regional Trial Court , finding theaccused guilty of the crime of Violation of Section 4 of Article II in relation to Section 21, Art. IV of Republic Act 6425 (The Dangerous Drugs Law), as amended, sentencing him to suffer the penalty of reclusion perpetua with all the accessory penalties of the law, and to pay a fine of P20,000 plus costs.It was established during the trial that in early November, 1987, police operatives of the DrugEnforcement Unit, Police Station No. 3 of the Western Police District were informed that there wasrampant drug using and pushing on Dinalupihan Street, Tondo, Manila. The pusher was described to themas a boy of about 20 years, 5'5" in height, and of ordinary build. He allegedly sold marijuana to anybody,regardless of age.In light of these reports, Police Lieutenant Manuel Caeg and the other members of the unitorganized a "buy-bust" operation , to effect the arrest of the notorious drug

pusher. On November 13,1987 at 10 o'clock in the morning, before the group left the office for the area of operation, two (2) ten-peso bills were given to Pat. Corpuz who had marked them with his initials "T.C." He gave one of themarked bills to the informer. The said marked bills was then found tucked in the waist of the accusedafter he was frisked and arrested by the police for handing over to the informer and police poseur-buyerten (10) cigarette sticks of hand rolled marijuana.Linsangan denied the charge. He alleged that at around 10:30 in the morning of November 13,1987, he was in the vendor's stand of his neighbor Emeterio Balboa, alias Rey Galunggong, on DinalupihanStreet to buy his breakfast, for he had just awakened. He lived with his widowed mother, Erlinda, on the ground floor of a two-storey house on the alley at 1284 Dinalupihan Street, Tondo, Manila. The upper floor was occupied by his mother's brother, Geosito Diaz, who is engaged in the second-hand tire business. Although once in a while, his uncle helped them financially, he earned his living by driving a tricycle on a 5 p.m. to 12:00 p.m. shift. He admitted that he had witnessed some men in Dinalupihan engaged in drinking sprees and smoking marijuana. ISSUE: Whether or not the lower court erred in not holding that when the policemen required him to initial theP10-bills, they violated his constitutional right to counsel, to remain silent, and not to incriminate himself while under custodial investigation. HELD: The appeal has no merit. The appellant was not denied due process during the custodial investigation. Although he was not assisted by counsel when he initialed the P10-bills that the police found tucked in his waist, his right against self-incrimination was not violated for his possession of the marked bills did not constitute a crime; the subject of the prosecution was his act of selling marijuana cigarettes. His conviction was not based on the presence of his initials on the P10 bills, but on the fact that the trial court believed the testimony of the policemen that they arrested him while he was actually engaged in selling marijuana cigarettes to a member of the arresting party. The trial court gave more credence to their categorical declarations than to the appellant's denials. That is as it should be for as law enforcers, they are presumed to have performed their official duties in a regular manner. Their task of apprehending persons engaged in the deadly drug trade is difficult enough without legal and procedural technicalities to make it doubly so.

G.R.No. 89393 January 25, 1991 JOHNNY DEMAISIP, petitioner, vs. COURT OF APPEALS, and the PEOPLE OF THE PHILIPPINES, respondents. Sixto P. Demaisip for petitioner.

SARMIENTO, J.:p The petitioner assails the decision of the Court of Appeals,
2

affirming that of the trial court, finding him guilty of illegal possession of marijuana defined and punished by Section 8, Article 11, of Republic Act No. 6425, as amended by Batas Blg. 179.

The facts are as follows: Acting on a confidential information that Johnny Demaisip had in his possession marijuana and brownies cake (spiced with marijuana ingredient), a surveillance was conducted at the vicinity of the residence of the accused at No. 3, Mango Street, Carmen, Cagayan de Oro City, by the agents of the 10th NARCOTICS REGIONAL

UNIT, Narcotics command, AFP, whose office is at the 3rd floor of the City Hall, Cagayan de Oro City. Sgt. Cario's recollection of the house number, as No. 5, is faulty. It is No 3. They posted themselves in strategic places at the vicinity of the accused's residence. They were M/Sgt. Dominador Pascua, PC; P/Sgt. Avelino Tampus, INF; Sgt. Reynaldo Miguel, PC, and prosecution witness P/Sgt. Rico Carino, INF. The confidential information, when verified by a "Task Buy" was found to be positive. A search warrant, upon application was issued by Judge Antonio Orcullo of the Municipal Trial Court in Cities, Cagayan de Oro City. The search warrant, however, has neither been shown nor submitted as part of the evidence for the prosecution. Sgt. Carino mentioned it in his testimony during the trial. The accused admitted that there was a search warrant. The police team proceeded to the suspect's place to [verify] if the prohibited stuff was still in the residence of the accused. A test buy was made on October 11, 1983 through another confidential informer who was directed to buy ten-pesos worth of dried marijuana leaves from Joey the brother of the accused. The agents, according to Sgt. Carino, were able to buy from Joey Demaisip ten pesos worth of Marijuana leaves. Joey Demaisip upon interrogation, after the test buy, disclosed that the marijuana which he has sold came from their residence along Mango Street. The police-constabulary team forthwith proceeded to the Demaisip residence. The team brought along Cirilo Padla, Sr., a barangay councilman of Carmen, Cagayan de Oro City. The search warrant was presented to the father of Johnny Demaisip Atty. Peter Demaisip who was then in the house. A search was thereupon made in one of the rooms of the Demaisip residence. Inside a room [in] the ground floor, on top of a cabinet, Sgt. Carino found a small plastic bag pocket containing dried marijuana leaves of approximately ten (10) [grams]. The plastic pocket was wrapped in a newspaper. Johnny Demaisip, who was present, was confronted with the find, and he readily admitted that the marijuana was his. Further search yielded no other quantity of marijuana. Sgt. Rico Carino and his companions brought Johnny Demaisip to Narcom office at the City Hall for further interrogation. At the team's office, a tactical interrogation was made, [preceded] by [an information of] Johnny Demaisip of constitutional right to remain silent, and to have counsel of his choice, and was further informed that the statement he would give might be used as evidence for or against him. Johnny Demaisip stated that he needed no counsel and that he was going to tell the truth. He did not ask for the presence of as father, who is a lawyer. (The father is the defense counsel in this case). Then and there the statement of Johnny Demaisip was reduced to two pages of transcript (Exhibits A and A-1) in Visayan which is the dialect spoken and known by the accused. Sgt. Carino who conducted the investigation and who typed the statement, asked Johnny Demaisip if he was willing to sign it and he expressed willingness to sign it. It was prepared at about four o'clock in the afternoon of October 11, 1983. The statement was finished but could not then be brought to the Clerk of Court (of the Municipal Trial Court in Cities) [because it] was already closed. It was kept by Carino until the next day. In the

morning of the next day, Johnny Demaisip was directed by Sgt. Carino to bring his statement to the Clerk of Court for his signing and swearing to it before said officer. Carino stayed outside the office of the Clerk of Court Evelyn Gamotin Nery at the City Hall. After the lapse of about thirty to forty-five minutes Johnny Demaisip came out of Clerk of Court Nery's office bringing with him his statement already subscribed and sworn to by him before MTCC Clerk of Court Evelyn Gamotin Nery. The date of the jurat is "12th day of October 1983." Below the jurat is the following certification "This is to certify that I have personally examined the herein affiant and satisfied that he have (sic) read and fully understood his statement". (Sgd.) alf [sic] of Mamotin Nery, MTCC Clerk of Court, Cagayan de Oro City'. Sgt. Carino, who had waited outside the office of the Clerk of Court Nery while the accused was inside, got from the accused his statement (Exh. A & A-1) already signed by him and the Clerk of Court. He and the accused returned to Carino's office together, where the accused was next placed in the NARCOM's detention cell. Subsequently, Johnny Demaisip's sworn statement (Exhibits A & A1) and other papers were turned over to the office of the City Fiscal for further action. The plastic bag with its contents was submitted for laboratory examination at the PC Crime Laboratory, Camp Evangelista, Patag, Cagayan de Oro City, by M/Sgt. Dominador Pascua, PC, for in behalf of Major Patricion E. Bara, Jr., PC, C.O. of the 10th NARCOTICS REGIONAL UNIT, NARCOTICS COMMAND AFP, Cagayan de Oro POLICE STATION under a written request (Exhibit C) which was received at the PC Crime Laboratory Regional Unit at Camp Evangelista, Cagayan de Oro City on October 12, 1983 at 10:52 A.M. The specimen which had been submitted for laboratory examination is described as 'one (1) small plastic bag containing suspected dried marijuana leaves with a weight of ten (10) grams. (Decision, pp. 1-4 ). 3 The petitioner here assigns the following errors: I THE RESPONDENT COURT OF APPEALS ERRED IN FINDING THE MATTER HERE SEIZED AS A "MARIJUANA", A PROHIBITED DRUG, ON THE BASIS OF AN INCONCLUSIVE, EXAMINATION. II ASSUMING IT TO BE "MARIJUANA", A PROHIBITED DRUG, THE RESPONDENT COURT OF APPEALS ERRED IN ADMITTING IT IN EVIDENCE. III

IT ERRED TOO IN ADMITTING THE CONFESSION OF ACCUSED-APPELLANT IN EVIDENCE DESPITE DEMAND [sic] TO BE ASSISTED BY COUNSEL. 4 As to the first assigned error, the petitioner argues the prosecution had failed to prove that the substance seized from his premises as a result of the police search was in fact, marijuana, in the absence, allegedly, of finding that: (1) it was of the female, rather than male, gender, which is allegedly the "marijuana" referred to by law; (2) it contained tetrahydrocannabinol, the active ingredient of marijuana, that is, that which produces the physiological or hallucinogenic effect defined by law. There is no merit in either contention. Under the pertinent provisions of Republic Act No. 6425, as amended, "marijuana" or "Indian hemp" "embraces every kind, class, genus or specie of the plant cannabis sativa L., including cannabis americana, hashish, bhang, guaza, churrus, and ganjab, and embraces every kind, class and character thereof, whether dried or fresh and flowering or fruiting tops or any parts or portions of the plant, seeds thereof, and all its geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever." 5 It is clear to us that as to gender, the statute
makes no distinction, and from its very language, the term covers "every kind, class, genus or species" of the plant in question. Hence, it can not be successfully argued that the prosecution need show that the marijuana subject of prosecution belongs to the female class. The fact that the Government had marijuana, male or female, in its hands is sufficient to start a prosecution.

There is no arguing the fact that based on the examination and testimony of P/Lt. Marilene Maglaque, forensic analyst of the Philippine Constabulary crime laboratory, the substance found in the petitioner's possession was marijuana. We quote: P/Lt. Marilene LL. Maglaque, INP, Foresinc analyst and OIC Chemistry Section, of the Philippine Constabulary Crime Laboratory Regional Unit 10, performed the requested laboratory examination on October 12, 1983 to determine the presence of marijuana in the specimen submitted. The qualitative examination conducted by her on the aforementioned specimen (Exhibit D) yielded the positive result to the test for the presence of marijuana, a prohibitive drug. Lt. Maglaque first physically examined the specimen submitted and then subjected it to a series of chemical examinations which she described as the DUQUENOIS-LEVINE test, using chemical reagents and the petroleum-ether test, both of which she personally performed and had yielded positive results as to the presence of marijuana, a prohibited drug. She submitted and testified on her written Chemistry Report No. C-083-83 marked as Exhibit "B". [RTC Decision, pp. 3 & 4] 6 Parenthetically, the petitioner can not validly insist that the authorities must perform three alleged kinds of examinations, i.e., the microscopic, chemical, and chromatographic tests, in ascertaining the existence of marijuana, as this Court supposedly ruled in the case of People vs. Aminnudin. 7 First, Aminnudin did not require
resort to these three kinds of tests, to sustain a prosecution for a drug rap. Second, there is no law that imposes such recourses on forensic analysts. The law leaves them, on the other hand, enough freedom to conduct their work freely, based on their qualifications and individual competence, and the law can not impose requirements that would violate that freedom.

The petitioner can not maintain either that the three above tests are necessary to enable the examiner "to make sure" 8 that the thing before him is marijuana. Based on the PC
crime laboratory's examination, that "thing" was indeed marijuana. If the petitioner is of a contrary opinion, he must show, and he has failed here, that it was not marijuana.

Moreover, it has been held that: xxx xxx xxx The accused's argument is not persuasive. There is no rule of evidence which requires a forensic chemistry report to set down the micro-details which the defense is apparently demanding. Such details are appropriately matters for cross-examination of the person presented as the forensic chemist who had performed the tests, especially where the defense may have doubts as to the technical competence of the witness presented. In the case at bar, the defense has not asserted that Forensic Chemist De la Cruz was not technically competent to carry out or that she had not actually carried out, microscopic, chemical and chromatographic examination of the suspected sticks of marijuana. In fact, the defense did ask De la Cruz about the "standard procedure in which the NBI conducts its examination of drugs submitted for laboratory tests. Will you please toll the Honorable Court? The trial court asked her to so do "step by step." Witness De la Cruz started to do so. She was promptly sidetracked by defense counsel who was at that time far more interested in the bureaucratic procedure by which the suspected marijuana cigarettes actually reached Forensic Chemist De la Ortiz. If she did not go to specific, detailed operating procedures in her cross-examination it was up to the defense to compel her to do so by appropriate questioning if the defense really thought those detailed scientific procedures material and important for its case. The defense did not do so; indeed, the defense did not give her a chance to do so. Finally, and in any event, NBI Forensic Chemist De la Cruz also has in her favor the presumption that she had regularly performed her official duty, which was to carry out those tests in accordance with standard accepted procedures. 9 If indeed, the accused was possessed of doubts that Lt. Maglaque might have been mistaken, or is incompetent or negligent, the next best thing he should have done was to subject her to a rigid cross-examination, otherwise, her findings pass as evidence. He can not now insist that Lt. Maglaque was incompetent (for using but two kinds of tests), or fault the trial court for accepting her findings and holding that they are competent evidence, when he has failed to show at the trial that those findings are, on the contrary, vague and can not suffice for a conviction. It is too late in the day to do so. As to the alleged failure of the prosecution to prove the existence of tetrahydrocannabinol, suffice it to say that the existence of this ingredient is presumed from the existence of Indian hemp. The lower court has found as a fact that there was marijuana and inevitably one that contains tetrahydrocannabinol and as a general rule, this Court defers to the trial court as to factual findings.

The Court can not accept the petitioner's argument that the Government must satisfy itself that any Indian hemp confiscated produces the "physiological effects" referred to by the Dangerous Drugs Act before it can be correctly categorized as a "dangerous drug." The Act itself presumes that all classes of marijuana produce these effects otherwise, it is not marijuana but some other plant. The Act does not ban marijuana, "provided it produces these effects." The Court is not of course closing its mind on scientific possibilities that marijuana is either malignant or benign, as it were, and apparently, Republic Act No. 6425, as amended, does not do so either, under its "reclassification provisions," which we quote: Sec. 40. Reclassification, Addition or Removal of Any Drug from the List of Dangerous Drugs.The Board shall give notice to the general public of the reclassification, addition to or removal from the list of any drug by publishing such notice in any newspaper of general circulation once a week for two consecutive weeks. The effect of such reclassification, addition or removal shall be as follows: (1) In case a prohibited drug is reclassified as regulated, the penalties for violations of this Act involving the latter shall, in case of conviction, be imposed in all pending criminal prosecutions; (2) In case a regulated drug is reclassified as prohibited, the penalties for violations of this Act involving regulated drugs shall, in case of conviction, be imposed in all pending criminal prosecutions; (3) In case of the addition of a new drug to the list of dangerous drugs, no criminal liability involving the same under this Act shall arise until after the lapse of fifteen (15) days from the last publication of such notice and (4) In case of removal of a drug from the list of dangerous drugs, all pending criminal prosecutions involving such a drug under this Act shall forthwith be dismissed. 10 in particular, its "removal" provisions under the last paragraph above. If indeed, marijuana is therefore either dangerous or harmless, the law allows the Dangerous Drugs Board to make the proper reclassification. However, unless and until the Board acts, the courts must read the law based on its plain terms and conditions. The next question is whether or not the petitioner's premises were validly searched. The petitioner stresses the fact that the alleged search warrant was never produced in court, and that in the absence thereof, it was as if the authorities were armed with none at the time of the search. It is a fact that no warrant was shown in court, although there were supposed testimonies of its existence. The Court is of the opinion nonetheless that this is not necessarily fatal. As found by the Court of Appeals:

At any rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained thereby were deemed waived when no objection to the legality of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant. 11 It is indeed fundamental that the objections are a matter of privilege, which may be waived. 12 Amid a waiver, the court is duty bound to admit the evidence, in this case, testimony as
to the existence of a piece of paper.

The petitioner's final objections as to the authorities' failure to apprise him of his right to counsel when he wrote as confession, is however, well-taken. We have indeed held that the accused's waiver of as rights and signification of a willingness to make a confession are ceremonies that require the presence of counsel. 13 However, there was other evidence against the petitioner, apart, from his alleged
confession, notably, the testimonies of the searching officers who found, indeed, marijuana in his premises. Hence, even if we disregard his extrajudicial confession, we can not reject the testimonies of the prosecution witnesses, as culled by the trial court and affirmed by the Appellate Court. And like the Appellate Court, we affirm the lower court's decision.

WHEREFORE, premises considered, the decision appealed from is AFFIRMED. No costs. SO ORDERED. Melencio-Herrera, Padilla and Regalado, JJ., concur. Paras, J., took no part. G.R. No. 86172 March 4, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN PERALTA DE GUZMAN, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

CRUZ, J.:p Benjamin de Guzman, who claimed he was a chicharon vendor, was arrested for selling marijuana. Charged with violation of the Dangerous Drugs Act, he was convicted after trial by the Regional Trial Court of Bulacan and sentenced to life imprisonment plus a fine of P20,000.00. 1 In the appeal now before us, he asks for a reversal
of his conviction on the ground that the evidence against him was insufficient to establish his guilt beyond reasonable doubt. The People demur.

The case for the prosecution was based mainly on the testimony of Sgt. Ruben S. Bazar of the NARCOM District Office in Malolos, Bulacan. This witness testified that in the afternoon of December 7, 1987, his office received a tip from a confidential informer that De Guzman would be selling marijuana at Virgen de los Flores, Baliwag, Bulacan, from six o'clock in the evening until midnight. Their

chief, Lt. Agrimero V. Cruz, forthwith organized a "buy- bust" team composed of Sgt. Efren Querubin, Sgt. Tahil Amad, the confidential informer, and Bazar himself. Lt. Cruz gave Sgt. Querubin, who was to pose as the buyer a P50 bill marked with a blue dot between the words "Limampung" and "Piso." The team left at about 6 p.m. and proceeded to the esquinita where De Guzman would be operating. While Querubin and the informer waited for De Guzman, the other team members concealed themselves in various places in the area. Bazar said he was hidden behind some banana trees about ten meters away when he saw the two agents approach De Guzman. A few minutes later, Querubin threw away a lighted cigarette and at this pre-arranged signal the rest of the team closed in on De Guzman and, after Identifying themselves as NARCOM agents, placed him under arrest. They confiscated the marked money from him. Querubin turned over a plastic bag containing marijuana dried leaves to Bazar, who conducted a field test on the contents when they arrived at NARCOM headquarters. The results were positive. The following day he prepared a Receipt of Property Seized which he asked De Guzman to sign. On December 10, 1987, he got the plastic bag from the locker where it had been placed under the care of a custodian and delivered it to the PC Crime Laboratory at Camp Olivas for examination. Bazar added that De Guzman was known to him as being actively engaged in the selling of marijuana and was in fact facing charges for this same offense in another pending criminal case. The only other witness for the prosecution was Capt. Marlene Salangad of the PC Crime Laboratory, who affirmed the findings in the field test and declared verbally and in her Technical Report No. NB-624-87 2 that the contents of the plastic bag
were marijuana fruiting tops.

The defense of the accused-appellant was a flat denial. He said that the NARCOM agents simply arrested him without cause and without warrant and took him to NARCOM headquarters, where they manhandled him. They hogtied and divested him of his ring and P2,000.00 cash belonging to his sister. They first dumped him in a fishpond and then in a "tarima" where they left him until the following morning, when he signed the Receipt of Seized Property because he was afraid of further punishment. He was detained at the PC stockade for three days, during which he was subjected to torture and third degree investigation until he was transferred to the provincial jail. He averred that a motorcycle belonging to him had three months earlier been taken by Bazar because it was parked in front of a gambling den. Two other witnesses, namely, Ceferino Castro and Manuel Carillo, testified that in the evening of December 7, 1987, they saw three men arrest De Guzman at the esquinita. Both said the men pointed their guns at him, twisted his arm and then tied his hands with wire before taking him away. After assessing the evidence of the parties, Judge Natividad G. Dizon opted to sustain the prosecution, preferring to give more credence to the testimony of Bazar, who she said had in his favor the presumption of regularity in the discharge of official functions and had no known motive for testifying falsely against the accused-appellant. She considered it significant that De Guzman had not protested when he was arrested. He had not denied that the marijuana had been confiscated from him and had in fact later signed a receipt therefor without

objection. Her honor also doubted De Guzman's tale of torture, nothing that he had not presented any medical evidence to support it. She was likewise skeptical about his alleged man-handling to compel him to sign the waiver of detention which he said had been committed in a conspicuous and public place. This Court is also not inclined to believe De Guzman's testimony. We cannot accept it not because it is incredibleper se but because there is no evidence to sustain it. In fairness, though, we must add that such evidence is not easily come by, given the circumstances of the accused-appellant, who is an ordinary individual without convenient connections with a lawyer or the wherewithal to retain one. Neither can it be supposed that by himself alone, thischicharon vendor would be aware of his rights under the Constitution and have the boldness to assert them against the authorities holding him captive. De Guzman's mere denial of the charges is also not convincing enough, especially if it is viewed, as the prosecution suggests, in light of the other criminal case against him for the same offense of selling marijuana and of his notoriety as a drug-pusher. The supposed corroboration of the other defense witnesses is practically useless as all they did was testify on the manner of his arrest which, even if illegal, would not necessarily sanitize his guilt. In short, the defense is weak and fails to convince that the accused-appellant is not guilty of the charge that he sold marijuana to Sgt. Querubin for P50.00 on December 7, 1987, at Virgen de los Flores, Baliwag, Bulacan. The trouble with the People's case, however, is that as weak as the defense may be, the prosecution is even weaker. It cannot by itself sustain a conviction. This court has said times without number that in every criminal case the conviction of the accused must depend not on the weakness of the defense but on the strength of the prosecution. Closely studied, the testimony given by Bazar tells little indeed of the supposed sale of marijuana by De Guzman to Querubin. From his vantage point of ten meters away, Bazar could not have heard the supposed conversation between the two, nor did he testify that he saw the actual delivery of the marijuana by De Guzman to Querubin and Querubin's payment of the marked P50 bill. All Bazar said he saw was the pre-arranged signal, but that alone proved nothing. Surely, the accused-appellant's conviction cannot be based solely on the innocuous fact that Querubin threw away a lighted cigarette. The Court can only wonder why the prosecution did not present Querubin, who allegedly bought the marijuana from De Guzman and paid him with the marked money. His Identity did not have to be concealed like that of the informer. It is true that each party has the discretion to plot its own strategy, as we have said often enough in many cases, but under the circumstances of this particular case the choice by the prosecution of its witnesses was less than tactical. Querubin was the best witness to narrate the transaction; Bazar could at best only corroborate. Yet it was Bazar and not Querubin whom the prosecution chose as its star witness. The prosecution suggests that if the defense really felt that Querubin could advance its cause, there was nothing to prevent it from calling him as its own witness, as it had a right to do under the Bill of Rights and the Rules of Court. It

forgets, however, that it was the obligation of the prosecution to prove its allegations, not of the defense to disprove them. Bazar's testimony against De Guzman being insufficient to convict, it was incumbent on the prosecution to bolster its case by calling Querubin to the stand. As far as the defense was concerned, it had no obligation and saw no necessity at that time to ask Querubin to testify for it. It had nothing to prove or to disprove. The trial judge regarded as tell-tale signs of De Guzman's guilt his submissiveness when he was arrested and the fact that he signed without objection the Receipt of Seized Property, which was later offered as Exhibit "C." One can easily be cowed into silence by men with drawn guns and ostensible authority and may even be intimidated into involuntary admissions as De Guzman claims he was when he signed the receipt. That receipt was in reality an admission which the accused-appellant was forced to make without the assistance of counsel and without being first informed of the constitutional rights of a person facing custodial investigation. That evidence was totally inadmissible under the Bill of Rights 3 and the consistent rulings of this Court since the case of People v. Galit. 4 While it is true, as the Solicitor General observes, that the accused-appellant did not refute the prosecution evidence of his facing another criminal prosecution for drug dealing, that fact is not relevant in the case at bar. We are not trying him for that charge or for his reputation as a drug dealer. The case at bar is Criminal Case No. 1453-M-87, and no other. The prosecution cannot draw its strength from the weakness of the defense. The evidence of the People must be strong enough to stand on its own two feet instead of leaning on the crutches of the evidence for the defense. It must be strong enough to convince this Court that the prisoner in the dock must be punished, not because he cannot prove that he is innocent but because it has proved that he is guilty. The constitutional presumption of innocence is not an empty platitude meant only to embellish the Bill of Rights. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People of the Philippines and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. That mandate shall be enforced. WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED on reasonable doubt and shall be released immediately. It is so ordered. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur. G.R. No. 77777 February 5, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO BAGANO Y SALI-EN, accused appellant. The Office of the Solicitor General for plaintiff-appellee.

Ernesto Wagang for accused-appellant.

BIDIN, J.: Before Us on appeal is a decision * of the Regional Trial Court of Baguio, Br. IV, in Criminal Case No. 2472-R, convicting the accused/appellant of violation of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act, the decretal portion of which reads: WHEREFORE, the court finds the accused, Domingo Bagano y Salien, guilty beyond reasonable doubt of the crime charged, and hereby imposes on him the penalty of life imprisonment, as well as a fine of Twenty Thousand Pesos (P20,000.00). The ten (10) kilos of marijuana are ordered forfeited in favor of the government which shall be transmitted to the Dangerous Drugs Board, through NBI Sub-office Baguio, as custodian, for proper disposition. SO ORDERED. The facts, as presented by the Solicitor General, are as follows: On August 1, 1985, Atty. Lolito Utitco of the National Bureau of Investigation (NBI) in Baguio City and Steven F. Bostick, a special agent of the U.S. Air Force at Clark Air Base, arranged a "buy-bust" operation against appellant who was a suspected narcotics dealer. The plan was for Bostick to pose as buyer. A civilian informer named Clayton Emateo was to aid Bostick by introducing him to appellant. At around 2:45 in the afternoon of the same day, Bostick and Emateo proceeded to the residence of the latter in Baguio City to meet appellant who was there waiting. They were followed by an NBI surveillance team. Upon reaching their destination, Emateo introduced appellant and an unnamed friend to Bostick. Shortly thereafter, negotiations for the purchase of ten (10) kilos of marijuana began between Bostick and appellant, with Emateo acting as interpreter. Bostick and appellant finally agreed on P800.00 as the price per kilo of the marijuana. The group then proceeded to appellant's house at Irisan, Benguet, where he kept the marijuana. They were all the time being trailed by the NBI team. At Irisan appellant left Bostick and Emateo in the car. He went back to them after about fifteen minutes, carrying a large white nylon sack (Exhibit "B"). Bostick opened the trunk of the car and appellant placed the sack inside. Bostick opened the sack and saw several packages containing marijuana. Bostick told appellant that he will pay for the marijuana after it has been weighed in his hotel. Appellant agreed. On the way back to his hotel in Baguio City, Bostick activated the beeper which signalled the NBI team following them that the transaction had taken place. The NBI team then blocked Bostick's car and arrested appellant and Emateo.

Based on the foregoing, an information for violation of RA 6425, otherwise known as the Dangerous Drugs Act, was filed against appellant alleging: xxx xxx xxx That on or about the lst day of August, 1985, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully and feloniously attempt to sell to another ten (10) kilos, more or less, of dried marijuana leaves, a dangerous drug, for P800.00 per kilo, in violation of the afore-cited provision of law. Upon arraignment, appellant pleaded not guilty. His earlier motion to admit bail was deferred and later denied. Thereafter, trial on the merits ensued. On August 9, 1986, the trial judge rendered the assailed decision (Rollo, pp. 19-36) sentencing appellant, among others, to reclusion perpetua. Hence, this appeal. Appellant denies any knowledge anent the ownership and sale of marijuana to Bostick and in support thereof, he declared that: (H)e farms at Irisan, Baguio City; on August 1, 1985, at around 3:00 o'clock in the afternoon, he went to the house of Clayton Emateo, located along Bonifacio St., to collect the amount of P4,000.00 which the latter borrowed from him on July 1, 1985; on this latter date Clayton went to him and pleaded for the loan, saying that he needed it to replace the money he took from his wife which he lost in gambling; Clayton was at his residence when he saw him on August 1, 1985; Clayton told him to wait for his visitor from whom he would get the money to pay his debt; the American visitor arrived, and he was introduced to him in English, as Steven; after the introduction, they rode in the car of the American and he was told by Clayton that they were proceeding to Irisan to get the bag which Clayton would give to the American as a gift; Clayton sent him to get the bag because he did not want to get wet, he went to get the bag and placed it in the car of the American; Clayton asked him to ride with them again; while they were maneuvering the car towards Baguio, two cars stopped and one of the passengers (NBI agent) came out, brought out his gun and pointed it at him; (Decision, p. 11; Rollo, p. 29; Emphasis supplied). In this appeal, appellant contends that the lower court erred: 1. IN FINDING THAT THE APPELLANT AGREED TO SELL TEN (10) KILOS OF MARIJUANA TO STEVEN BOSTICK WHEN IN FACT, THE APPELLANT HAS NO KNOWLEDGE OR DOES NOT KNOW ANYTHING ABOUT THE ALLEGED MARIJUANA SALE; 2. IN NOT HOLDING AS HEARSAY THE ALLEGED CONVERSATION BETWEEN BOSTICK AND APPELLANT WHEN IN FACT, CLAYTON EMATEO, THE CIVILIAN INFORMANT WHO INTERPRETED THEIR CONVERSATION WAS NEVER PRESENTED TO TESTIFY;

3. IN APPRECIATING THE "BAG" AND NOT SACK AGAINST APPELLANT THAT WHICH CLAYTON OWNED AND DEPOSITED IN THE QUARTER OF THE APPELLANT AT IRISAN THAT 10:00 A.M. OF AUGUST 1, 1985 WHEN IN FACT, EVEN BOSTICK LIKE WISE REFERRED TO THE SACK AS "BAG" MANY TIMES IN HIS TESTIMONY; 4. IN NOT APPRECIATING THE DEFENSE OF THE APPELLANT THAT IT WAS CLAYTON, THE CIVILIAN INFORMER, WHO OWNS THE MARIJUANA IN QUESTION. (Appellant's Brief, pp. 12; Rollo, pp. 49-50) It is the contention of the prosecution that appellant was apprehended as a result of a "buy-bust" operation which was conducted on the strength of an information supplied by a certain Clayton Emateo. It is alleged that according to the informer, appellant would only sell to a foreigner, preferably an American. Immediately, Atty. Utitco, the NBI Chief of Baguio City, sought assistance from the Clark Air Base which in turn sent Steven Bostick for the purpose. The "buy-bust" operation involved Bostick and Emateo to proceed to the latter's residence and therein meet with the suspect for the purchase of marijuana. Acting as the "poseur" buyer, Bostick testified that he was provided counterfeit money by the NBI which was combined with his own US $200.00 converted to pesos because appellant only accepts payment in local currency (TSN, November 7, 1985, p. 16). Upon arrival at Emateo's residence, Bostick was introduced by Emateo to appellant and a certain Arman Perez. As to how the "buy-bust" transaction was initiated may be gleaned from the following testimony of Bostick: FISCAL CARBONELL: Q: What was the plan then? A: The plan that I was to go with the informer to the informant's residence and meet with the suepct (suspect) who is supposedly waiting there for us and I was to try and arrange for the purchase of marijuana. xxx xxx xxx Q: Who started the conversation? A: I started through the informant translating what I was saying to Domingo. Q: What did you say to your informant which was translated to Domingo? A: Due to the prior arrangement or agreement that we had, I told him that I wanted to purchase ten (10) kilos of marijuana.

Q: And this statement of yours to the effect that you wanted to buy ten (10) kilos of marijuana, to whom was it directed? A: It was directed to Mr. Domingo. Q: But you said Clayton participated. What was the participation of Clayton? A: He was speaking for me because I wasn't sure Domingo understood what I was saying because of the language. Q: Is it your testimony that your statement was translated into the dialect by Clayton to Domingo? A: Yes, sir. COURT: Q: What dialect was that: Do you know? A: No, I have no knowledge. xxx xxx xxx FISCAL CARBONELL: Q: Now, when your statement was translated by Clayton to Mr. Domingo to the effect that you wanted to purchase marijuana, do you know if Domingo made any answer? A: I was told by the informant that there will be no problem. The ten kilos was ready. ATTY. WAGANG: I object to that. That would be hearsay. xxx xxx xxx FISCAL CARBONELL: Q: What again was that answer which Domingo said or uttered? A: I was told by Clayton that ten (10) kilos would be no problem. Q: And who said that? A: It was told to me by Clayton because I don't understand the language on which they talked.

xxx xxx xxx Q: Now, who quoted the price? A: I was told it will cost one thousand (P1,000.00) pesos per kilo, which I didn't agree. COURT: Q: Did they speak in English or in another dialect? A: They spoke in the dialect. Q: So, it was again interpreted to you by Clayton. A: Yes, sir. (TSN, November 7,1985, pp. 17-20; Italics supplied) Evident from the foregoing is the fact that Bostick's testimonies, as principal witness for the prosecution, are mere translations and/or interpretations of what the appellant supposedly said in the dialect to and interpreted by informant Emateo. As such, they are pure hearsay. With the exception of that portion of Bostick's testimony that he saw the accusedappellant carry the sackful of marijuana, Bostick testified not on his personal knowledge regarding the alleged ownership thereof and the appellant's purported offer to sell the same. Bostick never understood the Kankanai dialect spoken by appellant and Emateo and is therefore not qualified to testify against appellant in the imputation of the crime charged. Thus, "where a witness is offered testify to the statements of another person, spoken in a language not understood by him, but translated for him by an interpreter, such witness is not qualified, because he does not speak from personal knowledge. All that he can know as to the testimony which is in fact given in such a case is from the interpretation thereof which is given by another person." (F. Wharton Evidence in Criminal Cases 697698 [11th ed., ed., 1935]) Indeed, a confession cannot be received in evidence by the testimony of a witness who, although present when it was made, learned its purport through an interpreter (US v. Chu Chio, 8 Phil. 269 [1907]). The impropriety of introducing the testimony of Bostick is plainly evident. What the prosecution should have done was to present Emateo himself to testify on what actually transpired between appellant and Bostick and thereafter be crossexamined. Yet, the court a quo chose to ignore appellant's constitutional right to meet the witnesses face to face (Constitution, Art. III, Sec. 14 [21). In an attempt to circumvent said right, prosecution witness Atty. Utitco reasoned: FISCAL CARBONELL: Q: Now, Atty. Utitco, is there any possibility for you to bring before this court this Clayton who was your informer?

A: I do not think that is possible for the following reasons; First, we do not usually expose our informants in public, second, we do not know where he is staying and third, we do not keep in constant contact with this informer. He only comes to the office when there is work to do. As a matter of fact since this operation was accomplished, I have never seen him again. (TSN, December 4, 1985, p. 10) Atty. Utitco's revelation that he knew nothing of his supposed informant's background is rather disturbing. Appellant's limb and liberty at stake, Utitco discarded all what a prudent and thinking man would have taken in order to establish the veracity of a story of one virtually unknown to him. Appellant should have been, at the least, placed under surveillance (See People v. Perodica, Jr., et al., G.R. No. 73006, September 29, 1989). The Court is not unaware of the policy behind non-disclosure of an informant's identity and would generally uphold the exercise of such privilege as the circumstances may warrant. In the instant case, however, said privilege cannot be invoked given the factual setting that led to the incarceration of accusedappellant. For one thing, the identity and even the address of the supposed informant are already known to appellant. More, he was an active participant of the crime charged and is in fact the person whom appellant insists is the owner of the prohibited merchandise. In point of fact, the informer (Emateo) was arrested together with appellant by the NBI team after the latter had blocked Bostick's car. If indeed Emateo is an informer and not the owner of the prohibited drug, why was he arrested? Nonetheless, whatever reason the prosecution may have had in shielding the informant vanished and ceased to exist by the time his identity was made public in the course of the trial by the prosecution witnesses themselves. As pointed out by the appellant, the informant's failure to take the witness stand to confirm the correctness of his interpretations not only rendered the testimonies of Bostick as hearsay and therefore, inadmissible in evidence, but also deprived appellant of his right to cross-examine him (Appellant's Brief, pp. 11-12; Rollo, pp. 59- 60). The right of cross-examination is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. (Crosby v. State 82 S.E. 2d 38 [1954]; citing News Publishing Co. v. Butler, 22 S.E. 282 [1985]; Richards v. Harpe 155 S.E. 85 [1930]) Emateo's testimony is not merely corroborative and cumulative and hence, may be dispensed with (People v. Extra, 72 SCRA 199 (1976]; People v. Cerelegia, 147 SCRA 538 [1987]; People v. Capulong, 160 SCRA 533 [1988]; People v. Asio, G.R. No. 84960, September 1, 1989), but is direct and material to the defense of appellant who claims innocence of the offense imputed against him and is entitled to have the former take the witness stand (Appellant's Brief, pp. 11-12; Rollo, p. 60; TSN, November 8, 1985, p. 22), considering appellant's disclaimer of ownership of the prohibited drug.

In People v. Rojo (G.R. No. 82737, July 5, 1989), the Court, in acquitting the accused-appellant, stamped a note of disapproval on the prosecution's refusal to present the supposed informant whose identity has already been known, to wit: Thus, the identity of the informant was known to the appellant all the time and when immediately thereafter the appellant was apprehended and arrested by the police officers and the informant was not similarly taken into custody, the only logical conclusion is that the appellant right then and there found out that he was the victim of an entrapment and that the informant was in collusion with the police authorities. There is, therefore, no reason why the prosecution could not and did not present the informant as a prosecution witness. He is the best witness to establish the charge against the appellant who denies the charge (citing Pp. v. Ale, 145 SCRA 50, [1986] where the accused was likewise acquitted). (Emphasis supplied) In an earlier case of People v. Caboverde (160 SCRA 550 [1988]) where the prosecution refused to identify the informer, the Court stated: The witnesses for the prosecution refused to divulge the identity of said informer, who could have been a very vital corroborating witness to their testimonies and thus strenghthen the position of the prosecution. Prosecution maintained that to expose the identity and to bring this informer to court as witness would pose grave danger to the life of such informer. What danger did the prosecution fear,when the identity of said informer and his involvement in the entrapment of appellant was already made known to the appellant during the alleged exchange of the marijuana stuff and money. (Emphasis supplied) Non-presentation of an informer is a privilege that has its own inherent limitationthat of fairness in the administration of criminal justice. Thus, where the disclosure of an informer's Identity is relevant and helpful to the defense of the accused, or is essential to a proper disposition of the case, the privilege must give way (Wilson v. United States, 59 F. 2d 390 [1932]). Trial courts must always bear in mind that the right to meet the accuser and to have him examined is a fundamental right. The constitution (Section 14 [2], Art. III) so mandates and they cannot do otherwise, especially so in instances where the party sought to be presented and examined possesses vital information essential to the defense in vindicating the accused's plea of innocence. Such violation of appellant's fundamental right calls for the reversal of his conviction. Thus: Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations, the trial court may require disclosure and, if the Government withholds the information, dismiss the action (Roviaro v. United States, 353 US 53, 1 L ed 2d 639 [1957]).

In the case at bar, while the identity of the informer is disclosed, nevertheless, the prosecution failed to present him as a witness on the dubious assertion that his whereabouts are unknown. As no subpoena appears to have been issued by the prosecution to the said informer, the presumption that evidence willfully suppressed would be adverse if produced (Section 5 [e], Rule 131) arises. Emateo's non-production as a witness could have been excused had he merely played the part of a true informer. An informer is one who communicates knowledge of someone having committed or about to commit a crime to the proper authorities who by themselves, acting independently, may obtain the evidence necessary for the prosecution of the offender. On the contrary, he did more than that. He played a substantial part in the act complained of and is in fact claimed by the appellant as the real owner of the subject marijuana. The case of Sorrentino v. U.S. (163 F. 2d 627 [19471), provides the distinction between one who played the part of a mere informer and a decoy. There, the defendant was charged for an illegal sale of opium in favor of a person, the identity of whom the US Government claims to be confidential. Objections as regards questions seeking to ascertain his identity were sustained by the trial court on the ground that it will violate the privilege of withholding the identity of informers. In reversing the trial court, it was held that: If the person whom Grady called an informer had been an informer and nothing more, appellant would not have been entitled to have his identity disclosed but the person whom Grady called an informer was something more. He was the person to whom appellant was said to have sold and dispensed the opium described in the indictment. Information as to this person's identity was therefore material to appellant's defense. . . . The Solicitor General, however, contends that appellant's disclaimer of having no knowledge about the sale of marijuana is not worthy of credence. According to him, the best proof is the fact that appellant delivered a sackful of marijuana to Bostick and that the sale by appellant of marijuana to Bostick is shown by evidence independent of Clayton Emateo's testimony. (Appellee's Brief, p. 7; Rollo, p. 125). We disagree. Appellant's denial of the ownership of marijuana and his testimony that he took the sack the contents of which turned out to be marijuana from the place where Emateo previously deposited it because he was only requested by Emateo to do so (TSN, March 20, 1986, pp. 7-8; March 31, 1986, pp. 8 & 14), was never contradicted by the prosecution. Thus: ATTY. WAGANG: Q: You made mention of a gift of bag which Clayton will give as a gift to that American; where did this bag come from? A: He, Clayton Emateo brought that bag earlier that morning of the same day. xxx xxx xxx

Q: And what happened when you reached Irisan? A: When we reached Irisan it was raining. Q: And were you able to get that bag left? A: Clayton sent me to get the bag because that time it was raining and they did not want to be wet. Q: Where did you bring that bag'? A: I went to get the bag and loaded the bag on the car of that American. (TSN, pp. 7-8, March 20,1986) On cross-examination: FISCAL CARBONELL: Q: Is it your testimony that in the morning of August 1, 1985 Clayton Imateo came to your residence driving his taxicab and brought the bag to your residence? A: Yes, sir. xxx xxx xxx Q: Is it your testimony that when Clayton Imateo came (to) your residence at Irisan in the morning of August 1, 1985 he just deposited the bag at your residence without conversing to you? A: He told me that he has no money at that time by(u)t he had to wait for his visitor whom he will give that bag and from whom he will get money to pay me. (TSN, pp. 8-9, March 31, 1986) xxx xxx xxx Q: Now, immediately after the American parked his vehicle, you alighted from the vehicle, is that correct? A: Yes, I was sent by Clayton to go to our quarters to get the bag because it was raining. Q: Now, is it your testimony Mr. Witness that Clayton just sent you to fetch the bag from a place which is about ten minutes walk from the place where the vehicle was parked when in fact he was the one who has a debt of gratitude to you because of the P4,000.00 you lent him?

A: Yes, sir. Q: You readily acceeded to that order for you to go and get the bag from your quarters? A: Yes, because when I saw him (h)e was well-dressed and he was wearing leather shoes. (TSN, pp. 14-15, March 31, 1986; Emphasis supplied) The prosecution witnesses' bare assertions, including that of Bostick's, anent appellant's delivery of the sack/bag of marijuana cannot, by itself, indicate ownership nor even illegal possession as contemplated by law under the circumstances in the absence of any other evidence. Neither is there any reason for us to believe, as advanced by the Solicitor General, that appellant even acknowledged ownership of the seized marijuana by identifying them and affixing his signature on the back and on each and every parcel inside it (sic) (Appellee's Brief, p. 8; Rollo, p. 126). Appellant testified that he affixed his signature because he was asked and forced to do so (TSN, March 20, 1986, p. 11; March 31, 1986, pp. 18 & 22). Nowhere in the cited testimony of Atty. Aurellado relied upon by the prosecution (Appellee's Brief, p. 8; Rollo, p. 126; TSN, November 8, 1985, pp. 9-15) was there any indication that appellant did acknowledge ownership of the prohibited merchandise. Appellant's signature appearing on the sack and individual bundles containing marijuana do not signify, much less evidence, guilt for they are mere procedural steps normally undertaken after effecting arrest (People v. Sariol, G.R. No. 83809, June 22, 1989). Furthermore, it appearing that appellant was not informed of his right to counsel at the time he affixed his signature, the same has been obtained in violation of his right as a person under custodial investigation for the commission of an offense and is therefore inadmissible (Constitution, Art. III, Sec. 12 [1], [3]). And there is the question of money involved. While the prosecution took time to prepare counterfeit money to the extent that Bostick even shelled out his own, the same turned out to be not really necessary it appearing that appellant never even got hold of it, much less saw the same. It defies credulity that in a carefully orchestrated "buy-bust" operation such as in the case at bar, no money changed hands between the alleged buyer and seller. It may then be asked, was there really an attempt to sell on the part of appellant of a merchandise he does not even own? It is a cardinal rule in this jurisdiction that in order to merit conviction, the prosecution must rely on the strength of its own evidence and not on the weakness of evidence presented by the defense. An accused must always be deemed innocent until the contrary is proved beyond reasonable doubt. In the instant case, the prosecution failed to so establish the guilt of herein appellant. WHEREFORE, the challenged judgment is REVERSED and appellant is hereby ACQUITTED on the ground of reasonable doubt. SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Corts, JJ., concur.

G.R. No. 87215 April 30, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO DE LAS MARINAS y IBBOOS, accused-appellant. The Solicitor General for plaintiff-appellee.

PARAS, J.:p This is an appeal from the November 4, 1988 decision * of the Regional Trial Court of Pasay City, Branch 115, in Criminal Case No. 87-12590, finding accused-appellant guilty beyond reasonable doubt of violating Section 15, Article III of Republic Act 6425, as amended, and sentencing him to suffer the penalty of life imprisonment. In an Information dated October 26, 1987, herein accused-appellant Orlando de las Marinas and one Angel Torres were charged with violating Section 15, Article III of Republic Act 6425, as amended, allegedly committed as follows: That on or about the 22nd day of October, 1978, in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, without authority of law, did then and there willfully, unlawfully and feloniously sell and deliver to another one (1) aluminum foil containing more or less one-eight (1/8) gram shabu, (Methamphetamine) a regulated drug. Prior to the arraignment, accused Angel Torres escaped and he remains at-large. On arraignment on November 16, 1987, accused-appellant Orlando de las Marinas pleaded not guilty. At the trial, the prosecution presented three (3) witnesses who testified as follows: 1. P/Cpl. Adolfo S. Arcoy, a member of the 13th Narcotics Intelligence Unit, testified that at about 9:30 p.m. of October 22, 1987, the 13th Narcotics Unit, thru T/Sgt. Jamie Raposas, received an information from a confidential informant who arrived at their office, that a certain Lando and one Boy of Cabrera Street, were actively engaged in selling shabu to prospective buyers at the said place. A team composed of T/Sgt. Jaime Raposas, Sgt. Armando Isidro, Sgt. Vicente Jimenez, Pat. Deogracias Gorgonio and himself wag formed to conduct a buy-bust operation. They proceeded to the area along Cabrera Street, Pasay City, and arrived there at about 12:00 o'clock midnight. He was instructed by team leader T/Sgt. Raposas to act as the poseur buyer. He was given marked money consisting of one (1) one hundred-peso bill and one (1) fifty-peso bill. Together with the confidential informant, Cpl. Arcoy proceeded to the place where Lando and Boy were standing. The confidential informant

introduced him to Lando and Boy who were at the time in front of a Variety Store or sari-sari store at Cabrera Street. Lando asked him how much shabu did he need and he replied that he needed shabu worth P150.00. Lando asked for the money, gave it to Boy who left and returned after about 5 to 10 minutes and handed a small aluminum foil to Lando, who in turn, gave it to him. After opening the foil and finding out that it contained shabu, he made the pre-arranged signal by scratching his head. At this juncture, his teammates arrived and they arrested Lando and Boy whom they later knew to be Orlando de las Marinas and Angel Torres, respectively. Their team leader T/Sgt. Jaime Raposas conducted a body search on the suspects which resulted in the recovery of the marked money from the front pocket of Angel Torres. None was recovered from Orlando de las Marinas (TSN, pp. 2-8; Hearing of March 16, 1988). Then they brought the two (2) accused to the 13th Narcotics Unit for further investigation. They also executed an affidavit of arrest. Then he prepared the evidence (the shabu and the marked money) and turned them over to the Narcotics Unit. He likewise prepared the Receipt for Property Seized and asked the accused to sign it which they did (TSN, pp. 15-18; Hearing of March 16, 1988). 2. S/Sgt. Armando Isidro, a sergeant of the PC NARCOM, corroborated the testimony of Cpl. Arcoy on all material points and in addition, he stated that he and other members of the team were about 30 to 35 meters away from the poseur buyer, Cpl. Arcoy. He also stated that he jotted down the serial numbers of the marked money on a piece of paper as a precaution if the same is recovered (TSN, pp. 2-13; Hearing of April 21, 1987). 3. Nelly A. Cariaga, the Forensic Chemist of the PC/INP Crime Laboratory, Camp Crame, Quezon City, Identified the Chemistry Report No. D-105887, which was the report on the laboratory examination she conducted on the subject shabu. She testified that when she examined the specimen, it gave positive result for Methamphetamine and Hydrochloride which is a regulated drug (TSN, pp. 9-14; Hearing of March 16, 1988). On the other hand, the defense presented two (2) witnesses, including accusedappellant, who testified as follows: 1. Accused-appellant Orlando de las Marinas testified that he is a tricycle driver during the day and does some extra job at night as Barangay Tanod. At around 9:00 p.m. of October 22, 1987, while he was on duty as Tanod and making a "ronda", his friend Boy Lopez arrived. Boy Lopez was in the custody of the two NARCOM men. Boy Lopez asked him if he could help him (Boy) point to the source of the shabu for which he (Boy) was arrested. At first, he was reluctant for fear of being involved but later yielded and helped when he was assured that he could not be involved and that his friend Boy Lopez will be released. After he pointed to the house of Angel Torres and the latter was placed under arrest, he was also made to board the car bearing Angel Torres and Boy Lopez and taken to the NARCOM Office in Camp Crame instead of having him alight at EDSA as promised by the NARCOM men. Accused-appellant further stated what he saw and heard when the NARCOM men took down the statement of Ms friend Boy Lopez who admitted that the shabu came from Angel Torres and that the latter also admitted that the shabu came from him. The three of them were

made to sleep in the NARCOM Office until the following morning. Then he and Angel Torres were put inside the cell while Boy Lopez was left behind in the NARCOM Office. At about 5:00 o'clock in the afternoon, the NARCOM men brought out Angel Torres from the cell while he was left behind. Angel Torres was supposed to point to the source of the shabu so they went to Pasay. At around 9:00 o'clock in the evening, the NARCOM men brought back Angel Torres to the cell. The following morning, Angel Torres was again brought out from the cell. The source of shabu would allegedly be arrested so they would be released. Angel Torres, however, did not come back anymore and the NARCOM men were very mad at him for the alleged escape of Angel Torres. Accused-appellant, in addition, denied having received the amount of P150.00 for the purchase of shabu, and likewise denied having contacted Angel Torres to get the shabu for the NARCOM men. Further, he testified that he signed a statement admitting that the shabu came from him because he could not bear the torture that the NARCOM men were doing to him and they were threatening that they would salvage him (TSN, pp. 1-7; Hearing of July 18, 1988). 2. Samuel Sagudang, a house painter, testified that he knows accusedappellant Orlando de las Marinas because the latter is his friend and one of his co-tanods. That at around 9:00 o'clock in the evening of October 22, 1987, while he was on duty as Barangay Tanod, two men approached accused-appellant, asked something from him, and later, accused asked permission from him. He did not know anymore where they went; and when asked whether he knew if accused-appellant was acting as a buyer of prohibited drugs, he answered that he did not know anything about it (TSN, pp. 2-4; Hearing of September 5, 1988). The trial court, in its decision of November 4, 1988, found accused-appellant guilty of the crime charged. The dispositive portion of the said decision reads: All the premises considered, and it appearing that the evidence of the prosecution is sufficient, the Court finds the accused ORLANDO DE LAS MARINAS y ABBOOS guilty beyond reasonable doubt of the crime charged and sentences him to suffer the penalty of life imprisonment, to pay a fine of P20,000.00 without subsidiary imprisonment in the case of insolvency and to pay the costs of the suit. Pending the arrest of Angel Torres Alias Boy who has not been arraigned yet and against whom warrant of arrest or alias bench warrant is ordered issued, let the case against him be placed in the archives. The subject shabu (metamphetamine) is confiscated and ordered forefeited to the Government and the Branch Clerk/OIC of this Court is directed to turn it over to the Dangerous Drug Board for disposition. SO ORDERED. (Rollo, pp. 20-21). Hence, this appeal.

The accused-appellant raised the following assignments of error: I THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE EXHIBITS "F" AND "F-1" DESPITE THE FACT THAT THEY WERE INADMISSIBLE FOR HAVING BEEN TAKEN IN VIOLATION OF THE CONSTITUTION. II THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCREDIBLE AND UNBELIEVABLE TESTIMONIES OF P/CPL. ADOLFO ARCOY AND S/SGT. ARMANDO ISIDRO AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE. III THE TRIAL COURT ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. Under the first assigned error, appellant claims that Exhibits "F" and "F-1" which refer to a Receipt for Property Seized, signed by appellant and Angel Torres acknowledging that they are the owners of the seized listed properties, is inadmissible in evidence for having been taken in violation of the Constitution. Obviously, accused-appellant was the victim of a clever ruse to make him sign the Receipt for Property Seized which, in effect, is an extra-judicial confession of the commission of the offense. Indeed, it is unusual for appellant to be made to sign said receipt for what were allegedly taken from him. It is the police officers who confiscated the same who should have signed said receipt. No doubt this is a violation of the constitutional right of appellant to remain silent. He was made to admit the commission of the offense without informing him of his constitutional rights. Such a confession obtained in violation of the Constitution is inadmissible in evidence (People v. Policarpio, 158 SCRA 85 [1988]). However, the trial court relied not merely on the strength of the property seized in its findings of guilt, but more importantly on the testimonial and documentary evidence of the prosecution. The second and third assigned errors are factual in nature wherein the appellant raises the question of credibility of the witnesses and reiterates his defense denying that he had been apprehended in the act of selling shabu. Accusedappellant argues that the only act he did, if any, was to point to the residence of the suspect Boy Torres (Rollo, p. 43). Moreover, among the police officers who composed the buy-bust team, only P/Cpl. Adolfo Arcoy and S/Sgt. Armando Isidro were presented as witnesses. S/Sgt. Isidro's testimony that at a distance of 35 meters, he saw very clearly the transaction between the two suspects and the poseur-buyer P/Cpl. Arcoy who was then with the confidential informant and that it was the suspect Boy who got the shabu and gave it to Lando, is incredible. At such a distance, and considering that it was 12:00 o'clock midnight, one could

not clearly see what was transpiring between the accused and the poseur-buyer even assuming that the place was well lighted. But the findings of fact of the court a quo who had the chance to observe the demeanor of the witnesses when they were called to testify, are as follows: The Court gives full credit to the evidence of the prosecution. It has found nothing in the record to disbelieve the testimonies of the Government. That the accused was arrested in the buy-bust operation merits faith. The NARCOM officers involved in the operation and made the arrest of the accused have no motive against him (sic). On the other hand, the Court finds it hard to believe the theory of the defense. The accused failed to substantiate his defense of alibi. For being a tricycle driver and while engaged in Tanod duties at night, the accused exposed himself to good advantage of meeting people engaged in shabu deals. He became acquainted and even established friendship with Boy Lopez and Boy Torres, known drug traffickers. The claim that he was merely asked to point to the source of the drug recovered from aliasBoy Lopez while allegedly performing the duties of the Tanod is incredible. On the other hand, his knowledge of the whereabouts and residence of Boy Torres, the source of the drug with which Boy Lopez was arrested for, indicate connection and not merely casual knowledge of the drug pusher. Neither Boy Acelos nor Boy Joey presented if the claim is true that accused was then only on duty as Tanod. (Rollo, p. 20; Decision, p. 3). It is well established that the evaluation of testimony is the primary task of the trial court where there are conflicting versions (Berguilla v. Court of Appeals, 147 SCRA 9 [1987]) and that the findings of the trial court on the credibility of witnesses are generally accorded great respect (People v. Corecar, 159 SCRA 84 [1988]; Tejones v. Gironella 159 SCRA 100 [1988]; Vda. de Portugal v. IAC, 159 SCRA 178 [1988]). Be it noted that while the appellant attempts to discredit the testimony of said police officers, he has not shown any improper motive why they should testify in the manner that they did. Thus, their testimonies are entitled to full faith and credence. As a matter of fact, courts give credence to entrapping police officers, as in this case, as they are presumed to be in the regular performance of official duties (People v. Policarpio, 158 SCRA 85 [1988]). From the foregoing, there is no cogent reason to disturb the findings and conclusion of the trial court. PREMISES CONSIDERED, the appealed decision is AFFIRMED. SO ORDERED. Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.
PEOPLE OF THE PHILIPPINES

vs. ANTONIO ENRIQUE, JR.

FACTS:

An Information was file against Antonio Enrique stating that not being authorized by law to sell, deliver, give away to another or distribute any prohibited drug, did then and there wilfully, unlawfully and feloniously sell and deliver five (5) sticks of marijuana cigarettes, as prohibited drug, to one Patrolman DaniloNatividad, a member of the Integrated National Police (INP) and assigned with the 2nd Narcotics Regional Unit, Narcotics Command, who was then posing as a buyer of the said prohibited drug for the consideration of TEN (P10.00) PESOS

Upon arraignment, the accused entered a plea of not guilty to the crime charged. The trial court then found Enrique, Jr. guilty beyond reasonable doubt of the crime charged.

In this appeal, the accused-appellant vigorously insists in his innocence. He asserts that the arresting officers did not confiscate sticks of marijuana or any marked money from him and that evidences obtained from him should have not been admitted by the trial court since there was no confiscation receipt shown and were erroneous because the same were taken during custodial investigation, therefore, violative of the constitution.

ISSUE: Whether or not accused is guilty despite his arguments regarding the inadmissibility of evidences against him

HELD:

Yes.

Appellant completely misses the whole point of his prosecution and ultimate conviction under RA 6425. He was caught in flagrante delicto selling marijuana cigarettes to a poseur-buyer in exchange for money. The commission of the offense of illegal sale of marijuana requires merely the consummation of the selling transaction. The serial number of the marked money need not even be stated in the information. The nonpresentation of the marked money at the trial is not indispensable to the conviction of the accused-appellant. What is important is the fact that the poseur-buyer received the

marijuana from the appellant and that the said cigarettes were presented in court as evidence. Having been caught in the act of selling a prohibited drug, appellant's arrest was lawful. Hence, whatever is found in the accused-appellant's possession or in his control may be seized and used in evidence against him.

We hold that the trial court did not err in convicting the accused-appellant. The evidence on record has fully established his guilt beyond reasonable doubt.ACCORDINGLY, the decision appealed from is AFFIRMED subject to the modification as above-indicated.

G.R. No. 82604 December 10, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCOS P. JIMENEZ and ROBERT JIMENEZ, accused-appellants. The Solicitor General for plaintiff-appellee. Sisenando Y. Famoso for accused-appellants.

NARVASA, J.:p The failure of the police authorities to observe the constitutional safeguards governing custodial interrogation impels rejection of the extrajudicial confession ascribed to one of the appellants and consequent reversal of the Trial Court's verdict of conviction chiefly based thereon. On August 13, 1985 the police officers at the Ginatilan, Cebu station received a report that one Pelagio Jimenez had been found dead at barangay Guiwanon, "below the cliff near the balite tree." Without much loss of time, Pat. Reynaldo Cinco and other policemen went to the scene to conduct an investigation. The Municipal Circuit Judge of Ginatilan, Hon. Palmacio Calderon, accompanied them, as did Dr. Trifina M. Ferraren. They came upon the lifeless body of Pelagio Jimenez at the place indicated, with stab and lacerated wounds on the head and leg; and apparently the corpse was beginning to decompose since there were maggots crawling over the face, arms, hands and feet. The police investigators learned that the deceased Pelagio Jimenez had been living separately from his family; that in the early morning of August 12, 1985, Marcos Jimenez, who was wont to spend the night at his father's house, told his mother that Pelagio Jimenez had not come home the previous night; that inquiries were immediately made about Pelagio and a search for him undertaken by his relatives and friends; that although the search lasted the whole day and proceeded well into the night of the 12th, it proved unsuccessful, and it was not until the morning of the following day, August 13, 1985, that Pelagio Jimenez was finally found, murdered, the searchers having been led to the place where he lay by the foul already being exuded by his corpse.

The investigators also learned from the persons that interviewed of other circumstances that drew their suspicion to the sons of Pelagio Jimenez, Marcos and Robert, viz.: that was a trail of drops of dried blood leading from the porch (pantawan) of the dead person's residence to the cliff by balite tree where he was ultimately found; that at some the point the trail of blood was interrupted by a patch of freshly plowed soil, and Robert Jimenez said that it was he who had plowed that part of the field and before doing so, had indeed noticed some blood on the ground but had attached no significance to it; that midway between Pelagio's house and the cliff, there we signs as of a body having been dragged through some bushes; that the brothers, Marcos and Robert Jimenez, were seen by neighbors bathing at the artesian well in that place at midnight, "as if washing away stains of blood;" and that Pelagio Jimenez often had violent quarrels with his children, and had been known to complain that there were even occasions when he had been boxed and hit by his children, particularly Marcos and Robert, who had been accused of surreptitiously selling copra belonging to their father's brother, a Dr. Mario Jimenez. On the 16th of September, 1985, the police invited Pelagio's widow, Albina Jimenez, and her sons, Marcos and Robert Jimenez, for questioning about their father's killing. The circumstances attendant upon and subsequent to the questioning Marcos Jimenez are succinctly narrated in the People's brief as follows: ... At first, ... (Marcos) denied any participation on the of his father. However, after Lt. Bancog confronted Marcos Jimenez of his observations during the ocular inspection (id. [TSN, May 26, 1986], p. 23) the latter admitted that it was his brother Roberto who hacked their father on the right leg. Thereafter, they (Marcos and Roberto) carried their father near the balite tree by the cliff and left him there (id., p. 30). Initially, Lt. Bancog took down appellant's confession in a piece of paper (Exh."C") (id., p. 24; Tsn, December 19, 1985, p. 7). Thereafter, Lt. Bancog gave the draft (Exh. "C") to Pat. Cavalida to enable the latter to type the same (id., p. 47). Pat. Cavalida continued the investigation conducted by Lt. Bancog (Tsn, March 6, 1986, p. 8) in the presence of Ex-Judge Jabagat who acted as counsel for appellant Marcos Jimenez (id., pp. 10-11; Tsn, May 26, 1986, p. 22). He typed appellant's confession (Exh. "B") which was contained in the draft (Exh. "C") prepared by Lt. Bancog while at the same time, injecting some questions of his own (ibid., pp. 4-5). Appellant was unable to sign his confession (Exh. "B") since Judge Calderon, before whom the confession was supposed to be sworn to and signed, had earlier left (id., p. 6). Hence, appellant agreed to come back the next day to sign his statement (Exh. "B") (id., p. 7). The next day, appellant Marcos Jimenez failed to come back as promised, and the authorities were unsuccessful in fetching him since they were informed that appellant had left for Cebu City (id., p. 7). Marcos Jimenez returned thereafter, but refused to sign his statement (Exh. "B") (id., p. 8).

At about 6:00 o'clock in the evening of August 16, 1985 (Tsn, March 7, 1987, p. 4) Manolita Castaares, a relative of appellants, overheard a conversation between appellant Marcos Jimenez and his mother Albina, while they were on their way toward the house of Dr. Jimenez (ibid). She heard Albina tell Marcos that the way he answered the questions during the examination before the authorities were wrong. Marcos replied. "It is just the same because if I don't admit, you will be the one pressured" (id., pp. 4-5). Albina remarked, "You should have denied about the circumstances why it happened like that"(id., p. 5). Marcos answered, "(I)t is just the same. Had somebody seen the one mentioned in the affidavit when I admitted?" (id.). Lt. Bancog asked a policeman to invite ex-Judge Jabagat so that, to use her own words, she could "assist the accused whose confession has been taken before the Office of the Chief of Police." According to Judge Jabagat, when she arrived at the station. what happened was, again in her own language, Marcos Jimenez ... was asked about the written confession, and it was read to him. He was (also) apprise (sic.) of his Constitutional right, and I ask him about the contains (sic) of his written confession, I said to him "are these true?" and he said, Yes, alright I said, you sign. I am here to assist you, but if you think you are hesitant to sign it, you think it over and ask me (for) time, (saying) I would like to confer with my uncle Engineer Marcos Jimenez and that we summon (sic) his uncle who was just around, and after that, he told me he was not going to sign the confession and I ask (sic) him, if you will not sign, you have the privilege not to sign, if you don't like to sign its' (sic) just OK. Subsequently, an information dated October 22, 1985 was filed by the Provincial Fiscal of Cebu with the Regional Trial Court accusing Pelagio's widow, Albina Jimenez, and her son by Pelagio, Marcos, Robert, and Wilkins, of the felony of parricide in that . . . on or about August 11, 1985 at around 8'clock P.M. a barangay Guiwanon, Ginatilan, Cebu, ... said accused, confederating together and helping one another, with intent to kill and during night time, and without just cause, did then and there wilfully, unlawfully and feloniously attack, assault and hack Pelagio Jimenez ... with bolo, inflicting upon the said Pelagio Jimenez mortal injuries on varoius parts of his body, that soon caused his death thereafter. All the accused entered a plea of innocent when arraigned. At the trial, the prosecution presented eight (8) witnesses whose evidence established substantially the facts above summarized. The four defendants took the witness stand and gave evidence in their behalf. They all maintained their innocence of the crime. Marcos Jimenez' testimony, substantially corroborated by his brother, Robert, is outlined by the Trial Court as follows:

... that on August 11, 1985, he was at the house of his uncle, Dr Marcos Jimenez. His mother (Albina) and his two brothers, (Robert & Wilkins) were also there. He claims that they were overseeing the house of their uncle. At about 6. P.M. of that day, his father came an asked for dry coconut leaves to light his way in going home. At past P.M., he went home while the rest stayed behind. When he arrived home, he did not see his father. He slept until the following morning. When he still did not see his father the following morning, he went back to his uncle's house to inform his mother and brothers that their father did not arrive home that night. So, they agreed to look for him. They looked for him in the bushes and towards the sea the whole day and the following day until the body was found near the cliff. It was then that he went to the poblacion to notify the authorities about the death of his father. Continuing, ... (Marcos) admitted having been investigated by Lt. Bancog on August 16. They were only two in the room. He likewise admitted that Judge Jabagat arrived but only after his statement has been typed by Pat. Cavalida. He admitted that Lt. Bancog wrote down what he stated, and this handwritten statement was handed to Pat. Cavalida. ... (He also) admitted the existence of blood near the house and plenty of it in the bushes ... ; the existence of blood in the plowed area ... (and) it was he and Robert who plowed the same. In the matter of his confession (Exh. "B"), he claims that what is stated there is in accordance with what his uncle, Marcos Jimenez, wanted him to tell; that he was pressured to admit the crime under threat of punishment. The defense rested its case on July 21, 1986, at which time the Trial Court gave the parties thirty (30) days "from receipt of the stenographic notes within which to submit simultaneous memoranda." The Court, declaring that it was "cognizant of the fact that the accused had been incarcerated and detained for almost one year"' also issued the following Order absolving, for lack of proof, Albina Jimenez and her son, Wilkins, from liability under the indictment, viz.: The court after appreciating all the facts and the law in this case, finds no evidence whether direct or circumstantial that may tend to establish the guilt of two of the accused in this case, namely: Albina Jimenez and Wilkins Jimenez. Considering the rule that judgment of conviction should be imposed only after the guilt of the accused has been proven beyond reasonable doubt, the said two accused should be acquitted. Wherefore, without prejudice to an extended decision, the Court finds the said two (2) accused: Albina Jimenez and Wilkins Jimenez NOT GUILTY of the charge against them. Accordingly, they are hereby ordered released from custody unless there are other causes which would warrant their further detention. This Order serves as a partial decision in this case. The Court, aware of the long detention suffered by the said accused, hereby orders the promulgation of this judgment upon the two accused immediately in open Court.

Then on December 19, 1986, the Trial Court promulgated its Decision (dated November 21, 1986) finding "the defendants Marcos Jimenez and Robert Jimenez guilty beyond reasonable doubt of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code," and condemning "the said defendants to suffer the penalty of reclusion perpetua." The Trial Court stressed that "the revelations ... in the confession all tally with the evidences adduced during the trial, viz.: the hacking by Robert of his father with a bolo is confirmed by the doctor who examined the cadaver; the carrying of the body from the house to the cliff is confirmed by the evidences of the bloodstains found along the way from the house to the cliff and of the signs of a body being dragged along the bushes." The Court then made the following legal pronouncements: The Court agrees with the ... prosecution that a confession, although unsigned and/or involuntarily given, is admissible an evidence if in consequence of such confession facts are discovered which confirm it. As correctly pointed out, jurisprudence sustains the admission of such an involuntary confession (People v. Fontanilla [CA] O.G. 1313), and where details as described in such confession is corroborated by evidence aliunde which dovetails with the essential fact contained in the confession (People v. Elizaga, 23 SCRA 449). The evidence, likewise, show conspiracy on the part of both accused, Marcos and Robert. While an extra-judicial confession is under certain conditions, admissible only as against the person made it and not as against his co-defendants, it becomes admissible as corroborative evidence of other facts that stand to establish the guilt his co-defendants (People v. Simbajon, et al., L-18073-75, Sept. 20, 1965). From this judgment the defendants have taken an appeal this Court and here ascribe the following errors to the Trial Court, to wit: 1) not giving credit to the claim of accused Marcos Jimenez that what he stated in the alleged confession is in accordance with what his uncle, Marcos Jimenez, wanted him to tell and that he was pressured to admit the crime under threat of punishment; 2) not giving credence to the testimony of accused Robert Jimenez to the effect that he had nothing to do with the death of his father ...; 3) holding that Pelagio Jimenez was found in the house near the cliff on August 13, 1985; 4) giving credence to the testimony of ex-Judge Pacita Jabagat to the effect that she was in the office of the Station Commander of Ginatilan, Cebu, in the afternoon of August 16, 1985 and she was then the counsel of accused Marcos Jimenez for the purpose of the confession and that she read the confession to him and when asked whether he admitted to be true all the allegations as stated in the confession, confirmed that everything is true; 5) holding that the evidence shows conspiracy on the part of both accused ... ; and

6) finding and holding both accused ... guilty beyond reasonable doubt of the crime of parricide by mere circumstantial evidence, there being no eyewitness available. The Constitution explicitly declares that a person being investigated by the police as a suspect in an offense has the right, among others, "to have competent and independent counsel preferably of his own choice" and if he "cannot afford the services of counsel, he must be provided with one;" and that said right "cannot be waived except in writing and in the presence of counsel. 1 The lawyer who assists the suspect
under custodial investigation should be of the latter's own choice, not one foisted on him by the police investigators or other parties. In this case, former Judge Jabagat was evidently not of Marcos Jimenez' own choice; she was the police officers' choice; she did not ask Marcos if he was willing to have her represent him; she just told him: "I am here because I was summon(ed) to assist you and I am going to assist you." This is not the mode of solicitation of legal assistance contemplated by the Constitution.

In one case, the confession of an accused was rejected there being no showing that the lawyer of the Citizens' Legal Assistance Office (CLAO) called by the National Bureau of Investigation to assist the accused was his counsel of choice. 2 In another case, the confession given during custodial investigation was invalidated where it appeared that the lawyers called
to be present at the interrogation were members of the police organization investigating the suspects and did not actively assist and advise them, being there merely to give a semblance of legality to the proceedings. 3 In still another case, the confession of the defendant was disregarded upon a showing that he had been assisted by an assistant fiscal (public prosecutor), who "cannot exercise the function of defense counsel even during custodial investigation," and to allow such a practice "would render illusory the protection given to the accused." 4

Furthermore, the evidence discloses that Judge Jabagat was not present at the critical time that interrogation of Marcos Jimenez by the police was actually taking place. She came only after the questioning had been completed, and the handwritten record of Marcos Jimenez' answers already typewritten; and all she did was to show the typewritten document to Marcos and ask him if he had voluntarily given the statements therein contained. This is far from being even substantial compliance with the constitutional duty of police investigators during custodial interrogation, supra. It follows that neither the handwritten summary of Marcos Jimenez' answers made by two investigating officers nor the typewritten statement based thereon is admissible. The typewritten confession is, in any event, unsigned, as are the handwritten notes from which the former was derived. The confession was in fact expressly rejected by Marcos Jimenez as riot reflective of his own perceptions and recollection, but as containing only what his uncle, Marcos Jimenez, had instructed him to tell the police "under threat of punishment." Hence. the supposed waiver made therein of his constitutional right to counsel of his own choice is void. The interrogation of Marcos Jimenez having been conducted without the assistance of counsel, and no valid waiver of said right to Counsel having been made, not only the confession but also any admission obtained in the course thereof are inadmissible against Marcos Jimenez. This, too, is the explicit mandate of the Constitution: any confession or admission obtained in violation among others of the rights guaranteed in custodial investigations shall be inadmissible in evidence against the person making the confession or admission. This is so even if it be shown that the statements attributed to the accused were voluntarily made, or are afterwards confirmed to be true by external circumstances. Equally obvious is that any confession or admission ascribed to Marcos Jimenez in the premises is inadmissible against his brother, his co-accused, Robert Jimenez, not only because obtained in violation of the Constitution and therefore

void, but also because of the familiar principle of res inter alios acta. 5 "The rights of a
party cannot be prejudiced by an act, declaration, or omission of another; " 6 the confession of an accused is admissible only against him, but not against his co-defendants. 7

Now, without the confession or the admissions imputed to Marcos Jimenez, the rest of the evidence of the prosecution is inadequate to overcome the presumption of innocence raised by the fundamental law in favor of both the accused. For instance, proof of the presence of the appellants at or near the place of the commission of the crime is innocuous. They were after all children of the deceased, one of whom usually slept in the same house as the latter. And the fact that there might have been some animosity and quarrels between the deceased, on the one hand, and his wife and children, on the other, would indicate at the most that the latter might have reason to wish him ill, but would not be proof that they actually attacked and killed him. Furthermore, the witnesses who gave evidence of said quarrels were close relatives of the deceased, i.e., his brothers, a sister-in-law, his cousins, who were not themselves on good terms with at least one of the appellants. Eng. Marcos Jimenez, brother of the victim, was the one who requested Lt. Bancog, the Police Chief of another town, to investigate close members of the victim's family on the basis, according to him of "rumors" and "gossips" 8 circulating in the barrio. Another brother
of the victim, Dr. Mario Jimenez, who together with Eng. Jimenez, testified as to previous quarrels between the deceased and appellant, had a previous misunderstanding with appellants concerning the latter's unauthorized sale of the former's copra. Jacinta Jimenez who testified to a recent quarrel between the victim and his wife and sons Marcos and Robert, is the wife of Eng. Marcos Jimenez. Another relative of the deceased, Manolita Castaares, testified to having heard a conversation between the victim's wife Albina and the latter's son Marcos wherein the mother chided her son for giving wrong answers during the investigation.

The information gathered by the police to the effect that Marcos and Robert Jimenez had been seen by neighbors bathing at the artesian well at midnight of the day of the crime, ostensibly washing away blood from their bodies and clothing, is patently speculative and arrant hearsay. Not one of the persons who had supposedly seen the appellants washing themselves ever took the witness stand to affirm this. It is not correct to say, as the Trial Court does in its judgment under review, that the appellants had tried to cover up the commission of the crime by not reporting it immediately to the authorities and by attempting, during the search for the deceased, to prevent others from going to the precise spot where the slain man was eventually found. That the appellants did not immediately notify the authorities that Pelagio Jimenez was missing cannot be taken as an inculpatory circumstance against them. The truth is that the victim's family and neighbors first looked everywhere for him, and when he was finally found after a day's search, Marcos Jimenez forthwith reported his father's death to the police. The truth is, too, that as disclosed by the evidence, Robert Jimenez had indeed conducted a search for his father in the vicinity of the cliff near the balite tree where his father's body was found the following day. Marcos Jimenez knew this, and this is why he afterwards told other persons involved in the search not to proceed to that place any more. It bears stressing that the area covered by the search has been described as a "vast" area, and there were many large boulders and thick bushes about the balite tree. This might explain why the corpse could not be immediately located. In fact, were it not for the foul odor emanating from the direction of the balite tree, the searchers would not have proceeded thereto as the place was so secluded.

In fine, all the evidence considered, it appears that the prosecution has failed to demonstrate the guilt of the appellants the crime with which they are charged beyond reasonable doubt. WHEREFORE, the decision of the Trial Court dated November 21, 1986 is REVERSED, and the appellants, Marcos P. Jimenez and Robert Jimenez, are ACQUITTED, with costs de oficio. SO ORDERED. Cruz, Feliciano, Grio-Aquino and Medialdea, JJ., concur. G. R. No. L-54335 December 14, 1981 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMMANUEL FELIPE VELASCO, ET AL., accused, EMMANUEL FELIPE VELASCO Y SARNO, defendant-appellant.

DE CASTRO, J.: This is an appeal from the decision of the Circuit Criminal Court of Cebu convicting the appellant, Emmanuel F. Velasco of the crime of murder and sentencing him as follows: WHEREFORE, the Court finds the accused Emmanuel Felipe Velasco y Sarno guilty beyond reasonable doubt of the crime of Murder described in the aforequoted information. Appreciating in favor of the accused the mitigating circumstance of voluntary surrender, which circumstance is offset by the aggravating circumstance of nighttime, the accused should be, as he is, hereby sentenced to the penalty of reclusion perpetua with the accessory penalties of the law; to indemnify the heirs of the deceased Ricardo Barbado in the sum of P15,000.00 by way of actual and compensatory damages and the sum of P50,000.00 by way of moral and exemplary damages; and to pay the costs. 1 The appealed judgment is mainly based on appellant's sworn statement which the trial court considered as an extrajudicial confession perfectly admissible under the Constitution with its strict requirement on the admissibility of extrajudicial confessions given during custodial investigation. 2 The thrust of the appeal is that the supposed extra-judicial statement was improperly admitted, and that assuming it to be admissible, it is insufficient to support conviction. For its decisive importance in the resolution of the issues as above intimated the statement of appellant must be, as it is hereunder reproduced in full: PRELIMINARY STATEMENT:

You are hereby informed chat you are here investigated in connection with a certain case wherein you were involved. According to Our Constitution, you have the right to remain silent and to answer or not to answer the questions propounded to you in this investigation because all what you will state here will be used as an evidence in your favor or against you in any court of justice here in the Philippines. You have also the right to avail the services of counsel of your own choice to assist you. Do you clearly understand all these? ANSWER: Yes, sir. 1. Q After you were informed of your constitutional rights, are you willing to give your statement and to answer the questions in this investigation? A Yes, sir. 2. Q Will you swear to tell the truth and nothing but the truth in this investigation? A. Yes, sir. 3. Q. Please state your name and other personal circumstances? A. EMMANUEL FELIPE VELASCO, y SARNO, 27 years old, married and a resident of 1460-A M.J. Ave., Mabolo, Cebu City. 4. Q. Do you know why qqqe you here in the Police Station? A. I'm here because I surrendered after knowing that I was hunted. 5. Q. After you surrendered, were you told by the Police why you were hunted? A. Yes, I know. It is about the driver of an Elite taxi who was killed on March 21, 1987. 6. Q. Do you have some knowledge about that incident wherein the driver of an Elite taxi was killed on March 21, 1978? A. Yes. 7. Q. Will you please narrate to us all what you know about that incident?

A. Last March 21, 1978, at about 9:00 o'clock in the evening, I, together with Ben Verano, Boy Kho (Agustin Kho) and Ben del Rosario were strolling at Barracks,Mabolo, Cebu City and not long after, we agreed that I and Boy Kho will go ahead and the two Ben will be left behind because they have to go to the house of Cesar Pelonio at Cabantan St., Boy Kho then hailed a taxi, an Elite taxi, and then we boarded. I was sitted at the back while Boy Kho was sitted at the front seat besides the driver and Boy Kho ordered the driver to deliver us to M.J. Cuenco Ave. When we arrived at San Jose dela Montaa, at the comer vehicle and pointed a revolver at the driver and said, "DON'T MOVE BAY, WE NEEDYOUR VEHICLE" and at this moment the driver attempted to fight back but was prevented to by Boy Kho who was a little bigger than the driver and I was ordered by Boy Kho to be the one to drive the vehicle and the driver transferred at the back seat and who was at all times being pointed to by Boy Kho of his revolver. I was the one who drove the taxi and from there we went back to Barracks and then we picked-up Ben Verano and Ben del Rosario and the two Ben were sitted at the back. Ben Verano was sitted at the right side of the driver and Ben del Rosario was at the left side. Ben Verano and Boy Kho agreed to proceed to Opra Village passing thru Capitol Site. While on our way to Opra I saw that Ben Verano also got his revolver and pointed it to the driver and when we arrived at the Caltex Station at Escario St., the driver attempted to jump (this is the place where the Office of the Elite taxi is located), and so there was a commotion at the back and all of a sudden I heard two shots coming from the revolver of Boy Kho and at this moment we were already ascending to Opra and I saw the driver leaning at the back seat and was no longer moving and Ben Verano said: "I was hit". When we arrived at Camp Marina, I stopped the vehicle and Ben Verano, Ben del Rosario and Boy Kho immediately alighted and not long after Boy Kho returned and we ran but we parted our ways and I went home together with Ben del Rosario at Gil Tudtud, Mabolo. I left Ben del Rosario at home and I looked for Ben Verano and I found him in the house of Cesar Pelonio at Cabantan St. and Ben Verano had a gunshot wound and was treated by Cesar Pelonio and the ammunition was already removed from his wrist and Ben Verano accompanied me to my house and there I treated his wound again. 8. Q. Do you know what happened to the driver which you left behind inside the taxi at Camp Marina? A. I know that he is already dead.

9. Q. Do you know the name of that driver who is already dead? A. I was told that the name of that driver is Ricardo Barbado. 10. Q. What was your purpose why you brought the driver and his vehicle to Opra Village? A. We intend to get his money. 11. Q. Were you already aware of that intention at that time when Boy Kho pointed his revolver at the driver when you were still at San Jose dela Montaa? A. I do not know about it but I came to know about that when Ben Verano searched the driver about his money. 12. Q. Do you know already your companions before that incident on March 21, 1978? A. I know this Ben Verano for about two weeks and also Boy Kho. This Ben del Rosario, I know him for quite a long time already because he is a security guard of my father. 13. Q. You said that Boy Kho and Ben Verano were armed with a revolver during that incident. How about you and Ben del Rosario, do you have also a revolver at that time? A. No, sir. 14 Q. Who is the owner of that revolver used by Ben A. The one brought by Boy Kho belonged to Rudy Inot and Ben Verano brought his own. 15. Q. Why did you say that the revolver brought by Boy Kho belonged to Rudy Kho. A. Because a week before that incident of March 21, 1978, Boy Kho, Ben Verano and I were in the house of Rudy Inot at Mandaue City and while we were in the office of Rudy Inot, I saw Rudy handed the .30 cal. revolver to Boy Kho. 16. Q. That weapon used by Boy Kho in killing the driver was the same weapon given by Rudy Inot? A. Yes, sir.

17 Q. How do you know that the weapon used by Boy Kho belonged to Rudy Inot? A. Because from the time Rudy Inot gave that weapon to Boy Kho, I had borrowed many times when we were in the house and I did not see any weapon of Boy Kho except that one given by Rudy Inot 18. Q. Do you know the caliber of that weapon used by Boy Kho and Ben Verano? A Both cal. .38. 19 Q I have nothing to ask you about that killing of the driver, Ricardo Barbado. Do you have something to say? A No more sir. 20. Q. Do you confirm to the truth of the statement you made before this investigation? A. Yes, sir. 21. Q. Was there somebody who coerced, intimidated you or were you promised by a prize in order to say what you have stated in this investigation? A. No, sir. 22. Q. Do you have some complaint about this investigation? A. No, sir. 3 The People's brief also reproduced the entire statement prefacing it, however, with a narration of facts relevant to the determination of the question of its admissibility as an extrajudicial confession, which We quote from said brief as follows: Ricardo Barbado was one of the drivers of Manuel Concepcion, operator of "Allied Taxi" at Cebu City. On March 21, 1978, at or about 7:00 a.m., Barbado submitted his earning of P 90.00 to his employer at the latter's house at 100 Escario St., Cebu City. Later in the day or about 8:30 p.m., the taxicab driven by Barbado passed by the house of Concepcion and immediately thereafter Concepcion, who was then outside his house waiting for a ride, heard two shots. Before he heard the shots, Concepcion noticed that the taxicab was being driven recklessly as though the driver was drunk and the rear left door was open. Not long thereafter or at about 9:00 p.m., Concepcion received a call informing him that Barbado was killed at Marina Camp. He went to the place and saw Barbado's body lying on the back seat of the taxi. There was blood inside the car and a

bullet hole in the driver's seat. (pp. 3-7, 9, 12-17, 19-20, Hearing of October 26, 1978). The case was investigated by Lt. Domiciano Angel of the Police Force of Cebu City after he received a dead person alarm at Marina Hill at about 8:00 o'clock in the evening of March 21, 1978 through a member of the barangay police. He proceeded to the place and found the body of Ricardo Barbado inside the taxi in the front seat. Lt. Angel contacted police informers and sometime on March 23, 1978, he received information that one Cesar Pelonio extracted a bullet from the hand of a certain Ben Verano. The house of Pelonio at Cabantan, Mabolo and the Peter Line Garage where Pelonio was employed as driver were placed under surveillance. In the evening of the same day, Pelonio was arrested at the garage. Verano who was at the wheel escaped arrest. Pelonio admitted having extracted a bullet from the hand of Verano and he mentioned the names of Boy Kho @ Agustin Kho, Ben Verano, Ben del Rosario and Emmanuel Velasco as the persons responsible for the killing of Ricardo Barbado. Lt. Angel did not know the persons named by Pelonio except Velasco who resided at Mabolo and whose father was a compadre of his superior officer Captain Ruiz. He contacted the father of Emmanuel Velasco and advised him to surrender his son. Following this advice of Lt. Angel Velasco's father surrendered his son at the house of Lt. Angel who then brought Emmanuel to headquarters so that his statement may be taken. Atty. Maximino Ylaya represented Velasco even before the latter gave his statement to the police and was present at the office of Lt. Angel and at the house of Velasco (pp. 2-12, 21, tsn, Hearing of May 11, 1979). The affidavit or statement of Emmanuel Velasco was taken down by police corporal Romeo Cordova after Velasco was turned over to him by Lt. Angel. Before the investigation was conducted, Cordova informed Velasco of his constitutional rights among others, to remain silent and to secure a lawyer. He was also told that anything he said might be used against him and Velasco offered no objection saying only that he was willing to tell the truth (pp. 4-7, tsn, Hearing of April 30, 1979). 4 Hinting that there was some degree of threats and intimidation in the giving of his statement and signing it before the swearing officer, appellant would, however, more strongly rely for the inadmissibility of his extra-judicial confession, as he contends, on an alleged promise of immunity by making him a state witness and thus impugn the voluntariness of the confession. The non-attendance of counsel during its execution is also averred as further ground for its inadmissibility. Appellant listed a number of circumstances which to him would show lack of free will or spontaneity on his part in giving his statement. Thus First: appellant surrendered on April 1, 1978, yet he was investigated on April 4, 1978. He was not charged with a crime in court yet he had to stay under custody for three (3) days before investigation.

Second: while the investigator admits the investigation to have been on April 4, 1978, the statements were sworn 22 days later on April 26, 1978 and all the time the appellant continued to be detained. Third: after the statements were sworn on April 26, 1978, the information was filed more than a month later on May 29, 1978, with appellant continuously deprived of his liberty. Fourth: while the actual surrender of appellant was on April 1, 1978, the prosecution has not denied the testimony of the appellant that in the police blotter he was officially entered as having surrendered only on May 26, 1978 (Cf. Tsn Sept. 18, 1979-p. 100). Fifth: knowing that the appellant was represented by a lawyer as early as the former's surrender, it sounds unnatural that such a lawyer would not be called upon to attend the investigation of the appellant by the police. (Cf. Tsn May 11, 1979-p. 20). Sixth: that the statements in Exhibit "C" were made "in consideration" of affiant's becoming a state witness. (Tsn May 11, 1979 of Lt. Angel-pp. 21; 16-17). Seventh: while appellant was not mauled before the taking of the affidavit, there is the uncontradicted statement of the appellant (Tsn Sept. 18, 1979-p. 99) that after his surrender, nightly he would be threatened with bodily harm and before he was to have signed the statements before State Prosecutor Arzadon, Pat. Romeo Cordova reminded him of the mauling of Mauricio Petalcorin to near death, the lot which would befall appellant should be back out from signing the affidavit before the State Prosecutor (Tsn Sept. 18, 1979-p. 96). Eighth: there is no statement whatsoever from Lt. Angel or Romeo Cordova that appellant was made to read the finished typewritten statements of the latter; on the other hand, the positive declarations of the appellant that he was in front of the typewriter during the typing of the affidavit in question-and-answer form and therefore could not read what was typed had never been contradicted (Tsn Sept. 18, 1979-pp. 89-91), nor is there a denial of the testimony of the appellant that he has not read the typed affidavit from the time it was taken until 22 days later when sworn before the State Prosecutor (Tsn Sept. 18, 1979-pp. 92-93). Ninth: before the swearing appellant invited the attention of the Secretary of the State Prosecutor and Pat. Romeo Cordova that "some" portions of the affidavit were not appellant's. There is no rebuttal or contradiction to this piece of evidence purporting to show that what appellant declared was not faithfully recorded or typed by the Investigator (Tsn Sept. 18, 1979-p. 93). Tenth: Atty. Ylaya for the appellant was promised by Lt. Angel that the former would be notified of the taking of the statements of the appellant Tsn Oct 26, 1979, p. 18). This has not been denied or rebutted, thus it is odd that when the taking of appellant's statements

was held on April 4, 1978, the same was done without the benefit of counsel's presence. 5 What is immediately striking from the foregoing circumstances as set forth in appellant's brief is that there was a mixture of threat and cajolery employed in the execution of the extra-judicial confession. Either or both would vitiate the confession for lack of voluntariness, the one essential element for the admissibility of an extra-judicial confession, aside, of course, from the need of attendance of counsel in the execution thereof. How does the prosecution try to show that the execution of the extra-judicial confession was attended with voluntariness? We quote from the appellee's brief: The "alleged extra-judicial confession" referred to by appellant's counsel is Exhibit C (p. 6, folder of Exhibits) which is the statement given by the accused-appellant to Corporal Romeo Cordova of the Cebu City Police Department regarding the incidents that led to the death of Ricardo Barbado. According to appellant it was error for the lower court to admit Exhibit C because it "has been vitiated with involuntariness and executed without the attendance of counsel." In the first place, appellant admitted in court his desire to surrender to the authorities and "to give (his) side to the police so that the police will be enlightened about the incident" (p. 12 1, tsn, September 19, 1979; pp. 8, 10-11, 13, tsn, Hearing of September 20, 1979). He also identified Exh. C as the affidavit he gave on April 4 and sworn to on April 26, 1978 before State Prosecutor Benicio Arzadon (pp. 78-79, tsn, Hearing of September 18, 1979; p. 41, tsn hearing of September 20, 1979. It is also a fact admitted by appellant that while he was at the Mabolo Police Station for safekeeping following his surrender, he was not mauled or harmed (p. 99, tsn September 18, 1979; pp. 27-28, tsn, September 20, 1979). 6 The Government counsels, after reproducing in full, appellant's sworn statement, 7 concluded without explanation that appellant's claim of involuntariness in the execution of
his sworn statement is without merit. If the conclusion is based on the abundance of details as set forth in the statement which appellant alone could have supplied, as the lower court expressly so stated, and the fact that it tends to be exculpatory in the portions appellant gave as his answers (he denied certain portions as not given by him), We find the conclusions not well-founded.

What was stated in the statement to be the purpose of the hold-up was to get the money of the driver. But appellant, clarifying this matter, stated that he did not know of such an intention, even when Boy Kho pointed his gun at the driver. He came to know of it only when Ben Verano searched the driver about his money. This circumstance tends to exclude appellant from a previous understanding, if any, to rob the driver as to make him a co-conspirator in the commission of that crime. What is more, no robbery was actually committed, and so the charge is only for murder. In the case of People vs. Ibanez, 8 quite correctly cited by appellant, this Court had occasion to
state:

In other words, the accused must be shown to have had guilty participation in the criminal design entertained by the slayer, and this presupposes knowledge on his part of such criminal design. It is not

enough that there be a relation between the acts done by the principal and those attributed to the person charged as co-principal or accomplice; it is, furthermore, necessary that the latter, with knowledge of the former's criminal intent, should cooperate with moral or material aid in the consummation of the crime. With respect to the killing, it appears abundantly clear that same was a sudden and unexpected act of Boy Kho and merely on a likewise sudden, unreflected impulse, when the driver made a sudden attempt to jump out of the taxi. So much so that when Boy Kho suddenly shot at the driver, Ben Verano was also hit. The manner the killing happened would thus seem also to exclude appellant from a previous conspiracy or understanding to make him equally liable for the act of Boy Kho who took it upon himself to shoot at the driver prompted by the unexpected move of the driver of attempting to jump out of the taxi. There is, therefore, no circumstance upon which to base a finding of appellant participating in the criminal design of killing the driver, an element considered essential to make one a principal, or even as a mere accomplice, in the commission of a particular crime. 9 In his uncontradicted testimony, appellant also brought out some significant facts that tend to firm up the conclusion already intimated earlier that he could not be tagged as a co-conspirator in the crime charged. Thus, appellant, feeling tired begged leave to go ahead from the party which they attended at Cesar Pelonio's residence, but Boy Kho, Ben Verano and Ben del Rosario accompanied him to the corner for a taxi. Once a taxi was hailed, Boy Kho decided to leave with appellant, while Ben Verano and Ben del Rosario went back to the party. In the taxi at the back seat, appellant felt very sleepy with heavy eyes, but opened them when the taxi stopped, surprised to see Boy Kho pointing his gun at the driver and commanding the latter to transfer to the back seat, appellant to take the driver's seat and drive the car. Appellant's protest against Boy Kho's order met with Kho's gun pointed at him. After the killing, appellant stopped the car as if it had run out of gas, prompting his companions to rush into the darkness, but appellant stayed behind to wait for the police or someone to come at the scene. But Boy Kho returned to urge appellant to leave the place for he may only be "salvaged" by the police. Appellant also left, afraid that Boy Kho might shoot him if he insisted on waiting for the police, but in the dark, he lost contact with Boy Kho. He and Ben del Rosario took a PU car from some distance and headed for the Velasco residence. The foregoing acts, as testified to by appellant without rebuttal or contradiction, would establish the validity of appellant's claim of not being a conspirator in the commission of the crime. Conspiracy, like the guilt itself for the crime charged, must be proved beyond reasonable doubt. 10 The Government of course tries to show that appellant's testimony is not quite believable. Thus, the fact that after the shooting, appellant and Boy Kho were together in an island of Bohol is pointed to as showing appellant's sharing in the criminal design. But Boy Kho went to appellant's house to fetch him. Appellant had to go with Boy Kho, obviously under threat, for at the earliest opportunity, he managed by some pretense or another, to break away from Kho's company.

The apparent contradiction in his testimony that he does not drink because of heart ailment, and that he was driving slowly because he was under the influence of beer, can be easily explained that he is supposed not to drink because of his heart ailment, but that on isolated occasion he may take to beer, which, however, would easily affect him because he is not a drinker. As to why appellant acted too submissively to the orders of Boy Kho, which the Government also points to as rendering appellant's version unbelievable, considering that appellant had one of his father's security guard with him, Boy Kho must have drunked unrestrainedly that he was acting with unreasoning boldness over appellant himself rendered more easily cowed by a mild drink of beer. Appellant's testimony that although his companions left to escape when the taxi stopped for lack of fuel, he stayed behind intending to wait for the police, is likewise, branded as a mere afterthought, for he had many opportunities to give himself up. The state counsels forgot that Boy Kho returned to urge appellant to leave the taxi, and the following morning, he fetched again appellant from the latter's home from which time Boy Kho kept appellant always with him until appellant succeeded, by some trick, in breaking away from Kho's company. We, therefore, find, notwithstanding the attempt of the prosecution to discredit appellant's testimony, which as just demonstrated, is not quite convincing, that appellant's testimony is worthy of belief. The absence of contradictory testimony by a state witness makes the evidence of the prosecution insufficient to establish guilt beyond reasonable doubt, which thus consists of appellant's supposed extrajudicial confession which, as presently to be shown, is also inadmissible under the strict standard established by our New Constitution. From the evidence, We are constrained to hold that the requirement of counsel being present during the taking of statement of a suspect in a custodial investigation, was not fulfilled. This is evident from the trial court's own statement relevant to this matter, which the People merely quoted in reliance thereof in meeting appellant's contention that the requirement of attendance of counsel during the taking of the statement has not been satisfied. Thus, the trial court said: Defendant's father and Atty. Ylaya accompanied the accused when the accused surrendered to the police authorities. Upon such a surrender, the police authorities could rightfully be assumed to immediately question and interrogate the accused in respect to the murder of Ricardo Barbado. That the accused's father and Atty. Ylaya would leave the accused to his own devices when questioned by the police is acquiescent of defendant's giving out a statement respecting the charge or charges against him. We are of the belief that the accused was indeed appraised of his constitutional rights under custodial interrogation but that he averred that he did not wish to avail himself of the services of a lawyer, to advice or guide him in the making of his statement. His lawyer, Atty. Maximino Ylaya, his father and five of his father's retained counsel was at defendant's beck and call. What could have been easier for the accused to do than to give a ring by telephone to these lawyers or send a messenger to secure their appearance, had he felt that he needed

one. It will be remembered that it was at the initiative of Atty. Maximino Ylaya that Lt. Domiciano Angel I arranged with defendant's father for the surrender of the accused. 11 It is clear from the trial court's own observation that there was no counsel in actual attendance during the taking down of the statement. The lower court actually found that there was a waiver on the part of appellant of his right to the assistance of counsel as required for the admissibility of the statement as an extrajudicial confession. We see no such waiver from the mere fact that the appellant had lawyers at his beck and call. What is more reasonable to infer from the non-attendance of counsel is that appellant was not informed of said specific right, as he ought to have been. As the statement itself shows unequivocably, appellant was allegedly informed of his constitutional rights, but was not even asked whether he wanted to exercise or avail himself of such rights. There is a manifest failure to comply with the constitutional requirement for the admissibility of extra-judicial confession. Consequently, the alleged extra-judicial confession of appellant was improperly admitted in evidence, resulting in utter lack of support of the lower court's judgment of conviction. WHEREFORE, the guilt of appellant not having been established beyond reasonable doubt, appellant is entitled to an acquittal. Accordingly, the judgment appealed from is hereby reversed and appellant, acquitted, with costs de oficio. SO ORDERED. Concepcion, Jr., Ericta and Escolin, JJ., concur. Abad Santos, J., concur.

Separate Opinions

BARREDO, J., concurring: I concur because: 1. In respect to the violation of the constitutional right of the accused to counsel when his supposed confession was taken by the police, it has always been my position that to comply with the substantial import of Section 20 of the Bill of Rights, it is not enough for the investigator to just inform the person concerned of his right and then ask him if he is willing to give his statement. I maintain that to give bone and muscle to the constitutional right under discussion, it must specifically be shown that before the questioning was started, the detained person had been asked whether or not he wanted to avail of the right to counsel. I am aware that the Constitution is pertinently worded thus: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right." To my mind, the essence of this provision is not simply that the person under custody be informed but that

he should be given the chance to exercise that right. Merely informing him of the right to counsel without asking him if he wishes to exercise the right is in my considered opinion to pay no more than lip service to the substantial right contemplated therein. To be sure every man may be presumed to know, as a rule, the law and the constitution, but unless he is asked if he desires to exercise his right under them, I cannot be satisfied that the wholesome intent of the charter's guarantee of fairness and justice can be satisfied. I agree, therefore, that the confession of appellant Velasco in this case should not be taken into account. 2. Assuming for the sake of argument that such confession may be considered, my conscience cannot lie easy on the conviction that Velasco's acts related to the purported robbery and unexpected shooting of Barbado as revealed in said confession could render him liable even as an accomplice in the crime committed by his companions. True, in his statement he said that their purpose in taking Barbado and his vehicle to Opra Village was "to get his money," but as, in fact, no getting of money took place, such statement is insignificant. That he continued to drive the taxi despite his seeing that Kho and Verano were pointing their guns at Barbado may be attributed to the fact that Kho practically threatened him. Besides, if indeed, Kho and their guns at Barbado does not necessarily mean that Barbado was going to be hurt. In fact, Kho shot him only because he jumped out of the vehicle unexpectedly. AQUINO, J., dissenting: At about nine o'clock in the evening of March 21, 1978, the lifeless body of driver Ricardo Barbado was found inside his taxicab at Camp Marina, Cebu City. He sustained two fatal entrance gunshot wounds in the chest and abdomen and two exit wounds. Bullet holes were found in the upholstery of the cab, an indication that he was shot therein. His wallet contained thirty pesos but there was no money inside the driver's till. A police investigator was apprised by informers that Agustin Kho, Ben Verano, Ben del Rosario and Emmanuel F. Velasco were responsible for the killing of Barbado. Velasco was surrendered by his father and his lawyer, Maximino S. Ylaya, to the police. Velasco gave a written statement to Corporal Romeo Cordova after he was informed that he had the right to remain silent and to secure the services of a lawyer. Velasco in his confession revealed how the killing was perpetrated. He said that in the evening of March 21, 1978, while he and Kho were strolling at Barracks, Mabolo, Cebu City, Kho hailed a taxi and they boarded it. Velasco sat beside the driver in the front seat. Kho sat in the backseat. When the taxi reached San Jose de la Montana at the corner of the street leading to Casal's Village, Kho ordered the driver (Barbado) to stop the vehicle and then poked a revolver at him and said: "Don't move, Bay. We need your vehicle." The driver tried to fight back but Kho subdued him. He was directed to transfer to the backseat. Kho kept the revolver pointed at the driver. Kho ordered Velasco to drive the taxi. Velasco drove the taxi back to Barracks where he picked up

Verano and Del Rosario who sat at the back. The taxi proceeded to Opra Village. Verano also pointed his revolver at Barbado. When the taxi arrived at the Caltex gas station on Escario Street, where the office of the taxicab was located, Barbado attempted to jump out of the taxi. At that juncture, Kho fired two shots at Barbado. Velasco stopped the taxi at Camp Marina. Velasco and Del Rosario went home at Gil Tudtud, Mabolo. Verano went to the home of Cesar Pelonio at Cabantan Street. Police Lieutenant Domiciano R. Angel testified that Velasco was represented by lawyer M. S. Ylaya, who resided in the Velasco compound and is a compadre of Velasco's father. it was Ylaya who advised the police to negotiate with Velasco's father for his surrender. On the witness stand, Velasco gave a version substantially similar to that found in his extrajudicial confession. The trial court took this fact into consideration in convicting Velasco. He declared that he and Kho were riding in the taxicab of Barbado in the evening of March 21, 1978. Kho was in the front seat while Velasco was in the backseat where he snoozed. He was suddenly awakened when he heard Kho telling the driver to stop the cab and he (Velasco) thought that he had arrived at his destination. He saw Kho pointing his revolver at the driver. Kho ordered the driver to transfer to the backseat and directed Velasco to drive the cab. He drove the cab to Cabantan Street. Kho saw Del Rosario and Verano walking towards a sari-sari store. Kho whistled at the two and they boarded the cab. After Kho and Verano had conversed in the dialect, Velasco, as instructed by Kho, drove the taxi to the Opra Village. Verano searched the pockets of Barbado. When the taxi reached the gas station on Escario Street, Velasco heard a scuffle in the backseat and then he saw Kho shooting Barbado twice. Velasco wanted to stop the cab but Kho ordered him to continue driving. He drove the taxi to Camp Marina and told his companions that the taxi had run out of gas. They left the taxi and separated. Velasco passed through the bushes in the field and met Del Rosario. They took a PU car near the Taoist temple and went home. He did not reveal the incident to the police because Kho warned him that if he squealed he and the members of his family would be killed, Velasco and Kho left Cebu City and fled to the island, near Bohol. They returned to Cebu City on March 30, 1978. Velasco separated from Kho and returned home where his father told him to surrender to the police. As already stated, he executed a confession which was sworn to before District State Prosecutor Benicio L. Arzadon. Velasco, who finished the third year of the commerce course, said that he was induced to make the confession because of the assurance by the police that he would be utilized as a State witness. He admitted that he was conversant with

the constitutional provision regarding the admissibility of extra-judicial confessions. He testified that he was told by the police that Ylaya, the lawyer of his father, had read his confession and had found it to be all right. Ylaya is Velasco's godfather, being a sponsor at Velasco's wedding. Ylaya testified that at the time Velasco was surrendered to the police he (Ylaya) informed Lieutenant Angel that he (Ylaya) was Velasco's counsel. Indeed, Ylaya was Velasco's counsel at his arraignment and trial. Velasco's extrajudicial confession is admissible under section 20, Article IV of the Constitution. He waived his rights not to incriminate himself, to be silent and to be assisted by counsel. During custodial interrogation, he could have availed himself of the services of his godfather, lawyer Ylaya, and of the five lawyers of his father in the latter's mining, real estate and foundry businesses. Velasco did not secure their services. Velasco is a well-educated and intelligent person. He gave his confession voluntarily and without any outside pressure. It was corroborated by evidence of the corpus delicti. The charge against Velasco and his companions is murder qualified by treachery. His three companions were not brought to trial because they have not been arrested. Although robbery was intended, robbery was not included in the indictment because the prosecution had no evidence to prove that robbery was actually committed. The main evidence against Velasco is his own confession which was confirmed by his testimony. Do his confession and testimony prove the commission of murder? A casual perusal of his confession and testimony discloses that the killing of Barbado was not attended with treachery. The killing was not deliberate and preconceived nor was it a complete surprise to the victim. Two revolvers were pointed at the victim during the time that he was in the backseat of the taxicab. The intention of the four malefactors (including Velasco) was to rob him and to enable themselves to use the taxicab. The killing was made upon the spur of the moment and was triggered by Barbado's attempt to jump out of the taxi and escape from his captors. So, the killing cannot be qualified by treachery. There was abuse of superiority but this circumstance was not alleged in the information. It is not a qualifying circumstance. The killing is homicide aggravated by abuse of superiority and use of a motor vehicle and mitigated by voluntary surrender to the authorities. Can Velasco be regarded as a co-conspirator in the killing on the basis of his confession and testimony which are the only pieces of evidence against him? The record does not show that Velasco conspired with Kho, Verano and Del Rosario to kill Barbado.

But his act of driving the taxicab with the knowledge that in the backseat Kho was pointing his revolver at Barbado and that later Verano was also poking his gun at Barbado is sufficient to implicate him as an accomplice in the homicide and to prove his community of design with his companions to inflict some wrong on Barbado. He knew that at any moment his companions might kill Barbado and yet, in spite of that knowledge, he continued driving the taxicab. I am of the opinion that Velasco should be convicted as an accomplice in the homicide and sentenced to an indeterminate penalty of six years of prision correccional as minimum to eleven years of prision mayor as maximum and to pay an indemnity of six thousand pesos to the heirs of Barbado.

Separate Opinions BARREDO, J., concurring: I concur because: 1. In respect to the violation of the constitutional right of the accused to counsel when his supposed confession was taken by the police, it has always been my position that to comply with the substantial import of Section 20 of the Bill of Rights, it is not enough for the investigator to just inform the person concerned of his right and then ask him if he is willing to give his statement. I maintain that to give bone and muscle to the constitutional right under discussion, it must specifically be shown that before the questioning was started, the detained person had been asked whether or not he wanted to avail of the right to counsel. I am aware that the Constitution is pertinently worded thus: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right." To my mind, the essence of this provision is not simply that the person under custody be informed but that he should be given the chance to exercise that right. Merely informing him of the right to counsel without asking him if he wishes to exercise the right is in my considered opinion to pay no more than lip service to the substantial right contemplated therein. To be sure every man may be presumed to know, as a rule, the law and the constitution, but unless he is asked if he desires to exercise his right under them, I cannot be satisfied that the wholesome intent of the charter's guarantee of fairness and justice can be satisfied. I agree, therefore, that the confession of appellant Velasco in this case should not be taken into account. 2. Assuming for the sake of argument that such confession may be considered, my conscience cannot lie easy on the conviction that Velasco's acts related to the purported robbery and unexpected shooting of Barbado as revealed in said confession could render him liable even as an accomplice in the crime committed by his companions. True, in his statement he said that their purpose in taking Barbado and his vehicle to Opra Village was "to get his money," but as, in fact, no getting of money took place, such statement is insignificant. That he continued to drive the taxi despite his seeing that Kho and Verano were pointing their guns at Barbado may be attributed to the fact that Kho practically

threatened him. Besides, if indeed, Kho and their guns at Barbado does not necessarily mean that Barbado was going to be hurt. In fact, Kho shot him only because he jumped out of the vehicle unexpectedly. AQUINO, J., dissenting: At about nine o'clock in the evening of March 21, 1978, the lifeless body of driver Ricardo Barbado was found inside his taxicab at Camp Marina, Cebu City. He sustained two fatal entrance gunshot wounds in the chest and abdomen and two exit wounds. Bullet holes were found in the upholstery of the cab, an indication that he was shot therein. His wallet contained thirty pesos but there was no money inside the driver's till. A police investigator was apprised by informers that Agustin Kho, Ben Verano, Ben del Rosario and Emmanuel F. Velasco were responsible for the killing of Barbado. Velasco was surrendered by his father and his lawyer, Maximino S. Ylaya, to the police. Velasco gave a written statement to Corporal Romeo Cordova after he was informed that he had the right to remain silent and to secure the services of a lawyer. Velasco in his confession revealed how the killing was perpetrated. He said that in the evening of March 21, 1978, while he and Kho were strolling at Barracks, Mabolo, Cebu City, Kho hailed a taxi and they boarded it. Velasco sat beside the driver in the front seat. Kho sat in the backseat. When the taxi reached San Jose de la Montana at the corner of the street leading to Casal's Village, Kho ordered the driver (Barbado) to stop the vehicle and then poked a revolver at him and said: "Don't move, Bay. We need your vehicle." The driver tried to fight back but Kho subdued him. He was directed to transfer to the backseat. Kho kept the revolver pointed at the driver. Kho ordered Velasco to drive the taxi. Velasco drove the taxi back to Barracks where he picked up Verano and Del Rosario who sat at the back. The taxi proceeded to Opra Village. Verano also pointed his revolver at Barbado. When the taxi arrived at the Caltex gas station on Escario Street, where the office of the taxicab was located, Barbado attempted to jump out of the taxi. At that juncture, Kho fired two shots at Barbado. Velasco stopped the taxi at Camp Marina. Velasco and Del Rosario went home at Gil Tudtud, Mabolo. Verano went to the home of Cesar Pelonio at Cabantan Street. Police Lieutenant Domiciano R. Angel testified that Velasco was represented by lawyer M. S. Ylaya, who resided in the Velasco compound and is a compadre of Velasco's father. it was Ylaya who advised the police to negotiate with Velasco's father for his surrender. On the witness stand, Velasco gave a version substantially similar to that found in his extrajudicial confession. The trial court took this fact into consideration in convicting Velasco. He declared that he and Kho were riding in the taxicab of

Barbado in the evening of March 21, 1978. Kho was in the front seat while Velasco was in the backseat where he snoozed. He was suddenly awakened when he heard Kho telling the driver to stop the cab and he (Velasco) thought that he had arrived at his destination. He saw Kho pointing his revolver at the driver. Kho ordered the driver to transfer to the backseat and directed Velasco to drive the cab. He drove the cab to Cabantan Street. Kho saw Del Rosario and Verano walking towards a sari-sari store. Kho whistled at the two and they boarded the cab. After Kho and Verano had conversed in the dialect, Velasco, as instructed by Kho, drove the taxi to the Opra Village. Verano searched the pockets of Barbado. When the taxi reached the gas station on Escario Street, Velasco heard a scuffle in the backseat and then he saw Kho shooting Barbado twice. Velasco wanted to stop the cab but Kho ordered him to continue driving. He drove the taxi to Camp Marina and told his companions that the taxi had run out of gas. They left the taxi and separated. Velasco passed through the bushes in the field and met Del Rosario. They took a PU car near the Taoist temple and went home. He did not reveal the incident to the police because Kho warned him that if he squealed he and the members of his family would be killed, Velasco and Kho left Cebu City and fled to the island, near Bohol. They returned to Cebu City on March 30, 1978. Velasco separated from Kho and returned home where his father told him to surrender to the police. As already stated, he executed a confession which was sworn to before District State Prosecutor Benicio L. Arzadon. Velasco, who finished the third year of the commerce course, said that he was induced to make the confession because of the assurance by the police that he would be utilized as a State witness. He admitted that he was conversant with the constitutional provision regarding the admissibility of extra-judicial confessions. He testified that he was told by the police that Ylaya, the lawyer of his father, had read his confession and had found it to be all right. Ylaya is Velasco's godfather, being a sponsor at Velasco's wedding. Ylaya testified that at the time Velasco was surrendered to the police he (Ylaya) informed Lieutenant Angel that he (Ylaya) was Velasco's counsel. Indeed, Ylaya was Velasco's counsel at his arraignment and trial. Velasco's extrajudicial confession is admissible under section 20, Article IV of the Constitution. He waived his rights not to incriminate himself, to be silent and to be assisted by counsel. During custodial interrogation, he could have availed himself of the services of his godfather, lawyer Ylaya, and of the five lawyers of his father in the latter's mining, real estate and foundry businesses. Velasco did not secure their services. Velasco is a well-educated and intelligent person. He gave his confession voluntarily and without any outside pressure. It was corroborated by evidence of the corpus delicti.

The charge against Velasco and his companions is murder qualified by treachery. His three companions were not brought to trial because they have not been arrested. Although robbery was intended, robbery was not included in the indictment because the prosecution had no evidence to prove that robbery was actually committed. The main evidence against Velasco is his own confession which was confirmed by his testimony. Do his confession and testimony prove the commission of murder? A casual perusal of his confession and testimony discloses that the killing of Barbado was not attended with treachery. The killing was not deliberate and preconceived nor was it a complete surprise to the victim. Two revolvers were pointed at the victim during the time that he was in the backseat of the taxicab. The intention of the four malefactors (including Velasco) was to rob him and to enable themselves to use the taxicab. The killing was made upon the spur of the moment and was triggered by Barbado's attempt to jump out of the taxi and escape from his captors. So, the killing cannot be qualified by treachery. There was abuse of superiority but this circumstance was not alleged in the information. It is not a qualifying circumstance. The killing is homicide aggravated by abuse of superiority and use of a motor vehicle and mitigated by voluntary surrender to the authorities. Can Velasco be regarded as a co-conspirator in the killing on the basis of his confession and testimony which are the only pieces of evidence against him? The record does not show that Velasco conspired with Kho, Verano and Del Rosario to kill Barbado. But his act of driving the taxicab with the knowledge that in the backseat Kho was pointing his revolver at Barbado and that later Verano was also poking his gun at Barbado is sufficient to implicate him as an accomplice in the homicide and to prove his community of design with his companions to inflict some wrong on Barbado. He knew that at any moment his companions might kill Barbado and yet, in spite of that knowledge, he continued driving the taxicab. I am of the opinion that Velasco should be convicted as an accomplice in the homicide and sentenced to an indeterminate penalty of six years of prision correccional as minimum to eleven years of prision mayor as maximum and to pay an indemnity of six thousand pesos to the heirs of Barbado.

[G.R. No. 91694. March 14, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SABAS CALVO, JR., and RODOLFO LONGCOP,accused-appellants. DECISION
FRANCISCO, J.:

Charged with and prosecuted for robbery with homicide were herein appellant Sabas Calvo, Jr. and co-accused Rodolfo Longcop under an information reading: "That on or about September 26, 1987, in the City of Manila, Philippines, the said accused, conspiring and confederating together with JOSE BALSOLASO Y TUBINO who has already been charged for the same crime before the Regional Trial Court of Manila under Criminal Case No. 87-58217, and one whose true name, identity and whereabouts are still unknown and helping one another, with intent to gain and by means of force and violence, that is, by strangling with a piece of cloth IGNACIA MAULEON Y JOPIA and stabbing her several times with bladed instruments, did then and there willfully, unlawfully and feloniously take, rob and carry away one bag containing P1,150.00 in cash, among other things, owned by said Ignacia J. Mauleon against the latter's will, to the damage and prejudice of said Ignacio J. Mauleon in the same sum of P1,150.00, Philippine Currency; that by reason or on the occasion of the said robbery, herein accused, with intent to kill, inflicted fatal stab wounds upon the said Ignacia J. Mauleon which were the direct cause of her death immediately thereafter." The antecedents have been narrated in detail by the trial court, to wit: "FACTS DEDUCED FROM THE PROSECUTION EVIDENCE: "Spouses Felipe and Ignacia Maullon, are engaged in a bakery business with every sign of prosperity; in fact, they have stores scattered all over the City and employ a host of bakery workers. "One of their bakeries, the Philip's Bakery is at Espaa, Sarnpaloc, Manila where Beatriz Bido is a stay-in sales girl. On September 26, 1987 at about 9:00 in the evening after her washing chores, she went upstairs, knocked at the room of her boss, Mrs. Ignacia Maullon. Nobody answered. About five minutes later, two men barged out from the room rushing downstairs. One of them held a gun whom Bido identified as one, Sabas Calvo. He pushed her into the bath room repeatedly but she resisted. He threatened Bido not to shout else (sic) he will shoot her. Bido also identified the companion as one Bobby Gaspar, who closely followed Calvo, who was carrying a leather bag. When Bido succeeded in entering Mrs. Maullon's room she was speechless and surprised to see Mrs. Maullon's body sprawled on the floor in a pool of blood. She also saw the room in disarray - clothes and other articles were scattered all over the place. The cabinets and drawers were forced open and ransacked. Bdio ( sic) rushed down shouting hysterically. She saw Cora, Rosemarie, Leny, Romy, Rodolfo, Tony, Nonong, and others. She narrated to them as she gasped for breath the horrible sight she saw upstairs. Some of her companions then rushed upstairs to see for themselves what happened while the others sought immediate help. Cora, another sales girl, went to a neighbor and phone Yollie Maullon who was at another store of the Maullon's. "Nearby the Philip's Bakery is another store owned and operated by one Lucila Gorospe, a businesswoman. Gorospe was just in front of her store facing the Philip's Bakery when this incident happened. Her store was still opened at the time and was well lighted. By the side of the street near the store is an electric post with electric light. All these lights: the one at her store, the electric post and that of Philip's Bakery

illuminated the place well. It was while facing the Philip's Bakery, a distance of about seven (7) meters away when she saw two men running as fast as their legs could carry them. The men came from the stairs of Philip's Bakery. Beatriz identified one of them as Sabas Calvo, Jr., who was running towards P. Campano Street, carrying a bag. Sabas' companion did not carry anything. One, Henry Jordan - driver of Marietta rushed out and gave the duo a chase. Calvo however, pointed his gun at Henry Jordan. He scampered for safety and gave up the chase. Bobby and Calvo made good their escape. "In the meantime, the Homicide Section of the Western Police District received a telephone call from Tessie Evangelista informing them that a female unidentified body was found inside Philip's Bakery located at the corner of Morayta and Espaa Streets. The police immediately dispatched a team of operatives composed of Pfc. Norberto Obrero, Cpl. Pedro Campano and Pat. Renato Marquez. The team immediately proceeded to the place of the incident. When they arrived, they saw a mobile patrol car of police Station No. 4 already in the premises. The patrol car with some four policemen were searching and investigating the place. The team proceeded upstairs. They found the room with the dead Ignacia Maullon. The room was in topsyturvy condition; the contents of the cabinet and drawers were scattered all over the place. The victim Ignacia Maullon lie sprawled on her back in the middle of the room. Pfc. Obrero took pictures of the scene. Ignacia Maullon sustained multiple stabbed wounds on different parts of her body. After several inquiries Pat. Obrero succeeded in getting two witnesses: Beatriz Bido and Rosemarie Libreilla. Investigation went underway and series of documents were prepared such as the Progress Report, Advanced Report (Exh. B), Progress Report (Exh. C), Booking sheet and Arrest Report, Exh. E statement of Beatriz Bido (Exh. F) Statement of Rosemarie Libreilla (Exh. G). "Afterwards, an identified informant tipped the police on the whereabouts of the suspects. Immediately the operatives were dispatched and the proceeded to 4959 Herran, Makati, Metro Manila. They threw a cordon around the place. During the operation two persons were seen scampering for cover. The duo were followed closely and were found trying to hide in the roof. One of them made a dash for liberty but eventually fell into the clutches of the lawmen. He was brought to the headquarters. The arrested man turned out later to be Jose Balsolaso. Again the police followed the trail of the other culprits. Tips came in, that the wanted culprits could be at Barrio Obrero then at Balic-Balic. However, inspite of the concerted efforts, the hunt proved futile. The remaining suspects were not bagged. Then more information was received that suspects may have gone to their hometown at Northern Samar. On instructions from their headquarters, the operatives led by Pat. Tan, Pat Libol and relatives of the victim went to Palapag, Northern Samar. Withe (sic) assistance from the Local Police authorities they found their quarry. Sabas Calvo, Jr., was placed under their custody, brought to Manila Headquarters. On November 5, 1985, accused Rodolfo Longcop was also arrested at Philip's Bakery, Manila. Upon investigation, Rodolfo Longcop chose to remain silent and did not issue any written statement. Accused Sabas Calvo, Jr., indicated his willingness to give his statement. The police advised accused Sabas Calvo, Jr., of his constitutional rights and gve (sic) him Atty. Alfredo Feraren, Jr. of the Citizen Legal Assistance Office of Quezon City, as counsel to assist him during the custodial investigation/interrogation. The accused was adviced on his Constitutional right by both the police and his counsel Atty. Feraren, Jr., during the custodial investigation. Accused Sabas Calvo Jr. gave his statement

marked as Exh. K, duly counter signed by his appointed counsel Atty. Feraren Jr. In the statement (Exh. K) he admitted having committed the crime and implicated one Bobby Gaspar and Rodolfo Longcop. Whereupon, the police closed the case with the filing of the complaint before the Fiscal's Office. In turn, the Fiscal Office filed the case against Sabas Calvo Jr. and Rodolfo Longcop for robbery with homicide under Crim. Case No. 87-58217. "After the government witness Beatriz Bido finished testifying, where she failed to identify accused Jose Balsolaso, the Prosecution moved for the dismissal of the case as to Jose Balsolaso. the Court in its order dated March 13, 1988 under Crim. Case No. 87-58217 dismissed the case of accused Jose Balsolaso. "On the other hand, the defense presented the lone testimony of accused Sabas Calvo, Jr. TESTIMONIAL EVIDENCE: "1. Sabas Calvo, Jr., 26, single, Silk screen printer and a resident of Pilarmino St., Proj. 4, Quezon City. "The accused testified and claimed that on February 26, 1987, he was at home at Palapag, Northern Samar. On November 1, 1987 while in his hometwon (sic) he was arrested by three men Pat. Abil Orio, policeman from Palapag and two other policemen from Laoang Northern Samar and he was brought to the Municipal Hall of Palapag and later to Laoang. Then he was turned over to Manila Police authorities who in turn brought him to Manila. On November 3, 1987 (sic). On November 5 1987, he was investigated. He does not know he was represented by a counsel and does not know Atty. Feraren Jr., of the CLAO. According to him he was placed in a police line-up, made to go outside where a woman looked at him and identified him while inside the jail. He claimed to have asked protection from the police and to wait for his mother to get a lawyer for him. He disclaimed participation in the robbery at Philip's Bakery and the killing of Ignacia Maullon. Unlike the other accused, Rodolfo Longcop, an employee of Philip's Bakery and employed by victim Ignacia Maullon did not go into hiding after the killing and when the authorities were hot on the trial of the suspects he chose to stay put and continue his work at Philip's Bakery. When accused Sabas Calvo, Jr. was arrested at his hometown at Northern Samar and during the investigation pointed at Rodolfo Longcop as one of their companions in the dastardly crime that he had committed, accused Rodolfo Longcop was immediately arrested and placed on detention. During the trial while accused Rodolfo Longcop was in detention, he died of sickness."
[1]

With the death of accused Longcop during the pendency of the trial and the dismissal of the case as against Jose Balsolaso, only appellant Calvo was found guilty of the crime charged, sentenced to reclusion perpetua or life imprisonment and ordered to indemnify deceased Ignacia Mauleon's heirs in the amount of P50,000.00. The bases for conviction were (1) appellant's extrajudicial confession dated November 5, 1987 (Exhibit "K") wherein he recounted how the plan to rob the bakery was hatched and his participation as look-out while his companions Longcop and one Bobby Gaspar did the actual heist and killing of Ignacia Mauleon, and (2) the identification of appellant by prosecution witnesses Beatriz Bido and Lucila Gorospe.

Now before us pleading for his acquittal, appellant assails the admissibility of his alleged extrajudicial confession, as well as the credibility of the prosecution witnesses. Anent extrajudicial confessions, this Court reiterates its pronouncement in "People vs. Deniega" that "under rules laid down by the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy all of four fundamental requirements: 1) the confession must be voluntary; 2) the confession must be made with the assistance of competent and independent counsel; 3) the confession must be express; and 4) the confession must be in writing." The "irregularities" which appellant claims to have attended his extrajudicial confession principally relate to the second requirement.
[2]

The first "irregularity" concerns the competence of Atty. Alfredo Ferraren, the CLAO lawyer who assisted appellant in the preparation of his extrajudicial confession. Appellant claims that Atty. Ferraren utterly failed to protect his rights during the custodial investigation as shown by the following advice given by said lawyer which, to borrow appellant's counsel's words, "threatened the accused and further pushed him deep to the mud."
[3]

"FISCAL PATAG (to witness): Q: A: Now, you said you have assisted him in the preparation of this Extra Judicial Confession, will you kindly tell this Court as to how you assisted him there? (Atty. Ferraren) I talked with him, asked him his involvement in this case. I advice (sic) him if he really committed this offense. It is better that he execute an Extra Judicial Confession. I told that if he does not, then he maybe suspected of having fabricated facts after a long time.

COURT (to witness): Q: A: You advice (sic) him that? I advice (sic) him that if he really committed the offense, it would be better for him to execute an Extra Judicial Confession, otherwise if he will not execute an Extra Judicial Confession, Your Honor, he maybe placed in a situation were they maybe thinking that he fabricated facts."[4]

We cannot see how this kind of advice rendered Atty. Ferraren incompetent, or could ever be considered as telltale sign of the involuntariness of the confession. It was nothing more than a straight-forward exhortation for appellant to tell the truth as to his participation in the crime, if he indeed had something to do with it. A confession is not rendered involuntary merely because defendant was told that he should tell the truth or that it would be better for him to tell the truth. Stated elsewise, telling the accused that it would be better for him to speak or tell the truth does not furnish any Inducement, or a sufficient inducement, to render objectionable a confession thereby obtained, unless threats or promises are applied. These threats or promises which the accused must successfully prove in order to make his confession inadmissible, must take the form of violence, intimidation, a promise of reward or leniency. Atty. Ferraren's proposition that appellant may be suspected of merely fabricating facts if he does not execute a confession hardly qualifies as a "threat" or "promise" as herein contemplated. Surely then, no temptation to appellant to falsely accuse himself can be found in the tenor and language of Atty. Ferraren's advice.
[5] [6] [7]

The other "irregularity" apparently relates to a denial of the right to have an independent counsel of one's own choice, inasmuch as appellant claims that the police authorities ignored his initial request to wait for his mother who was scouting for a lawyer. Appellant thus testified:
"Q: When you were brought by the policemen to the General Headquarters, did you ask some favors for your protection? A: Q: A: Q: A: Q: A: Yes, sir. What protection did you ask from the policemen? While I was investigated I was telling them to wait for my mother who was then looking for a lawyer for me. To whom did you ask this request? To Corporal Bagallon, sir. What was the response of Corporal Bagallon? Never mind."[8]

Appellant is nonetheless deemed to have waived this defect when, as shown by the following excerpts from his extrajudicial confession (Exh. "K") he agreed to be represented by Atty. Ferraren in lieu of a counsel of his own choice. Thus:
"PAALAA(sic).: Ikaw SABAS CALVO Jr., ay nasa ilalim ngayon ng isang pagsisiyasat hinggil sa isang krimen na naganap noong petsa 26 ng Setyembre, 1987, sa loob ng isang bakery shop sa kalye Espaa, Sampaloc, Manila, na kung saan ay may nasawina nagngangalang IGNACIA MAULEON. Bago ka namin isailalim sa pagsisiyasat, ikaw ay aming pinaaalahanan na may mga karapatan ka sa ilalim ng ating bagong Saligang Batas, bilang isang taong nasasailalim ng isang pagsisiyasat o imbestigasyon, tulad ng mga sumusunod: 01. T: Ikaw ay may karapatang manatiling tahimik, huwag magbigay ng isang salaysay o tumangging sumagot sa anumang katanungan, ano ngayon ang iyong masasabi? S: Magbibigay po ako ng salaysay. Isasalaysay mga pangyayari.

02. T: Ikaw ay may karapatan pa ring kumuha ng serbisyo ng isang abogado para makatulong mo sa imbestigasyong ito at dahil din sa nasabi mo sa amin kanina na pansamantala ay wala kang makukuhang abogado ikaw ngayon ay aming bibigyan ng libreng abogado sa pamamagitan ng pamahalaan o gobierno natin at ito ay nasa katauhan ni ATTY. ALFREDO FERRAREN, tinatanggap mo ba na maging abogado mo ngayon si Atty. Ferraren? S: Opo.

03. T: Naiintindihan mo ba ang lahat ng mga karapatan mo na ipinaliwanag namin sa iyo? S: Opo.

04. T: Sa kabila ng mga karapatan mo na aming ipinaliwanag sa iyo. ikaw pa rin ba ay nakahandang magbigay sa amin ng isang malaya at kusang loob na salaysay sa harap ni ATTY. FERRAREN? S: Opo. (Underscoring supplied).

(At this juncture, ATTY. ALFREDO FERRAREN, JR., conceded to push thru with the taking down of declarant's statement after the latter signified his willingness and voluntariness to give a free and voluntary statement)

SGD. ______________________ _________________ ATTY. ALFREDO FERRAREN, JR. CALVO, JR. Citizens Legal Assistance Office QUEZON CITY DISTRICT OFFICE 646 Perlas Building Quezon Avenue, Q. C. "

SGD. SABAS (Declarant)

Having been cleared of any irregularity, we therefore uphold the admissibility of appellant's extrajudicial confession which, by itself, is sufficient basis for his conviction. A confession, to recall, constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. This presumption of spontaneity and voluntariness stands unless the defense proves otherwise.
[9]

Even if the extrajudicial confession be ignored by assuming, for argument's sake, that the alleged "irregularities" indeed marred its execution, there is nonetheless other evidence particularly the identification made by prosecution witnesses Beatriz Bido and Lucila Gorospe upon which appellant's guilt was duly established. Witness Bido identified appellant as one of the two (2) men (the other was Bobby Gaspar) who went out of deceased Ignacia Mauleon's room and who angrily told her not to shout otherwise she will be shot. She further testified that after appellant and Bobby Gaspar left the room and went downstairs already carrying a bag, she went inside the room which was already in disarray and saw the bloodied, lifeless body of Ignacia Mauleon sprawled on the floor. Witness Gorospe corroborated Bido's identification of appellant when she testified that from her vantage point (in front of her own store which is just seven (7) meters away from deceased Ignacia Mauleon's bakery), she identified appellant who was carrying a shoulder bag, as one of the two (2) men coming down from the stairs of deceased Mauleon's bakery and who thereafter ran away at a very fast pace, with one Henry Jordas giving chase. Henry Jordas, according to Gorospe, nonetheless gave up his pursuit when appellant pointed a gun at him. Witness Gorospe also stated that she was familiar with appellant, having seen the latter in front of deceased Mauleon's bakery on three (3) previous occasions.
[10] [11]

Contrary to appellant's claim, the credibility of witness Bido is not at all shattered by the fact that during the police line-up held on September 30, 1987, she pointed to Jose Balsolaso as Bobby Gaspar's companion in the crime committed at the Mauleon bakery. She has offered a satisfactory explanation by saying that she has honestly mistaken said Balsolaso for appellant, as both have similar facial features. Besides, what is more determinative is her identification, in open court, of appellant as the one present at the scene of the crime with Bobby Gaspar. Thus,
[12]

"Q: Now, before this Court, will you kindly point to the person whom you saw the presence at the scene on September 26, 1987 whom you saw at that time held a gun whom you said pointing at you saying that you should not shout? A: Q: It was Sabas Calvo. For purposes of identification . . .

ATTY. POTOT: It was already answered, Your Honor, Sabas Calvo. FISCAL PATAG: For purposes of identification, Your Honor. COURT: Let the witness answer. WITNESS: Witness pointing to a person who identify himself as Sabas Calvo."[13] (undersoring supplied)

With the identification of appellant made by witnesses Bido and Gorospe whose testimonies appear credible and who have not been shown to have been driven by any ill-motives in implicating him in the crime, appellant's claim of non-involvement must therefore fail. Alibi and denial, to repeat, cannot prevail over positive identification.
[14]

In fine, appellant's conviction for robbery with homicide as charged, is in order. We nonetheless have to correct that portion of the appealed decision (specifically in the dispositive portion) where the trial court, while correctly imposing the penalty of reclusion perpetua pursuant to the first paragraph of Article 294 of the Revised Penal Code, apparently equated such penalty with life imprisonment. Both are different and distinct penalties. As explained in "People vs. Baguio."
[15] [16]

"The Code does not prescribe the penalty of 'life imprisonment' for any of the felonies therein defined, that penalty being invariably imposed for serious offense penalized not by the Revised Penal Code but by special laws. Reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, it also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as 'life imprisonment' which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration." WHEREFORE, save for the slight modification removing from its dispositive portion the alternative reference to "life imprisonment", the assailed decision dated March 31, 1989 convicting appellant Sabas Calvo, Jr. of the crime of robbery with homicide, is hereby AFFIRMED in all other respects. SO ORDERED. Narvasa, JJ., concur. C.J., (Chairman), Davide, Jr., Melo, and Panganiban,

[G.R. No. 112035. January 16, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, CABILES alias NONOY, accused-appellant.

vs.

PANFILO

DECISION
MELO, J.:

Accused-appellant, Panfilo Cabiles, alias Nonoy, seeks the reversal of the decision of the Regional Trial Court of the National Capital Region (Branch 124, Kalookan City), finding him guilty of the crime of Robbery with Rape, as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds the accused Panfilo Cabiles alias Nonoy guilty beyond reasonable doubt of Robbery with Rape as charged and hereby sentences him to suffer imprisonment of Reclusion Perpetua in accordance with Paragraph 2 of Art. 294 of the Revised Penal Code to indemnify the victim Luzviminda Aquino in the amount of P30,000.00 as consequential damages. Said accused is also ordered to return to Marites Nas Atienza the stolen Seiko Wrist watch worth P1,500.00 and one gold ring worth P500,00 and if unable to do so, to pay said victim the corresponding prices of these articles as shown above to reimburse Marites Nas Atienza the amount ofP1,000.00 in cash and to pay the costs. The accused shall be entitled to the full period of his preventive imprisonment, pursuant to Art. 29 of the Revised Penal Code provided with the conditions enumerated thereon have been complied with. SO ORDERED. (pp. 86-87, Rollo)
Through an Amended Information accused-appellant, together with the additional accused, was charged as follows:

That on or about the 5th day of November 1989, in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused by means of force and violence, with intent of gain, conspiring together and mutually helping one another, did then and there willfully, unlawfully and feloniously take, rob, and carry away one (1) gold ring worth P500.00, one (1) ladies seiko watch worth P1,500.00, cash money worth P1,000.00, one (1) bracelet worth P1,500.00 and one gold ring worth P500.00 and if unable to do so, to pay the said victim the corresponding prices of these articles as shown above to reimburse Marites Nas Atienza the amount of P1,000.00 in cash and to pay the costs. (p. 7, Rollo)
Accused-appellants co-accused, Jaime Mabingnay, was neither apprehended nor arraigned, whereas accused-appellant was arraigned on both original and amended informations. After trial, following the entry of a not guilty plea, the above quoted verdict was rendered. Hence, the instant appeal. As deduced from the prosecutions evidence which came primarily from the testimony of Marites Nas Atienza and Luzviminda Aquino, the inculpatory facts are as follows: Marites Nas Atienza, a housewife whose husband was abroad, was residing at No. 224 Malambing St., Amparo Subdivision, Kalookan City. On the eve of November 5, 1989, she was asleep with her 1 -year old daughter, Erica Dianne Atienza, inside her

room at her house. Approximately two steps away from her bed, Luzviminda Aquino, Marites housemaid, was sleeping on a sofa. The house has an area of about 29 square meters. The main door is located at the kitchen. In the kitchen, there is a stairway leading to the store. To the left of the house is the bedroom where the three were asleep. The place was illuminated by the light coming from a 25-watt electrical bulb which was outside the rooms window (tsn, March 5, 1990, p. 6; tsn April 5, 1990, pp. 20-24, 28; tsn, April 26, 1990, pp. 4, 6, 8, 10, 17). At around 1:15 oclock on the morning of November 5, 1989, a man suddenly barged into the house of Marites by destroying the kitchen door and removing the lawanit wall thereof, thus enabling him to reach the lock inside. The man suddenly poked a 6-inch knife on the right side of Marites neck. This awakened her. She was told not to shout otherwise she would be killed. Then the man placed a masking tape on her mouth and ordered her to bring out her money and jewelry. At the point of the knife, Marites, while carrying her baby, went to the cabinet outside the room, took cash amounting to P1,000.00, a Seiko watch worth P1,500.00, a ladys wristwatch with the trademark Chanel (also referred to in the records as Chanel) worth P850.00, a bracelet worth P500.00, and a ring worth P500.00 and gave them to the man. Afterwards, they went back inside the bedroom and Marites sat on her bed, still cuddling the baby (tsn, March 5, 1990, pp.7-8, 11-12, 40; tsn, April 5, 1990, pp.19, 30, 31). Marites later identified the man as accused appellant. Meanwhile, Luzviminda was awakened by the crying of Marites baby. When she was about to shout, the man poked the knife on her left side, causing her an injury. The man then told her, Huwag kang sisigaw kundi papatayin kita. Meanwhile, Marites sat on her bed, trembling with fear, as she cuddled her baby. The man also placed masking tape on Luzvimindas mouth. Thereafter, he forcibly held both of her arms in front of her. Notwithstanding her struggle to hide her hands at her back, accusedappellant succeeded in tying her hands at the front with the use of a piece of shoestring (tsn, March 5, 1990, pp. 9-10, 16; tsn, April 5, 1990, pp. 34-35; tsn, April 26, 1990, pp. 6-9 27, 34, 44). Luzviminda likewise later identified the man as accused-appellant. The man then went to the store which was only about 4-5 steps away from Marites bed. He ransacked the same in search for more valuables. Thereafter, he took a bottle of beer from the refrigerator and began drinking. Afterwards, he returned to the room and sat beside Luzviminda (tsn, March 5, 1990, p. 10; tsn, April 5, 1990, p. 25.) While the man continued to hold the knife, he tapped Luzvimindas thigh. When he was about to consume the beer, he started removing Luzvimindas pants and underwear while still holding the knife with his right hand. The man then rolled down his short pants to his thighs. He poked the knife on Luzvimindaa right side and despite the latters resistance, he succeeded inserting his sexual organ into Luzvimindas private parts and forcibly lying on top of her. Luzviminda struggled and kicked, accidentally hitting with her right foot the knife thus causing her injury. All the while, Marites was still cuddling her daughter, as she sat on her bed in extreme fear. She was witnessing Luzviminda being raped by the man. While on top of Luzviminda and continuously doing the sexual act, the man uttered: Isusunod ko ang Ate mo pagkatapos ko sa iyo. Upon hearing those words, Marites tried to escape by asking permission to prepare milk for her baby (tsn, March 5, 1990, pp. 11-14, 16-17; tsn, April 5, 1990, pp. 36, 38, 40, 42; tsn April 26, 1990 pp. 10-11, 13-14, 27). While carrying her child, Marites was able to run to the house of her neighbor, Arnel Cericos, from whom she asked for help. Cericos house was approximately twelve steps away from Marites house. Marites decided to hide at Cericos house. When Cericos entered the room, the man was still on top of Luzviminda. However, upon seeing Cericos, the man stood up right away and stabbed Cericos four times. Afterwards, they chased each other outside the house. Meanwhile Luzviminda put on her pants and ran toward Cericos house (tsn, March 5, 1990, pp. 18 -19; tsn, April 26, 1990, pp. 15,18).

When Marites learned that Cericos was injured, she rushed back to her house to administer first aid to him. Cericos sustained a stab wound on his chest, two stab wounds on his left arm, and a stab wound on his right arm. Cericos then complained of difficulty in breathing. Consequently, Marites brought him to a physician, one Col. Javier, for treatment. When Cericos complaints continued, Marites decided to bring him to the V. Luna Hospital in Quezon City at about 4 oclock that morning (tsn, March 5, 1990, pp. 19-22). Attending physician Dr. Emmanuel Quedding noted that Cericos sustained four stab wounds of different sizes, the most serious of which was the lacerated wound on the interior chest which required Cericos to be placed under observation for 8-12 hours. Dr. Quedding found that the wounds, if deep enough, could result in the laceration of the lung, heart and some arteries and consequently, the victims death. After advising Cericos not to work for about one week or more, he was permitted to leave the hospital at about 1 oclock that afternoon (tsn, April 5, 1990, pp. 4-5, 10, 12) For her part, Luzviminda, at 9 oclock that morning, went to the Kalookan Police Department and reported what happened to her. On November 6, 1989, upon referral by the chief of Northern Police District, Kalookan City, Luzviminda subjected herself to a physical examination conducted by Dr. Carmelita Belgica, a medico-legal officer. Resultantly, Dr. Belgica found on Luzvimindas right foot a laceration, healing, measuring 3.5 c.m., with scab formation and peripheral edema at the medine melcolus, right side Her genital examination results showed an old healed laceration indicative of sexual intercourse possibly occurring three months before the date of examination. Dr. Belgica expounded that although the physical examination results manifested that the occurrence of sexual intercourse also took place on November 5, 1989 without any injury at the genital area, as it cannot be consulted medically because the opening is wide enough (tsn, January 10, 1990, pp. 3-6, 8-10). Later, on November 8, 1989, at about 1:40 oclock in the afternoon, Corporal Luciano Caeda and Pfc. Manuel Rodriguez of the Kalookan City Police Station, along with Romeo Nas, brother of Marites, went to a sash factory warehouse at the Marivic Compound, Kalookan City. Outside the factory edifice, they saw accused-appellant sleeping on a bench. Romeo Nas saw the accused-appellant wearing a bracelet which the former recognized as the bracelet taken from Marites. Upon being awakened, accused appellant, told the three men that the other things he took from Marites were inside a plastic bag at the factory building. Consequently, Pfc. Rodriguez went inside the building to get the plastic bag and it was found to contain a woman s undershirt, a light blue shirt, and a wristwatch with the brand name Chanel which was the one taken from Marites (tsn, April 10, 1990, pp. 4-5, 7-8, 11, 14, 16, 25). The following day, November 9, 1989, at about 3:30 oclock in the afternoon, Marites saw accused-appellant at the Kalookan City Police Station. The latter admitted his guilt and pointed to Jaime Mabingnay, Marites further recalled that she saw accused-appellant at Mabingnays house on November 5, 1989, before the crime took place (tsn, March 5, 1990, p. 30; April 10, 1990, pp. 33-36). Accused-appellant, on the other hand, relied and banked on denial and alibi. Accused-appellant denied even having raped Luzviminda Aquino. He said that the first time he ever saw Marites was at the Kalookan City Police Station on November 9, 1989. He said the same thing about Luzviminda (tsn, August 23, 1990, pp. 4-6). Regarding the day of the incident, accused-appellant testified that on November 5, 1989, at 1:30 oclock in the morning, he was at Marivic S ubdivision, sleeping with his wife. He had been residing at the Marivic Compound starting October 30, 1989 as he was designated by the owner of the place to watch over the premises (tsn, August 23, 1990, p.4). As to accused-appellants arrest which took place on November 8, 1989 at around 1 oclock in the afternoon, he testified that he was lying on the bench at the Marivic

Compound when three men in civilian clothes arrived. He did not know the reason for his arrest. He, however, admitted that a Chanel ladys watch was recovered from him at the time of the arrest but insisted that he owns the watch, the same having pledged to him by his cousin Elizabeth Abantao when he was still at Wright, Samar, and which was later sold to him. He denied that a plastic bag with stolen contents of the bag when he was under detention at the Kalookan City Jail. As regards his sworn statement containing a confession to the commission of the crime, he said he was forced by the policemen at the station to execute the same. He did not read it and was just forced to sign it. He was not assisted by counsel during that time (tsn, August 23, 1990, pp. 6-9). Accused-appellants version of the event was corroborated by: (a) his wife Soledad Cabiles who testified that she slept with accused-appellant at Marivic Subdivision in the evening of November 4, 1989; (b) Conrado Bacoy, Sr., owner of the woodcarving factory watched over by accused appellant, who testified that accused-appellant and his wife were allowed to sleep within the factory premises; and (c) Melchor Mabini who aside from supporting accused-appellants alibi, also said that accused-appellants captors did not have a warrant when they made the arrest. The trial court found no merit in accused-appellants defense. It found that his identity was well established, based on the testimony of Marites and Luzviminda who were adjudged as credible witnesses. From the testimony of said witnesses, the trial court likewise observed that: (1) at the time of accused-appellants arrest, he was wearing a bracelet which was said to be owned by Maritess; (2) that a shoestring was found inside the plastic bag which accused-appellant stated as his own when he led the arresting officers to the factory compound at Marivic, Baesa, Kalookan City; and (3) that said shoestring was the one used by accused-appellant in tying Luzvimindas hands before she was raped. The trial court likewise noted accused-appellants confession before Marites and in the presence of Amy Maliwanag, a council woman of Amparo Subdivision and Linda Pilahan, that accused-appellant robbed and raped Luzviminda, and that Jaime Mabingnay instructed him to do so, to cause the blindness of Marites, and to kill her. Mabingnay was said to have promised to help accused-appellant get a job abroad and to help the latter financially. However, accused-appellant took pity on Marites child. As regards the crime of serious physical injuries, which, as charged in the Amended Information, was allegedly committed by reason or on occasion of the robbery, the trial court found that the evidence is insufficient to prove the commission of the same or any of the physical injuries penalized in Subdivision 1 of Art. 263 of the Revised Penal Code. We affirm that trial courts decision. Accused-appellant argues as his sole assignment of error that the trial court erred in finding him guilty beyond reasonable doubt of the crime charged. He stressed the following arguments, to wit: (1) that the medico-legal officer said several times that the sexual intercourse occurred three months before the incident complained of; (2) that verbal admissions are inadmissible against the accused; (3) that the bracelet and the Chanel watch and even the improbable shoestring were the products of a poisonous tree, not having fruits of a lawful warrantless arrest; and (4) that his identification based on his built and voice is not an effective one. We shall first discuss the procedural matters and circumstances surrounding the charge. Accused-appellant, corroborated by defense witness Melchor Mabini, contends that his arrest was an alleged warrantless one. However, such irregularity was only raised during trial. In regard to this delay, this Court has consistently ruled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived (People v. Lopez, Jr., 245 SCRA 95 [1995]; People vs.

Rivera, 245 SCRA 421 [1995]). Verily, the illegal arrest of an accused is not sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused (People vs. Manzano, 248 SCRA 239 [1995]). And it is much too late in the day to complain about the warrantless arrest after a valid information had filed and accused arraigned and trial commenced and completed and a judgment of conviction rendered against him (People vs. Llenaresas, 248 SCRA 629 [1995]). As regards the evidentiary weight of accused-appellants sworn statement wherein he confessed to the crime charged, and his verbal confession made before robbery victim, Marites Nas Atienza, we rule against the validity of the written confession but uphold the admissibility of the verbal confession. In People vs. Deniega, 251 SCRA 626 [1995], we laid down the four fundamental requirements needed of admissibility of a confession, to wit: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing. Accused-appellant testified that he was forced to execute the sworn statement containing his confession (tsn, August 23, 1990, p.9). Although this assertion is uncorroborated, accused-appellants free will and volition in signing his confession will not cure the defect that it was made without assistance of counsel. An admission made without the assistance of counsel during custodial investigation is inadmissible in evidence (People vs. Cascalla, 240 SCRA 482 [1985]). Even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given (People vs. Agustin, 240 SCRA 541 [1995]). An uncounselled extrajudicial confession without a valid waiver of the right to counsel that is, in writing and in the presence of counsel is inadmissible in evidence (People vs. Cabintoy, 241 SCRA 442 [1995]). In contrast, accused-appellants verbal confession before Marites Nas Atienza is, however, admissible in evidence. The case in point is People vs. Andan (G.R. No. 116437, March 3, 1997) where we ruled that the accuse ds verbal confession made in a private meeting with the municipal mayor, spontaneously, fully and voluntarily done, is admissible in evidence since it is to covered by the requirements of Section 12(1) and (3) of Article III of the Constitution. When said accused talked with the mayor as a confidant and as not a law enforcement officer, uncounselled confession did not violate his constitutional rights. Constitutional procedures on custodial investigation do not apply to spontaneous statement, not elicited trough questioning by authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime as in the case at bar. In any event, we agree with the prosecutions contention that accused -appellants conviction was deduced not on the basis of his admission of guilt, but on the trial courts assessment of the evidence presented before it. We find no reason to disturb the trial courts finding as to the credibility of prosecution witnesses Marites Nas Atienza and Luzviminda Aquinio, the victims of robbery and rape, respectively. The time tested jurisprudence is that the findings and conclusions of the trial court on the credibility of witnesses enjoy a badge of respect for the reason that trial courts have the advantage of observing the demeanor of witnesses as they testify (People vs. Gamiao, 240 SCRA 254 [1995]; People vs. Ramos, 240 SCRA 191 [1995]; People vs. Cajambab, 240 SCRA 643 [1995]; People vs. Moran, 241 SCRA 709 [1995]). A perusal of the testimony of witness convenience us even more that there is no strong and cogent reason to disregard the trial courts finding . We agree that the identity of accused-appellant was sufficiently established through the following circumstances:

1.

The room where the crime was committed covered a very small area of 29 square meters (tsn, April 5, 1990, p. 24). It was illuminated by a lighted electric bulb outside the jalousie window of said room (tsn, April 26, 1990, p. 17). The victims could have easily noticed the physical features of their assailant, who was later identified as accused-appellant. Two witnesses (Marites Nas Atienza and Corporal Luciano Caeda) testified that at the time of accused-appellants arrest, he was wearing a bracelet (Exh. F) which Marites recognized as the one she surrendered to accused-appellant during the robbery on November 5, 1989 (tsn, March 5, 1990, p. 35).

2.

In this light, we are swayed by Marites spontaneous and straightforward testimony on how she recognized the culprit, to wit:
Q A Q Now, what was your basis in saying that it was the accused who was the one who poked a kitchen knife on you? His height, his built, especially his voice, were my basis, sir, in saying that he was the person who poked a knife on me. What is so particular in his voice that you know that it was the voice of the accusedappellant?

ATTY. CHAVEZ: The question has already been answered, your Honor, his height, his built and his voice are the basis for her knowing accused Panfilo Cabiles. COURT: Witness may answer. WITNESS: A Because I have seen him once and I heard his voice when he went to the house of my brother-in-law, Jaime Mabingnay, on the last week of October, 1989.

FISCAL SISON: Q A Q A Q A Q A Q A Q When you said Jaime Mabingnay, he is one of the accused in this case? Yes, sir. Now, tell us how far is that house of Jaime Mabingnay to your house? About six (6) steps away from our house, sir. And when you heard the voice of Panfilo Cabiles, what were they doing then inside the house of Jaime Mabingnay? They were having a drinking spree in the sala of the house of Jaime Mabingnay which is just in front of the door of my house, sir. When you saw them drinking, what time was that? Around 8:00 oclock in the evening, sir. And up to what time did you see him inside the house of Jaime Mabingnay? I saw him there for about an hour and I dont know whether or not he slept there. Before last week of October, have you seen him?

ATTY. CHAVEZ: We object to the question on the basis of, first, there is no basis; second, the Fiscal interpreting in Tagalog gives an advance sign for an answer to the witness, your Honor. FISCAL SISON:

Q A Q A Q A Q A

So that at the time in October, that was the first time you saw the accused in this case, I am referring to Panfilo Cabiles? Yes, sir. Have you heard what he said? No, sir. But I heard his voice when he greeted my sister Imelda Nas. When he greeted your sister Imelda Nas, where was he? He was there sitting at the sala while he was drinking with Jaime Mabingnay. Where was your sister there at that time? She was standing at the door of Jaimes house and I was behind her.

Marites identification of accused-appellant is corroborated by Luzvimindas identification of accused appellant as her rapist as follows: Q Aside from that admission, what other basis have you to say that the accused was that person if there is still any?

ATTY. ILAGAN: I object your Honor, because there is no basis and after the witness answered that the only sign she knows of the accused is when at the police headquarters he admitted before De Leon to have allegedly sexually played on her, so I object. FISCAL SISON: If she has other basis, your Honor,aside from that admission he made. COURT: Witness may answer. WITNESS (A): His voice and his built, sir. FISCAL SISON: You mentioned about his built, when he had sexual intercourse with you that was you said at about 1:15 in the morning, how come you were able to see the built of the accused at that time? A Because the light coming inside thru the jalousie window illuminates the inside of the room, sir.

(tsn, April 26, 1990,pp. 16-17) Q A Q A Q A What awakened you? Because the baby of Ate Tes was crying and that awakened me sir, and when I opened by eyes I saw that there was somebody standing. And that person that you saw standing was facing his back to you, correct? No, sir. He was facing my direction. So this person you said was facing in your direction was between you and your Ate Marites, is that what you want us to understand? Yes, sir.

(tsn, April 26, 1990, p. 34)

3. Aside from the bracelet, the arresting officers found a Chanel ladys wristwatch (Exh. G) which Marites likewise recognized as another of the objects taken by accused appellant during the robbery. Accused-appellants assertion that said watch is his own is not peruasive. Aside from the fact that his testimony is not corroborated, we likewixe make the practical observation

that Chanel is not an ordinary watch brand. It would be too much of a coincidence that a watch of the same not very ordinary brand as that involved in the robbery subject thereof was pledged to accused-appellant.
The trial court correctly cited the evidentiary presumption that a person found in possession of thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act (Sec. 3[7], Rule 131, Revised Rules of Evidence). In People vs. Newman (163 SCRA 496 [1988]), we ruled that where the accused offers no satisfactory explanation as to the fact of his possession of stolen properties, such evidence would abundantly incriminate him and proves that he took them with animus lucrandi. In the case at bench, all that accused-appellant could offer as defense was denial which is a weak defense. The defense of denial, if uncorroborated by clear and convincing proof, is considered self-serving evidence undeserving of any weight in law (People vs. Macario, 240 SCRA 531 [1995]). Accused-appellant strongly relies on the finding of NBI medico-legal Officer, Carmelita Belgica, that upon physical examination of the rape victim, it was found that the hymenal lacerations took place three months before the date of examination, to rule out his commission of the crime of rape. We are not persuaded. Any prior sexual intercourse which could have resulted in hymenal laceration is irrelevant in rape cases for virginity is not an element of rape (People vs. Delovino, 247 SCRA 519 [1995]). Hence, it is of no moment that there is a finding that sexual intercourse occurred three months earlier than November 5, 1989. Too, the rape could have been so slight as to leave no traces upon examination, for complete penetration of the female organ is not necessary to constitute rape (People vs. Soan, 243 SCRA 622). The mere penetration of the penis by entry thereof into the labia minora of the female organ suffices to warrant a conviction for rape (People vs. Sanchez, 250 SCRA 14 [1995]). The following circumstances are significant:

1.

Luzviminda testified that she was raped by accused appellant. No young Filipina would publicly admit that she had been criminally abused and ravished unless that is the truth, as it is her natural instinct to protect her honor (People vs. Delovino, supra; People vs. Namayon, 246 SCRA 646 [1995]; People vs. Rivera, 242 SCRA 26 [1995]). Luzvimindas testimony is corroborated by that of Marites who herself witnessed the rape (tsn, March 5, 1990, p. 16). The shoestring that was found inside the plastic bag is also an indication of accused-appellants commission of the crime rape. Luzviminda identified said shoestring as that which was used on her to effect the crime of rape.

2. 3.

Lastly, accused-appellants defense of denial and alibi must fail considering that he was positively identified by Marites and Luzviminda as the author of the crime. We have consistently ruled that alibi, like denial, is inherently weak and easily fabricated. In order to justify an acquittal based on this defense, the accused must establish by clear and convincing evidence that it was physically impossible for him to have been at the crime scene during the commission (People vs. Pontilar, G.R. NO. 104865, July 11, 1997; People vs. Sumbillo, et al., G.R. No. 105292, April 18, 1997; People vs. Gamiao, supra). In the case at bench, accused-appellant admitted being at Marivic Compound at Baesa, Quezon City, during the night of the incident. He was allegedly with his wife (tsn, August 23, 1990, p. 4). Defense witness Melchor Mabini even attested that the couple spent the night at the compound on the eve of November 5, 1989. But did

Mabini watch over the couple the whole night? It is not impossible for accusedappellant to sleep at the Marivic Compound on the night of November 4, 1989 and surreptitiously leave the premises at midnight to get to Kalookan City. The distance between Quezon City and Kalookan City is not significant. Anent the award of consequential damages, we increase the indemnity in favor of the rape victim Luzviminda Aquino from P30,000.00 toP50,000.00 in line with recent jurisprudence. We affirm the awards concerning the amounts corresponding to the value of the items stolen, the same having been established through the testimony of Marites Nas Atienza, including the P1,000.00 awarded for costs. WHEREFORE, finding the conviction of accused-appellant justified by the evidence on record, the assailed decision is hereby affirmed with the modification above-stated. SO ORDERED. Narvasa, C.J., (Chairman), Romero, Francisco, and Panganiban, JJ., concur.
[G.R. No. L-19361. February 26, 1965.] PEPITO MAGNO, Petitioner, v. HON. MACAPANTON ABBAS and THE PROVINCIAL FISCAL OF DAVAO, Respondents. Tomas Trinidad and Aportadera & Palabrica for Petitioner. Assistant Provincial Fiscal Leo D. Medialdes for Respondents.

SYLLABUS

1. BAIL; GROUNDS FOR DENIAL IN CAPITAL OFFENSES; WHERE EVIDENCE OF GUILT PRESENTED IS STRONG. In a criminal case charging a capital offense, the accuseds contention that respondent judge denied him bail only on the strength of a strong presumption of guilt is without merit where the order complained of clearly states that, in the opinion of the respondent judge, the evidence presented during the summary hearing on the motion for bail showed that the accused had participated in the commission of the offense of which he is charged with other persons. Consequently, what the respondent judge really found and held was that the evidence of guilt presented against petitioner was strong and that this justified the denial of his motion for bail.

DECISION

DIZON, J.:

In Criminal Case No. 285-A filed with the Municipal Court of the city of Davao against Francisco Nuez and others, for Robbery with Rape, petitioner Pepito Magno was arrested by virtue of a warrant of arrest issued by said court. After proper proceedings, said court, forwarded the case to the Court of First Instance of Davao where it was docketed as Criminal Case No. 7155. Prior to the filing of the information in the latter court, petitioner filed a motion for bail, but the same was denied by the respondent judge on the ground that it was filed prematurely. A second motion for bail was filed subsequently by petitioner, and after a hearing held thereon, the respondent judge issued a verbal order on November 24, 1961 granting the motion and fixing the bail bond in the sum of P40,000.00. In the afternoon of the same date, however, the fiscal moved for a reconsideration of the order, claiming that he had just received sufficient evidence to prove the guilt of petitioner. The Court stayed the effectivity of the order granting bail and, after a hearing on the motion for reconsideration, the order

was finally set aside and another was issued denying the motion for bail. Petitioners motion for reconsideration of this last order having been denied, he filed the present special civil action of certiorari, claiming that, in denying his motion for bail, the respondent judge committed a grave abuse of discretion. In the order of the respondent judge complained of, His Honor states the following:
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"The hearing of an application for bail is summary in nature. On such hearing, the Court does not seek to try the merits or to enter into any nice inquiry as to the weight that would be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. (8 C.J.S., 93, 94). (Padilla, Criminal Procedure 1955 ed. p. 270 citing Ocampo v. Bernabe Et. Al., 77 Phil. 55). It has also been held that to sustain a refusal of bail in a capital case it is enough that evidence induces the belief that the accused have committed the offense. (Ex parte Page, 255, p. 887, 82, Cal. App. 576). According to the law as interpreted by the courts like the case cited above it appears that in an application for bail the Court does not go into the merits of the case. Therefore, inconsistency or contradiction in the testimony of a witness for the prosecution is not sufficient in itself to entitle the accused to bail. It is enough, for the denial of bail, that the proof of guilt is evident or the presumption great. It is sufficient that the evidence presented by the prosecution induces the belief that the accused had committed the offense. "Guided by the above ruling the Court is of the opinion that the accused shall be denied bail. He is accused of a capital offense. The evidence presented during the hearing of the petition for bail, without passing upon the merits of the evidence, shows that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons. The least that can be said about the evidence on record, without passing on the merits, is that the proof of guilt of the accused is presumptively strong."
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It is petitioners contention that, while under the Constitution and the Rules of Court, a person charged with a capital offense may be denied bail, before conviction, only if the evidence of guilt against him is strong, the respondent judge denied him bail only on the strength of a strong presumption of guilt, thereby committing a grave abuse of discretion. Petitioners contention is without merit. A reading of the order complained of clearly shows that, in the opinion of the respondent judge, the evidence presented during the summary hearing on the motion for bail showed "that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other person." Casting aside unnecessary pronouncements made in the order complained of, we believe that what the respondent judge really found and held was that the evidence of guilt presented against petitioner was strong and justified denial of his motion for bail. At this stage of the proceeding, there is nothing before Us sufficient to justify the conclusion that His Honor erred or abused his discretion in so holding. PREMISES CONSIDERED, the petition under consideration is dismissed and the writ prayed for denied, with costs. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.