1. Posadas v Court of Appeals; G.R. No.

89139; 02 Aug 1990; 188 SCRA 288

2. PEOPLE OF THE PHILIPPINES vs. LORETO SALANGGA and LAURETO
LOPEZ; G.R. No. 100910 July 25, 1994,
3. PEOPLE OF THE PHILIPPINES vs. RUBEN BURGOS y TITO, G.R. No. L-68955
September 4, 1986
4. IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS,
SIMON LUNA, v. HON. LORENZO M. PLAZA, [G.R. No. L-27511. November 29,
1968.]
5. DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA vs. HON. ROBERTO
C. DIOKNO, Presiding Judge, Br. 62, Regional Trial Court, Makati, Metro Manila, and
PRESIDENTIAL ANTI-CRIME COMMISSION, G.R. No. 113630 May 5, 1994
6. PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS
LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR.,
ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE
COURT OF APPEALS; [G.R. No. 113930. March 5, 1996]
7. PEOPLE OF THE PHILIPPINES vs. NASARIO MOLINA y MANAMAT @
BOBONG and GREGORIO MULA y MALAGURA @ BOBOY, [G.R. No. 133917.
February 19, 2001]
8. PEOPLE OF THE PHILIPPINES vs. IDEL AMINNUDIN y AHNI, G.R.No. 74869 July
6, 1988
9. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN MONTILLA y
GATDULA, [G.R. No. 123872. January 30, 1998]
10. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHUA HO SAN @ TSAY
HO SAN [G.R. No. 128222. June 17, 1999]
11. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTHONY
ESCORDIAL, [G.R. Nos. 138934-35. January 16, 2002]
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 89139 August 2, 1990
ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
Rudy G. Agravate for petitioner.
GANCAYCO, J.:
The validity of a warrantless search on the person of petitioner is put into issue
in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab
and Pat. Umbra Umpar, both members of the Integrated National Police (INP)
of the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they
were within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the
INP. Petitioner attempted to flee but his attempt to get away was thwarted by
the two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1)
caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of
live ammunition for a .38 caliber gun 2 a smoke (tear gas) grenade,3 and two
(2) live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the
police station for further investigation. In the course of the same, the petitioner
was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken
to the Davao Metrodiscom office and the prohibited articles recovered from him
were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional Trial Court of
Davao City wherein after a plea of not guilty and trial on the merits a decision
was rendered on October 8, 1987 finding petitioner guilty of the offense
charged as follows:
WHEREFORE, in view of all the foregoing, this Court ,
finds the accused guilty beyond reasonable doubt of the
offense charged.
It appearing that the accuse d was below eighteen (18)
years old at the time of the commission of the offense (Art.
68, par. 2), he is hereby sentenced to an indeterminate
penalty ranging from TEN (10) YEARS and ONE (1) DAY
of prision mayor to TWELVE (12) Years, FIVE (5) months
and Eleven (11) days of Reclusion Temporal, and to pay
the costs.
The firearm, ammunitions and smoke grenade are
forfeited in favor of the government and the Branch Clerk
of Court is hereby directed to turn over said items to the
Chief, Davao Metrodiscom, Davao City. 5
Not satisfied therewith the petitioner interposed an appeal to the Court of
Appeals wherein in due course a decision was rendered on February 23, 1989
affirming in toto the appealed decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there
being no lawful arrest or search and seizure, the items which were confiscated
from the possession of the petitioner are inadmissible in evidence against him.
The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 136 of the Rules
of Court a person lawfully arrested may be searched for dangerous weapons
or anything used as proof of a commission of an offense without a search
warrant. It is further alleged that the arrest without a warrant of the petitioner
was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as
follows:
SEC. 5. Arrest without warrant; when lawful — A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When in his presence, the person to be arrested has
committed is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the
person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112,
Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest without a warrant
may be effected by a peace officer or private person, among others, when in
his presence the person to be arrested has committed, is actually committing,
or is attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the
person arrested has committed it.
The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of
illegal possession of firearms and ammunitions in the presence of the police
officers and consequently the search and seizure of the contraband was
incidental to the lawful arrest in accordance with Section 12, Rule 126 of the
1985 Rules on Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and
apprehended the petitioner as he attempted to flee they did not know that he
had committed, or was actually committing the offense of illegal possession of
firearms and ammunitions. They just suspected that he was hiding something
in the buri bag. They did now know what its contents were. The said
circumstances did not justify an arrest without a warrant.
However, there are many instances where a warrant and seizure can be
effected without necessarily being preceded by an arrest, foremost of which is
the "stop and search" without a search warrant at military or police
checkpoints, the constitutionality or validity of which has been upheld by this
Court in Valmonte vs. de Villa, 7 as follows:
Petitioner Valmonte's general allegation to the effect that
he had been stopped and searched without a search
warrant by the military manning the checkpoints, without
more, i.e., without stating the details of the incidents which
amount to a violation of his light against unlawful search
and seizure, is not sufficient to enable the Court to
determine whether there was a violation of Valmonte's
right against unlawful search and seizure. Not all searches
and seizures are prohibited. Those which are reasonable
are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved
according to the facts of each case.
Where, for example, the officer merely draws aside the
curtain of a vacant vehicle which is parked on the public
fair grounds, or simply looks into a vehicle or flashes a
light therein, these do not constitute unreasonable search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC
to pursue its mission of establishing effective territorial
defense and maintaining peace and order for the benefit of
the public. Checkpoints may also be regarded as
measures to thwart plots to destabilize the government in
the interest of public security. In this connection, the Court
may take judicial notice of the shift to urban centers and
their suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the
 abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of
which are reported in media, most likely brought about by
deteriorating economic conditions — which all sum up to
what one can rightly consider, at the very least, as
abnormal times. Between the inherent right of the state to
protect its existence and promote public welfare and an
individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
crime to occur, to stop a suspicious individual briefly in
order to determine his identity or maintain thestatus
quo while obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under the exceptions
heretofore discussed, and hence, the constitutional guarantee against
unreasonable searches and seizures has not been violated. 9
WHEREFORE, the petition is DENIED with costs against petitioner.

True, the manning of checkpoints by the military is SO ORDERED.

susceptible of abuse by the men in uniform in the same
manner that all governmental power is susceptible of
abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price
we pay for an orderly society and a peaceful community.
(Emphasis supplied).

Thus, as between a warrantless search and seizure conducted at military or

police checkpoints and the search thereat in the case at bar, there is no
question that, indeed, the latter is more reasonable considering that unlike in
the former, it was effected on the basis of a probable cause. The probable
cause is that when the petitioner acted suspiciously and attempted to flee with
the buri bag there was a probable cause that he was concealing something
illegal in the bag and it was the right and duty of the police officers to inspect
the same.

It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search
warrant for the purpose. Such an exercise may prove to be useless, futile and
much too late.

In People vs. CFI of Rizal, 8 this Court held as follows:

. . . In the ordinary cases where warrant is indispensably

necessary, the mechanics prescribed by the Constitution
and reiterated in the Rules of Court must be followed and
satisfied. But We need not argue that there are
exceptions. Thus in the extraordinary events where
warrant is not necessary to effect a valid search or
seizure, or when the latter cannot be performed except
without warrant, what constitutes a reasonable or
unreasonable search or seizure becomes purely a judicial
question, determinable from the uniqueness of the
circumstances involved, including the purpose of the
search or seizure, the presence or absence of probable
cause, the manner in which the search and seizure was
made, the place or thing searched and the character of the
articles procured.

The Court reproduces with approval the following disquisition of the Solicitor
General:

The assailed search and seizure may still be justified as

akin to a "stop and frisk" situation whose object is either to
determine the identity of a suspicious individual or to
maintain the status quo momentarily while the police
officer seeks to obtain more information. This is illustrated
in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this
case, two men repeatedly walked past a store window and
returned to a spot where they apparently conferred with a
third man. This aroused the suspicion of a police officer.
To the experienced officer, the behaviour of the men
indicated that they were sizing up the store for an armed
robbery. When the police officer approached the men and
asked them for their names, they mumbled a reply.
Whereupon, the officer grabbed one of them, spun him
around and frisked him. Finding a concealed weapon in
one, he did the same to the other two and found another
weapon. In the prosecution for the offense of carrying a
concealed weapon, the defense of illegal search and
seizure was put up. The United States Supreme Court
held that "a police officer may in appropriate
circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal
behaviour even though there is no probable cause to
make an arrest." In such a situation, it is reasonable for an
officer rather than simply to shrug his shoulder and allow a
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100910 July 25, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LORETO SALANGGA and LAURETO LOPEZ, accused.
LORETO SALANGGA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.
REGALADO, J.:
Accused-appellant Loreto Salangga, alias "Dodong," and Laureto Lopez, alias
"Retoy," were haled to court as conspirators in the rape and killing of a fifteen-
year old barrio lass named Imelda Talaboc, allegedly committed in Magsaysay,
Davao del Norte on or about July 18, 1987.1
Assisted by counsel de oficio, both accused pleaded not guilty during their
arraignment. After trial, judgment was rendered by said trial court on February
21, 1991 finding appellant Salangga guilty of attempted rape with homicide,
imposing upon him the penalty of reclusion perpetua but with full credit for his
preventive imprisonment, and ordering him to pay P30,000.00 as indemnity to
the heirs of the victim. Accused Laureto Lopez was acquitted for failure of the
prosecution to prove his guilty beyond reasonable doubt. 2
It appears that in the late afternoon of July 18, 1987,
in Sitio Ogsing, Barangay Tacul, Magsaysay, Davao del Sur, Imelda Talaboc
was sent by her mother to fetch water from the spring, or "bugac," the only
source of water in the vicinity. Imelda left with two one-gallon containers.
At around 5:30 to 6:30 of the same afternoon, when the dusk of twilight was
enveloping the area, one Ricky Monterde, a friend and brother in faith of the
Talaboc family, who resided only two hundred meters away from the latter's
residence, likewise went to fetch water. On his way, he saw appellant
Salangga walking about three meters ahead of Imelda. He noticed that
appellant kept glancing back towards Imelda who was carrying water
containers. Trailing the girl was accused Lopez who was walking behind her at
a distance of about twenty fathoms. 3
On the same occasion, Lenie Alingay, a twelve-year old elementary student
residing at Sitio Ogsing, was on her way home from her grandfather's house.
She recounted that she met Imelda at the downhill crossing leading towards
the barrio. Lenie explained that she was about four meters away from Imelda,
while the latter was following appellant and walking about two meters behind
him. As Imelda came abreast with Lenie, the former asked the latter if she was
going to school on Monday. Then, as Lenie proceeded on her way home, she
saw that Lopez who was sitting on a rice paddy suddenly stood up and
followed Imelda. At about the same time, Lenie also saw Ricky Monterde
fetching water from the spring.
When Bernardo Talaboc, father of Imelda, came home from work, he was
informed by his wife that Imelda, whom she sent to the "bugac" earlier, was
missing. Talaboc set out to look for Imelda. On his way to the spring, he came
upon two water containers left standing at a spot about four hundred meters
away from their house.4
His search for Imelda led Talaboc to the house of Ricky who told him that he
had earlier seen Imelda on her way home with appellant walking ahead of her.
Ricky then accompanied Talaboc and his son to the house of
thebarangay captain, Severino Laput, to whom they reported Imelda's
disappearance. Thereafter, together with the members of his household and
some neighbors, they continued looking for Imelda. At around 8:00 o'clock that
same night, they found the corpse of Imelda lying in the bushes about twenty
meters away from where the water containers were earlier found.
Imelda was found with her clothes on but her panty was missing. Her face was
disfigured by physical blows, she had been stabbed by a knife, and her eyes
were gouged out. The searching party brought home the body of the victim.
Talaboc went to see Lenie Alingay and her family to inquire whether they
witnessed any unusual happening that fatal afternoon, since the "bugac" is
only about twenty meters away from their house. Lenie told him about her brief
encounter with Imelda, as earlier narrated.
Appellant and Lopez were arrested that same night at around 8:00 o'clock,
after the corpse of Imelda had been found, upon the orders
of Barangay Captain Laput based on the information given by Ricky and Lenie
implicating the two of them. They both became the main suspects responsible
for the grievous fate of Imelda, as they were the persons last seen with her
before the tragedy. The soldiers of the 46th Infantry Brigade of the Philippine
Army took them into custody.
At the army detachment, said suspects were bodily searched. According to the
prosecution, the soldiers recovered from appellant a piece of lady's underwear,
later identified by Talaboc to be that of his daughter, Imelda. Afterwards, both
suspects were ordered to undress. The prosecution claims that appellant's
body bore what looked like bite marks and scratches, but none was found on
the body of Lopez.
The following morning, the suspects were brought to the office of Station
Commander Manuel Macabutas in the municipal hall where both were
investigated by P/Sgt. Mario Gataber of the Magsaysay Police Station.
Appellant scrawled his quivery signature on an unsworn
statement,5 handwritten by some other person, wherein he admitted the crime
charged, except that he was not able to consummate his bestial desire
because Imelda fought very hard against him.6
The defense had a different version to tell. It was claimed that on July 18,
1987, at about 9:00 P.M. while appellant was repairing a wall in his kitchen,
some members of the 46th Infantry Brigade and Lopez came to his house. He
was informed that Barangay Captain Laput was requesting for their presence
at his house. Both accused complied with the request and went to the
residence of Laput. The latter asked them if they were responsible for the
death of Imelda and they vehemently denied any participation in the crime.
The accused were then brought to the 46th Infantry Brigade Headquarters
where they were allegedly subjected to severe physical beatings by the
soldiers. Unable to bear the maltreatment any further, they were compelled to
admit the earlier accusations against them.
The next day, a strong and painful kick in the stomach was inflicted on
appellant by one of his custodians for refusing to carry a lady's underwear and
a pair of blue slippers in his pocket, which items were later identified by
Talaboc as belonging to his daughter. Consequently, he carried the same with
him when they were brought to the Magsaysay Municipal Hall where they were
investigated by Sgt. Gataber. Afterwards, appellant was asked to sign a
document, explained to him as having something to do with his food, to which
importing the unlettered appellant acceded. Unfortunately, the document
turned out to be his supposed statement admitting his guilt for attempting to
rape Imelda and subsequently killing her.7
Appellant Loreto Salangga has now come before us, through counsel de oficio,
contending that the trial court erred in convicting him of the crime charged on
the basis of insufficient circumstantial evidence.
Section 5, Rule 113 of the Rules of Court provides that a peace officer or a
private person may, without a warrant, arrest a person when (a) in his
presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense; (b) an offense has in fact just been
committed and he has personal knowledge of the facts indicating that the
person to be arrested has committed it; and (c) the person to be arrested is a
prisoner who has escaped. In cases falling under paragraphs (a) and (b)
thereof, the person to be arrested without a warrant shall be forthwith delivered
to the nearest police station or jail, and he shall be proceeded against in
accordance with Section 7, Rule 112.
From these provisions, it is not hard to conclude that appellant was arrested in
violation of his fundamental right against unjustified warrantless arrest. On the
night he was arrested, he was in his house peacefully attending to some
domestic chores therein. It cannot be suggested that he was in any way
committing a crime or attempting to commit one. Also, the soldiers had no
personal knowledge of the crime he was being charged with, nor was he a
fugitive from the law.
The right of the accused to be secure against any unreasonable searches on
and seizure of his own body and any deprivation of his liberty is a most basic
and fundamental one. The statute or rule which allows exceptions to the
requirement of a warrant of arrest is strictly construed. Its application cannot be
extended beyond the cases specifically provided by law. 8
Bernardo Talaboc testified that both accused were frisked and asked to
undress before him, some soldiers of the 46th Infantry Brigade,
and Barangay Captain Laput inside the Army detachment. If he is to be
believed, that body search incredibly yielded a lady's panty from the pocket of
appellant and which underwear he identified as that of his daughter. It would
surely have been the height of stupidity for appellant to be keeping on his
person an incriminating piece of evidence which common sense dictates
should have been destroyed or disposed of. For that matter, according to
Barangay Captain Laput before whom appellant was brought shortly after his
apprehension and who was also present therein, nothing was taken from said
appellant.9
In any event, the underwear allegedly taken from the accused is inadmissible
in evidence, being a so-called "fruit of a poisonous tree." Likewise, there is
definitely an improbability in the claim of Talaboc that he was able to recognize
the underwear of his daughter. It is an a typical and abnormal situation under
Filipino customs for a father to be familiar with the underwear of his daughter.
This is highly improbable, and it is plain common sense that improbabilities
must be carefully scrutinized and not readily accepted.
Again, during the initial investigation of Barangay Captain Laput on July 23,
1987 before Sgt. Gataber, nothing was ever mentioned regarding the
supposed scratches and bite marks allegedly found on the chest of appellant.
The truth is that these matters were mentioned in the trial court only after about
two and a half years from the arrest of appellant. It is indeed strange that such
vital evidence conspicuously found on the body of appellant, if true, could be
omitted in the sworn statement of Laput10 which was taken four days after the
alleged discovery. He and the investigator could not have been unaware that
the supposed scratches and bite marks were obviously relevant in this kind of
crime, more particularly to prove the reported struggle of the victim against her
unknown killer.
The aforesaid testimony of Laput thus suffers from serious flaws attendant to
its taking which accordingly taint its credibility. The long delay in his disclosure
bolsters the suspicion that such testimony is biased, if not fabricated. Laput's
claim that he revealed the aforesaid facts to Sgt. Gataber 11 is belief by his own
sworn statement. It is true, and we was have so held, that sworn statements
executed before police officers are usually incomplete and contain data which
are inconsistent with the facts narrated by the witnesses to said officers. For
this reason, courts have generally brushed aside, as inconsequential,
contradictions in the sworn statement of a witness and his testimony as long as
these dwell only on minor and reconcilable matters.12
However, the aforesaid allegations on the supposed scratches and bite marks
on the body of appellant can by no means be considered as minor or trivial
matters. The prosecution, in fact, relies heavily thereon to support its theory of
the case. Since every circumstance must be taken into consideration in
passing upon the guilt or innocence of the accused, it becomes crucial for his
eventual acquittal when such discrepancies touch on substantial and
irreconcilable facts, as when the omission in the sworn statement concerns an
important detail which the affiant would not have failed to mention, and which
omission could accordingly affect his credibility.13
We are not persuaded by the theory that the accused waived their right against
the said unreasonable search and seizure, simply because they did not object
thereto. To constitute waiver, it must appear, firstly, that the right exists;
secondly, that the person involved had knowledge, actual or constructive, of
the existence of such right; and, lastly, that said person had an actual intention
to relinquish the right.14 Courts understandably indulge every reasonable
presumption against waiver of fundamental safeguards and do not deduce
acquiescence in the loss of elementary rights.15
Coming now to Sgt. Gataber's testimony, we find that the same seriously
undermines the case for the People. On the witness stand, he recited the
rights of an accused but apparently none of these were granted to or applied in
his investigation of appellant. This is partly explained by the fact that he had a
wrong, if not a weird, perception or understanding regarding a "person under
custodial interrogation," his duty to apprise such person of his rights, and the
right of that person to counsel, as demonstrated below.
Q How would you say that a person is under custodial interrogation?
A When the accused is assisted by a counsel of his own choice.
xxx xxx xxx
Q In other words, if the accused is not assisted by counsel in the
investigation he is not under custodial interrogation, is that what you
mean?
A Yes.
Q In other words, (in) this particular case, you considered this
investigation on accused Salangga as not under custodial interrogation
because he was not assisted by counsel?
A Yes, because that is not the proper custodial interrogation.
Q In other words, on that day that you conducted the investigation, you
did not apprise him of his rights to have counsel?
A I apprised him but there was no available lawyer in our place but I
considered his statement is true.
Q Will you please go over this statement if you can find a portion
wherein you apprised the declarant of his right to counsel?
A I did not apprise because of some circumstantial facts.
Q What are these circumstantial facts
A I did not bother to write the rights of the accused.
Q Did you not find it important . . . because this case it quite serious?
A I made that question and interrogation in my office but I was doubtful
whether that would be acceptable in Court because that question and
answer was not subscribed and sworn to before the municipal judge.
xxx xxx xxx
Q In other words, you did not tell him that the government can provide
him counsel if he cannot afford one?
A Yes.
Q You did not tell him that?
A I told him that if you cannot afford to have a counsel, the government
will give you one.
Q Did you place that in your question and interview?
A No.
Q Why did you not place that in your question and interview?
A Because my question and interview which I made before him is not
acceptable.
xxx xxx xxx
Q Because you thought that Salangga was under custodial interrogation
of the Police Station of Magsaysay at the time . . . why did you not
require him to have counsel of his own choice as you have attended a
lot of seminars?
A That is the reason why because there is no available lawyer in our
place.
Q And you are aware about Atty. Mat(i)as Acquiatan?
A Yes, but sometimes he is out of Magsaysay.
Q And despite that fact, you did not find ways and means to contact the
CLAO or Atty. Acquiatan in order to assist Salangga in the interview?
A There were several lawyers which I approached to assist the suspect
but they refused and at that time I also approached Atty. Acquiatan and
he advised me to see the lawyer of CLAO.
Q But in this particular case, you never tr(ied) to approach Atty.
Acquiatan to assist accused Salangga?
A No.
Q Neither did you approach the lawyer of CLAO in that particular
interview?
A No." 16
It is consequently evident that since appellant was not assisted by any counsel
during his custodial investigation, his supposed incriminatory statement is
inadmissible and cannot be considered in the adjudication of this case. Oddly
enough, even Sgt. Gataber was skeptical as to the validity of the statement he
took from appellant.17 The rule, of course, is that no in-custody investigation
shall be conducted unless it be in the presence of counsel engaged by the
person arrested, by any person in his behalf or appointed by the court upon
petition either of the detainee himself or by someone in his behalf. 18
While the right to counsel may be waived, such waiver must be effected
voluntarily, knowingly and intelligently. Further, waiver must be with the
assistance of counsel.19 The absence of counsel at that stage makes the
statement, in contemplation of law, involuntary, even if it was otherwise
voluntary in a non-technical sense.
With the Court now unanimously upholding the exclusionary rule in toto, the
constitutional mandate is given full force and effect. This constitutional edict
has been proved by historical experience to be the practical means of
enforcing the constitutional injunction against unreasonable searches and
seizures by outlawing all evidence illegally seized and thereby removing the
incentive part of the military and police officers to disregard such basic rights.
This is of special public importance and serves as a shield in the remote
provinces and rural areas to the people who have no access to courts for
prompt and immediate relief from violations of their rights.20
Section 5 of Rule 133 provides that when no direct evidence is available,
circumstantial evidence will suffice when the following requirements are
present: (a) there are more than one circumstance, (b) the facts from which the
inferences are derived are proven, and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
Furthermore, before conviction can be had upon circumstantial evidence, the
circumstances proved should constitute an unbroken chain which leads to one
fair and reasonable conclusion pointing to the accused, to the exclusion of all
others, as the author of the crime.21
conclusions of the lower court having been demonstrated to be either
incompetent in law or incredible in fact, the exceptive circumstances have to
be given full sway.
The prosecution's evidence regrettably leaves much to be desired,
unfortunately as a consequence of faulty investigative work in the first place.
This Court must, however, be guided by a rule of long standing and
consistency that if the inculpatory facts and circumstances are capable of one
or more explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to support a conviction. 27
In our criminal justice system, the overriding consideration is not whether the
court doubts the innocence of the accused but whether it entertains a
reasonable doubt as to his guilt. This determinant, with the constitutional
presumption of innocence which can be overthrown only by the strength of the
prosecution's own evidence proving guilt beyond reasonable doubt, irresistibly
dictate an exoneration in this case. It is indeed a bitter truth for the victim's
family to face, that human justice seems to have failed then due to the
foregoing confluent factors. We deeply commiserate with them and sincerely
hope that, somehow and in God's own time, divine retribution shall be visited
upon the evil author of this human tragedy.
WHEREFORE, the assailed judgment of the court a quo is REVERSED and
SET ASIDE. Accused-appellant Loreto Salangga is hereby ACQUITTED and
ordered to be immediately released unless there are other grounds for his
continued detention, with costs de oficio.
SO ORDERED.

A meticulous and closer inquiry into the records reveals that there is really but
one sole circumstance upon which the court relied in its decision, that is, that
Imelda was seen trailing behind appellant by a few meters on the path towards
her house. The prosecution presented two witnesses on this very same fact
but the testimony thereon of two witnesses cannot convert one circumstance
into two. All other "circumstances" under the prosecution's theory, such as the
underwear allegedly found in appellant's pocket, the supposed scratches and
bite marks on his body, and his dubious confession to Sgt. Gataber are all
products of an illegal process, aside from their questionable veracity.

Assuming arguendo that appellant was seen walking in front of Imelda about
two hours before the discovery of the death of the latter, such fact could not
lead a prudent man to conclude that appellant was the one responsible for the
misfortune that befell the victim. Also, Sgt. Gataber believed that Lenie Alingay
and Ricky Monterde could shed light on the case and so he claimed to have
taken their statements, but, surprisingly, no sworn statements were executed
by them. Later, he retracted what he said, announcing instead that he actually
referred the taking of the statements to Sgt. Saraum, but he could not
remember if the statements, if thereafter taken, were attached to the records.22

We reject the People's hypothesis on the alleged "confession" of appellant to a

certain Pastor Juan Tapic. The records reveal that there was a statement of
appellant merely saying that he and Lopez were suspects in the rape and
death of Imelda but never did he say that they were the ones responsible for
such crime. Also, if the prosecution really believed that the appellant truly
admitted to Pastor Tapic his participation in the crime, it is puzzling that said
pastor was not called by the prosecution to take the witness stand. A party's
failure to produce evidence, which if favorable would naturally have been
produced, is open to the inference that the facts were unfavorable to his
case.23Verily, that failure to present Pastor Tapic can only mean that the
prosecution itself doubted what appellant precisely meant when he said that
there are two of them, that is, himself and Lopez.

We also note that while the prosecution presented a medical certificate24 to

prove the alleged rape, it failed to present the physician to affirm it. In the
absence of the doctor's testimony, the contents thereof are hearsay. 25 At any
rate, even if the physician had been presented there was in fact no need for
him to make that affirmation since the conviction of appellant is based merely
on his supposed inculpatory statement which has no probative value for having
been taken in violation of explicit constitutional mandates and proscriptions.

Well-entrenched is the rule that the findings of facts of trial courts carry great
weight for these courts enjoy the advantage of having observed the demeanor
of the witnesses on the witness stand and, therefore, can discern if these
witnesses are telling the truth or not. However, likewise well-settled are the
exceptions thereto, which are when (1) the conclusion is a finding based
entirely on speculations, (2) the inference made is manifestly mistaken, absurd
or impossible, (3) there is a grave abuse of discretion, and (4) the finding is
based on a misapprehension of the facts.26 The evidentiary bases for the
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68955 September 4, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN BURGOS y TITO, defendant-appellant.
GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court of Davao del
Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant-
appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms
in Furtherance of Subversion. The dispositive portion of the decision reads:
WHEREFORE, finding the guilt of accused Ruben Burgos
sufficiently established beyond reasonable doubt, of the offense
charges , pursuant to Presidential Decree No. 9, in relation to
General Order No. 6, dated September 22, 1972, and General Order
No. 7, dated September 23, 1972, in relation further to Presidential
Decree No. 885, and considering that the firearm subject of this case
was not used in the circumstances as embraced in paragraph I
thereof, applying the provision of indeterminate sentence law,
accused Ruben Burgos is hereby sentenced to suffer an
imprisonment of twenty (20) years of reclusion temporal maximum,
as minimum penalty, to reclusion perpetua, as maximum penalty,
pursuant to sub-paragraph B, of Presidential Decree No. 9, as
aforementioned, with accessory penalties, as provided for by law.
As a result of this judgment, the subject firearm involved in this case
(Homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor of the government,
to be disposed of in accordance with law. Likewise, the subversive
documents, leaflets and/or propaganda seized are ordered disposed
of in accordance with law.
The information charged the defendant-appellant with the crime of illegal
possession of firearm in furtherance of subversion in an information which
reads as follows:
That in the afternoon of May 13, 1982 and thereabout at Tiguman,
Digos, Davao del Sur, Philippines, within the jurisdiction of this
Court, the above- named accused with intent to possess and without
the necessary license, permit or authority issued by the proper
government agencies, did then and there wilfully, unlawfully and
feloniously keep, possess, carry and have in his possession, control
and custody one (1) homemade revolver, caliber .38, make Smith
and Wesson, with Serial No. 8.69221, which firearm was issued to
and used by the accused at Tiguman, Digos, Davao del Sur, his
area of operations by one Alias Commander Pol for the New
People's Army (NPA), a subversive organization organized for the
purpose of overthrowing the Government of the Republic of the
Philippines through lawless and violent means, of which the accused
had knowledge, and which firearm was used by the accused in the
performance of his subversive tasks such as the recruitment of New
Members to the NPA and collection of contributions from the
members.
CONTRARY TO LAW.
The evidence for the prosecution is summarized in the decision of the lower
court as follows:
xxx xxx xxx
. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo
Taroy, it appears that by virtue of an intelligent information obtained
by the Constabulary and INP units, stationed at Digos, Davao del
Sur, on May 12, 1982, one Cesar Masamlok personally and
voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M.
at Digos, Davao del Sur Constabulary Headquarters, stating that he
was forcibly recruited by accused Ruben Burgos as member of the
NPA, threatening him with the use of firearm against his life, if he
refused.
Along with his recruitment, accused was asked to contribute one (1)
chopa of rice and one peso (P1.00) per month, as his contribution to
the NPA TSN, page 5, Hearing-October 14, 1982).
Immediately, upon receipt of said information, a joint team of PC-INP
units, composed of fifteen (15) members, headed by Captain
Melchesideck Bargio, (PC), on the following day, May 13, 1982, was
dispatched at Tiguman; Davao del Sur, to arrest accused Ruben
Burgos. The team left the headquarter at 1:30 P.M., and arrived at
Tiguman, at more or less 2:00 o'clock PM where through the help of
Pedro Burgos, brother of accused, the team was able to locate
accused, who was plowing his field. (TSN, pages 6-7, Hearing-
October 14, 1982).
Right in the house of accused, the latter was caned by the team and
Pat. Bioco asked accused about his firearm, as reported by Cesar
Masamlok. At first accused denied possession of said firearm but
later, upon question profounded by Sgt. Alejandro Buncalan with the
wife of the accused, the latter pointed to a place below their house
where a gun was buried in the ground. (TSN, page 8, Hearing-
October 14, 1982).
Pat. Bioco then verified the place pointed by accused's wife and dug
the grounds, after which he recovered the firearm, Caliber .38
revolver, marked as Exhibit "A" for the prosecution.
After the recovery of the firearm, accused likewise pointed to the
team, subversive documents which he allegedly kept in a stock pile
of qqqcogon at a distance of three (3) meters apart from his house.
Then Sgt. Taroy accordingly verified beneath said cogon grass and
likewise recovered documents consisting of notebook colored
maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet
consisting of eight (8) leaves, including the front and back covers
entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas,
Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao
qqqZedong dated December 31, 1980, marked as Exhibit "C", and
another pamphlet Asdang Pamantalaang Masa sa Habagatang
Mindanao, March and April 1981 issue, consisting of ten (10) pages,
marked as Exhibit "D" for the prosecution.
Accused, when confronted with the firearm Exhibit "A", after its
recovery, readily admitted the same as issued to him by Nestor
Jimenez, otherwise known as a certain Alias Pedipol, allegedly team
leader of the sparrow unit of New People's Army, responsible in the
liquidation of target personalities, opposed to NPA Ideological
movement, an example was the killing of the late Mayor Llanos and
Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN,
pages 1-16, Hearing-October 14,1982).
To prove accused's subversive activities, Cesar Masamlok, a former
NPA convert was presented, who declared that on March 7, 1972, in
his former residence at Tiguman Digos, Davao del Sur, accused
Ruben Burgos, accompanied by his companions Landrino Burgos,
Oscar Gomez and Antonio Burgos, went to his house at about 5:00
o'clock P.M. and called him downstair. Thereupon, accused told
Masamlok, their purpose was to ask rice and one (1) peso from him,
as his contribution to their companions, the NPA of which he is now
a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).
Accused and his companions told Masamlok, he has to join their
group otherwise, he and his family will be killed. He was also warned
not to reveal anything with the government authorities. Because of
the threat to his life and family, Cesar Masamlok joined the group.
Accused then told him, he should attend a seminar scheduled on
April 19, 1982. Along with this invitation, accused pulled gut from his
waistline a .38 caliber revolver which Masamlok really saw, being
only about two (2) meters away from accused, which make him
easily Identified said firearm, as that marked as Exhibit "A" for the
prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983).
On April 19, 1982, as previously invited, Masamlok, accompanied by
his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the
house of accused and attended the seminar, Those present in the
seminar were: accused Ruben Burgos, Antonio Burgos, Oscar
Gomez, Landrino Burgos, alias Pedipol and one alias Jamper.
The first speaker was accused Ruben Burgos, who said very
distinctly that he is an NPA together with his companions, to assure
the unity of the civilian. That he encouraged the group to overthrow
the government, emphasizing that those who attended the seminar
 were already members of the NPA, and if they reveal to the
authorities, they will be killed.
Accused, while talking, showed to the audience pamphlets and
documents, then finally shouted, the NPA will be victorious.
Masamlok likewise Identified the pamphlets as those marked as
Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75,
76 and 77, Hearing-January 4, 1983)
Other speakers in said meeting were Pedipol, Jamper and Oscar
Gomez, who likewise expounded their own opinions about the NPA.
It was also announced in said seminar that a certain Tonio Burgos,
will be responsible for the collection of the contribution from the
members. (TSN, pages 78-79, Hearing- January 4, 1983)
On May 12, 1982, however, Cesar Masamlok surrendered to
Captain Bargio of the Provincial Headquarters of the Philippine
Constabulary, Digos, Davao del Sur.
Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that
on May 19, 1982, he administered the subscription of th extra-
judicial confession of accused Ruben Burgos, marked as Exhibit "E "
for the prosecution, consisting of five (5) pages.
Appearing voluntarily in said office, for the subscription of his
confession, Fiscal Lovitos, realizing that accused was not
represented by counsel, requested the services of Atty. Anyog,
whose office is adjacent to the Fiscal's Office, to assist accused in
the subscription of his extra-judicial statement.
Atty. Anyog assisted accused in the reading of his confession from
English to Visayan language, resulting to the deletion of question
No. 19 of the document, by an inserted certification of Atty. Anyog
and signature of accused, indicating his having understood, the
allegations of his extra-judicial statement.
Fiscal Lovitos, before accused signed his statement, explained to
him his constitutional rights to remain silent, right to counsel and
right to answer any question propounded or not.
With the aid of Atty. Anyog, accused signed his confession in the
presence of Atty. Anyog and Fiscal Lovitos, without the presence of
military authorities, who escorted the accused, but were sent outside
the cubicle of Fiscal Lovitos while waiting for the accused. (TSN,
pages 36-40, nearing November 15, 1982)
Finally, in order to prove illegal possession by accused of the subject
firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives,
NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur,
was presented and testified, that among the lists of firearm holders
in Davao del Sur, nothing was listed in the name of accused Ruben
Burgos, neither was his name included among the lists of persons
who applied for the licensing of the firearm under Presidential
Decree No. 1745.
After the above-testimony the prosecution formally closed its case
and offered its exhibits, which were all admitted in evidence, despite
objection interposed by counsel for accused, which was accordingly
overruled.
On the other hand, the defendant-appellant's version of the case against him is
stated in the decision as follows:
From his farm, the military personnel, whom he said he cannot
recognize, brought him to the PC Barracks at Digos, Davao del Sur,
and arrived there at about 3:00 o'clock, on the same date. At about
8:00 o'clock P.M., in the evening, he was investigated by soldiers,
whom he cannot Identify because they were wearing a civilian attire.
(TSN, page 14 1, Hearing-June 15, 1983)
The investigation was conducted in the PC barracks, where he was
detained with respect to the subject firearm, which the investigator,
wished him to admit but accused denied its ownership. Because of
his refusal accused was mauled, hitting him on the left and right side
of his body which rendered him unconscious. Accused in an
atmosphere of tersed solemnity, crying and with emotional
attachment, described in detail how he was tortured and the ordeals
he was subjected.
He said, after recovery of his consciousness, he was again
confronted with subject firearm, Exhibit "A", for him to admit and
when he repeatedly refused to accept as his own firearm, he was
subjected to further prolong (sic) torture and physical agony.
Accused said, his eyes were covered with wet black cloth with
pungent effect on his eyes. He was undressed, with only blindfold,
pungent water poured in his body and over his private parts, making
his entire body, particularly his penis and testicle, terribly irritating
with pungent pain.
All along, he was investigated to obtain his admission, The process
of beating, mauling, pain and/or ordeal was repeatedly done in
similar cycle, from May 13 and 14, 1982. intercepted only whenever
he fell unconscious and again repeated after recovery of his senses,
Finally on May 15, 1982, after undergoing the same torture and
physical ordeal he was seriously warned, if he will still adamantly
refuse to accept ownership of the subject firearm, he will be
salvaged, and no longer able to bear any further the pain and agony,
accused admitted ownership of subject firearm.
After his admission, the mauling and torture stopped, but accused
was made to sign his affidavit marked as Exhibit "E" for the
prosecution, consisting of five (5) pages, including the certification of
the administering officer, (TSN, pages 141-148, Hearing-June 15,
1983)
In addition to how he described the torture inflicted on him, accused,
by way of explanation and commentary in details, and going one by
one, the allegations and/or contents of his alleged extrajudicial
statement, attributed his answers to those questions involuntarily
made only because of fear, threat and intimidation of his person and
family, as a result of unbearable excruciating pain he was subjected
by an investigator, who, unfortunately he cannot Identify and was
able to obtain his admission of the subject firearm, by force and
violence exerted over his person.
To support denial of accused of being involved in any subversive
activities, and also to support his denial to the truth of his alleged
extra-judicial confession, particularly questions Nos. 35, 38, 41, 42,
43, 44, 45, 46 and 47, along with qqqs answers to those questions,
involving Honorata Arellano ahas Inday Arellano, said Honorata
Arellano appeared and declared categorically, that the above-
questions embraced in the numbers allegedly stated in the
extrajudicial confession of accused, involving her to such NPA
personalities, as Jamper, Pol, Anthony, etc., were not true because
on the date referred on April 28, 1982, none of the persons
mentioned came to her house for treatment, neither did she meet the
accused nor able to talk with him. (TSN, pages 118- 121, Hearing-
May 18, 1983)
She, however, admitted being familiar with one Oscar Gomez, and
that she was personally charged with subversion in the Office of the
Provincial Commander, Philippine Constabulary, Digos, Davao del
Sur, but said charge was dismissed without reaching the Court. She
likewise stated that her son, Rogelio Arellano, was likewise charged
for subversion filed in the Municipal Trial Court of Digos, Davao del
Sur, but was likewise dismissed for lack of sufficient evidence to
sustain his conviction. (TSN, pages 121-122, in relation to her cross-
examination, Hearing-May 18, 1983)
To support accused's denial of the charge against him, Barangay
Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga
was presented, who declared, he was not personally aware of any
subversive activities of accused, being his neighbor and member of
his barrio. On the contrary, he can personally attest to his good
character and reputation, as a law abiding citizen of his barrio, being
a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May
18, 1983)
He however, admitted in cross-examination, that there were a lot of
arrests made by the authorities in his barrio involving subversive
activities but they were released and were not formally charged in
Court because they publicly took their oath of allegiance with the
government. (TSN, pages 133-134, in relation to page 136, Hearing-
May 18, 1983)
Finally, to support accused's denial of the subject firearm, his wife,
Urbana Burgos, was presented and who testified that the subject
firearm was left in their house by Cesar Masamlok and one Pedipol
on May 10, 1982. It was night time, when the two left the gun,
alleging that it was not in order, and that they will leave it behind,
temporarily for them to claim it later. They were the ones who buried
 it. She said, her husband, the accused, was not in their house at that
time and that she did not inform him about said firearm neither did
she report the matter to the authorities, for fear of the life of her
husband. (TSN, page 24, November 22, 1983)
On cross-examination, she said, even if Masamlok during the
recovery of the firearm, was wearing a mask, she can still Identify
him. (TSN, page 6, Hearing-November 22, 1983)
After the above-testimony, accused through counsel formally rested
his case in support of accused's through counsel manifestation for
the demurrer to evidence of the prosecution, or in the alternative for
violation merely of simple illegal possession of firearm, 'under the
Revised Administrative Code, as amended by Republic Act No. 4,
reflected in the manifestation of counsel for accused. (TSN, pages
113-114, Hearing-May 18, 1983)
Accused-appellant Ruben Burgos now raises the following assignments of
error, to wit:
I THE TRIAL COURT ERRED IN HOLDING THAT (SIC)
THE ARREST OF ACCUSED-APPELLANT WITHOUT
VALID WARRANT TO BE LAWFUL.
II THE TRIAL COURT ERRED IN HOLDING THE
SEARCH IN THE HOUSE OF ACCUSED-APPELLANT
FOR FIREARM WITHOUT VALID WARRANT TO BE
LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT
FOR VIOLATION OF P.D. No. 9 IN RELATION TO
GENERAL ORDERS NOS. 6 AND 7
Was the arrest of Ruben Burgos lawful? Were the search of his house and the
subsequent confiscation of a firearm and documents allegedly found therein
conducted in a lawful and valid manner? Does the evidence sustaining the
crime charged meet the test of proving guilt beyond reasonable doubt?
The records of the case disclose that when the police authorities went to the
house of Ruben Burgos for the purpose of arresting him upon information
given by Cesar Masamlok that the accused allegedly recruited him to join the
New People's Army (NPA), they did not have any warrant of arrest or search
warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November
15, 1982).
Article IV, Section 3 of the Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be
seized.
The constitutional provision is a safeguard against wanton and unreasonable
invasion of the privacy and liberty of a citizen as to his person, papers and
effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why
this right is so important:
It is deference to one's personality that lies at the core of this right,
but it could be also looked upon as a recognition of a constitutionally
protected area, primarily one's home, but not necessarily thereto
confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is
sought to be guarded is a man's prerogative to choose who is
allowed entry to his residence. In that haven of refuge, his
individuality can assert itself not only in the choice of who shall be
welcome but likewise in the kind of objects he wants around him.
There the state, however powerful, does not as such have access
except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the
privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966],
Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In
the same vein, Landynski in his authoritative work (Search and
Seizure and the Supreme Court [1966], could fitly characterize this
constitutional right as the embodiment of a 'spiritual concept: the
belief that to value the privacy of home and person and to afford its
constitutional protection against the long reach of government is no
legs than to value human dignity, and that his privacy must not be
disturbed except in case of overriding social need, and then only
under stringent procedural safeguards.' (Ibid, p. 47).
The trial court justified the arrest of the accused-appelant without any warrant
as falling under one of the instances when arrests may be validly made without
a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions
as follows:
a) When the person to be arrested has committed, is actually committing, or is
about to commit an offense in his presence;
b) When an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it;
c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily
confined while his case is pending or has escaped while being transferred from
one confinement to another.
The Court stated that even if there was no warrant for the arrest of Burgos, the
fact that "the authorities received an urgent report of accused's involvement in
subversive activities from a reliable source (report of Cesar Masamlok) the
circumstances of his arrest, even without judicial warrant, is lawfully within the
ambit of Section 6-A of Rule 113 of the Rules of Court and applicable
jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the firearm and the
alleged subversive documents would become an incident to a lawful arrest as
provided by Rule 126, Section 12, which states:
A person charged with an offense may be searched for
dangerous weapons or anything which may be used as
proof of the commission of the offense.
The conclusions reached by the trial court are erroneous.
Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must
have personal knowledge of that fact. The offense must also be committed in
his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he committing any act which
could be described as subversive. He was, in fact, plowing his field at the time
of the arrest.
The right of a person to be secure against any unreasonable seizure of his
body and any deprivation of his liberty is a most basic and fundamental one.
The statute or rule which allows exceptions to the requirement of warrants of
arrest is strictly construed. Any exception must clearly fall within the situations
when securing a warrant would be absurd or is manifestly unnecessary as
provided by the Rule. We cannot liberally construe the rule on arrests without
warrant or extend its application beyond the cases specifically provided by law.
To do so would infringe upon personal liberty and set back a basic right so
often violated and so deserving of full protection.
The Solicitor General is of the persuasion that the arrest may still be
considered lawful under Section 6(b) using the test of reasonableness. He
submits that. the information given by Cesar Masamlok was sufficient to induce
a reasonable ground that a crime has been committed and that the accused is
probably guilty thereof.
In arrests without a warrant under Section 6(b), however, it is not enough that
there is reasonable ground to believe that the person to be arrested has
committed a crime. A crime must in fact or actually have been committed first.
That a crime has actually been committed is an essential precondition. It is not
enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground
applies only to the identity of the perpetrator.
In this case, the accused was arrested on the sole basis of Masamlok's verbal
report. Masamlok led the authorities to suspect that the accused had
committed a crime. They were still fishing for evidence of a crime not yet
ascertained. The subsequent recovery of the subject firearm on the basis of
information from the lips of a frightened wife cannot make the arrest lawful, If
an arrest without warrant is unlawful at the moment it is made, generally
nothing that happened or is discovered afterwards can make it lawful. The fruit
of a poisoned tree is necessarily also tainted.
More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they failed to
first go through the process of obtaining a warrant of arrest, if indeed they had
reasonable ground to believe that the accused had truly committed a crime.
There is no showing that there was a real apprehension that the accused was
on the verge of flight or escape. Likewise, there is no showing that the
whereabouts of the accused were unknown,
The basis for the action taken by the arresting officer was the verbal report
made by Masamlok who was not required to subscribe his allegations under
oath. There was no compulsion for him to state truthfully his charges under
pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently,
the need to go through the process of securing a search warrant and a warrant
of arrest becomes even more clear. The arrest of the accused while he was
plowing his field is illegal. The arrest being unlawful, the search and seizure
which transpired afterwards could not likewise be deemed legal as being mere
incidents to a valid arrest.
Neither can it be presumed that there was a waiver, or that consent was given
by the accused to be searched simply because he failed to object. To
constitute a waiver, it must appear first that the right exists; secondly, that the
person involved had knowledge, actual or constructive, of the existence of
such a right; and lastly, that said person had an actual intention to relinquish
the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the
accused failed to object to the entry into his house does not amount to a
permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As
pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin
(supra)
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon
any affirmative act of the citizen, the courts do not place
the citizen in the position of either contesting an officer's
authority by force, or waiving his constitutional rights; but
instead they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto, but is
merely a demonstration of regard for the supremacy of the
law. (56 C.J., pp. 1180, 1181).
We apply the rule that: "courts indulge every reasonable presumption against
waiver of fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S.
458).
That the accused-appellant was not apprised of any of his constitutional rights
at the time of his arrest is evident from the records:
A CALAMBA:
Q When you went to the area to arrest Ruben Burgos, you
were not armed with an arrest warrant?
A None Sir.
Q Neither were you armed with a search warrant?
A No Sir.
Q As a matter of fact, Burgos was not present in his house
when you went there?
A But he was twenty meters away from his house.
Q Ruben Burgos was then plowing his field?
A Yes Sir.
Q When you called for Ruben Burgos you interviewed
him?
A Yes Sir.
Q And that you told him that Masamlok implicated him?
A No Sir.
Q What did you tell him?
A That we received information that you have a firearm,
you surrender that firearm, first he denied but when Sgt.
Buncalan interviewed his wife, his wife told him that it is
buried, I dug the firearm which was wrapped with a
cellophane.
Q In your interview of Burgos you did not remind him of his
rights under the constitution considering that he was
purposely under arrest?
A I did not.
Q As a matter of fact, he denied that he has ever a gun?
A Yes Sir.
Q As a matter of fact, the gun was not in his possession?
A It was buried down in his horse.
Q As a matter of fact, Burgos did not point to where it was
buried?
A Yes Sir.
(TSN, pp. 25-26, Hearing-October 14, 1982)
Considering that the questioned firearm and the alleged subversive documents
were obtained in violation of the accused's constitutional rights against
unreasonable searches and seizures, it follows that they are inadmissible as
evidence.
There is another aspect of this case.
In proving ownership of the questioned firearm and alleged subversive
documents, the prosecution presented the two arresting officers who testified
that the accused readily admitted ownership of the gun after qqqs wife pointed
to the place where it was buried. The officers stated that it was the accused
himself who voluntarily pointed to the place where the alleged subversive
documents were hidden.
Assuming this to be true, it should be recalled that the accused was never
informed of his constitutional rights at the time of his arrest. So that when the
accused allegedly admitted ownership of the gun and pointed to the location of
the subversive documents after questioning, the admissions were obtained in
violation of the constitutional right against self-incrimination under Sec. 20 of
Art. IV of the Bill of Rights winch provides:
No person shall be compelled to be a witness against
himself. Any person under investigation for the
commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right.. . .
The Constitution itself mandates that any evidence obtained in violation of this
right is inadmissible in evidence. Consequently, the testimonies of the arresting
officers as to the admissions made by the appellant cannot be used against
him.
The trial court validly rejected the extra-judicial confession of the accused as
inadmissible in evidence. The court stated that the appellant's having been
exhaustively subjected to physical terror, violence, and third degree measures
may not have been supported by reliable evidence but the failure to present
the investigator who conducted the investigation gives rise to the "provocative
presumption" that indeed torture and physical violence may have been
committed as stated.
The accused-appellant was not accorded his constitutional right to be assisted
by counsel during the custodial interrogation. The lower court correctly pointed
out that the securing of counsel, Atty. Anyog, to help the accused when he
subscribed under oath to his statement at the Fiscal's Office was too late. It
could have no palliative effect. It cannot cure the absence of counsel at the
time of the custodial investigation when the extrajudicial statement was being
taken.
With the extra-judicial confession, the firearm, and the alleged subversive
documents inadmissible in evidence against the accused-appellant, the only
remaining proof to sustain the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of Cesar Masamlok.
We find the testimony of Masamlok inadequate to convict Burgos beyond
reasonable doubt. It is true that the trial court found Masamlok's testimony
credible and convincing. However, we are not necessarily bound by the
credibility which the trial court attaches to a particular witness. As stated
in People vs.. Cabrera (100 SCRA 424):
xxx xxx xxx
. . .Time and again we have stated that when it comes to question of
credibility the findings of the trial court are entitled to great respect
upon appeal for the obvious reason th+at it was able to observe the
demeanor, actuations and deportment of the witnesses during the
trial. But we have also said that this rule is not absolute for otherwise
there would be no reversals of convictions upon appeal. We must
reject the findings of the trial court where the record discloses
circumstances of weight and substance which were not properly
appreciated by the trial court.
The situation under which Cesar Masamlok testified is analogous to that found
in People vs. Capadocia (17 SCRA 98 1):
. . . The case against appellant is built on Ternura's testimony, and
the issue hinges on how much credence can be accorded to him.
The first consideration is that said testimony stands
uncorroborated. Ternura was the only witness who testified on the
mimeographing incident. . . .
We are aware of the serious problems faced by the military in Davao del Sur
where there appears to be a well-organized plan to overthrow the Government
through armed struggle and replace it with an alien system based on a foreign
ideology. The open defiance against duly constituted authorities has resulted in
unfortunate levels of violence and human suffering publicized all over the
country and abroad. Even as we reiterate the need for all freedom loving
citizens to assist the military authorities in their legitimate efforts to maintain
peace and national security, we must also remember the dictum in Morales vs.
Enrile (1 21 SCRA 538, 569) when this Court stated:
While the government should continue to repel the
communists, the subversives, the rebels, and the lawless
with an the means at its command, it should always be
remembered that whatever action is taken must always be
within the framework of our Constitution and our laws.
Violations of human rights do not help in overcoming a rebellion. A cavalier
attitude towards constitutional liberties and protections will only fan the
increase of subversive activities instead of containing and suppressing them.
WHEREFORE, the judgment of conviction rendered by the trial court is
REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED,
on grounds of reasonable doubt, of the crime with which he has been charged.
The subject firearm involved in this case (homemade revolver, caliber .38,
Smith and Wesson, with Serial No. 8.69221) and the alleged subversive
documents are ordered disposed of in accordance with law.
Cost de oficio.

xxx xxx xxx SO ORDERED.

. . .He was a confessed Huk under detention at the time. He knew

his fate depended upon how much he cooperated with the
authorities, who were then engaged in a vigorous anti-dissident
campaign. As in the case of Rodrigo de Jesus, whose testimony
We discounted for the same reason, that of Ternura cannot be
considered as proceeding from a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated.

Considering that Masamlok surrendered to the military certainly his fate
depended on how eagerly he cooperated with the authorities. Otherwise, he
would also be charged with subversion. The trade-off appears to be his
membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983).
Masamlok may be considered as an interested witness. It can not be said that
his testimony is free from the opportunity and temptation to be exaggerated
and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged NPA
seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel
Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated
Cesar Masamlok's testimony that the accused used the gun in furtherance of
subversive activities or actually engaged in subversive acts, the prosecution
never presented any other witness.

This Court is, therefore, constrained to rule that the evidence presented by the
prosecution is insufficient to prove the guilt of the accused beyond reasonable
doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v.

Dramayo (42 SCRA 59), where after stressing that accusation is not,
according to the fundamental law, synonymous with guilt, it was
made clear: 'Only if the judge below and the appellate tribunal could
arrive at a conclusion that the crime had been committed precisely
by the person on trial under such an exacting test should the
sentence be one of conviction. It is thus required that every
circumstance favoring his innocence be duly taken into account. The
proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience
must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate
the act but that it amounted to a crime. What is required then is
moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81;
People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144;
People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205;
People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA
513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115
SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga
124 SCRA 697).
 EN BANC
[G.R. No. L-27511. November 29, 1968.]
IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS
CORPUS, SIMON LUNA, Petitioner-Appellant, v. HON. LORENZO M.
PLAZA, as Judge of the Municipal Court of Tandag, Surigao del Sur;
HON. SANTOS B. BEBERINO, as Provincial Fiscal of Surigao del Sur; and
THE PROVINCIAL WARDEN of Surigao del Sur, Respondents-Appellees.
Sisenando Villaluz and Juan T . David for Petitioner-Appellant.
Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M
. Amores for other Respondents-Appellees.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS
OF THE TRIAL COURT THEREON NOT INTERFERED WITH BY
APPELLATE COURTS. — As a rule where the issue is one of credibility of
witnesses, appellate courts will not generally disturb the findings of the trial
court, considering that it is in a better position to decide the question, having
seen and heard the witnesses themselves and observed their deportment and
manner of testifying during the trial unless there is a showing that it has
overlooked certain facts of substance and value, that if considered, might
affect the result of the case (People v. Sinaon, L-15631, May 27, 1966).
2. ID.; APPEALS; EFFECT OF APPEAL TO THE SUPREME COURT ON
ONLY QUESTIONS OF LAW — Where petitioner or appellant appealed
directly to the Supreme Court and raised therein only questions of law, the
effect is that: he has thereby waived the right to raise any question of fact
(Millar v. Nadres, 74 Phil. 307; Portea v. Pabellon, 47 O.G. 655; Flores v.
Plasina, 50 O.G. 1073) and, consequently, the findings of facts of the trial
court, under the rules and precedents, must be deemed final and binding upon
the appellate court (Abijuela, Et. Al. v. Dolosa, Et. Al. L-14245, Dec. 29, 1960).
3. ID.; CRIMINAL PROCEDURE; WARRANT OF ARREST; CONDITIONS
FOR THE ISSUANCE THEREOF. — The Constitution, in Section 1(3), Article
III, provides that no warrant shall issue but upon probable cause, to be
determined by the judge after examination of witnesses under oath or
affirmation of the complainant and the witnesses he may produce.
Conformably to said provision, Republic Act No. 3828, approved June 22,
1963, inserted in Section 87 (c) of the Judiciary Act of 1948 this paragraph:
"No warrant of arrest shall be issued by any justice of the peace in any criminal
case filed with him unless he first examines the witness or witnesses
personally, and the examination shall be under oath and reduced to writing in
the form of searching questions and answers."cralaw virtua1aw library
4. ID.; ID.; ID.; MEANING OF TERM "SEARCHING QUESTIONS AND
ANSWERS." — The term "searching questions and answers" means only,
taking into consideration the purpose of the preliminary examination which is to
determine "whether there is a reasonable ground to believe that an offense
has been committed and the accused is probably guilty thereof so that a
warrant of arrest may be issued and the accused held for trial" (Sec. 1, Rule
112, Rules of Court), such questions as have tendency to show the
commission of a crime and the perpetrator thereof. What would be searching
questions would depend on what is sought to be inquired into, such as: the
nature of the offense, the date, time, and place of its commission, the possible
motives for its commission; the subject, his age, education, status, financial
and social circumstances, his attitude toward the investigation, social attitudes,
opportunities to commit the offense; the victim, his age, status, family
responsibilities, financial and social circumstances, characteristics, etc. The
points that are the subject of inquiry may differ from case to case.
5. ID.; ID.; PRELIMINARY EXAMINATION; NOT A PART OF DUE PROCESS;
ACTS OF PETITIONER CONSTITUTING IMPLIED ADMISSION OF
PROBABLE CAUSE AND WAIVER OF IRREGULARITY ATTENDING THE
ARREST. — This Court has held that preliminary examination is not an
essential part of due process of law (People v. Olandag, 92 Phil. 286).
Preliminary examination may be conducted by the Municipal Judge, prior to the
issuance of the warrant, either in the presence, or in the absence, of the
accused. In the case at bar the petitioner (accused) waived the preliminary
investigation before respondent Municipal Judge, and he filed a petition for
bail. The petition for bail was at first granted by respondent Judge, but later the
order granting bail was revoked. These acts of the petitioner subsequent to his
arrest constitute an implied admission on his part that there was a probable
cause for the issuance of the warrant of arrest and a waiver of whatever
irregularity, if any there was, that attended his arrest (Doce v. Branch II of the
CFI of Quezon, L-26437, March 13, 1968, 22 SCRA 1031).
6. ID.; ID.; STRICT COMPLIANCE OF THE PROVISION OF SEC. 87 (C) OF
THE JUDICIARY ACT, AS AMENDED, EMPHASIZED. — We wish to stress,
however, that what has been stated in this opinion is certainly not intended to
sanction the return to the former practice of municipal judges of simply relying
upon affidavits or sworn statements that are made to accompany the
complaints that are filed before them, in determining whether there is a
probable cause for the issuance of a warrant of arrest. That practice is
precisely what is sought to be avoided by the amendment of Section 87 (c) of
Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal
judge issues a warrant of arrest he should first satisfy himself that there is a
probable cause by examining the witnesses personally, and that the
examination must be under oath and reduced to writing in the form of
searching questions and answers. It is obvious that the purpose of this
amendment is to prevent the issuance of a warrant of arrest against a person
based simply upon affidavits of witnesses who made, and swore to, their
statements before a person or persons other than the judge before whom the
criminal complaint is filed. We wish to emphasize strict compliance by
municipal or city judges of the provision of Section 87(c) of the Judiciary Act of
1948, as amended by Rep. Act 3828, in order to avoid malicious and/or
unfounded criminal prosecution of persons.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO LIBERTY; WHEN
WRIT OF HABEAS CORPUS IS NOT ALLOWED. — If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge and that the court or judge had
jurisdiction to issue the process or make the order, the writ shall not be allowed
(Cf. Sec. 4, Rule 102, Rules of Court).
DECISION
ZALDIVAR, J.:
Appeal from the decision of the Court of First Instance of Surigao del Sur,
dated April 20, 1967, dismissing the petition for a writ of habeas corpus, filed
by herein petitioner-appellant Simon Luna - hereinafter referred to simply as
petitioner — who was charged with murder in Criminal Case No. 655-New of
the same court.
The criminal action was commenced by T-Sgt. Candido Patosa, PC
investigator of Tandag, Surigao del Sur, by filing with respondent Municipal
Judge Lorenzo M. Plaza, of the Municipal Court of Tandag, Criminal Case No.
1138 charging the accused, herein petitioner, with the crime of murder.
Supporting the complaint were sworn statements of the witnesses for the
prosecution, in the form of questions and answers taken by T-Sgt. Patosa, and
subscribed and sworn to before the respondent Judge at the time of the filing
of the complaint. The respondent Judge examined the prosecution witnesses
by reading to them "all over again the questions and answers" in their
statements in writing, and the witnesses-affiants declared before said Judge
that the questions were propounded by T-Sgt. Candido Patosa, and that the
answers were made by them. The affiants further declared before respondent
Judge that their answers were true, and were freely and voluntarily made; that
they fully understood the questions and answers, and that they were willing to
sign their respective affidavits. The affiants signed their respective affidavits in
the presence of the respondent Judge, who also signed after the usual
procedure of administering the oath.
Considering the answers of the affiants to the questions contained in their
sworn statements, together with the post-mortem and autopsy report on the
dead body of the victim Jaime Diaz Ng, the certificate of death, the sketch
showing the position of the victim and the accused, and Exhibits 6, 7, 8, 12,
and 13 of herein respondents, the respondent Judge opined that there was
reasonable ground to believe that the crime of murder had been committed
and the accused was probably guilty thereof. Respondent Judge issued the
order and warrant of arrest, specifying therein that no bail should be accepted
for the provisional release of the accused. On February 20, 1967, upon motion
of petitioner that he be admitted to bail upon the ground that the evidence of
guilt was not strong, respondent Judge issued an order granting bail, fixing it at
P30,000.00; which order, however, respondent Judge later revoked, and
petitioner was denied bail.
The case was subsequently remanded to the Court of First Instance of Surigao
del Sur, after petitioner filed a waiver of his right to preliminary investigation.
On March 9, 1967 respondent Provincial Fiscal filed an information charging
herein petitioner with the crime of murder. The petitioner was detained in the
provincial jail of Surigao del Sur under the custody of respondent Provincial
Warden.
On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with the
Court of First Instance of Surigao del Sur, therein docketed as Special
Proceedings No. 105-New, claiming that he was being deprived of liberty
without due process of law, on the ground that the imprisonment and detention
was the result of a warrant of arrest issued by respondent Judge in violation of
Republic Act No. 3828, and praying for the annulment of the order for his
arrest and his discharge from confinement.
Herein respondents filed their answer, alleging that Republic Act No. 3828 had
been substantially complied with; that a motion to quash, and not a petition
for habeas corpus was the proper remedy; and that petitioner’s application for
bail constituted a waiver of the right to question the validity of the arrest.
After trial, the Court of First Instance of Surigao del Sur rendered its decision,
dated April 20, 1967, holding that respondent Municipal Judge had
substantially complied with Republic Act No. 3828, and consequently denied
the application for the writ of habeas corpus, and dismissed the case. Hence
this appeal.
Petitioner, in his assignment of errors, claims that the trial court erred, as
follows:chanrob1es virtual 1aw library
1. In giving absolute credence to the oral testimony of the respondent Judge to
the effect that he adopted and made his own the questions and answers taken
by T-Sgt. Patosa, PC Investigator, one of the prosecution witnesses, because
the records show the contrary;
2. In denying the writ of habeas corpus and in dismissing the petition.
1. In support of his first assignment of error, petitioner contends that Republic
Act No. 3828 imposes on a municipal judge, before he can issue a warrant of
arrest, two specific duties, to wit: (1) personally examine the complainant and
witnesses with "searching questions and answers, "which means that the
judge must cross-examine them in case their affidavits are presented; and (2)
said examination must be reduced to writing and form part of the records of the
case. The record of the instant case, according to petitioner, does not show
that said examination was performed by respondent Judge. Petitioner urges
that the absence of any document in the record that shows that respondent
Judge had performed the examination is positive proof that respondent Judge
did not perform his duty, notwithstanding his testimony before the Court of First
Instance of Surigao del Sur, during the hearing of this case, to the effect that
he adopted the questions propounded to each of the prosecution witnesses by
T-Sgt. Patosa. Petitioner maintains that this testimony, being self-serving
intended to cover up the failure to comply with the law, should not have been
believed by the Court of First Instance, and said court thereby committed error
when, believing said testimony, it found that there had been substantial
compliance with the requirement that the municipal judge should personally
examine the witnesses. Petitioner further maintains that assuming that the
adoption of the questions made by T-Sgt. Patosa constituted substantial
compliance with the requirement that the judge should examine the witnesses
by asking searching questions, still the second requirement, that of reducing to
writing the said procedure of adoption, has not been complied with; and so,
Republic Act No. 3828 was still violated, and the issuance of the warrant of
arrest was in violation of said Act and the Constitution and constituted denial of
due process.
Petitioner contends that the trial court erred in giving absolute credence to the
testimony of respondent Municipal Judge. Regarding credibility of witnesses,
this Court has consistently held that, as a general rule, the lower court’s
findings as to the credibility of witnesses will not be interfered with by appellate
courts. Thus, in the case of People v. Sinaon, 1 this Court
said:jgc:chanrobles.com.ph
"Time and again, we have held that as a rule where the issue is one of
credibility of witnesses, appellate courts will not generally disturb the findings
of the trial court, considering that it is in a better position to decide the
question, having seen and heard the witnesses themselves and observed their
deportment and manner of testifying during the trial, unless there is a showing
that it has overlooked certain facts of substance and value, that if considered,
might affect the result of the case."cralaw virtua1aw library
Petitioner has appealed "from the decision/order" of the trial court "to the
Honorable Supreme Court of the Philippines, on the ground that the same is
contrary to law and the Philippine Constitution" and prayed that "all the records
of the proceedings and the evidence, oral and documentary, be transmitted or
forwarded to the Honorable Supreme Court . . ." 2 Since petitioner appealed
directly to this Court he must, therefore, raise only questions of law and he has
thereby waived the right to raise any question of fact, 3 and the findings of
facts of the trial court, under the rules and precedents, must be deemed final
and binding upon this Court. 4 The findings of facts of the trial court are found
in the following portion of the decision appealed from, to
wit:jgc:chanrobles.com.ph
"There is no dispute that there is a valid complaint charging the accused Simon
Luna, the herein petitioner with the crime of Murder filed with the respondent
Judge authorized to conduct the examination of the witnesses for the
prosecution for the purpose of determining the existence of probable cause
before the issuance of the corresponding warrant of arrest; that the complaint
is supported by the statements of the witnesses under oath in writing in the
form of questions and answers and other documents attached to the
complaint; that before the issuance of the corresponding warrant of arrest, the
respondent judge personally examined the witnesses for the prosecution on
their statements taken by T-Sgt. Candido Patosa by reading the questions and
answers all over again to the affiants who confirmed to the respondent Judge
that the statements contained in their sworn statements are true; that being
satisfied that the questions and answers contained in the sworn statements
taken by T-Sgt. Patosa partake of the nature of his searching questions and
answers as required by law, the respondent Judge adopted them as his own
personal examination of the witnesses for the purpose of determining the
existence of probable cause, the order and the warrant of arrest were issued to
take the accused into custody for the commission of the offense charged
(Exhibits "H", "H-1", "I" and "I-1" — petitioner); and that the petitioner waived
his right to the preliminary investigation (Exhibit "12" — respondent) and
applied to be admitted to bail."cralaw virtua1aw library
Petitioner, however, claims that the failure of respondent Judge to put in writing
that he adopted the questions asked by T-Sgt. Patosa and his failure to ask
"searching questions" violated Republic Act No. 3828.
Republic Act No. 3828, approved June 22, 1963, inserted in Section 87 (c) of
the Judiciary Act of 1948 the following paragraph:jgc:chanrobles.com.ph
"No warrant of arrest shall be issued by any justice of the peace in any criminal
case filed with him unless he first examines the witness or witnesses
personally, and the examination shall be under oath and reduced to writing in
the form of searching questions and answers."cralaw virtua1aw library
Before a municipal judge may issue a warrant of arrest, the following
conditions must first be fulfilled: (1) he must examine the witnesses personally;
(2) the examination must be under oath; 3) the examination must be reduced
to writing in the form of searching questions and answers. Were these
conditions fulfilled the instant case?
The first condition was fulfilled. The trial court found as a fact that "the
respondent judge personally examined the witnesses for the prosecution . . ." ;
that respondent judge adopted as his own personal examination the questions
asked by T-Sgt. Patosa appearing in the written statements, which he read
over again the witnesses together with the answers given therein, asking the
witnesses whether said answers were theirs, and whether the same answers
were true, to which the witnesses answered in the affirmative. Republic Act No.
3828 does not prohibit the municipal Judge from adopting the questions asked
by a previous investigator.
It appears that the sworn statements 5 of the witnesses state at beginning that
the sworn statement was "taken by T-Sgt. Candido L. Patosa," and does not
state that it was taken by the respondent municipal Judge himself. This
circumstance is explained by the fact that said written statements already
taken by T-Sgt. Patosa were delivered to respondent Municipal Judge who
adopted the questions therein in his examination, because he considered them
searching questions. Respondent Judge presumably did not consider it
necessary to change the introductory remarks in each of the written
statements. But that made the examination personally cannot be doubted; it is
so stated in the order dated February 18, 1967, which
recites:jgc:chanrobles.com.ph
"After examining the witnesses personally and under oath there is reasonable
ground to believe that an offense for murder has been committed and the
accused, Simon Luna, is probably guilty thereof." (Exh. H)
The ruling in Doce v. Branch II of the Court of First Instance of Quezon, Et Al.,
6 wherein this Court held that the warrant of arrest issued therein was
irregularly issued is not applicable to the case at bar for the simple reason that
the facts are different. This Court in that case said:jgc:chanrobles.com.ph
"There is merit in the assertion that the warrant of arrest was irregularly issued
Section 87 of the Judiciary Act as amended by Republic Act 3828 requires that
the Municipal Judge issuing the same, personally examine under oath the
witnesses, and by searching questions and answers which are to be reduced
to writing. Here, instead of searching questions and answers, we have only the
affidavits of respondent and her one witness. Moreover, said affidavits were
sworn to before Judge Cabungcal, not before Judge Juntereal who issued the
warrant of arrest."cralaw virtua1aw library
In the instant case, as stated above, the respondent Municipal Judge
personally examined under oath the witnesses by asking questions, that were
adopted from a previous investigation, and considered by him as sufficiently
searching and which questions and the answers thereto were in writing and
sworn to before him prior to his issuance of the order of arrest.
The second condition required by Republic Act No. 3828 for the issuance of a
warrant of arrest was also fulfilled. The trial court found that the complaint was
"supported by statements of the witnesses under oath." The record also shows
the following documents to have been subscribed and sworn to before
respondent Judge namely: Exhibit B, sworn statement of herein petitioner
Simon Luna y Albay; Exhibit C, sworn statement of Eusebio Corpuz; Exhibit D,
sworn statement of Bruno M. Zafra; Exhibit E, sworn statement of Martiliano J.
Bautista; Exhibit F, sworn statement of Jose F. Suarez; and Exhibit C, sworn
statement of Janedina Diaz y Bandoy.
The third condition required by Republic Act No. 3828 was likewise fulfilled.
The examination of the witnesses was written down, in the form of searching
questions and answers. The term "searching questions and answers" means
only, taking into consideration the purpose of the preliminary examination
which is to determine "whether there is a reasonable ground to believe that an
offense has been committed and the accused is probably guilty thereof so that
a warrant of arrest may be issued and the accused held for trial," 7 such
questions as have tendency to show the commission of a crime and the
perpetrator thereof. What would be searching questions would depend on what
is sought to be inquired into, such as: the nature of the offense, the date, time,
and place of its commission, the possible motives for its commission; the
subject, his age, education, status, financial and social circumstances, his
attitude toward the investigation, social attitudes, opportunities to commit the
offense; the victim, his age, status, family responsibilities, financial and social
circumstances, characteristics, etc. The points that are the subject of inquiry
may differ from case to case. The questions, therefore, must to a great degree
depend upon the Judge making the investigation. At any rate, the court a quo
found that respondent Judge was "satisfied that the questions and answers
contained in the sworn statements taken by T-Sgt. Patosa partake of the
nature of his searching questions and answers as required by law," so the
respondent Judge adopted them.
Petitioner’s further contention that the issuance of the warrant of arrest was a
violation of the Constitution and of procedural due process is likewise
untenable. The Constitution, in Section 1(3), Article III, provides that no warrant
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce. The constitutional requirement of examination of witnesses
under oath was, as shown above, fulfilled. The existence of probable cause
depended to a large degree upon the finding or opinion of the judge conducting
the examination. Respondent Judge found that there was a probable cause, as
stated in his order of arrest, that "after examining the witnesses personally and
under oath there is a reasonable ground to believe that an offense of murder
has been committed and that the accused, Simon Luna, is probably guilty
thereof."cralaw virtua1aw library
Petitioner’s last contention that the warrant of arrest issued was a violation of
procedural due process because of the alleged defective preliminary
examination has no leg to stand on, in view of what we have hereinbefore
stated. Moreover, this Court has held that preliminary examination is not an
essential part of due process of law. 8 Preliminary examination may be
conducted by the municipal judge, prior to the issuance of the warrant of
arrest, either in the presence, or in the absence, of the accused. The record
shows that herein petitioner waived the preliminary investigation before
respondent Municipal Judge, and instead, he filed a petition for bail. The
petition for bail was at first granted by respondent Judge, but later the order
granting bail was revoked. This conduct of petitioner indicates that he had
waived his objection to whatever defect, if any, in the preliminary examination
conducted by respondent Judge prior to the issuance of the warrant of arrest.
Indeed, petitioner has no substantial - much less legal-ground to complain that
he was denied the due process of law.
We find that the trial Judge committed no error when he held that, based upon
the facts shown during the hearing of this case, respondent Municipal Judge
had substantially complied with the requirements of the law - specifically
Republic Act 3828 - before issuing the warrant of arrest in this case.
2. In the light of what has been said above, it appears clear that petitioner’s
second assignment of error, that the trial court erred in denying the writ
of habeas corpus, is untenable. Moreover, Section 4 of Rule 102 of the Rules
of Court provides in part, as follows:jgc:chanrobles.com.ph
"SECTION. 4 When writ not allowed or discharge authorized. — If it appears
that the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge .. and that the court or judge
had jurisdiction to issue the process .. or make the order, the writ shall not be
allowed . . ."cralaw virtua1aw library
All the conditions, in the afore-quoted Section 4, set forth to deny the writ, are
present in the instant case. It is shown that petitioner is detained and is in the
custody of the respondent Provincial Warden by virtue of the order of arrest
dated February 18, 1967, and the order dated February 21, 1967, of
respondent Judge, to confine petitioner in the provincial jail. It is not disputed
by petitioner that respondent Judge had jurisdiction to issue the warrant of
arrest and the order of commitment under the provisions of Section 47,
Republic Act No. 409, as amended by Republic Act No. 1201, although
petitioner did question the validity of the warrant of arrest for allegedly having
been issued in violation of Republic Act No. 3828 — which claim We have
found to be untenable. Consequently, the trial Judge did not commit an error in
denying the writ of habeas corpus prayed for.
At any rate, We believe that, if at all, the remedy available to the petitioner
herein, under the circumstances stated in this opinion, is not a petition for a
writ of habeas carpus but a petition to quash the warrant of arrest or a petition
for a reinvestigation of the case by the respondent Municipal Judge or by the
Provincial Fiscal.
We wish to stress, however, that what has been stated in this opinion is
certainly not intended to sanction the return to the former practice of municipal
judges of simply relying upon affidavits or sworn statements that are made to
accompany the complaints that are filed before them, in determining whether
there is a probable cause for the issuance of a warrant of arrest. That practice
is precisely what is sought to be voided by the amendment of Section 87 (c) of
Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal
judge issues a warrant of arrest he should first satisfy himself that there is a
probable cause by examining the witnesses personally, and that the
examination must be under oath and reduced to writing in the form of
searching questions and answers. It is obvious that the purpose of this
amendment is to prevent the issuance of a warrant of arrest against a person
based simply upon affidavits of witnesses who made, and swore to, their
statements before a person or persons other than the judge before whom the
criminal complaint is filed. We wish to emphasize strict compliance by
municipal or city judges of the provision of Section 87 (c) of the Judiciary Act of
1948, as amended by Republic Act 3828, in order to avoid malicious and/or
unfounded criminal prosecution of persons. 9
In the case now before Us, while it is true that the respondent Municipal Judge
did not himself personally cause to be reduced to writing in the form of
questions and answers the examination of witnesses presented before him by
the person who filed the criminal complaint, We are satisfied that, as shown by
the evidence, respondent Judge had personally examined the witnesses under
oath and that the questions asked by the Judge and the answers of the
witnesses were reflected in writings which were actually subscribed and
sworned to before him. Moreover, We are of the considered view that no
substantial right of the petitioner had been violated because, as hereinbefore
adverted to, petitioner waived his right to preliminary investigation after he was
arrested, and he took the step of applying for bail before respondent Municipal
Judge. These acts of the petitioner subsequent to his arrest constitute an
implied admission on his part that there was a probable cause for the issuance
of the warrant of arrest against him. Those acts of the petitioner constitute a
waiver of whatever irregularity, if any there was, that attended his arrest. 10
WHEREFORE, the decision of the trial court dated April 20, 1967, appealed
from, is affirmed. Costs against Petitioner-Appellant.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Fernando
and Capistrano, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 113630 May 5, 1994
DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA, petitioners,
vs.
HON. ROBERTO C. DIOKNO, Presiding Judge, Br. 62, Regional Trial
Court, Makati, Metro Manila, and PRESIDENTIAL ANTI-CRIME
COMMISSION, respondents.
BELLOSILLO, J.:
On balance at the fulcrum once again are the intrinsic right of the State to
prosecute perceived transgressors of the law, which can be regulated, and the
innate value of human liberty, which can hardly be weighed.
Some twelve years ago we were confronted with a similar problem when
former Senator Jovito R. Salonga invoked before this Court his "right to life and
liberty guaranteed by the due process clause, alleging that no prima facie case
has been established to warrant the filing of an information for subversion
against him."1 We resolved the issue then and sustained him. He is now back
before us, this time as counsel pleading the cause of petitioners herein who,
he claims, are in a situation far worse than his predicament twelve (12) years
ago. He postulates that no probable cause likewise exists in this case, and
what is worse is that no bail is recommended.
This petition gives us an opportunity to revisit the concept and implication of
probable cause, the existence of which is necessary for the prosecutor to have
an accused held for trial and for a trial judge to issue a warrant for his arrest. It
is mandatory therefore that there be probable cause before an information is
filed and a warrant of arrest issued. Unfortunately, however, at times a criminal
case is filed, a warrant of arrest issued and a person consequently
incarcerated on unsubstantiated allegations that only feign probable cause.
Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the
College of Law, University of the Philippines, are partners of the Law Firm of
Salonga, Hernandez and Allado. In the practice of their profession, and on the
basis of an alleged extrajudicial confession of a security guard, they have been
accused of the heinous crime of kidnapping with murder by the Presidential
Anti-Crime Commission (PACC) and ordered arrested without bail by
respondent judge.
The focal source of the information against petitioners is the sworn statement
dated 16 September 1993 of Security Guard Escolastico Umbal, a discharge of
the Philippine Constabulary, implicating them as the brains behind the alleged
kidnapping and slaying of one Eugen Alexander Van Twest, a German
national. 2 In that extrajudicial confession, Umbal claimed that he and his
companions were met by petitioners at Silahis Hotel and in exchange for
P2.5M the former undertook to apprehend Van Twest who allegedly had an
international warrant of arrest against him. Thus, on 16 June 1992, after
placing him under surveillance for nearly a month, Umbal, Ex-policeman
Rolando Gamatero, AFPCIG Agent Roberto Santiago and SPO2 Sergio
Antonino abducted Van Twest. They blocked his blue Nissan Pathfinder under
the Alabang overpass and forced him into their car. They brought him to a
"safe house" just behind the New Bilibid Prisons. Umbal was tasked to watch
over their quarry. After four (4) days, Gamatero, Santiago and Antonino
returned to the "safe house" together with petitioners and SPO2 Roger Bato,
known to Umbal also as "Batok." SPO2 Bato faked the interrogation of Van
Twest, pretending it was official, and then made him sign certain documents.
The following day, Gamatero shot Van Twest in the chest with a baby armalite,
after which Antonino stabbed him repeatedly, cut off his private part, and later
burned his cadaver into fine ashes using gasoline and rubber tires. Umbal
could not recall the exact date when the incident happened, but he was certain
it was about a year ago.
A day after Umbal executed his extrajudicial confession, the operatives of the
PACC, armed with a search warrant issued by Judge Roberto A. Barrios of the
Regional Trial Court of Manila, Br. 11, 3 separately raided the two (2) dwellings
of Santiago, one located at No. 7 Sangley Street, and the other, along
Amalingan Street, both in Green Heights Subdivision, Parañaque. The raiders
recovered a blue Nissan Pathfinder and assorted firearms and ammunition and
placed Santiago and his trusted aide, Efren Madolid, under arrest. Also
arrested later that day were Antonio and Bato who were found to have in their
possession several firearms and ammunition and Van Twest's Cartier
sunglasses.
After evaluating the pieces of evidence gathered by PACC operatives, Sr.,
Supt. Panfilo Lacson, Chief of PACC Task Force Habagat, referred the case to
the Department of Justice for the institution of criminal proceedings against
AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2 Roger Bato,
Ex-policeman Rolando Gamatero, Efren Madolid, and petitioners herein, Atty.
Diosdado Jose Allado and Atty. Roberto L. Mendoza, for illegal possession of
firearms and ammunition, carnapping, kidnapping for ransom with murder, and
usurpation of authority. 4 In his letter to the State Prosecutor dated 17
September 1993, Sr. Supt. Lacson charged that —
Atty. Roberto L. Mendoza and Atty. Allado of Salonga,
Hernandez and Allado Law Offices . . . planned and
conspired with other suspects to abduct and kill the
German national Alexander Van Twest in order to
eliminate him after forcing the victim to sign several
documents transferring ownership of several properties
amounting to several million pesos and caused the
withdrawal of P5M deposit from the victim's bank account.
Thereafter, Senior State Prosecutor Ferdinand prosecutor Ferdinand R.
Abesamis issued a subpoena to petitioners informing them that a complaint
was filed against them by PACC TF-Habagat, directing them to appear on
30 September 1993 at the Multi-Purpose Hall of the Department of Justice and
to submit their counter-affidavits. Attached to the subpoena were copies of the
affidavits executed by Umbal and members of the team who raided the two (2)
dwellings of Santiago. 5
Not satisfied merely with the affidavits attached to the subpoena, petitioner
Mendoza moved for the production of other documents for examination and
copying to enable him to fully prepare for his defense and to submit an
intelligible counter-affidavit. 6 Specifically, petitioner Mendoza was interested in
(a) the "several documents transferring ownership of several properties
amounting to several million pesos and the withdrawal of P5M deposits from
the victim's bank account," as stated in the complaint; (b) the complete records
of the PACC's investigation, including investigations on other suspects and
their disposition, PACC's Order of Battle for 1992 and early 1993; and, (c) such
other written statements issued in the above-entitled case, and all other
documents intended to be used in this case. 7 Petitioners likewise sought the
inhibition of the members of the panel of prosecutors, which was created to
conduct the preliminary investigation, on the ground that they were members
of the legal staff assigned to PACC and thus could not act with impartiality.
In its Order of 11 October 1993,8 the new panel of prosecutors composed of
Senior State Prosecutor Bernelito R. Fernandez as Chairman, with Rogelio F.
Vista and Purita M. Deynata as Members, confirmed that the motion for
inhibition of the members of the old panel as well as the appeal to the
Secretary of Justice was resolved on 8 October 1993 resulting in the creation
of a new panel. Thereafter, the new panel granted the prayer of petitioner
Mendoza for the production of additional documents used or intended to be
used against him. Meanwhile, Task Force Habagat, in compliance with the
order, submitted only copies of the request for verification of the firearms
seized from the accused, the result of the request for verification, and
a Philippine Times Journal article on the case with a marginal note of President
Fidel V. Ramos addressed to the Chief of the Philippine National Police
directing the submission of a report and summary of actions taken thereon.
Not having been provided with the requested documents, petitioners
nevertheless submitted their respective counter-affidavits denying the
accusations against them.9
After a preliminary hearing where clarificatory questions were additionally
propounded, the case was deemed submitted for resolution. But before the
new panel could resolve the case, SPO2 Bato filed a manifestation stating that
he was reconsidering the earlier waiver of his right to file counter-
affidavit, 10 and "in the greater interest of truth, justice and fair play" moved for
the admissions of his counter-affidavit 11 confessing participation in the
abduction and slaying of Van Twest and implicating petitioners Allado and
Mendoza. Sometime in January 1994, however, before petitioners could refute
Bato's counter-affidavit, he moved to suppress it on the ground that it was
extracted through intimidation and duress.
On 3 February 1994, with the new penal failing to act on the twin motions of
SPO2 Bato, petitioners heard over the radio that the panel had issued a
resolution finding a prima facie case against them and that an information had
already been filed in court. Upon verification with the Department of Justice,
however, petitioners were informed that the resolution was not yet ready for
release, but later that afternoon they were able to secure a copy of the
information for kidnapping with murder against them 12 and the 15-page
undated resolution under the letterhead of PACC, signed by the panel of
prosecutors, with the Head of the PACC Task Force recommending approval
thereof. 13 That same day, the information was filed before the Regional Trial
Court of Makati and raffled off to Branch 62 presided by respondent Judge
Roberto C. Diokno.
On 4 February 1994, respondent judge, in response to petitioners' request,
gave them until 8 February 1994 to submit their opposition to the issuance of a
warrant of arrest against all the accused. 14 On 7 February 1994, petitioners
complied with the order of respondent judge. 15 The following day,
8 February 1994, petitioner Allado filed an appeal with the Secretary of Justice
seeking review and reversal of the undated resolution of the panel
of prosecutors, 16 which appeal was adopted by petitioner Mendoza. 17 On
11 February 1994, petitioner Allado moved to defer the proceedings before the
trial court pending resolution of his appeal before the Secretary of
Justice. 18 However, on even date, respondent judge issued the assailed
warrant of arrest against petitioners. 19 Hence, on 15 February 1994,
petitioners filed with us the instant petition for certiorari and prohibition with
prayer for a temporary restraining order.
On 16 February 1994, we required respondents to comment on the petition
and set the case for hearing on 28 February 1994. After the hearing, we issued
a temporary restraining order enjoining PACC from enforcing the warrant of
arrest and respondent judge from conducting further proceedings on the case
and, instead, to elevate the records to us. Meanwhile, on 27 February 1994,
petitioners voluntarily surrendered at the Headquarters of the Capital
Command (CAPCOM), Philippine National Police (PNP), Camp Bagong Diwa,
Bicutan, Metro Manila, and on 29 February 1994, they were released on the
basis of our temporary restraining order.
Petitioners, in their 335-page petition, inclusive of annexes, principally contend
that respondent judge acted with grave abuse of discretion and in excess of
jurisdiction in "whimsically holding that there is probable cause against
petitioners without determining the admissibility of the evidence against
petitioners and without even stating the basis of his findings," 20 and in "relying
on the Resolution of the Panel and their certification that probable cause exists
when the certification is flawed." 21 Petitioners maintain that the records of the
preliminary investigation which respondent judge solely relied upon failed to
establish probable cause against them to justify the issuance of the warrant of
arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and
impartiality (sic)." 22
On the other hand, the Office of the Solicitor General argues that the
determination of probable cause is a function of the judge who is merely
required to personally appreciate certain facts to convince him that the
accused probably committed the crime charged.
Section 2, Art. III, of the 1987 Constitution, lays down the requirements for the
issuance of a warrant of arrest, i.e., a warrant of arrest shall issue only upon
probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce.
As early as 1915, in Buchanan v. Viuda de Esteban, 23 this Court speaking
through Associate Justice Sherman Moreland defined probable cause as "the
existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he was prosecuted."
This definition is still relevant today as we continue to cite it in recent
cases. 24 Hence, probable cause for an arrest or for the issuance of a warrant
of arrest has been defined as such facts and circumstances which would lead
a reasonable discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested. 25 And as a protection against
false prosecution and arrest, it is the knowledge of facts, actual or apparent,
strong enough to justify a reasonable man in the belief that he was lawful
grounds for arresting the accused. 26
Pilapil v. Sandiganbayan 27 sets a standard for determining the existence of
probable cause. While it appears in that case that we have granted the
prosecutor and the trial judge seemingly unlimited latitude in determining the
existence of absence of probable cause by affirming the long-standing
procedure that they can base their findings merely on their personal opinion
and reasonable belief, yet, this permissiveness should not be interpreted as
giving them arbitrary powers and letting them loose in the determination of the
existence of probable cause, a delicate legal question which can result in the
harassment and deprivation of liberty of the person sought to be charged or
arrested. There we said —
Probable cause is a reasonable ground of presumption
that a matter is, or may be, well founded, such a state of
facts in the mind of the prosecutor as would lead a person
of ordinary caution and prudence to believe, or entertain
an honest or strong suspicion, that a thing is so. The term
does not mean "actual and positive cause" nor does it
import absolute certainty. It is merely based on opinion
and reasonable belief. Thus, a finding of probable cause
does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is it
believed that the act or omission complained of constitutes
the offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support of the
charge.
Whether an act was done causing undue injury to the
government and whether the same was done with
manifest partiality or evident bad faith can only be made
out by proper and sufficient testimony. Necessarily, a
conclusion can be arrived at when the case has already
proceeded on sufficient proof. 28
Accordingly, before issuing a warrant of arrest, the judge must satisfy himself
that based on the evidence submitted there is sufficient proof that a crime has
been committed and that the person to be arrested is probably guilty thereof. In
the Order of respondent judge dated 11 February 1994, it is expressly stated
that "[t]his court after careful evaluation of the evidence on record, believes
and rules that probable cause exists; and therefore, a warrant of arrest should
be issued." However, we are unable to see how respondent judge arrived at
such ruling. We have painstakingly examined the records and we cannot find
any support for his conclusion. On the contrary, we discern a number of
reasons why we consider the evidence submitted to be insufficient for a finding
of probable cause against petitioners.
The Presidential Anti-Crime Commission relies heavily on the sworn statement
of Security Guard Umbal who supposedly confessed his participation in the
alleged kidnapping and murder of Van Twest. For one, there is serious doubt
on Van Twest's reported death since the corpus delicti has not been
established, nor have his remains been recovered. Umbal claims that Van
Twest was completely burned into ashes with the use of gasoline and rubber
tires from around ten o'clock in the evening to six o'clock the next
morning. 29 This is highly improbable, if not ridiculous. A human body cannot
be pulverized into ashes by simply burning it with the use of gasoline and
rubber tires in an open field. Even crematoria use entirely closed incinerators
where the corpse is subjected to intense heat. 30Thereafter, the remains
undergo a process where the bones are completely ground to dust.
In the case of Van Twest, there is not even any insinuation that earnest efforts
were exerted to recover traces of his remains from the scene of the alleged
cremation. 31 Could it be that the government investigators did to the place of
cremation but could not find any? Or could it be that they did not go at all
because they knew that there would not be any as no burning ever took place?
To allege then that the body of Van Twest was completely burned to ashes in
an open field with the use merely of tires and gasoline is a tale too tall to gulp.
Strangely, if not awkwardly, after Van Twest's reported abduction on
16 June 1992 which culminated in his decimation by cremation, his counsel
continued to represent him before judicial and quasi-judicial proceedings. Thus
on 31 July 1992, his counsel filed in his behalf a petition for review before this
Court, docketed as G.R. Nos. 106253, and on 18 March 1993, a memorandum
before the Securities and Exchange Commission in SEC Case No. 3896. On
26 November 1993, during the preliminary investigation conducted by the
panel of prosecutors, counsel again manifested that "even then and even as of
this time, I stated in my counter-affidavit that until the matter of death is to be
established in the proper proceedings, I shall continue to pursue my duties and
responsibilities as counsel for Mr. Van Twest." 32 Hence, even Asst. Solicitor
General Estoesta believes that counsel of Van Twest doubted the latter's
death. 33 Obviously, counsel himself does not believe that his client is in fact
already dead otherwise his obligation to his client would have ceased except to
comply with his duty "to inform the court promptly of such death . . . and to give
the name and residence of his executor, administrator, guardian or other legal
representative," 34 which he did not.
Under the circumstances, we cannot discount petitioners' theory that the
supposed death of Van Twest who is reportedly an international fugitive from
justice, a fact substantiated by petitioners and never refuted by PACC, is a
likely story to stop the international manhunt for his arrest. In this regard, we
are reminded of the leading case of U.S. v. Samarin 35 decided ninety-two
years ago where this Court ruled that when the supposed victim is wholly
unknown, his body not found, and there is but one witness who testifies to the
killing, the corpus delicti is not sufficiently proved.
Then, the extrajudicial statement of Umbal suffers from material
inconsistencies. In his sworn statement, he said that he together with his
cohorts was met by petitioners in Silahis Hotel where they hatched the plan to
abduct Van Twest. 36 However, during the preliminary investigation, he stated
that he was not part of the actual meeting as he only waited outside in the car
for his companions who supposedly discussed the plan inside Silahis Hotel. 37
Umbal also said that petitioners arrived with Bato and conducted a mock
interrogation of Van Twest who thereafter signed various documents upon
being compelled to do so. 38 During the clarificatory questioning, however,
Umbal changed his story and said that he was asked to go outside of the "safe
house" at the time Van Twest was interrogated and thus did not see if Van
Twest indeed signed certain documents. Why Umbal had to be sent out of the
"safe house,"
no explanation was offered. Did these documents really exist? Or could the
non-existence of these documents be the reason why PACC was not able to
comply with the order of the prosecutors to produce them during the
preliminary investigation? And then, what happened to the P2.5M that was
supposedly offered by petitioners in exchange for the abduction of Van Twest?
These and more remain unanswered.
Most perplexing however is that while the whole investigation was supposedly
triggered off by Umbal's confession of 16 September 1993, the application of
the PACC operatives for a search warrant to be served in the
two (2) dwellings of Santiago was filed and granted by the Regional Trial Court
of Manila on 15 September 1993, a day before Umbal executed his sworn
statement. In support of the application, the PACC agents claimed that Umbal
had been in their custody since 10 September 1993. Significantly, although he
was said to be already under their custody, Umbal claims he was never
interrogated until 16 September 1993 and only at the security barracks of Valle
Verde V, Pasig, where he was a security guard. 39
The alleged counter-affidavit of SPO2 Bato, which the panel of prosecutors
also considered in filing the charges against petitioners, can hardly be credited
as its probative value has tremendously waned. The records show that the
alleged counter-affidavit, which is self-incriminating, was filed after the panel
had considered the case submitted for resolution. And before petitioners could
refute this counter-affidavit, Bato moved to suppress the same on the ground
that it was extracted through duress and intimidation.
For sure, the credibility of Umbal is badly battered. Certainly, his bare
allegations, even if the State invokes its inherent right to prosecute, are
insufficient to justify sending two lawyers to jail, or anybody for that matter.
More importantly, the PACC operatives who applied for a warrant to search the
dwellings of Santiago never implicated petitioners. In fact they claimed that
according to Umbal, it was Santiago, and not petitioners, who masterminded
the whole affair. 40 While there may be bits of evidence against petitioners'
co-accused, i.e., referring to those seized from the dwellings of Santiago, these
do not in the least prove petitioners' complicity in the crime charged. Based on
the evidence thus far submitted there is nothing indeed, much less is there
probable cause, to incriminate petitioners. For them to stand trial and be
deprived in the meantime of their liberty, however brief, the law appropriately
exacts much more to sustain a warrant for their arrest — facts and
circumstances strong enough in themselves to support the belief that they are
guilty of a crime that in fact happened. Quite obviously, this has not been met.
Verily, respondent judge committed grave abuse of discretion in issuing the
warrant for the arrest of petitioners it appearing that he did not personally
examine the evidence nor did he call for the complainant and his witnesses in
the face of their incredible accounts. Instead, he merely relied on the
certification of the prosecutors that probable cause existed. For, otherwise, he
would have found out that the evidence thus far presented was utterly
insufficient to warrant the arrest of petitioners. In this regard, we restate the
procedure we outlined in various cases we have already decided.
In Soliven v. Makasiar, 41 we said that the judge (a) shall personally evaluate
the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard
the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion on the existence of probable
cause.
In People v. Inting, 42 we emphasized the important features of the
constitutional mandate: (a) The determination of probable cause is a function
of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only
the judge and the judge alone makes this determination; (b) The preliminary
inquiry made by a prosecutor does not bind the judge. It merely assists him in
making the determination of probable cause. The judge does not have to follow
what the prosecutor presents to him. By itself, the prosecutor's certification of
probable cause is ineffectual. It is the report, the affidavits, the transcript of
stenographic notes (if any), and all other supporting documents behind the
prosecutor's certification which are material in assisting the judge in his
determination of probable cause; and, (c) Judges and prosecutors alike should
distinguish the preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if the
two inquiries be conducted in the course of one and the same proceeding,
there should be no confusion about their objectives. The determination of
probable cause for the warrant is made by the judge. The preliminary
investigation
proper — whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial — is a
function of the prosecutor.
In Lim v. Felix, 43 where we reiterated Soliven v. Makasiar and People v. Inting,
we said —
[T]he Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can
perform the same functions as a commissioner for the
taking of the evidence. However, there should be a report
and necessary documents supporting the Fiscal's bare
certification. All these should be before the Judge.
The extent of the Judge's personal examination of the
report and its annexes depends on the circumstances of
each case. We cannot determine beforehand how cursory
or exhaustive the Judge's examination should be. The
Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the
Constitution. It can be as brief or as detailed as the
circumstances of each case require. To be sure, the judge
must go beyond the Prosecutor's certification and
investigation report whenever necessary. He should call
for the complainant and witnesses themselves to answer
the court's probing questions when the circumstances of
the case so require.
Clearly, probable cause may not be established simply by showing that a trial
judge subjectively believes that he has good grounds for his action. Good faith
is not enough. If subjective good faith alone were the test, the constitutional
protection would be demeaned and the people would be "secure in their
persons, houses, papers and effects" only in the fallible discretion of the
judge.44 On the contrary, the probable cause test is an objective one, for in
order that there be probable cause the facts and circumstances must be such
as would warrant a belief by a reasonably discreet and prudent man that the
accused is guilty of the crime which has just been committed. 45 This, as we
said, is the standard. Hence, if upon the filing of the information in court the
trial judge, after reviewing the information and the documents attached thereto,
finds that no probable cause exists must either call for the complainant and the
witnesses themselves or simply dismiss the case. There is no reason to hold
the accused for trial and further expose him to an open and public accusation
of the crime when no probable cause exists.
But then, it appears in the instant case that the prosecutors have similarly
misappropriated, if not abused, their discretion. If they really believed that
petitioners were probably guilty, they should have armed themselves with facts
and circumstances in support of that belief; for mere belief is not enough. They
should have presented sufficient and credible evidence to demonstrate the
existence of probable cause. For the prosecuting officer "is the representative
not of an ordinary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but
that justice shall be done. As such, he is in a peculiar and very definite sense
the servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with earnestness and vigor — indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring
about a just one" 46
In the case at bench, the undue haste in the filing of the information and the
inordinate interest of the government cannot be ignored. From the gathering of
evidence until the termination of the preliminary investigation, it appears that
the state prosecutors were overly eager to file the case and secure a warrant
for the arrest of the accused without bail and their consequent detention.
Umbal's sworn statement is laden with inconsistencies and improbabilities.
Bato's counter-affidavit was considered without giving petitioners the
opportunity to refute the same. The PACC which gathered the evidence
appears to have had a hand in the determination of probable cause in the
preliminary inquiry as the undated resolution of the panel not only bears the
letterhead of PACC but was also recommended for approval by the head of the
PACC Task Force. Then petitioners were given the runaround in securing a
copy of the resolution and the information against them.
Indeed, the task of ridding society of criminals and misfits and sending them to
jail in the hope that they will in the future reform and be productive members of
the community rests both on the judiciousness of judges and the prudence of
prosecutors. And, whether it is a preliminary investigation by the prosecutor,
which ascertains if the respondent should be held for trial, or a preliminary
inquiry by the trial judge which determines if an arrest warrant should issue,
the bottomline is that there is a standard in the determination of the existence
of probable cause, i.e., there should be facts and circumstances sufficiently
strong in themselves to warrant a prudent and cautious man to believe that the
accused is guilty of the crime with which he is charged. Judges and
prosecutors are not off on a frolic of their own, but rather engaged in a delicate
legal duty defined by law and jurisprudence.
Perhaps, this case would not have reached this Court if petitioners were
ordinary people submissive to the dictates of government. They would have
been illegally arrested and detained without bail. Then we would not have the
opportunity to rectify the injustice. Fortunately, the victims of injustice are
lawyers who are vigilant of their rights, who fight for their liberty and freedom
not otherwise available to those who cower in fear and subjection.
Let this then be a constant reminder to judges, prosecutors and other
government agents tasked with the enforcement of the law that in the
performance of their duties they must act with circumspection, lest their
thoughtless ways, methods and practices cause a disservice to their office and
maim their countrymen they are sworn to serve and protect. We thus caution
government agents, particularly the law enforcers, to be more prudent in the
prosecution of cases and not to be oblivious of human rights protected by the
fundamental law. While we greatly applaud their determined efforts to weed
society of felons, let not their impetuous eagerness violate constitutional
precepts which circumscribe the structure of a civilized community.

In this instance, Salonga v. Paño 47 finds application — WHEREFORE, the petition for certiorari and prohibition is GRANTED. The
temporary restraining order we issued on 28 February 1994 in favor of
The purpose of a preliminary investigation is to secure the petitioners, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, is made
innocent against hasty, malicious and oppressive permanent. The warrant of arrest issued against them is SET ASIDE and
prosecution, and to protect him from an open and public respondent Judge Roberto C. Diokno is ENJOINED from proceeding any
accusation of crime, from the trouble, expense and anxiety further against herein petitioners in Crim. Case No. 94-1757 of the Regional
of a public trial, and also to protect the state from useless Trial Court of Makati.
and expensive trial (Trocio v. Manta, 118 SCRA
241, citing Hashim v. Boncan, 71 Phil. 216). The right to a SO ORDERED
preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due
process (People v. Oandasa, 25 SCRA 277). However, in
order to satisfy the due process clause it is not enough
that the preliminary investigation is conducted in the sense
of making sure that the transgressor shall not escape with
impunity. A preliminary investigation serves not only for
the purposes of the State. More importantly, it is a part of
the guarantees of freedom and fair play which are
birthrights of all who live in the country. It is therefore
imperative upon the fiscal or the judge as the case may
be, to relieve the accused from the pain of going thru a
trial once it is ascertained that the evidence is insufficient
to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the
accused (emphasis supplied).

The facts of this case are fatefully distressing as they showcase the seeming
immensity of government power which when unchecked becomes tyrannical
and oppressive. Hence the Constitution, particularly the Bill of Rights, defines
the limits beyond which lie unsanctioned state actions. But on occasion, for
one reason or another, the State transcends this parameter. In consequence,
individual liberty unnecessarily suffers. The case before us, if uncurbed, can be
illustrative of a dismal trend. Needless injury of the sort inflicted by government
agents is not reflective of responsible government. Judges and law enforcers
are not, by reason of their high and prestigious office, relieved of the common
obligation to avoid deliberately inflicting unnecessary injury.

The sovereign power has the inherent right to protect itself and its people from
vicious acts which endanger the proper administration of justice; hence, the
State has every right to prosecute and punish violators of the law. This is
essential for its self- preservation, nay, its very existence. But this does not
confer a license for pointless assaults on its citizens. The right of the State to
prosecute is not a carte blanche for government agents to defy and disregard
the rights of its citizens under the Constitution. Confinement, regardless of
duration, is too high a price to pay for reckless and impulsive prosecution.
Hence, even if we apply in this case the "multifactor balancing test" which
requires the officer to weigh the manner and intensity of the interference on the
right of the people, the gravity of the crime committed and the circumstances
attending the incident, still we cannot see probable cause to order the
detention of petitioners.48

The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the
preservation of our natural rights which include personal liberty and security
against invasion by the government or any of its branches or instrumentalities.
Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over
the right of the State to prosecute, and when weighed against each other, the
scales of justice tilt towards the former. Thus, relief may be availed of to stop
the purported enforcement of criminal law where it is necessary to provide for
an orderly administration of justice, to prevent the use of the strong arm of the
law in an oppressive and vindictive manner, and to afford adequate protection
to constitutional rights. 49
 EN BANC
[G.R. No. 113930. March 5, 1996]
PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR.,
LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N.
FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and
WONG FONG FUI, petitioners, vs. THE COURT OF APPEALS,
THE HON. MAXIMIANO ASUNCION, in his capacity as the
Presiding Judge of the Regional Trial Court, Quezon City, Branch
104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F.
GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities
as Members of the Department of Judge 349 Committee, and the
CITY PROSECUTOR OF QUEZON CITY, respondents.
ROBERTO DELGADO, petitioner-intervenor.
DECISION
DAVIDE, JR., J.:
We are urged in this petition to set aside (a) the decision of the Court of
Appeals of 28 September 1993 in CA-G.R. SP No. 31226,[1] which dismissed
the petition therein on the ground that it has been mooted with the release by
the Department of Justice of its decision x x x dismissing petitioners petition for
review; (b) the resolution of the said court of 9 February 1994[2]denying the
petitioners motion to reconsider the decision; (c) the order of 17 May 1993[3] of
respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial
Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying
petitioners motion to suspend proceedings and to hold in abeyance the issuance
of the warrants of arrest and the public prosecutors motion to defer arraignment;
and (d) the resolution of 23 July 1993 and 3 February 1994[4] of the Department
of Justice, (DOJ) dismissing petitioners petition for the review of the Joint
Resolution of the Assistant City Prosecutor of Quezon City and denying the
motion to reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs
prayed for in this petition:
I The information for estafa attached to the Joint Resolution was approved
Respondent Judge acted with grave abuse of discretion when he ordered the
arrest of the petitioners without examining the record of the preliminary
investigation and in determining for himself on the basis thereof the existence
of probable cause.
II
The Department of Justice 349 Committee acted with grave abuse of
discretion when it refused to review the City Prosecutors Joint Resolution and
dismissed petitioners appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld the
subject order directing the issuance of the warrants of arrest without assessing
for itself whether based on such records there is probable cause against
petitioners.
IV
The facts on record do not establish prima facie probable cause and Criminal
Case No. Q-93-43198 should have been dismissed.[5]
The antecedents of this petition are not disputed.
[6]
Several thousand holders of 349 Pepsi crowns in connection with the
Pepsi Cola Products Phils., Inc.s (PEPSIs) Number Fever Promotion[7] filed with
the Office of the City Prosecutor of Quezon City complaints against the
petitioners in their respective capacities as Presidents or Chief Executive
Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of
PEPSI, and also against other officials of PEPSI. The complaints respectively
accuse the petitioners and the other PEPSI officials of the following crimes: (a)
estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer Act of
the Philippines; (c) violation of E.O. No. 913;[8] and (d) violation of Act No. 2333,
entitled An Act Relative to Untrue, Deceptive and Misleading Advertisements, as
amended by Act No. 3740.[9]
After appropriate proceedings, the investigating prosecutor, Ramon M.
Gerona, released on 23 March 1993 a Joint Resolution[10] where he
recommended the filing of an information against the petitioners and others for
the violation of Article 3 18 of the Revised Penal Code and the dismissal of the
complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A.
No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. The
dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G.
Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F.
Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury
R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and
Chito V. Gutierrez for estafa under Article 318, Revised Penal
Code, while the complaint for violation of Article 315, 2(d),
Revised Penal Code against same respondents Juanito R.
Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao,
Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette
P. Pio de Roda, Joaquin W. Sampaico, Winefreda 0. Madarang,
Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio,
Alex 0. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard
Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen,
Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S.
Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren,
James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A. 7394
otherwise known as the Consumer Act of the Philippines and
violation of Act 2333 as amended by Act 3740 and E 0. 913 be
also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns
Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged
to be likewise winning ones be further investigated to afford
respondents a chance to submit their counter-evidence.[11]
On 6 April 1993, City Prosecutor Candido V. Rivera approved the
recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr.,
and Chito Gonzales be excluded from the charge on the ground of insufficiency
of evidence.[12]
(on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon
authority of the City Prosecutor of Quezon City, and was filed with the RTC of
Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-
43198.[13] The information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS,
JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO,
JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC,
JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI,
of the crime of ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines and for
sometime prior and subsequent thereto, the above-named accused -
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board
J. Roberto Delgado ) being then Members of the Board
Amaury R. Gutierrez )
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with
one another, with intent of gain, by means of deceit, fraudulent acts or false
pretenses, executed prior to or simultaneously with the commission of the
fraud, did then and there willfully, unlawfully and feloniously defraud the private
complainants whose names with their prizes claimed appear in the attached
lists marked as Annexes A to A-46; B to -33; C to C-281; D to D-238; E to E-
3O and F to F-244 in the following manner: on the date and in the place
aforementioned, said accused pursuant to their conspiracy, launched the Pepsi
Cola Products Philippines, Inc. Number Fever Promotion from February 17 to
May 8, 1992 later extended to May 11-June 12, 1992 and announced and
advertised in the media that all holders of crowns and/or caps of Pepsi,
Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit number will
win the full amount of the prize printed on the crowns/caps which are marked
with a seven-digit security code as a measure against tampering or faking of
crowns and each and every number has its own unique matching security
code, enticing the public to buy Pepsi softdrinks with aforestated alluring and
attractive advertisements to become millionaires, and by virtue of such
representations made by the accused, the said complainants bought Pepsi
softdrinks, but, the said accused after their TV announcement on May 25, 1992
that the winning number for the next day was 349, in violation of their
aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi
crowns and/or caps presented to them by the complainants, who, among
others, were able to buy Pepsi softdrinks with crowns/caps bearing number
349 with security codes L-2560-FQ and L-3560-FQ, despite repeated demands
made by the complainants, to their damage and prejudice to the extent of the
amount of the prizes respectively due them from their winning 349
crowns/caps, together with such other amounts they spent ingoing to and from
the Office of Pepsi to claim their prizes and such other amounts used in buying
Pepsi softdrinks which the complainants normally would not have done were it
not for the false, fraudulent and deceitful posters of Pepsi Cola Products, Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor
a motion for the reconsideration of the Joint Resolution[14] alleging therein that
(a) there was neither fraud in the Number Fever Promotion nor deviation from
or modification of the promotional rules approved by the Department of Trade
and industry (DTI), for from the start of the promotion, it had always been clearly
explained to the public that for one to be entitled to the cash prize his crown
must bear both the winning number and the correct security code as they appear
in the DTI list; (b) the complainants failed to allege, much less prove with prima
facie evidence, the specific overt criminal acts or ommissions purportedly
committed by each of the petitioners; (c) the compromise agreement entered
into by PEPSI is not an admission of guilt; and (d) the evidence establishes that
the promo was carried out with utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for
Review[15] wherein, for the same grounds adduced in the aforementioned motion
for reconsideration, they prayed that the Joint Resolution be reversed and the
complaints dismissed. They further stated that the approval of the Joint
Resolution by the City prosecutor was not the result of a careful scrutiny and
independent evaluation of the relevant facts and the applicable law but of the
grave threats, intimidation, and actual violence which the complainants had
inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198
Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants
of Arrest on the ground that they had filed the aforesaid Petition for Review. [16]
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor
Zenon L. De Guia issued a 1st Indorsement,[17] directing the City Prosecutor of
Quezon City to inform the DOJ whether the petitioners have already been
arraigned, and if not, to move in court for the deferment of further proceedings
in the case and to elevate to the DOJ the entire records of the case, for the case
is being treated as an exception pursuant to Section 4 of Department Circular
No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch
104 of the RTC of Quezon City.[18]
In the morning of 27 April 1993, private prosecutor Julio Contreras filed
an Ex-Parte Motion for Issuance of Warrants of Arrest.[19]
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a
Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest
and to Suspend Proceedings.[20] He stressed that the DOJ had taken cognizance
of the Petition for Review by directing the City Prosecutor to elevate the records
of I.S. No. P-4401 and its related cases and asserted that the petition for review
was an essential part of the petitioners right to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104
of the RTC of Quezon City, issued an order advising the parties that his court
would be guided by the doctrine laid down by the Supreme Court in the case
of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department
of Justice on the petition for review undertaken by the accused.[21]
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the
trial court a Motion to Defer Arraignment wherein he also prayed that further
proceedings be held in abeyance pending final disposition by the Department of
Justice.[22]
On 4 May 1993, Gavero filed an Amended Information,[23] accompanied
by a corresponding motion[24] to admit it. The amendments merely consist in the
statement that the complainants therein were only among others who were
defrauded by the accused and that the damage or prejudice caused amounted
to several billions of pesos, representing the amounts due them from their
winning 349 crowns/caps. The trial court admitted the amended information on
the same date.[25]
Later, the attorneys for the different private complainants filed,
respectively, an Opposition to Motion to Defer Arraignment, [26] and Objection
and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the
Issuance of Warrants of Arrest.[27]
On 14 May 1993, the petitioners filed a Memorandum in support of their
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the
Warrants of Arrest.[28]
On 17 May 1993, respondent Judge Asuncion issued the challenged order
(1) denying the petitioners Motion to Suspend Proceedings and to Hold In
Abeyance Issuance of Warrants of Arrest and the public prosecutors Motion to
Defer Arraignment and (2) directing the issuance of the warrants of arrest
after 21 June 1993 and setting the arraignment on 28 June 1993.[29]Pertinent
portions of the order read as follows:
In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed
a petition for review seeking the reversal of the resolution of the City
Prosecutor of Quezon City approving the filing of the case against the
accused, claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before
the Department of Trade and Industry;
5. The evidence presented clearly showed no malicious intent on
the part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment
averred that there is a pending petition for review with the Department of Justice
filed by the accused and the Office of the City Prosecutor was directed, among
other things, to cause for the deferment of further proceedings pending final
disposition of said petition by the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby
DENIED.
This case is already pending in this Court for trial. To follow whatever
opinion the Secretary of Justice may have on the matter would undermine the
independence and integrity of this Court. This Court is still capable of
administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-
472) stated as follows:
In order therefor to avoid such a situation whereby the opinion of the Secretary
of Justice who reviewed the action of the fiscal may be disregarded by the trial
court, the Secretary of Justice should, as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal, when
the complaint or information has already been filed in Court. The matter should
be left entirely for the determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and
arraignment be set on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special
civil action for certiorari and prohibition with application for a temporary
restraining order,[30] which was docketed as CA-G.R. SP No. 31226. They
contended therein that respondent Judge Asuncion had acted without or in
excess of jurisdiction or with grave abuse of discretion in issuing the
aforementioned order of 17 May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD
OF PRELIMINARY INVESTIGATION BEFORE ORDERING
THE ARREST OF PETITIONERS.
 II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS
CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR
ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN
SUSPENDED TO AWAIT THE SECRETARY OF JUSTICES
RESOLUTION OF PETITIONERS APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining
order to maintain the status quo.[31] In view thereof, respondent Judge Asuncion
issued an order on 28 June 1993[32] postponing indefinitely the arraignment of
the petitioners which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners application
for a writ of preliminary injunction, granted the motion for leave to intervene filed
by J. Roberto Delgado, and directed the Branch Clerk of Court of the RTC of
Quezon City to elevate the original records of Criminal Case No. Q-93-43198[33]
Upon receipt of the original records of the criminal case, the Court of
Appeals found that a copy of the Joint Resolution had in fact been forwarded to,
and received by, the trial court on 22 April 1993, which fact belied the petitioners
claim that the respondent Judge had not the slightest basis at all for determining
probable cause when he ordered the issuance of warrants of arrest. It ruled that
the Joint Resolution was sufficient in itself to have been relied upon by
respondent Judge in convincing himself that probable cause indeed exists for
the purpose of issuing the corresponding warrants of arrest; and that the mere
silence of the records or the absence of any express declaration in the
questioned order as to the basis of such finding does not give rise to an adverse
inference, for the respondent Judge enjoys in his favor the presumption of
regularity in the performance of his official duty. The Court of Appeals then
issued a resolution[34] denying the application for a writ of preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider[35] the
aforesaid resolution. The Court of Appeals required the respondents therein to
comment on the said motion.[36]
On 3 August 1993, the counsel for the private complainants filed in CA-
G.R. SP No. 31226 a Manifestation[37] informing the court that the petitioners
petition for review filed with the DOJ was dismissed in a resolution dated 23 July
1993. A copy[38] of the resolution was attached to the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No.
31226 a motion to dismiss the petition[39] on the ground that it has become moot
and academic in view of the dismissal by the DOJ of the petitioners petition to
review the Joint Resolution. The dismissal by the DOJ is founded on the
following exposition:
You questioned the said order of the RTC before the Court of Appeals and
prayed for the issuance of a writ of preliminary injunction to restrain the Trial
Judge from issuing any warrant of arrest and from proceeding with the
arraignment of the accused. The appellate court in a resolution dated July 1,
1993, denied your petition.
In view of the said developments, it would be an exercise in futility to
continue reviewing the instant cases for any further action on the part of the
Department would depend on the sound discretion of the Trial Court. The denial
by the said court of the motion to defer arraignment filed at our instance was
clearly an exercise of its discretion. With the issuance of the order dated May
17, 1993, the Trial Court was in effect sending a signal to this Department that
the determination of the case is within its exclusive jurisdiction and competence.
The rule is that x x x once a complaint or information is filed in Court, any
disposition of the case as to dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case
is already in Court, he cannot impose his opinion on the trial court. The court is
the best and sole judge on what to do with the case before it. x x x
(Crespo vs. Mogul, 151 SCRA 462).[40]
On 28 September 1993, the Court of Appeals promulgated a
decision[41] dismissing the petition because it had been mooted with the release
by the Department of Justice of its decision x x x dismissing petitioners petition
for review by inerrantly upholding the criminal courts exclusive and
unsupplantable authority to control the entire course of the case brought against
petitioners, reiterating with approval the dictum laid down in the Crespo case.
The petitioners filed a motion to reconsider the DOJs dismissal of the
petition citing therein its resolutions in other similar cases which were favorable
to the petitioners and adverse to other 349 Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its 349 Committee,
denied the motion and stated: The instant petition is different from the other
petitions resolved by this Department in similar cases from the provinces. In the
latter petitions, the complaints against herein respondents [sic] [42] were
dismissed inasmuch as the informations have not yet been filed or even if
already filed in court, the proceedings have been suspended by the courts to
await the outcome of the appeal with this Department. [43]
The petitioners likewise filed a motion to reconsider[44] the aforesaid Court
of Appeals decision, which the said court denied in its resolution[45] of 9 February
1994. Hence, the instant petition.
The First Division of this Court denied due course to this petition in its
resolution of 19 September 1994.[46]
On 7 October 1994, the petitioners filed a motion for the
reconsideration[47] of the aforesaid resolution. Acting thereon, the First Division
required the respondents to comment thereon.
Later, the petitioners filed a supplemental motion for
reconsideration[48] and a motion to refer this case to the Court en banc.[49] In its
resolution of 14 November 1994,[50] the First Division granted the latter motion
and required the respondents to comment on the supplemental motion for
reconsideration
In the resolution of 24 November 1994, the Court en banc accepted the
referral.
On 10 October 1995, after deliberating on the motion for reconsideration
and the subsequent pleadings in relation thereto, the Court en banc granted the
motion for reconsideration; reconsidered and set aside the resolution of 19
September 1994; and reinstated the petition. It then considered the case
submitted for decision, since the parties have exhaustively discussed the issues
in their pleadings, the original records of Criminal Case No. Q-93-43198 and of
CA-G.R. SP No. 31226 had been elevated to this Court, and both the petitioners
and the Office of the Solicitor General pray, in effect, that this Court resolve the
issue of probable cause On the basis thereof.
The pleadings of the parties suggest for this Courts resolution the
following key issues:
1. Whether public respondent Judge Asuncion committed grave
abuse of discretion in denying, on the basis of Crespo vs.
Mogul, the motions to suspend proceedings and hold in
abeyance the issuance of warrants of arrest and to defer
arraignment until after the petition for review filed with the DOJ
shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave
abuse of discretion in ordering the issuance of warrants of arrest
without examining the records of the preliminary investigation.
3. Whether the DOJ, through its 349 Committee, gravely abused its
discretion in dismissing the petition for review on the following
bases: (a) the resolution of public respondent Court of Appeals
denying the application for a writ of preliminary injunction and
(b) of public respondent Asuncions denial of the
abovementioned motions.
4. Whether public respondent Court of Appeals committed grave
abuse of discretion (a) in denying the motion for a writ of
preliminary injunction solely on the ground that public
respondent Asuncion had already before him the Joint
Resolution of the investigating prosecutor when he ordered the
issuance of the warrants of arrest, and (b) in ultimately
dismissing the petition on the ground of mootness since the
DOJ has dismissed the petition for review.
5. Whether this Court may determine in this proceedings the
existence of probable cause either for the issuance of warrants
of arrest against the petitioners or for their prosecution for the
crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the
negative.
I.
There is nothing in Crespo vs. Mogul[51] which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused in a
criminal case from an unfavorable ruling of the investigating prosecutor. It merely
advised the DOJ to, as far as practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when the complaint or information
has already been filed in Court. More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be disregarded
by the trial court, the Secretary of Justice should, as far as practicable, refrain
from entertaining a petition for review or appeal from the action of the fiscal,
when the complaint or information has already been filed in Court. The matter
should be left entirely for the determination of the Court.[52]
[53]
In Marcelo vs. Court of Appeals, this Court explicitly declared:
Nothing in the said ruling forecloses the power or authority of the Secretary of
Justice to review resolutions of his subordinates in criminal cases. The
Secretary of Justice is only enjoined to refrain as far as practicable from
entertaining a petition for review or appeal from the action of the prosecutor
once a complaint or information is filed in court. In any case, the grant of a
motion to dismiss, which the prosecution may file after the Secretary of Justice
reverses an appealed resolution, is subject to the discretion of the court.
Crespo could not have intended otherwise without doing violence to, or
repealing, the last paragraph of Section 4, Rule 112 of the Rules of
Court[54] which recognizes the authority of the Secretary of Justice to reverse the
resolution of the provincial or city prosecutor or chief state prosecutor upon
petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated
the rules on appeals from resolutions in preliminary investigation. At the time the
petitioners filed their petition for the review of the Joint Resolution of the
investigating prosecutor, the governing rule was Circular No. 7, dated 25
January 1990. Section 2 thereof provided that only resolutions dismissing a
criminal complaint may be appealed to the Secretary of Justice. Its Section
4,[55] however, provided an exception, thus allowing, upon a showing of manifest
error or grave abuse of discretion, appeals from resolutions finding probable
cause, provided that the accused has not been arraigned.
The DOJ gave due course to the petitioners petition for review as an
exception pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No.
223[56] which superseded Circular No. 7. This Order, however, retained the
provisions of Section 1 of the Circular on appealable cases and Section 4 on the
non-appealable cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a
recall of the previous action of the DOJ giving due course to the petitioners
petition for review. But whether the DOJ would affirm or reverse the challenged
Joint Resolution is still a matter of guesswork. Accordingly, it was premature for
respondent Judge Asuncion to deny the motions to suspend proceedings and to
defer arraignment on the following grounds:
This case is already pending in this Court for trial. To follow whatever opinion
the Secretary of Justice may have on the matter would undermine the
independence and integrity of this Court. This Court is still capable of
administering justice.
The real and ultimate test of the independence and integrity of this court
is not the filing of the aforementioned motions at that stage of the proceedings
but the filing of a motion to dismiss or to withdraw the information on the basis
of a resolution of the petition for review reversing the Joint Resolution of the
investigating prosecutor. Before that time, the following pronouncement
in Crespo did not yet truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or information is
filed in Court any disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of the court. Although the
fiscal retains the direction and control of the prosecution of criminal cases even
while the case is already in court he cannot impose his opinion on the trial
court. The court is the best and sole judge on what to do with the case before
it. The determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that
the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation. [57]
However, once a motion to dismiss or withdraw the information is filed the trial
judge may grant or deny it, not out of subservience to the Secretary of Justice,
but in faithful exercise of judicial prerogative. This Court pertinently stated so
in Martinez vs. Court of Appeals:[58]
Whether to approve or disapprove the stand taken by the prosecution is not
the exercise of discretion required in cases like this. The trial judge must
himself be convinced that there was indeed no sufficient evidence against the
accused, and this conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution. What was imperatively required
was the trial judges own assessment of such evidence, it not being sufficient
for the valid and proper exercise of judicial discretion merely to accept the
prosecutions word for its supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an
independent finding of the merits of the case and merely anchoring the dismissal
on the revised position of the prosecution, the trial judge relinquished the
discretion he was duty bound to exercise. In effect, it was the prosecution,
through the Department of Justice which decided what to do and not the court
which was reduced to a mere rubber stamp in violation of the ruling in Crespo
vs. Mogul.
II.
Section 2, Article III of the present Constitution provides that no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the
Metropolitan Trial Courts (MeTCs) except those in the National Capital Region,
Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in
cases falling within their exclusive original jurisdiction;[59] in cases covered by the
rule on summary procedure where the accused fails to appear when
required;[60] and in cases filed with them which are cognizable by the Regional
Trial Courts (RTCs);[61] and (2) by the Metropolitan Trial Courts in the National
Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after
appropriate preliminary investigations conducted by officers authorized to do so
other than judges of MeTCs, MTCs and MCTCs.[62]
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses, in
the form of searching questions and answers, that a probable cause exists and
that there is a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar[63] that the judge
is not required to personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally
evaluate the report and supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he
may disregard the fiscals report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence
of probable cause.[64]
Sound policy supports this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts. It must
be emphasized that judges must not rely solely on the report or resolution of the
fiscal (now prosecutor); they must evaluate the report and the supporting
documents. In this sense, the aforementioned requirement has modified
paragraph 4(a) of Circular No. 12 issued by this Court on 30 June
1987 prescribing the Guidelines on Issuance of Warrants of Arrest under
Section 2, Article III of the 1987 Constitution, which provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the
issuance of a warrant of arrest, the judge, following established
doctrine and procedure, may either:
(a) Rely upon the fiscals certification of the existence of
probable cause whether or not the case is cognizable only
by the Regional Trial Court and on the basis thereof, issue
a warrant of arrest. x x x
This requirement of evaluation not only of the report or certification of the
fiscal but also of the supporting documents was further explained in People vs.
Inting,[65] where this Court specified what the documents may consist of, viz., the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutors certification which are material in assisting
the Judge to make his determination of probable cause. Thus:
We emphasize the important features of the constitutional mandate that x x x
no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge x x x (Article III, Section 2,
Constitution).
First, the determination of probable cause is a function of the Judge. It is
not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to
ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable cause. The
Judge does not have to follow what the Prosecutor presents to him. By itself, the
Prosecutors certification of probable cause is ineffectual. It is the report, the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutors certification which are material in assisting
the Judge to make his determination.
In adverting to a statement in People vs. Delgado[66] that the judge may
rely on the resolution of the Commission on Elections (COMELEC) to file the
information by the same token that it may rely on the certification made by the
prosecutor who conducted the preliminary investigation in the issuance of the
warrant of arrest, this Court stressed in Lim vs. Felix[67] that
Reliance on the COMELEC resolution or the Prosecutors certification
presupposes that the records of either the COMELEC or the Prosecutor have
been submitted to the Judge and he relies on the certification or
resolution because the records of the investigation sustain the
recommendation. The warrant issues not on the strength of the certification
standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under
the 1935 and 1973 Constitutions, this Court found it necessary to restate the
rule in greater detail and hopefully clearer terms. It then proceeded to do so,
thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not
have to personally examine the complainant and his witnesses. The Prosecutor
can perform the same functions as a commissioner for the taking of the
evidence. However, there should be a report and necessary documents
supporting the Fiscals bare certification. All of these should be before the Judge.
The extent of the Judges personal examination of the report and its
annexes depends on the circumstances of each case. We cannot determine
beforehand how cursory or exhaustive the Judges examination should be. The
Judge has to exercise sound discretion for, after all, the personal determination
is vested in the Judge by the Constitution. It can be as brief as or detailed as the
circumstances of each case require. To be sure, the Judge must go beyond the
Prosecutors certification and investigation report whenever, necessary. He
should call for the complainant and witnesses themselves to answer the courts
probing questions when the circumstances of the case so require.
This Court then set aside for being null and void the challenged order of
respondent Judge Felix directing the issuance of the warrants of arrest against
petitioners Lim, et al., solely on the basis of the prosecutors certification in the
informations that there existed probable cause without having before him any
other basis for his personal determination of the existence of a probable cause.
In Allado vs. Diokno,[68] this Court also ruled that before issuing a warrant
of arrest, the judge must satisfy himself that based on the evidence submitted
there is sufficient proof that a crime has been committed and that the person to
be arrested is probably guilty thereof.
In the recent case of Webb vs. De Leon,[69] this Court rejected the thesis
of the petitioners of absence probable cause and sustained the investigating
panels and the respondent Judges findings of probable cause. After quoting
extensively from Soliven vs. Makasiar,[70] this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law repudiate
the submission of petitioners that respondent judges should have conducted
searching examination of witnesses before issuing warrants of arrest against
them. They also reject petitioners contention that a judge must first issue an
order of arrest before issuing a warrant of arrest. There is no law or rule
requiring the issuance of an Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page
report, the two (2) sworn statements of Alfaro and the sworn statements of
Carlos Cristobal and Lolita Birrer as well as the counter- affidavits of the
petitioners. Apparently, the painstaking recital and analysis of the parties
evidence made in the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners. Again, we stress
that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of the guilt of an accused. In doing so, judges do
not conduct a de novo hearing to determine the existence of probable cause.
They just personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence. The sufficiency
of the review process cannot be measured by merely counting minutes and
hours. The fact that it took the respondent judges a few hours to review and
affirm the Probable cause determination of the DOJ Panel does not mean they
made no personal evaluation of the evidence attached to the records of the case.
(italics supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
proposition that the investigating prosecutors certification in an information or
his resolution which is made the basis for the filing of the information, or both,
would suffice in the judicial determination of probable cause for the issuance of
a warrant of arrest. In Webb, this Court assumed that since the respondent
Judges had before them not only the 26-page resolution of the investigating
panel but also the affidavits of the prosecution witnesses and even the counter-
affidavits of the respondents, they (judges) made personal evaluation of the
evidence attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied
the information upon its filing on 12 April 1993 with the trial court. As found by
the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint
Resolution was forwarded to, and received by, the trial court only on 22 April
1993. And as revealed by the certification[71] of Branch Clerk of Court Gibson
Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of
the proceedings during the preliminary investigation, or other documents
submitted in the course thereof were found in the records of Criminal Case No.
Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion
issued the assailed order of 17 May 1993 directing, among other things, the
issuance of warrants of arrest, he had only the information, amended
information, and Joint Resolution as bases thereof. He did not have the records
or evidence supporting the prosecutors finding of probable cause. And strangely
enough, he made no specific finding of probable cause; he merely directed the
issuance of warrants of arrest after June 21, 1993. It may, however, be argued
that the directive presupposes a finding of probable cause. But then compliance
with a constitutional requirement for the protection of individual liberty cannot be
left to presupposition, conjecture, or even convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave
due course to the petitioners petition for review pursuant to the exception
provided for in Section 4 of Circular No. 7, and directed the Office of the City
Prosecutor of Quezon City to forward to the Department the records of the cases
and to file in court a motion for the deferment of the proceedings. At the time it
issued the indorsement, the DOJ already knew that the information had been
filed in court, for which reason it directed the City Prosecutor to inform the
Department whether the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings. It must have been fully aware
that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the
prosecution either as a consequence of a reinvestigation or upon instructions of
the Secretary of Justice after a review of the records of the investigation is
addressed to the trial court, which has the option to grant or to deny it. Also, it
must have been still fresh in its mind that a few months back it had dismissed
for lack of probable cause other similar complaints of holders of 349 Pepsi
crowns.[72] Thus, its decision to give due course to the petition must have been
prompted by nothing less than an honest conviction that a review of the Joint
Resolution was necessary in the highest interest of justice in the light of the
special circumstances of the case. That decision was permissible within the as
far as practicable criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed
on 23 July 1993 a unilateral volte-face, which was even unprovoked by a formal
pleading to accomplish the same end, by dismissing the petition for review. It
dismissed the petition simply because it thought that a review of the Joint
Resolution would be an exercise in futility in that any further action on the part
of the Department would depend on the sound discretion of the trial court, and
that the latters denial of the motion to defer arraignment filed at the instance of
the DOJ was clearly an exercise of that discretion or was, in effect, a signal to
the Department that the determination of the case is within the courts exclusive
jurisdiction and competence. This infirmity becomes more pronounced because
the reason adduced by the respondent Judge for his denial of the motions to
suspend proceedings and hold in abeyance issuance of warrants of arrest and
to defer arraignment finds, as yet, no support in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the
petitioners Motion to Suspend Proceedings and to Hold in Abeyance Issuance
of Warrants of Arrest and the public prosecutors Motion to Defer Arraignment,
which were both based on the pendency before the DOJ of the petition for the
review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the
basis of the dismissal by the DOJ of the petition for review might have been
correct. However, the petition likewise involved the issue of whether respondent
Judge Asuncion gravely abused his discretion in ordering the issuance of
warrants of arrest despite want of basis. The DOJs dismissal of the petition for
review did not render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners application for a
writ of preliminary injunction to restrain respondent Judge Asuncion from issuing
warrants of arrest, the Court of Appeals ,justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by
respondent Judge in convincing himself that probable cause indeed exists for
the purpose of issuing the corresponding warrants of arrest. The mere silence
of the records or the absence of any express declaration in the questioned
Order of May 17, 1993 as to where the respondent Judge based his finding of
probable cause does not give rise to any adverse inference on his part. The
fact remains that the Joint Resolution was at respondent Judges disposal at
the time he issued the Order for the issuance of the warrants of arrest. After
all, respondent Judge enjoys in his favor the presumption of regularity in the
performance of official actuations. And this presumption prevails until it is
overcome by clear and convincing evidence to the contrary. Every reasonable
intendment will be made in support of the presumption, and in case of doubt as
to an officers act being lawful or unlawful it should be construed to be lawful.
(31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA
482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa,
36 Phil. 338).
We are unable to agree with this disquisition, for it merely assumes at least
two things: (1) that respondent Judge Asuncion had read and relied on the Joint
Resolution and (2) he was convinced that probable cause exists for the issuance
of the warrants of arrest against the petitioners. Nothing in the records provides
reasonable basis for these assumptions. In his assailed order, the respondent
Judge made no mention of the Joint Resolution, which was attached to the
records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state
that he found probable cause for the issuance of warrants of arrest. And, for an
undivinable reason, he directed the issuance of warrants of
arrest only after June 21, 1993. If he did read the Joint Resolution and, in so
reading, found probable cause, there was absolutely no reason at all to delay
for more than one month the issuance of warrants of arrest. The most probable
explanation for such delay could be that the respondent Judge had actually
wanted to wait for a little while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice
Reynato S. Puno that whatever doubts may have lingered on the issue of
probable cause was dissolved when no less than the Court of Appeals sustained
the finding of probable cause made by the respondent Judge after an evaluation
of the Joint Resolution. We are not persuaded with that opinion. It is anchored
on erroneous premises. In its 1 July 1993 resolution, the Court of Appeals does
not at all state that it either sustained respondent Judge Asuncions finding of
probable cause, or found by itself probable cause. As discussed above, it merely
presumed that Judge Asuncion might have read the Joint Resolution and found
probable cause from a reading thereof. Then too, that statement in the
dissenting opinion erroneously assumes that the Joint Resolution can validly
serve as sufficient basis for determining probable cause. As stated above, it is
not.
V.
In criminal prosecutions, the determination of probable cause may either
be an executive or a judicial prerogative. In People vs. Inting,[73] this Court aptly
stated:
And third, Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of arrest
from a preliminary investigation proper which ascertains whether the offender
should be held for trial or released. Even if the two inquiries are conducted in
the course of one and the same proceeding, there should be no confusion
about the objectives. The determination of probable cause for the warrant of
arrest is made by the Judge. The preliminary investigation proper - whether or
not there is reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial- is the function of the Prosecutor.
xxx xxx xxx
We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground for the
filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecutions
job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge x x x.
Ordinarily, the determination of probable cause is not lodged with this
Court. Its duty in an appropriate case is confined to the issue of whether the
executive or judicial determination, as the case may be, of probable cause was
done without or in excess of jurisdiction or with grave abuse of discretion
amounting to want of jurisdiction. This is consistent with the general rule that
criminal prosecutions may not be restrained or stayed by injunction, preliminary
or final. There are, however, exceptions to this rule. Among the exceptions are
enumerated in Brocka vs. Enrile[74] as follows:
a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs. Albano, et al., L-19272, January 25,
1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions (Dimayuga, et al.
vs. Fernandez, 43 Phil. 304;
Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-
38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub
judice (De Leon vs. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority
(Planas vs. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or
regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong
Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People
and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense
(Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA
616);
h. Where it is a case of persecution rather than prosecution
(Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust
for vengeance (Recto vs. Castelo, 18 L.J., [1953], cited in
Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.
Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); and
j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied
(Salonga vs. Pao, et al., L-59524, February 18, 1985, 134
SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners
(Rodriguez vs. Castelo, L-6374, August 1, 1953). (cited in
Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the existence or
non-existence of probable cause by examining the records of the preliminary
investigation, as it did in Salonga vs. Pao,[75] Allado, and Webb.
There can be no doubt that, in light of the several thousand private
complainants in Criminal Case No. Q-93-43198 and several thousands more in
different parts of the country who are similarly situated as the former for being
holders of 349 Pepsi crowns, any affirmative holding of probable cause in the
said case may cause or provoke, as justly feared by the petitioners, the filing of
several thousand cases in various courts throughout the country. Inevitably, the
petitioners would be exposed to the harassments of warrants of arrest issued by
such courts and to huge expenditures for premiums on bailbonds and for travels
from one court to another throughout the length and breadth of the archipelago
for their arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial calendar of our
overburdened judges and take much of their attention, time, and energy, which
they could devote to other equally, if not more, important cases. Such a frightful
scenario would seriously affect the orderly administration of justice, or cause
oppression or multiplicity of actions - a situation already long conceded by this
Court to be an exception to the general rule that criminal prosecutions may not
be restrained or stayed by injunction.[76]
 We shall not, however, reevaluate the evidence to determine if indeed
there is probable cause for the issuance of warrants of arrest in Criminal Case
No. Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact,
find that probable cause exists, and if he did he did not have the basis therefor
as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the
records of the preliminary investigation in Criminal Case No. Q-93-43198 are not
with this Court. They were forwarded by the Office of the City Prosecutor of
Quezon City to the DOJ in compliance with the latters 1st Indorsement of 21
April 1993. The trial court and the DOJ must be required to perform their duty.

WHEREFORE, the instant petition is granted and the following are hereby
SET ASIDE:

(a) Decision of 28 September 1993 and Resolution of 9 February

1994 of respondent Court of Appeals in CA-G.R. SP No. 31226;

(b) The Resolution of the 349 Committee of the Department of

Justice of 23 July 1993 dismissing the petitioners petition for
review and of 3 February 1994 denying the motion to
reconsider the dismissal; and

(c) The Order of respondent Judge Maximiano C. Asuncion of 17

May 1993 in Criminal Case No. Q-93-43198.

The Department of Justice is DIRECTED to resolve on the merits, within

sixty (60) days from notice of this decision, the petitioners petition for the review
of the Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter
to file the appropriate motion or pleading in Criminal Case No. Q-93-43198,
which respondent Judge Asuncion shall then resolve in light of Crespo vs.
Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix, Allado vs.
Diokno, and Webb vs. De Leon.

In the meantime, respondent Judge Asuncion is DIRECTED to cease and

desist from further proceeding with Criminal Case No. Q-93-43198 and to defer
the issuance of warrants of arrest against the petitioners.

No pronouncement as to costs.

SO ORDERED.
 EN BANC
[G.R. No. 133917. February 19, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NASARIO MOLINA y
MANAMAT @ BOBONG and GREGORIO MULA y MALAGURA @
BOBOY, accused-appellants.
DECISION
YNARES-SANTIAGO, J.:
To sanction disrespect and disregard for the Constitution in the name of
protecting the society from lawbreakers is to make the government itself lawless
and to subvert those values upon which our ultimate freedom and liberty
depend.[1]
For automatic review is the Decision[2] of the Regional Trial Court of Davao
City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants
Nasario Molina y Manamat alias Bobong and Gregorio Mula y
Malagura alias Boboy, guilty beyond reasonable doubt of violation of Section
8,[3] of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended
by Republic Act No. 7659,[4]and sentencing them to suffer the supreme penalty
of death.
The information against accused-appellants reads:
That on or about August 8, 1996, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, in
conspiracy with each other, did then and there willfully, unlawfully and
feloniously was found in their possession 946.9 grams of dried marijuana
which are prohibited.
CONTRARY TO LAW.[5]
Upon arraignment on September 4, 1996, accused-appellants pleaded
not guilty to the accusation against them.[6] Trial ensued, wherein the
prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y.
Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.
The antecedent facts are as follows:
Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the
Philippine National Police detailed at Precinct No. 3, Matina, Davao City,
received an information regarding the presence of an alleged marijuana pusher
in Davao City.[7] The first time he came to see the said marijuana pusher in
person was during the first week of July 1996. SPO1 Paguidopon was then with
his informer when a motorcycle passed by. His informer pointed to the
motorcycle driver, accused-appellant Mula, as the pusher. As to accused-
appellant Molina, SPO1 Paguidopon had no occasion to see him before the
arrest.Moreover, the names and addresses of the accused-appellants came to
the knowledge of SPO1 Paguidopon only after they were arrested. [8]
At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon
received an information that the alleged pusher will be passing at NHA, Ma-a,
Davao City any time that morning.[9] Consequently, at around 8:00 A.M. of the
same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao
City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team
leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1
Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they
would wait for the alleged pusher to pass by.[10]
At around 9:30 in the morning of August 8, 1996, while the team were
positioned in the house of SPO1 Paguidopon, a trisikad carrying the accused-
appellants passed by. At that instance, SPO1 Paguidopon pointed to the
accused-appellants as the pushers. Thereupon, the team boarded their vehicle
and overtook the trisikad.[11] SPO1 Paguidopon was left in his house, thirty
meters from where the accused-appellants were accosted.[12]
The police officers then ordered the trisikad to stop. At that point, accused-
appellant Mula who was holding a black bag handed the same to accused-
appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police
officer and asked accused-appellant Molina to open the bag.[13] Molina
replied, Boss, if possible we will settle this.[14] SPO1 Pamplona insisted on
opening the bag, which revealed dried marijuana leaves inside. Thereafter,
accused-appellants Mula and Molina were handcuffed by the police officers. [15]
On December 6, 1996, accused-appellants, through counsel, jointly filed
a Demurrer to Evidence, contending that the marijuana allegedly seized from
them is inadmissible as evidence for having been obtained in violation of their
constitutional right against unreasonable searches and seizures. [16] The
demurrer was denied by the trial court.[17] A motion for reconsideration was filed
by accused-appellants, but this was likewise denied. Accused-appellants
waived presentation of evidence and opted to file a joint memorandum.
On April 25, 1997, the trial court rendered the assailed decision,[18] the
decretal portion of which reads:
WHEREFORE, finding the evidence of the prosecution alone without any
evidence from both accused who waived presentation of their own evidence
through their counsels, more than sufficient to prove the guilt of both accused
of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub.
par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO
MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through
lethal injection under Republic Act 8176, to be effected and implemented as
therein provided for by law, in relation to Sec. 24 of Rep. Act 7659.
The Branch Clerk of Court of this court, is ordered to immediately elevate the
entire records of this case with the Clerk of Court of the Supreme Court,
Manila, for the automatic review of their case by the Supreme Court and its
appropriate action as the case may be.
SO ORDERED.[19]
Pursuant to Article 47 of the Revised Penal Code and Rule 122, Section
10 of the Rules of Court, the case was elevated to this Court on automatic
review. Accused-appellants contend:
I.
THAT THE MARIJUANA IS INADMISSIBLE IN EVIDENCE FOR
HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS
CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES
AND SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE
GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT
BEYOND REASONABLE DOUBT; AND
III.
THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED
BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR
VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF
ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT,
NOT DEATH.[20]
The Solicitor General filed a Manifestation and Motion (In Lieu of Brief),
wherein he prayed for the acquittal of both accused-appellants.
The fundamental law of the land mandates that searches and seizures be
carried out in a reasonable fashion, that is, by virtue or on the strength of a
search warrant predicated upon the existence of a probable cause. The
pertinent provision of the Constitution provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.[21]
Complementary to the foregoing provision is the exclusionary rule
enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies
the protection against unreasonable searches and seizures. [22] Thus:
Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Without this rule, the right to privacy would be a form of words, valueless
and undeserving of mention in a perpetual charter of inestimable human
liberties; so too, without this rule, the freedom from state invasions of privacy
would be so ephemeral and so neatly severed from its conceptual nexus with
the freedom from all brutish means of coercing evidence as not to merit this
Courts high regard as a freedom implicit in the concept of ordered liberty.[23]
The foregoing constitutional proscription, however, is not without
exceptions. Search and seizure may be made without a warrant and the
evidence obtained therefrom may be admissible in the following instances: (1)
search incident to a lawful arrest; (2) search of a moving motor vehicle; (3)
search in violation of customs laws; (4) seizure of evidence in plain view; (5)
when the accused himself waives his right against unreasonable searches and
seizures;[24] and (6) stop and frisk situations (Terry search).[25]
The first exception (search incidental to a lawful arrest) includes a valid
warrantless search and seizure pursuant to an equally valid warrantless arrest
which must precede the search. In this instance, the law requires that there be
first a lawful arrest before a search can be made --- the process cannot be
reversed.[26] As a rule, an arrest is considered legitimate if effected with a valid
warrant of arrest. The Rules of Court, however, recognizes permissible
warrantless arrests. Thus, a peace officer or a private person may, without
warrant, arrest a person: (a) when, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense
(arrest in flagrante delicto); (b) when an offense has just been committed and he
has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it (arrest effected
in hot pursuit); and (c) when the person to be arrested is a prisoner who has
escaped from a penal establishment or a place where he is serving final
judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another (arrest of escaped
prisoners).[27]
In the case at bar, the court a quo anchored its judgment of conviction on
a finding that the warrantless arrest of accused-appellants, and the subsequent
search conducted by the peace officers, are valid because accused-appellants
were caught in flagrante delicto in possession of prohibited drugs.[28] This brings
us to the issue of whether or not the warrantless arrest, search and seizure in
the present case fall within the recognized exceptions to the warrant
requirement.
In People v. Chua Ho San,[29] the Court held that in cases of in flagrante
delicto arrests, a peace officer or a private person may, without a warrant, arrest
a person when, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense. The arresting officer,
therefore, must have personal knowledge of such fact or, as recent case law
adverts to, personal knowledge of facts or circumstances convincingly indicative
or constitutive of probable cause. As discussed in People v. Doria,[30] probable
cause means an actual belief or reasonable grounds of suspicion.The grounds
of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest.
As applied to in flagrante delicto arrests, it is settled that reliable
information alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, are not sufficient to
constitute probable cause that would justify an in flagrante delicto arrest. Thus,
in People v. Aminnudin,[31] it was held that the accused-appellant was not, at the
moment of his arrest, committing a crime nor was it shown that he was about to
do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that called
for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed
to him as the carrier of the marijuana that he suddenly became suspect and so
subject to apprehension.
Likewise, in People v. Mengote,[32] the Court did not consider eyes...
darting from side to side ... [while] holding ... [ones] abdomen, in a crowded
street at 11:30 in the morning, as overt acts and circumstances sufficient to
arouse suspicion and indicative of probable cause. According to the Court, [b]y
no stretch of the imagination could it have been inferred from these acts that an
offense had just been committed, or was actually being committed, or was at
least being attempted in [the arresting officers] presence. So also, in People v.
Encinada,[33] the Court ruled that no probable cause is gleanable from the act of
riding a motorela while holding two plastic baby chairs.
Then, too, in Malacat v. Court of Appeals,[34] the trial court concluded that
petitioner was attempting to commit a crime as he was standing at the corner of
Plaza Miranda and Quezon Boulevard with his eyes moving very fast and
looking at every person that come (sic) nearer (sic) to them. [35] In declaring the
warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante delicto ... arrest preceding
the search in light of the lack of personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the part of petitioner, indicating
that a crime had just been committed, was being committed or was going to be
committed.[36]
It went on to state that -
Second, there was nothing in petitioners behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were moving
very fast - an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble...
Third, there was at all no ground, probable or otherwise, to believe that
petitioner was armed with a deadly weapon. None was visible to Yu, for as he
admitted, the alleged grenade was discovered inside the front waistline of
petitioner, and from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was indeed hiding a
grenade, could not have been visible to Yu.[37]
Clearly, to constitute a valid in flagrante delicto arrest, two requisites must
concur: (1) the person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the view of the arresting
officer.[38]
In the case at bar, accused-appellants manifested no outward indication
that would justify their arrest. In holding a bag on board a trisikad, accused-
appellants could not be said to be committing, attempting to commit or have
committed a crime. It matters not that accused-appellant Molina responded
Boss, if possible we will settle this to the request of SPO1 Pamplona to open the
bag. Such response which allegedly reinforced the suspicion of the arresting
officers that accused-appellants were committing a crime, is an equivocal
statement which standing alone will not constitute probable cause to effect an
inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon
(who did not participate in the arrest but merely pointed accused-appellants to
the arresting officers), accused-appellants could not be the subject of any
suspicion, reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his informer conducted a
surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted
that he only learned Mulas name and address after the arrest. What is more, it
is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is
worthy to note that, before the arrest, he was able to see Mula in person only
once, pinpointed to him by his informer while they were on the side of the
road. These circumstances could not have afforded SPO1 Paguidopon a closer
look at accused-appellant Mula, considering that the latter was then driving a
motorcycle when SPO1 Paguidopon caught a glimpse of him. With respect to
accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen
him before the arrest.
This belies the claim of SPO1 Pamplona that he knew the name
of accused-appellants even before the arrest, to wit -
Q- When you said that certain Mula handed a black bag to another person
and how did you know that it was Mula who handed the black bag to
another person?
A- Because I have already information from Paguidopon, regarding Mula
and Molina, when they pass by through the street near the residence
of Paguidopon. He told that the one who is big one that is Gregorio
Mula and the thin one is Nazario Molina[39]
The aforecited testimony of SPO1 Pamplona, therefore, is entirely
baseless. SPO1 Pamplona could not have learned the name of accused-
appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly
conducted the surveillance, was not even aware of accused-appellants name
and address prior to the arrest.
Evidently, SPO1 Paguidopon, who acted as informer of the arresting
officers, more so the arresting officers themselves, could not have been certain
of accused-appellants identity, and were, from all indications, merely fishing for
evidence at the time of the arrest.
Compared to People v. Encinada, the arresting officer in the said case
knew appellant Encinada even before the arrest because of the latters illegal
gambling activities, thus, lending at least a semblance of validity on the arrest
effected by the peace officers. Nevertheless, the Court declared in said case
that the warrantless arrest and the consequent search were illegal, holding that
[t]he prosecutions evidence did not show any suspicious behavior when the
appellant disembarked from the ship or while he rode the motorela. No act or
fact demonstrating a felonious enterprise could be ascribed to appellant under
such bare circumstances.[40]
 Moreover, it could not be said that accused-appellants waived their right
against unreasonable searches and seizure. Implied acquiescence to the
search, if there was any, could not have been more than mere passive
conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee. [41]

Withal, the Court holds that the arrest of accused-appellants does not fall
under the exceptions allowed by the rules. Hence, the search conducted on their
person was likewise illegal. Consequently, the marijuana seized by the peace
officers could not be admitted as evidence against accused-appellants, and the
Court is thus, left with no choice but to find in favor of accused-appellants.

While the Court strongly supports the campaign of the government against
drug addiction and commends the efforts of our law-enforcement officers
towards this drive, all efforts for the achievement of a drug-free society must not
encroach on the fundamental rights and liberties of individuals as guaranteed in
the Bill of Rights, which protection extends even to the basest of criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City,

Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET
ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt,
accused-appellants Nasario Molina y Manamat alias Bobong and Gregorio Mula
y Malagura alias Boboy, are ACQUITTED and ordered RELEASED from
confinement unless they are validly detained for other offenses. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R.No. 74869 July 6, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.
CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana.
The trial court, disbelieving him, held it was high time to put him away and
sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from
the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers
who were in fact waiting for him simply accosted him, inspected his bag and
finding what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him
and later taken to the NBI laboratory for examination. When they were verified
as marijuana leaves, an information for violation of the Dangerous Drugs Act
was filed against him. 2 Later, the information was amended to include Farida
Ali y Hassen, who had also been arrested with him that same evening and
likewise investigated. 3 Both were arraigned and pleaded not
guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali
on the basis of a sworn statement of the arresting officers absolving her after a
'thorough investigation." 5 The motion was granted, and trial proceeded only
against the accused-appellant, who was eventually convicted .6
According to the prosecution, the PC officers had earlier received a tip from
one of their informers that the accused-appellant was on board a vessel bound
for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8Acting
on this tip, they waited for him in the evening of June 25, 1984, and
approached him as he descended from the gangplank after the informer had
pointed to him. 9 They detained him and inspected the bag he was carrying. It
was found to contain three kilos of what were later analyzed as marijuana
leaves by an NBI forensic examiner, 10who testified that she conducted
microscopic, chemical and chromatographic tests on them. On the basis of this
finding, the corresponding charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in
his bag was his clothing consisting of a jacket, two shirts and two pairs of
pants. 11 He alleged that he was arbitrarily arrested and immediately
handcuffed. His bag was confiscated without a search warrant. At the PC
headquarters, he was manhandled to force him to admit he was carrying the
marijuana, the investigator hitting him with a piece of wood in the chest and
arms even as he parried the blows while he was still handcuffed. 12 He insisted
he did not even know what marijuana looked like and that his business was
selling watches and sometimes cigarettes. 13 He also argued that the
marijuana he was alleged to have been carrying was not properly Identified
and could have been any of several bundles kept in the stock room of the PC
headquarters. 14
The trial court was unconvinced, noting from its own examination of the
accused that he claimed to have come to Iloilo City to sell watches but carried
only two watches at the time, traveling from Jolo for that purpose and spending
P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that
he kept the two watches in a secret pocket below his belt but, strangely, they
were not discovered when he was bodily searched by the arresting officers nor
were they damaged as a result of his manhandling. 16 He also said he sold one
of the watches for P400.00 and gave away the other, although the watches
belonged not to him but to his cousin, 17 to a friend whose full name he said did
not even know. 18 The trial court also rejected his allegations of maltreatment,
observing that he had not sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering that it
was the trial judge who had immediate access to the testimony of the
witnesses and had the opportunity to weigh their credibility on the stand.
Nuances of tone or voice, meaningful pauses and hesitation, flush of face and
dart of eyes, which may reveal the truth or expose the lie, are not described in
the impersonal record. But the trial judge sees all of this, discovering for
himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that
the accused-appellant was not really beaten up because he did not complain
about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that
time under detention by the PC authorities and in fact has never been set free
since he was arrested in 1984 and up to the present. No bail has been allowed
for his release.
There is one point that deserves closer examination, however, and it is
Aminnudin's claim that he was arrested and searched without warrant, making
the marijuana allegedly found in his possession inadmissible in evidence
against him under the Bill of Rights. The decision did not even discuss this
point. For his part, the Solicitor General dismissed this after an all-too-short
argument that the arrest of Aminnudin was valid because it came under Rule
113, Section 6(b) of the Rules of Court on warrantless arrests. This made the
search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for
the prosecution, that they had no warrant when they arrested Aminnudin and
seized the bag he was carrying. Their only justification was the tip they had
earlier received from a reliable and regular informer who reported to them that
Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies
as to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this
matter, we may prefer the declaration of the chief of the arresting team, Lt.
Cipriano Querol, Jr., who testified as follows:
Q You mentioned an intelligence report, you mean with respect to the
coming of Idel Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
A Two days before June 25, 1984 and it was supported by reliable
sources.
Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we have
already reports of the particular operation which was being participated by
Idel Aminnudin.
Q You said you received an intelligence report two days before June 25,
1984 with respect to the coming of Wilcon 9?
A Yes, sir.
Q Did you receive any other report aside from this intelligence report?
A Well, I have received also other reports but not pertaining to the coming
of Wilcon 9. For instance, report of illegal gambling operation.
COURT:
Q Previous to that particular information which you said two days before
June 25, 1984, did you also receive daily report regarding the activities of
Idel Aminnudin
A Previous to June 25, 1984 we received reports on the activities of Idel
Aminnudin.
Q What were those activities?
A Purely marijuana trafficking.
Q From whom did you get that information?
A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot Identify the person.
Q But you received it from your regular informer?
A Yes, sir.
ATTY. LLARIZA:
 Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?
A Marijuana, sir.
Q And this information respecting Idel Aminnudin's coming to Iloilo with
marijuana was received by you many days before you received the
intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his activities.
Q You only knew that he was coming on June 25,1984 two days before?
A Yes, sir.
Q You mean that before June 23, 1984 you did not know that minnudin
was coming?
A Before June 23,1984, I, in my capacity, did not know that he was
coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his activities,
we have reports that he was already consummated the act of selling and
shipping marijuana stuff.
COURT:
Q And as a result of that report, you put him under surveillance?
A Yes, sir.
Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
A Yes, sir.
Q Are you sure of that?
A On the 23rd he will be coming with the woman.
Q So that even before you received the official report on June 23, 1984,
you had already gathered information to the effect that Idel Aminnudin
was coming to Iloilo on June 25, 1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or search of
the subject mentioned in your intelligence report?
A No, more.
Q Why not?
A Because we were very very sure that our operation will yield positive
result.
Q Is that your procedure that whenever it will yield positive result you do
not need a search warrant anymore?
23
A Search warrant is not necessary.
That last answer is a cavalier pronouncement, especially as it comes from a
mere lieutenant of the PC. The Supreme Court cannot countenance such a
statement. This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched
and the persons or things to be seized.
In the case at bar, there was no warrant of arrest or search warrant issued by a
judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been
committed to justify the warrantless arrest allowed under Rule 113 of the Rules
of Court. Even expediency could not be invoked to dispense with the obtention
of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was
held that vessels and aircraft are subject to warrantless searches and seizures
for violation of the customs law because these vehicles may be quickly moved
out of the locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two days
within which they could have obtained a warrant to arrest and search
Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was
known. The vehicle was Identified. The date of its arrival was certain. And from
the information they had received, they could have persuaded a judge that
there was probable cause, indeed, to justify the issuance of a warrant. Yet they
did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the
arresting team, had determined on his own authority that a "search warrant
was not necessary."
In the many cases where this Court has sustained the warrantless arrest of
violators of the Dangerous Drugs Act, it has always been shown that they were
caught red-handed, as a result of what are popularly called "buy-bust"
operations of the narcotics agents. 25 Rule 113 was clearly applicable because
at the precise time of arrest the accused was in the act of selling the prohibited
drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of
the marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The
Identification by the informer was the probable cause as determined by the
officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.
Now that we have succeeded in restoring democracy in our country after
fourteen years of the despised dictatorship, when any one could be picked up
at will, detained without charges and punished without trial, we will have only
ourselves to blame if that kind of arbitrariness is allowed to return, to once
more flaunt its disdain of the Constitution and the individual liberties its Bill of
Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his
very own words suggest that he is lying, that fact alone does not justify a
finding that he is guilty. The constitutional presumption is that he is innocent,
and he will be so declared even if his defense is weak as long as the
prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the
case of the prosecution must fall. That evidence cannot be admitted, and
should never have been considered by the trial court for the simple fact is that
the marijuana was seized illegally. It is the fruit of the poisonous tree, to use
Justice Holmes' felicitous phrase. The search was not an incident of a lawful
arrest because there was no warrant of arrest and the warrantless arrest did
not come under the exceptions allowed by the Rules of Court. Hence, the
warrantless search was also illegal and the evidence obtained thereby was
inadmissible.
The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law-enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the
liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty
alike against any manner of high- handedness from the authorities, however
praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the
rights of the individual in the name of order. Order is too high a price for the
loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some
criminals should escape than that the government should play an ignoble part."
It is simply not allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond
reasonable doubt and he must therefore be discharged on the presumption
that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the
accused-appellant is ACQUITTED. It is so ordered.
 EN BANC
[G.R. No. 123872. January 30, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN MONTILLA y
GATDULA, accused-appellant.
DECISION
REGALADO, J.:
Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on
August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of
1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the
Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information which
alleges:
That on or about the 20th day of June 1994, at Barangay Salitran, Municipality
of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being authorized by law, did
then and there, wilfully, unlawfully and feloniously, administer, transport, and
deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered
prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing
damage and prejudice to the public interest.[1]
The consequent arraignment conducted on September 14, 1994 elicited
a plea of not guilty from appellant who was assisted therein by his counsel de
parte.[2] Trial was held on scheduled dates thereafter, which culminated in a
verdict of guilty in a decision of the trial court dated June 8, 1995 and which
imposed the extreme penalty of death on appellant. He was further ordered to
pay a fine in the amount of P500,000.00 and to pay the costs of the
proceedings.[3]
It appears from the evidence of the prosecution that appellant was
apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located
at Barangay Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and
SPO1 Armando Clarin, both members of the Cavite Philippine National Police
Command based in Dasmarias. Appellant, according to the two officers, was
caught transporting 28 marijuana bricks contained in a traveling bag and a
carton box, which marijuana bricks had a total weight of 28 kilos.
These two officers later asserted in court that they were aided by an
informer in the arrest of appellant. That informer, according to Talingting and
Clarin, had informed them the day before, or on June 19, 1994 at about 2:00
P.M., that a drug courier, whom said informer could recognize, would be arriving
somewhere in Barangay Salitran, Dasmarias from Baguio City with an
undetermined amount of marijuana. It was the same informer who pinpointed to
the arresting officers the appellant when the latter alighted from a passenger
jeepney on the aforestated day, hour, and place.[4]
Upon the other hand, appellant disavowed ownership of the prohibited
drugs. He claimed during the trial that while he indeed came all the way from
Baguio City, he traveled to Dasmarias, Cavite with only some pocket money and
without any luggage. His sole purpose in going there was to look up his cousin
who had earlier offered a prospective job at a garment factory in said locality,
after which he would return to Baguio City. He never got around to doing so as
he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran.
He further averred that when he was interrogated at a house in
Dasmarias, Cavite, he was never informed of his constitutional rights and was
in fact even robbed of the P500.00 which he had with him. Melita Adaci, the
cousin, corroborated appellant's testimony about the job offer in the garment
factory where she reportedly worked as a supervisor,[5] although, as the trial
court observed, she never presented any document to prove her alleged
employment.
In the present appellate review, appellant disputes the trial court's finding
that he was legally caught in flagrante transporting the prohibited drugs. This
Court, after an objective and exhaustive review of the evidence on record,
discerns no reversible error in the factual findings of the trial court. It finds
unassailable the reliance of the lower court on the positive testimonies of the
police officers to whom no ill motives can be attributed, and its rejection of
appellant's fragile defense of denial which is evidently self-serving in nature.
1. Firstly, appellant asserts that the court a quo grossly erred in convicting
him on the basis of insufficient evidence as no proof was proffered showing that
he wilfully, unlawfully, and feloniously administered, transported, and delivered
28 kilos of dried marijuana leaves, since the police officers "testified only on the
alleged transporting of Marijuana from Baguio City to Cavite."
Further, the failure of the prosecution to present in court the civilian
informant is supposedly corrosive of the People's cause since, aside from
impinging upon appellant's fundamental right to confront the witnesses against
him, that informant was a vital personality in the operation who would have
contradicted the hearsay and conflicting testimonies of the arresting officers on
how appellant was collared by them.
The pertinent provision of the penal law here involved, in Section 4 of
Article II thereof, as amended, is as follows:
SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such transactions.
Notwithstanding the provision of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be imposed.
Now, the offense ascribed to appellant is a violation of the Dangerous
Drugs Act, some of the various modes of commission[6] being the sale,
administration, delivery, distribution, and transportation of prohibited drugs as
set forth in the epigraph of Section 4, Article II of said law. The text of Section 4
expands and extends its punitive scope to other acts besides those mentioned
in its headnote by including these who shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any prohibited drug, or shall
act as a broker in any of such transactions." Section 4 could thus be violated by
the commission of any of the acts specified therein, or a combination thereof,
such as selling, administering, delivering, giving away, distributing, dispatching
in transit or transporting, and the like.
As already stated, appellant was charged with a violation of Section 4, the
transgressive acts alleged therein and attributed to appellant being that he
administered, delivered, and transported marijuana. The governing rule with
respect to an offense which may be committed in any of the different modes
provided by law is that an indictment would suffice if the offense is alleged to
have been committed in one, two or more modes specified therein. This is so as
allegations in the information of the various ways of committing the offense
should be considered as a description of only one offense and the information
cannot be dismissed on the ground of multifariousness. [7] In appellant's case,
the prosecution adduced evidence clearly establishing that he transported
marijuana from Baguio City to Cavite. By that act alone of transporting the illicit
drugs, appellant had already run afoul of that particular section of the statute,
hence, appellant's asseverations must fail.
The Court also disagrees with the contention of appellant that the civilian
informer should have been produced in court considering that his testimony was
"vital" and his presence in court was essential in order to give effect to or
recognition of appellant's constitutional right to confront the witnesses arrayed
by the State against him. These assertions are, however, much too strained. Far
from compromising the primacy of appellant's right to confrontation, the non-
presentation of the informer in this instance was justified and cannot be faulted
as error.
For one, the testimony of said informer would have been, at best, merely
corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the
trial court, which testimonies are not hearsay as both testified upon matters in
which they had personally taken part. As such, the testimony of the informer
could be dispensed with by the prosecution, [8] more so where what he would
have corroborated are the narrations of law enforcers on whose performance of
duties regularity is the prevailing legal presumption. Besides, informants are
generally not presented in court because of the need to hide their identities and
preserve their invaluable services to the police.[9] Moreover, it is up to the
prosecution whom to present in court as its witnesses, and not for the defense
to dictate that course.[10] Finally, appellant could very well have resorted to the
coercive process of subpoena to compel that eyewitness to appear before the
court below,[11] but which remedy was not availed of by him.
2. Appellant contends that the marijuana bricks were confiscated in the
course of an unlawful warrantless search and seizure. He calls the attention of
the Court to the fact that as early as 2:00 P.M. of the preceding day, June 19,
1994, the police authorities had already been apprised by their so-called
informer of appellant's impending arrival from Baguio City, hence those law
enforcers had the opportunity to procure the requisite warrant. Their
misfeasance should therefore invalidate the search for and seizure of the
marijuana, as well as the arrest of appellant on the following dawn. Once again,
the Court is not persuaded.
 Section 2, Article III of the Constitution lays down the general rule that a
search and seizure must be carried out through or on the strength of a judicial
warrant, absent which such search and seizure becomes "unreasonable" within
the meaning of said constitutional provision.[12] Evidence secured on the
occasion of such an unreasonable search and seizure is tainted and should be
excluded for being the proverbial fruit of a poisonous tree. In the language of the
fundamental law, it shall be inadmissible in evidence for any purpose in any
proceeding. This
exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1)
customs searches;[13] (2) searches of moving vehicles,[14] (3) seizure of evidence
in plain view;[15] (4) consented searches;[16] (5) searches incidental to a lawful
arrest;[17] and (6) "stop and frisk" measures[18] have been invariably recognized
as the traditional exceptions.
In appellant's case, it should be noted that the information relayed by the
civilian informant to the law enforcers was that there would be delivery of
marijuana at Barangay Salitran by a courier coming from Baguio City in the
"early morning" of June 20, 1994. Even assuming that the policemen were not
pressed for time, this would be beside the point for, under these circumstances,
the information relayed was too sketchy and not detailed enough for the
obtention of the corresponding arrest or search warrant. While there is an
indication that the informant knew the courier, the records do not reveal that he
knew him by name.
While it is not required that the authorities should know the exact name of
the subject of the warrant applied for, there is the additional problem that the
informant did not know to whom the drugs would be delivered and at which
particular part of the barangay there would be such delivery. Neither did this
asset know the precise time of the suspect's arrival, or his means of
transportation, the container or contrivance wherein the drugs were concealed
and whether the same were arriving together with, or were being brought by
someone separately from, the courier.
On such bare information, the police authorities could not have properly
applied for a warrant, assuming that they could readily have access to a judge
or a court that was still open by the time they could make preparations for
applying therefor, and on which there is no evidence presented by the
defense. In determining the opportunity for obtaining warrants, not only the
intervening time is controlling but all the coincident and ambient circumstances
should be considered, especially in rural areas. In fact, the police had to form a
surveillance team and to lay down a dragnet at the possible entry points to
Barangay Salitran at midnight of that day notwithstanding the tip regarding the
"early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter
inside and around the barangay as backup, unsure as they were of the time
when and the place in Barangay Salitran, where their suspect would show up,
and how he would do so.
On the other hand, that they nonetheless believed the informant is not
surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved
to be a reliable source in past operations. Moreover, experience shows that
although information gathered and passed on by these assets to law enforcers
are vague and piecemeal, and not as neatly and completely packaged as one
would expect from a professional spymaster, such tip-offs are sometimes
successful as it proved to be in the apprehension of appellant. If the courts of
justice are to be of understanding assistance to our law enforcement agencies,
it is necessary to adopt a realistic appreciation of the physical and tactical
problems of the latter, instead of critically viewing them from the placid and
clinical environment of judicial chambers.
3. On the defense argument that the warrantless search conducted on
appellant invalidates the evidence obtained from him, still the search on his
belongings and the consequent confiscation of the illegal drugs as a result
thereof was justified as a search incidental to a lawful arrest under Section 5(a),
Rule 113 of the Rules of Court. Under that provision, a peace officer or a private
person may, without a warrant, arrest a person when, in his presence, the
person to be arrested has committed, is actually committing, or is attempting to
commit an offense.
A legitimate warrantless arrest, as above contemplated, necessarily
cloaks the arresting police officer with authority to validly search and seize from
the offender (1) dangerous weapons, and (2) those that may be used as proof
of the commission of an offense.[19] On the other hand, the apprehending officer
must have been spurred by probable cause in effecting an arrest which could
be classified as one in cadence with the instances of permissible arrests set out
in Section 5(a).[20] These instances have been applied to arrests carried out on
persons caught in flagrante delicto. The conventional view is that probable
cause, while largely a relative term the determination of which must be resolved
according to the facts of each case, is understood as having reference to such
facts and circumstances which could lead a reasonable, discreet, and prudent
man to believe and conclude as to the commission of an offense, and that the
objects sought in connection with the offense are in the place sought to be
searched.[21]
Parenthetically, if we may digress, it is time to observe that the evidentiary
measure for the propriety of filing criminal charges and, correlatively, for
effecting a warrantless arrest, has been reduced and liberalized. In the past, our
statutory rules and jurisprudence required prima facie evidence, which was of a
higher degree or quantum,[22] and was even used with dubiety as equivalent to
"probable cause." Yet, even in the American jurisdiction from which we derived
the term and its concept, probable cause is understood to merely mean a
reasonable ground for belief in the existence of facts warranting the proceedings
complained of,[23] or an apparent state of facts found to exist upon reasonable
inquiry which would induce a reasonably intelligent and prudent man to believe
that the accused person had committed the crime.[24]
Felicitously, those problems and confusing concepts were clarified and set
aright, at least on the issue under discussion, by the 1985 amendment of the
Rules of Court which provides in Rule 112 thereof that the quantum of evidence
required in preliminary investigation is such evidence as suffices to "engender a
well founded belief" as to the fact of the commission of a crime and the
respondent's probable guilt thereof.[25] It has the same meaning as the related
phraseology used in other parts of the same Rule, that is, that the investigating
fiscal "finds cause to hold the respondent for trial," or where "a probable cause
exists."[26] It should, therefore, be in that sense, wherein the right to effect a
warrantless arrest should be considered as legally authorized.
In the case at bar, as soon as appellant had alighted from the passenger
jeepney the informer at once indicated to the officers that their suspect was at
hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the
informer told them that the marijuana was likely hidden inside the traveling bag
and carton box which appellant was carrying at the time. The officers thus
realized that he was their man even if he was simply carrying a seemingly
innocent looking pair of luggage for personal effects. Accordingly, they
approached appellant, introduced themselves as policemen, and requested him
to open and show them the contents of the traveling bag, which appellant
voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag
yielded the prohibited drugs, so, without bothering to further search the box, they
brought appellant and his luggage to their headquarters for questioning.
Appellant insists that the mere fact of seeing a person carrying a traveling
bag and a carton box should not elicit the slightest suspicion of the commission
of any crime since that is normal. But, precisely, it is in the ordinary nature of
things that drugs being illegally transported are necessarily hidden in containers
and concealed from view. Thus, the officers could reasonably assume, and not
merely on a hollow suspicion since the informant was by their side and had so
informed them, that the drugs were in appellant's luggage. It would obviously
have been irresponsible, if not downright absurd under the circumstances, to
require the constable to adopt a "wait and see" attitude at the risk of eventually
losing the quarry.
Here, there were sufficient facts antecedent to the search and seizure that,
at the point prior to the search, were already constitutive of probable cause, and
which by themselves could properly create in the minds of the officers a well-
grounded and reasonable belief that appellant was in the act of violating the
law. The search yielded affirmance both of that probable cause and the actuality
that appellant was then actually committing a crime by illegally transporting
prohibited drugs. With these attendant facts, it is ineluctable that appellant was
caught in flagrante delicto, hence his arrest and the search of his belongings
without the requisite warrant were both justified.
Furthermore, that appellant also consented to the search is borne out by
the evidence. To repeat, when the officers approached appellant and introduced
themselves as policemen, they asked him about the contents of his luggage,
and after he replied that they contained personal effects, the officers asked him
to open the traveling bag. Appellant readily acceded, presumably or in all
likelihood resigned to the fact that the law had caught up with his criminal
activities. When an individual voluntarily submits to a search or consents to have
the same conducted upon his person or premises, he is precluded from later
complaining thereof.
After all, the right to be secure from unreasonable search may, like other
rights, be waived either expressly or impliedly.[27] Thus, while it has been held
that the silence of the accused during a warrantless search should not be taken
to mean consent to the search but as a demonstration of that person's regard
for the supremacy of the law,[28] the case of herein appellant is evidently different
for, here, he spontaneously performed affirmative acts of volition by himself
opening the bag without being forced or intimidated to do so, which acts should
properly be construed as a clear waiver of his right.[29]
 4. Appellant likewise harps on the alleged failure of the prosecution to
"legally, properly and adequately establish that the 28 bricks of marijuana
allegedly confiscated from (him) were the same marijuana examined by the
forensic chemist and presented in court." Indeed, the arresting officers did not
identify in court the marijuana bricks seized from appellant since, in fact they did
not have to do so. It should be noted that the prosecution presented in the court
below and formally offered in evidence those 28 bricks of marijuana together
with the traveling bag and the carton box in which the same were contained. The
articles were properly marked as confiscated evidence and proper safeguards
were taken to ensure that the marijuana turned over to the chemist for
examination, and which subsequently proved positive as such, were the same
drugs taken from appellant. The trial court, therefore, correctly admitted them in
evidence, satisfied that the articles were indubitably no other than those taken
from appellant.
single indivisible penalty of death if the offense is attended by either of such
factual features. In that situation, obviously the rules on the graduation of
penalties in Article 63 cannot apply. In herein appellant's case, there was neither
a minor victim nor a consequent death of any victim. Hence, the basic rules in
Article 63 of the Code govern.
WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of
Dasmarias, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the
sense that accused-appellant Ruben Montilla y Gatdula shall suffer the penalty
of reclusion perpetua. In all other respects, the judgment of the trial court is
hereby AFFIRMED, with costs against accused-appellant.
SO ORDERED.

Complementarily, the corpus delicti was firmly established by SPO1

Clarin and SPO1 Talingting who categorically related that when they had
ascertained that the contents of the traveling bag of appellant appeared to be
marijuana, they forthwith asked him where he had come from, and the latter
readily answered "Baguio City," thus confirming the veracity of the report of the
informer. No other conclusion can therefore be derived than that appellant had
transported the illicit drugs all the way to Cavite from Baguio City. Coupled with
the presentation in court of the subject matter of the crime, the marijuana bricks
which had tested positive as being indian hemp, the guilt of appellant for
transporting the prohibited drugs in violation of the law is beyond doubt.

Appellant questions the interrogation conducted by the police authorities,

claiming that he was not allowed to communicate with anybody, and that he was
not duly informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. Indeed, appellant has a
point. The police authorities here could possibly have violated the provision of
Republic Act No. 7438[30] which defines certain rights of persons arrested,
detained, or under custodial investigation, as well as the duties of the arresting,
detaining, and investigating officers, and providing corresponding penalties for
violations thereof.

Assuming the existence of such irregularities, however, the proceedings

in the lower court will not necessarily be struck down. Firstly, appellant never
admitted or confessed anything during his custodial investigation. Thus, no
incriminatory evidence in the nature of a compelled or involuntary confession or
admission was elicited from him which would otherwise have been inadmissible
in evidence. Secondly and more importantly, the guilt of appellant was clearly
established by other evidence adduced by the prosecution, particularly the
testimonies of the arresting officers together with the documentary and object
evidence which were formally offered and admitted in evidence in the court
below.

5. The reversible error of the trial court lies in its imposition of the penalty
of death on appellant. As amended by Republic Act No. 7659, Section 20, Article
IV of the Dangerous Drugs Act now provides inter alia that the penalty in Section
4 of Article II shall be applied if the dangerous drugs involved is, in the case of
indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting
of prohibited drugs carries with it the penalty of reclusion perpetua to death and
a fine ranging from five hundred thousand pesos to ten million pesos. Thus, the
law prescribes a penalty composed of two indivisible penalties, reclusion
perpetua and death. In the present case, Article 63 of the Revised Penal Code
consequently provides the rules to be observed in the application of said
penalties.

As found by the trial court, there were neither mitigating nor aggravating
circumstances attending appellant's violation of the law, hence the second
paragraph of Article 63 must necessarily apply, in which case the lesser penalty
of reclusion perpetua is the proper imposable penalty. Contrary to the
pronouncement of the court a quo, it was never intended by the legislature that
where the quantity of the dangerous drugs involved exceeds those stated in
Section 20, the maximum penalty of death shall be imposed. Nowhere in the
amendatory law is there a provision from which such a conclusion may be
gleaned or deduced. On the contrary, this Court has already concluded that
Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code,[31] the rules wherein were observed although the cocaine subject of that
case was also in excess of the quantity provided in Section 20.

It is worth mentioning at this juncture that the law itself provides a specific
penalty where the violation thereof is in its aggravated form as laid down in the
second paragraph of Section 4 whereby, regardless of Section 20 of Article IV,
if the victim is a minor, or should a prohibited drug involved in any offense in said
section be the proximate cause of the death of a victim thereof, the maximum
penalty shall be imposed.[32] While the minority or the death of the victim will
increase the liability of the offender, these two facts do not constitute generic
aggravating circumstances, as the law simply provides for the imposition of the
 EN BANC
[G.R. No. 128222. June 17, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHUA HO SAN @
TSAY HO SAN, accused-appellant.
DECISION
DAVIDE, JR., C.J.:
Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquittal
and the reversal of the judgment of 10 February 1997 of the Regional Trial Court
(RTC) of San Fernando, La Union, Branch 66, finding him guilty of transporting,
without appropriate legal authority, the regulated substance methamphetamine
hydrochloride, in violation of Section 15,[1] Article III of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972 as further amended by
R.A. No. 7659,[2] and sentencing him to "die by lethal injection." In view thereof,
the judgment was brought to this Court for automatic review pursuant to Article
47 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659.
In response to reports of rampant smuggling of firearms and other
contraband, Jim Lagasca Cid (hereafter CID), as Chief of Police of the Bacnotan
Police Station, of La Union began patrolling the Bacnotan coastline with his
officers. While monitoring the coastal area of Barangay Bulala on 29 March
1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain
Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao requesting police
assistance regarding an unfamiliar speedboat the latter had spotted. According
to ALMOITE, the vessel looked different from the boats ordinarily used by
fisherfolk of the area and was poised to dock at Tammocalao shores. CID and
six of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter
BADUA), proceeded forthwith to Tammocalao beach and there conferred with
ALMOITE. CID then observed that the speedboat ferried a lone male
passenger. As it was routine for CID to deploy his men in strategic places when
dealing with similar situations, he ordered his men to take up positions thirty
meters from the coastline. When the speedboat landed, the male passenger
alighted, and using both hands, carried what appeared a multicolored
strawbag. He then walked towards the road. By this time, ALMOITE, CID and
BADUA, the latter two conspicuous in their uniform and issued side-arms,
became suspicious of the man as he suddenly changed direction and broke into
a run upon seeing the approaching officers. BADUA, however, prevented the
man from fleeing by holding on to his right arm. Although CID introduced
themselves as police officers, the man appeared impassive. Speaking in
English, CID then requested the man to open his bag, but he seemed not to
understand. CID thus tried speaking Tagalog, then Ilocano, but still to no
avail.CID then resorted to what he termed sign language; he motioned with his
hands for the man to open the bag. This time, the man apparently understood
and acceded to the request. A search of the bag yielded several transparent
plastic packets containing yellowish crystalline substances. CID then gestured
to the man to close the bag, which he did. As CID wished to proceed to the police
station, he signaled the man to follow, but the latter did not to
comprehend. Hence, CID placed his arm around the shoulders of the man and
escorted the latter to the police headquarters.
At the police station, CID surmised, after having observed the facial
features of the man, that he was probably Taiwanese. CID then "recited and
informed the man of his constitutional rights" to remain silent, to have the
assistance of a counsel, etc. Eliciting no response from the man, CID ordered
his men to find a resident of the area who spoke Chinese to act as an
interpreter. In the meantime, BADUA opened the bag and counted twenty-nine
(29) plastic packets containing yellowish crystalline substances which he and
CID suspected was shabu. The interpreter, Mr. Go Ping Guan, finally arrived,
through whom the man was "apprised of his constitutional rights." The police
authorities were satisfied that the man and the interpreter perfectly understood
each other despite their uncertainty as to what language was spoken. But when
the policemen asked the man several questions, he retreated to his obstinate
reticence and merely showed his I.D. with the name Chua Ho San printed
thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory
at Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory
examination. In the meantime, CHUA was detained at the Bacnotan Police
Station.
Later that same day, Police Chief Inspector and Forensic Chemist
Theresa Ann Bugayong Cid of the Philippine National Police, Region I, received
a letter request[3] from CID incidentally her husband to conduct a laboratory
examination of twenty-nine (29) plastic packets placed inside a multicolored
strawbag. In her Chemistry Report No. D-025-95,[4] she stated that her
qualitative examination established the contents of the plastic packets, weighing
28.7 kilos, to be positive of methamphetamine hydrochloride or shabu, a
regulated drug.
CHUA was initially charged with illegal possession of methamphetamine
hydrochloride before the RTC which docketed the case as Criminal Case No.
4037. However, pursuant to the recommendation of the Office of the Provincial
Prosecutor of San Fernando, La Union, that the facts of the case could support
an indictment for illegal transport of a regulated drug, the information was
subsequently amended to allege that CHUA "willfully, unlawfully and feloniously
transpor(ted) 28.7 kilos of [m]ethamphetamine [h]ydrochloride (shabu) without
the necessary permit or authority to transport the same" in violation of Section
15, Article III of R.A. 6425 as amended by R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The
RTC was satisfied that CHUA understood the amended information read to him
in Fukien by the Fukien-speaking interpreter, Thelma Sales Go.
Thereafter, the RTC exerted all efforts to obtain the services of a
Taiwanese Interpreter through the auspices of the Department of Foreign
Affairs. However, it was only after directing the request to the Taipei Economic
and Cultural Office in the Philippines that interpreters were assigned to CHUA.
Trial finally ensued. The State presented evidence tending to establish the
above narration of facts which were culled chiefly from the testimony of CID, its
first witness, and whose testimony, in turn, was substantially corroborated by
witnesses BADUA and ALMOITE.
Expert witness Theresa Ann Cid, confirmed the entries of her chemistry
report in that the contents of the 29 plastic packets weighing 28.7 kilos sent to
her for chemical analysis were pure, unadulterated methamphetamine
hydrochloride or shabu. She also explained that they were unwashed, hence
they appeared yellowish.
For the defense, CHUA testified in his own behalf through interpreter
Steven Yu. He disclosed that he hails from Taiwan and was employed in a
shipbuilding and repairing company. On 21 March 1995, he was instructed by
his employer Cho Chu Rong (hereafter RONG) to board the latters 35-tonner
ship which would embark for Nan Au Port, Mainland China where they would
buy fish. Upon arrival at their destination, RONG left the ship, came back without
the fish, but with two bags, the contents of which he never divulged to
CHUA. RONG then showed to CHUA a document purportedly granting them
authority to fish on Philippine waters. So they sailed towards the Philippines and
reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they
disembarked on a small speedboat with the two bags RONG brought with him
from China. While sailing, RONG made several phone calls using his mobile
phone. CHUA heard RONG asked the person on the other side of the line if he
could see the speedboat they were riding. Apparently, the person on shore could
not see them so they cruised over the waters for about five hours more when
finally, low on fuel and telephone battery, they decided to dock.CHUA anchored
the boat while RONG carried the bags to shore. The tasks completed, RONG
left to look for a telephone while CHUA rested and sat one and half (1 1/2) meters
away from one bag. A child thereafter pointed out to him that one bag was
missing much to RONGs dismay when he learned of it. When a crowd started
to mill around them, the police arrived. CHUA then realized that RONG was
nowhere to be found. The police immediately approached CHUA, and with nary
any spoken word, only gestures and hand movements, they escorted him to the
precinct where he was handcuffed and tied to a chair. Later, the police, led by
an officer who CHUA guessed as the Chief of Police arrived with the motor
engine of the speedboat and a bag. They presented the bag to him, opened it,
inspected and weighed the contents, then proclaimed them as
methamphetamine hydrochloride.
CHUA denounced the prosecutions story as a distortion of the truth. He
denied he was ever favored with an interpreter or informed of his "constitutional
rights," particularly of his right to counsel.Consequently, his arrest was tainted
with illegality and the methamphetamine hydrochloride found in the bag should
have been regarded inadmissible as evidence. He also maintained that CID
never graced the occasion of his setting foot for the first time at Tammocalao
beach. BADUA certainly never prevented him from running away, as such
thought failed to make an impression in his mind. Most significantly, he denied
ownership and knowledge of the contents of the bag, emphasizing that RONG
alone exercised dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member,
recalled that on the date in question, he arrived at the beach with the police. He
saw CHUA standing with a bag beside him. He also remembered hearing from
the people congregating at the beach that CHUA arrived with a companion and
a certain policeman Anneb had chased the latters car. He additionally claimed
that when the crowd became unruly, the police decided to bring CHUA to police
headquarters. There, the mayor took charge of the situation -- he opened
CHUA's bag with the assistance of the police, he called for a forensic chemist
surnamed CID to take a sample of the contents of the bag, and he ordered his
officials to find an interpreter. Throughout the proceedings, photographers were
busy taking pictures to document the event.
Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao
who narrated that he was standing with CHUA on the beach when two men and
a lady arrived. They were about to get a bag situated near CHUA when they
detected the arrival of the local police. They quickly disappeared. CRAIG then
noticed ALMOITE and PARONG at the beach but not CID.
In a decision promulgated on 10 February 1997, the RTC found that the
prosecution successfully discharged its burden of proving that CHUA
transported 28.7 kilos of methamphetamine hydrochloride without legal authority
to do so. Invoking People v. Tagliben[5] as authority, the RTC characterized the
search as incidental to a valid in flagrante delicto arrest, hence it allowed the
admission of the methamphetamine hydrochloride as corpus delicti. The RTC
also noted the futility of informing CHUA of his constitutional rights to remain
silent, and to have competent and independent counsel preferably of his own
choice, considering the language barrier and the observation that such
irregularity was rectified when accused was duly arraigned and (afterwards)
participated in the trial of this case. The RTC then disregarded the
inconsistencies and contradictions in the testimonies of the prosecution
witnesses as these referred to minor details which did not impair the credibility
of the witnesses or tarnish the credence conferred on the testimonies thus
delivered.
The RTC also believed that CHUA conspired not only with his alleged
employer RONG and the Captain of the 35-tonner vessel in the illegal trade of
prohibited drugs on Philippine shores, but with several other members of an
organized syndicate bent on perpetrating said illicit traffic. Such predilection was
plainly evident in the dispositive portion, to wit:
WHEREFORE, and in view of all the foregoing, as proven and established by
convincing and satisfactory evidence that the accused had conspired and
acted in concert with one Cho Chu Rong, not to mention Chen Ho Fa, the
Skipper of the 35-tonner ship they used in coming to the Country from China
and Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho San guilty
beyond reasonable doubt of the offense of Violation of Sec. 15, Art. III of R.A.
No. 6425, as amended by R.A. No. 7659 as charged in the Information, and
considering the provisions of Sec. 20 of R.A. No. 7659 that the maximum
penalty shall be imposed if the quantity sold/possessed/transported is 200
grams or more in the case of Shabu, and considering, further that the quantity
involved in this case is 28.7 kilograms which is far beyond the weight ceiling
specified in said Act, coupled with the findings of conspiracy or that accused is
a member of an organized syndicated crime group, this Court, having no other
recourse but to impose the maximum penalty to accused, this Court hereby
sentences the said accused Chua Ho San @ Tsay Ho San to die by lethal
injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the
costs.
The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine
National Police to immediately form an investigating Committee to be
composed by [sic] men of unimpeachable integrity, who will conduct an
exhaustive investigation regarding this case to determine whether there was
negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or
three (3) persons who approached the accused in the seashore of
Tammocalao, Bacnotan, La Union, and attempted to take the remaining bag
from accused, as well as the whereabouts of the other bag; and to furnish this
Court a copy of the report/result of the said investigation in order to show
compliance herewith sixty (60) days from receipt hereof.
The confiscated 28.7 kilograms of Methamphetamine Hydrochloride or Shabu
is ordered turned over immediately to the Dangerous Drugs Board for
destruction in accordance with the law.
The fiberglass boat with its motor engine is hereby ordered confiscated in favor
of the government and to be turned over to the Philippine National Police, La
Union Command, for use in their Bantay-Dagat operations against all illegal
seaborne activities.
SO ORDERED.[6]
Before this Court, CHUA posits that the RTC erred in (1) admitting as
competent evidence the 29 plastic packets of methamphetamine hydrochloride
since they were indubitably "forbidden fruits;" (2) granting weight and credence
to the testimonies of prosecution witnesses despite glaring inconsistencies on
material points; and in (3) appreciating conspiracy between him and an
organized syndicate in the illicit commerce of prohibited drugs since this was not
alleged in the information.
The Solicitor General traverses CHUA's contentions by asserting that: (1)
the search was licitly conducted despite the absence of search and seizure
warrants as circumstances immediately preceding to and contemporaneous with
the search necessitated and validated the police action; and (2) that there was
an effective and valid waiver of CHUA's right against unreasonable searches
and seizures since he consented to the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right to privacy of home and
person. It explicitly ordains that people have the right to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose.[7] Inseparable, and not merely
corollary or incidental to said right and equally hallowed in and by the
Constitution, is the exclusionary principle which decrees that any evidence
obtained in violation of said right is inadmissible for any purpose in any
proceeding.[8]
The Constitutional proscription against unreasonable searches and
seizures does not, of course, forestall reasonable searches and seizure. What
constitutes a reasonable or even an unreasonable search in any particular case
is purely a judicial question, determinable from a consideration of the
circumstances involved.[9] Verily, the rule is, the Constitution bars State
intrusions to a person's body, personal effects or residence except if conducted
by virtue of a valid search warrant issued in compliance with the procedure
outlined in the Constitution and reiterated in the Rules of Court; otherwise such
search and seizure become unreasonable within the meaning of the
aforementioned constitutional provision.[10] This interdiction against warrantless
searches and seizures, however, is not absolute and such warrantless searches
and seizures have long been deemed permissible by jurisprudence[11] in
instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs
searches, (4) waiver or consent searches, (5) stop and frisk situations
(Terry search),[12] and (6) search incidental to a lawful arrest. The last includes
a valid warrantless search and seizure pursuant to an equally valid warrantless
arrest, for, while as a rule, an arrest is considered legitimate if effected with a
valid warrant of arrest, the Rules of Court recognize permissible warrantless
arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit,
and (3) arrests of escaped prisoners.[13]
This Court is therefore tasked to determine whether the warrantless arrest,
search and seizure conducted under the facts of the case at bar constitute a
valid exemption from the warrant requirement.Expectedly and quite
understandably, the prosecution and the defense painted extremely divergent
versions of the incident. But this Court is certain that CHUA was arrested and
his bag searched without the benefit of a warrant.
In cases of in flagrante delicto arrests, a peace officer or a private person
may without a warrant, arrest a person, when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an
offense. The arresting officer, therefore, must have personal knowledge of such
fact[14] or as recent case law[15] adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of probable cause. The
term probable cause had been understood to mean a reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to
warrant a cautious mans belief that the person accused is guilty of the offense
with which he is charged.[16] Specifically with respect to arrests, it is such facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed by the person sought to be
arrested.[17] In People v. Montilla,[18] the Court acknowledged that the evidentiary
measure for the propriety of filing criminal charges, and correlatively, for
effecting warrantless arrest, has been reduced and liberalized. Noting that the
previous statutory and jurisprudential evidentiary standard was "prima
facie evidence" and that it had been dubiously equated with probable cause, the
Court explained:
[F]elicitously, those problems and confusing concepts (referring to prima facie
evidence and probable cause) were clarified and set aright, at least on the
issue under discussion, by the 1985 amendment of the Rules of Court which
provides in Rule 112 thereof that the quantum of evidence required in
preliminary investigation is such evidence as suffices to engender as well
founded belief as to the fact of the commission of the crime and the
respondents probable guilt thereof. It has the same meaning as the related
phraseology used in other parts of the same Rule, that is, that the investigating
fiscal finds cause to hold the respondent for trial, or where a probable cause
exists. It should, therefore, be in that sense, wherein the right to effect a
warrantless arrest should be considered as legally authorized. (emphasis
supplied)[19]
Guided by these principles, this Court finds that there are no facts on
record reasonably suggestive or demonstrative of CHUAs participation in an
ongoing criminal enterprise that could have spurred police officers from
conducting the obtrusive search. The RTC never took the pains of pointing to
such facts, but predicated mainly its decision on the finding that "accused was
caught red-handed carrying the bagful of [s]habu when apprehended. In short,
there is no probable cause. At least in People v. Tangliben, the Court agreed
with the lower court's finding that compelling reasons (e.g., accused was acting
suspiciously, on the spot identification by an informant that accused was
transporting prohibitive drug, and the urgency of the situation) constitutive of
probable cause impelled police officers from effecting an in flagrante
delicto arrest. In the case at bar, the Solicitor General proposes that the
following details are suggestive of probable cause -- persistent reports of
rampant smuggling of firearm and other contraband articles, CHUA's watercraft
differing in appearance from the usual fishing boats that commonly cruise over
the Bacnotan seas, CHUAs illegal entry into the Philippines (he lacked the
necessary travel documents or visa), CHUAs suspicious behavior, i.e. he
attempted to flee when he saw the police authorities, and the apparent ease by
which CHUA can return to and navigate his speedboat with immediate dispatch
towards the high seas, beyond the reach of Philippine laws.
This Court, however, finds that these do not constitute probable cause.
None of the telltale clues, e.g., bag or package emanating the pungent odor of
marijuana or other prohibited drug,[20] confidential report and/or positive
identification by informers of courier(s) of prohibited drug and/or the time and
place where they will transport/deliver the same, [21] suspicious demeanor or
behavior[22] and suspicious bulge in the waist[23]-- accepted by this Court as
sufficient to justify a warrantless arrest exists in this case. There was no
classified information that a foreigner would disembark at Tammocalao beach
bearing prohibited drug on the date in question. CHUA was not identified as a
drug courier by a police informer or agent. The fact that the vessel that ferried
him to shore bore no resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an offense. And despite
claims by CID and BADUA that CHUA attempted to flee, ALMOITE testified that
the latter was merely walking and oblivious to any attempt at conversation when
the officers approached him. This cast serious doubt on the truthfulness of the
claim, thus:
Q How far were you when the accused put the bag on his shoulder?
A We were then very near him about three meters away from the male
person carrying the bag.
Q To what direction was he facing when he put the bag on his shoulder?
A To the east direction.
Q In relation to you, where were you.
A With the company of Sgt. Reynoso and Maj. Cid we approached the
accused and when Maj. Cid went near him, he spoke in Tagalog,
English and Ilocano which accused did not understand because he
did not respond.
Q When Maj. Cid was talking, what was the accused doing at that time?
A He was walking.
Q To what direction he was walking?
A He was walking to the east direction. (sic)
Q He was walking away from you or going near you?
A He was going away from us. That is why Sgt. Reynoso held the right arm
of the accused.
Q Was Sgt. Badua able to hold the right arm of the accused?
A Yes sir and he stopped.[24]
True, CHUA entered Philippine territory without a visa. This was not
obvious to the police. But gossamer to the officers sense perception and view
were CHUA disembarking from a speedboat, CHUA walking casually towards
the road, and CHUA carrying a multicolored strawbag. These acts did not
convey any impression that he illegally entered Philippine shores. Neither were
these overt manifestations of an ongoing felonious activity nor of CHUAs
criminal behavior as clearly established in CIDs testimony, thus:
Q Was the accused committing a crime when you introduced yourselves:
A No, sir.
Q No, so there was no reason for you to approach the accused because he
was not doing anything wrong?
A No, sir, that is our objective, to approach the person and if ever or
whatever assistance that we can give we will give.[25]
The search cannot therefore be denominated as incidental to an
arrest. While a contemporaneous search of a person arrested may be effected
to deliver dangerous weapons or proofs or implements used in the commission
of the crime and which search may extend to the area within his immediate
control where he might gain possession of a weapon or evidence he can
destroy,[26] a valid arrest must precede the search. The process cannot be
reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a
large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance, the law requires that there be
first a lawful arrest before a search can be made - the process cannot be
reversed.[27]
To reiterate, the search was not incidental to an arrest. There was no
warrant of arrest and the warrantless arrest did not fall under the exemptions
allowed by the Rules of Court[28] as already shown. From all indications, the
search was nothing but a fishing expedition. It is worth mentioning here that after
introducing themselves, the police officers immediately inquired about the
contents of the bag. What else could have impelled the officers from displaying
such inordinate interest in the bag but to ferret out evidence and discover if a
felony had indeed been committed by CHUA -- in effect to "retroactively establish
probable cause and validate an illegal search and seizure."
The State then attempted to persuade this Court that there was a
consented search, a legitimate waiver of the constitutional guarantee against
obtrusive searches. It is fundamental, however, that to constitute a waiver, it
must first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and lastly,
that said person had an actual intention to relinquish the right. [29] CHUA never
exhibited that he knew, actually or constructively of his right against
unreasonable searches or that he intentionally conceded the same. This can be
inferred from the manner by which the search was performed, thus:
Q Together with your Chief Investigator, what was the first thing that you did
when you approached him (CHUA)?
A We introduced ourselves as police officers, sir.
Q Okey, in the first place why did you introduce yourselves?
A That is normal practice in our part, sir.
***
Q If it is possible . Okey (sic) now, after introducing yourselves what did you
do?
A He did not answer me and he did not utter any word,
Q When he did not utter any word. What else did he do?
A I asked again a question that if he can open his bag sir.
Q And did he understand your question when you requested him to open
his bag?
A No, sir, there is no answer.
Q No answer?
A Yes, sir, no answer.
Q And when there was no answer what did you do next?
A I used sign language sir.
Q Will you demonstrate to this Honorable Court how you demonstrated that
sign language of opening the bag mr. (sic) witness?
A I pointed to the zipper of the bag and then made an action like this sir.
***
SHERIFF:
 The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his right
hand from left to right or from the opening to the end of the zipper.
COURT: From the start of the zipper where you open it up to the end of the
zipper.
Witness: Yes, sir, and then I made a motion like this.
(The witness repeating the motion described on record.)
COURT: Did you open that personally?
WITNESS:
A No, your honor.
Q Now, mr. (sic) witness, why did you request the accused to open the bag?
A Because it is our duty also to inspect his belongings sir.
Q Why, why was it - no, I reform my question your honor. Is it normal
procedure for you to examine anybody or to request anybody to open
his bag?
observe its own laws, or worse, its disregard of the charter of its own
existence."[33]
As to the averred glaring inconsistencies in the testimonies of the
prosecution witnesses, this Court considers them trivial as they refer to
insignificant details which will not affect the outcome of the case.On a passing
note, this Court calls the attention of the trial court regarding its erroneous
appreciation of conspiracy. This aggravating circumstance is without question
unsupported by the records. Conspiracy was not included in the indictment nor
raised in the pleadings or proceedings of the trial court. It is also fundamental
that conspiracy must be proven just like any other criminal accusation, that is,
independently and beyond reasonable doubt.[34]
WHEREFORE, for all the foregoing, the decision of the Regional Trial
Court, Branch 66, San Fernando, La Union in Criminal Case No. 4037 is hereby
REVERSED and SET ASIDE and accused-appellant CHUA HO SAN @ TSAY
HO SAN is hereby ACQUITTED of the crime charged, the evidence not being
sufficient to establish his guilt beyond reasonable doubt.
Costs de oficio.
SO ORDERED.

A The fact that he was a foreigner, sir, it is also our duty to inspect the
baggage, it is our routine duty of a police (sic), sir.

Q Is that the normal duty of a police officer to request a person to open his
bag?

A yes, sir.

Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his
bag?

A No, sir.

Q But you simply requested him to open the nag?

A Yes, sir.[30]

CHUA obviously failed to understand the events that overran and

overwhelmed him. The police officers already introduced themselves to CHUA
in three languages, but he remained completely deadpan.The police hence
concluded that CHUA failed to comprehend the three languages. When CHUA
failed to respond again to the polices request to open the bag, they resorted to
what they called sign language. They claimed that CHUA finally understood their
hand motions and gestures. This Court disagrees. If CHUA could not
understand what was orally articulated to him, how could he understand the
polices sign language. More importantly, it cannot logically be inferred from his
alleged cognizance of the sign language that he deliberately, intelligently, and
consciously waived his right against such an intrusive search. This Court is not
unmindful of cases upholding the validity of consented warrantless searches and
seizure. But in these cases, the police officers' request to search personnel
effects was orally articulated to the accused and in such language that left no
room for doubt that the latter fully understood what was requested. In some
instances, the accused even verbally replied to the request demonstrating that
he also understood the nature and consequences of such request. [31]

It was eventually discovered that the bag contained the regulated

substance. But this is a trifling matter. If evidence obtained during an illegal
search even if tending to confirm or actually confirming initial information or
suspicion of felonious activity is absolutely considered inadmissible for any
purpose in any proceeding, the same being the fruit of a poisonous tree[32] how
much more of "forbidden fruits" which did not confirm any initial suspicion of
criminal enterprise as in this case - because the police admitted that they never
harbored any initial suspicion. Casting aside the regulated substance as
evidence, the remaining evidence on record are insufficient, feeble and
ineffectual to sustain CHUAs conviction.

Indeed, the likelihood of CHUA having actually transported

methamphetamine hydrochloride cannot be quickly dispelled. But the
constitutional guarantee against unreasonable searches and seizures cannot be
so carelessly disregarded as overzealous police officers are sometimes wont to
do. Fealty to the Constitution and the rights it guarantees should be paramount
in their minds, otherwise their good intentions will remain as such simply
because they have blundered. "There are those who say that 'the criminal is to
go free because the constable has blundered.' In some cases this will
undoubtedly be the result. But 'there is another consideration -- the imperative
of judicial integrity.' The criminal goes free, if he must, but it is the law that sets
him free. Nothing can destroy a government more quickly than its failure to
 EN BANC
[G.R. Nos. 138934-35. January 16, 2002]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTHONY
ESCORDIAL, accused-appellant.
DECISION
MENDOZA, J.:
These cases are before this Court for review from the decision, [1] dated
February 26, 1999, of the Regional Trial Court, Branch 53, Bacolod City, finding
accused-appellant Anthony Escordial guilty of robbery with rape and sentencing
him to death and to pay private complainant Michelle Darunday the amounts
of P3,650.00 representing the amount taken by him, P50,000.00 as moral
damages, P30,000.00 as exemplary damages, and the costs.
In Criminal Case No. 97-18117, the information against accused-appellant
charged him with the crime of rape committed as follows:
That on or about the 27th day of December, 1996, in the City of Bacolod,
Philippines, and within the jurisdiction of this Honorable Court, the herein
accused armed with a deadly weapon, a knife, by means of force, violence and
intimidation, did, then and there willfully, unlawfully and feloniously have carnal
knowledge of the complainant Michelle Darunday y Jintula, against the latters
will.
All contrary to law and with the aggravating circumstance that the said offense
was committed in the dwelling of the said party during nighttime while [she]
was asleep inside her room.
Act contrary to law.[2]
In Criminal Case No. 97-18118, the information charged accused-
appellant with robbery with rape as follows:
That on or about the 27th day of December, 1996, in the City of Bacolod,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, armed with a deadly weapon, a knife, with intent of gain and by
means of violence and intimidation on the person, did, then and there willfully,
unlawfully and feloniously take from Michelle Darunday y Jintula the sums
of P3,650.00, belonging to said offended party and [on] the occasion thereof
have carnal knowledge with the complainant Michelle Darunday y Jintula,
against her will, and inside her room wherein she was temporarily residing as a
boarder.
All contrary to law and with aggravating circumstance that the said offense was
committed inside the dwelling of the offended party and during nighttime the
latter not having given provocation for the offense.
Act contrary to law.[3]
When arraigned on February 25, 1997, accused-appellant pleaded not
guilty to the charges, whereupon the two cases were jointly tried.
The prosecution presented eight witnesses, namely, Jason Joniega, Mark
Esmeralda, Erma Blanca,[4] Dr. Joy Ann Jocson, PO3 Nicolas Tancinco,
Leo Asan, Ma. Teresa Gellaver, and Michelle Darunday. Their testimonies are
as follows:
Jason Joniega and Mark Esmeralda testified that at around 8 oclock in the
evening of December 27, 1996, they and Mark Lucena were playing inside
a jeepney parked in front of a boarding house owned by Pacita Aguillon[5] at No.
17 Margarita Extension, Libertad St., Purok Amelia
2, Barangay 40, Bacolod City. As one of them hit his head on the rails of
the jeepney, the boys were told by a man sitting inside the jeepney to go home
lest they would meet an accident. The man was later identified by
Jason Joniega and Mark Esmeralda as accused-appellant.[6]
Living in a boarding house in front of which the jeepney was parked were
Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver. They stayed in a
bedroom on the ground floor.That same night, December 27, 1996, Teresa went
to sleep at around 9:30 p.m., while Michelle and Erma watched television for a
while before going to bed. They slept beside each other on two beds placed side
by side, with Teresa nearest the wall, Michelle in the middle, and Erma on the
other side.
While the three were asleep, Erma was awakened by the presence of a
man. The man had his head covered with a t-shirt to prevent identification and
carried a knife about four inches long. He warned Erma not to shout or he would
kill her. He then asked Erma where her money was, and the latter pointed to the
wall where she had hung the bag which contained her money. Michelle, who by
then was already awake, told Erma to give the man her money so he would
leave. Erma gave the man P300.00, but the latter said to give him all her
money. He told Erma that he would look for more money and, if he found more,
he would kill her. For this reason, Erma gave the rest of her money. Afterwards,
she was told to lie on her side facing the wall. The man then turned to Michelle
and Teresa. Michelle gave him her money, but Teresa said her money was in
the other room. However, she was not allowed to leave the bedroom.The man
was able to get P500.00 from Erma and P3,100.00 from Michelle.
After getting their money, the man gave a t-shirt to Erma to blindfold
Teresa and another to Michelle to blindfold Erma. He blindfolded Michelle
himself and then began touching her in different parts of her body. He ordered
her to take off her t-shirt, threatening to kill her if she did not do as he
commanded. He then went on top of Michelle and tried to insert his penis into
her vagina. As he had difficulty doing so, he instead inserted his two fingers. He
tried once more to insert his penis, but again failed. The man then rose from the
bed and took some soapy water, which he proceeded to insert into Michelles
vagina. He finally succeeded in inserting his penis into Michelles
vagina. Michelle felt great pain and pleaded with the man to stop, but the man
paid no heed, and only stopped after satisfying his lust.
Michelle said that although she was blindfolded and could not see, she
could feel that the man had no cover on his face when he was raping her. She
felt that his chest was rough and had some scars. When he placed her hands
on his nape, she felt that it was also rough.
On the other hand, Erma claimed she was able to see through her
blindfold and that she saw the mans face because of the light coming from the
lamp post outside the boarding house.Their bedroom window had panes
through which the light filtered in.
After he had finished raping Michelle, the man sat on the bed and talked
to the three women. He told Michelle that he used to make catcalls at her and
called her a beautiful girl whenever she passed by his place but Michelle had
ignored him. He told them that he was from Hinigaran, but later took back his
statement when Teresa told him that she was from Binalbagan, which was
near Hinigaran. Michelle then told him that she worked at the City Engineers
Office and graduated from the Central Mindanao University. The man cussed
when he learned that Michelle was from Mindanao. As he spoke to Michelle, he
leaned over the bed and mashed the breasts of Erma and Teresa.
After a while, the man told Michelle he wanted to have sex with her
again. Michelle pleaded with him, but the man threatened to call his companions
and said it would be worse for her if his companions would be the ones to rape
her. He ordered Michelle to lie on her stomach and then inserted his penis into
her anus. When he was through, he gave Michelle a blanket to cover herself and
returned to her a pair of earrings which he had taken from her. He then left, but
not before warning the women not to report the matter to anyone or he would kill
them.[7]
Mark Esmeralda testified that he was in his bedroom on the second floor
of their house, toying with a flashlight, when he saw from his bedroom window
a man wearing denim shorts coming out of the boarding house. It was
around 12:30 in the morning then. The man was nibbling something. Mark saw
the man jump over the fence. After 30 minutes, Mark went down from his room
and told his parents what he had seen. His parents then went out to check what
had happened. Mark identified accused-appellant as the man he saw that
night.[8]
Michelle, Erma, and Teresa were so frightened that they were not able to
ask for help until 30 minutes after the man had left. They told their
neighbor, Tiyo Anong, that a man had come to the house and robbed
them. They also called up Allan Aguillon, the son of the owner of the boarding
house, who in turn reported the incident to the police. When the policemen
arrived, they asked Michelle to describe the assailant, but she told them that she
could only identify his voice and his eyes. Accompanied by the police, the three
women looked for the man around the Libertad area, but they did not find him.
Michelle, Erma, and Teresa were taken to the police station at Bac-Up 6 for
investigation. But, at Michelles request, Erma and Teresa did not tell the others
that Michelle had been raped by their attacker.
Upon returning home, Michelle found her aunt and uncle. She embraced
her aunt and told her about her ordeal. Michelle was again taken to the police
headquarters, where she was referred to the Womens Desk to report the
rape. They were able to go home to the house of Michelles aunt at around 5 to
6 oclock in the evening.[9]
PO3 Nicolas Tancinco, one of the policemen who responded to the report
shortly after the commission of the crime, also testified for the prosecution. He
said that the assailant was described to him as wearing long hair and having a
rough projection on the back of his neck, small eyes, a slim body, and a brown
complexion. Later on, Michelle Darunday, accompanied by Allan Aguillon,
returned to the police station to report the rape committed against
her. Tancinco entered her complaint in the police blotter and referred Michelle
to the Womens Desk.
In the morning of December 28, 1996, Tancinco returned to the boarding
house. He found that the intruder was able to gain entry to the house through
the window of the bathroom. He noticed that the room beside those of the three
women had been ransacked, with the cabinets opened and the clothes in
disarray.
The following day, on December 29, 1996, Tancinco went
around Margarita Extension and learned about the children playing on the street
around the time the intruder entered the boarding house. He was told by Mark
Esmeralda and Jason Joniega that they saw a man inside the jeepney where
they were playing at the time of the incident. Tancinco was likewise informed by
Esmeralda that the person he saw inside the jeepney was the same person he
saw coming out of the boarding house later that night. According to Tancinco,
the children said that they could identify the man if he was shown to them. At
around 8 oclock that evening, Tancinco questioned a certain Tiyo Anong and
Ramie about the identity of the suspect. Ramie said that the description of the
suspect fitted that of a worker at a caf called Coffee Break Corner, about two
houses away from the boarding house.
Thus, on January 2, 1997, Tancinco and some companions proceeded to
the Coffee Break Corner and interviewed the security guard, who told them that
a certain Fidel Hinolan owned the caf. When interviewed by Tancinco and his
companions, Fidel Hinolan told them that accused-appellant was his helper and
that the latter had gone home on December 27,
1996 to Barangay Miranda, Pontevedra, Negros Occidental.
Based on the information furnished by Hinolan, Tancinco and his fellow
police officers, Michelle Darunday, Allan Aguillon, and Pacita Aguillon went
to Barangay Miranda, Pontevedra, Negros Occidental at around 10 oclock in
the morning of January 3, 1997 and asked the assistance of the police there to
locate accused-appellant. PO2 Rodolfo Gemarino asked one of his colleagues
at the Pontevedra police to accompany Tancinco and his companions. They
found accused-appellant at the basketball court and invited him to go to the
police station for questioning.[10]
Michelle Darunday remained at the Pontevedra police station. When
accused-appellant was brought there, he saw Michelle and blushed. Michelle
looked at him and recognized him as the man who had robbed and raped her
on December 27, 1996. Accused-appellant was asked to take off his t-
shirt. Michelle said that she just kept quiet while accused-appellant tried to talk
to her. However, according to Tancinco, Michelle confirmed to him that accused-
appellant was the man who had attacked her, identifying him through a rough
projection, or a keloid, on the back of his neck and his voice. At the time of his
arrest, accused-appellant had a short haircut. He was transferred to
the Bacolod police station for further investigation.[11] Allan Aguillontook a
picture of accused-appellant (Exh. F) at the Pontevedra police station.[12]
At the Bacolod police station, Erma Blanca, Ma. Teresa Gellaver,
Jason Joniega, and Mark Esmeralda were asked whether accused-appellant
was the same person they saw on the night of the incident. They were taken one
by one to the jail cell and asked to point to the person that they had seen that
night. They picked accused-appellant out of four people who were inside the jail
cell.[13]
Michelle Darunday executed an affidavit, dated January 4, 1997,
identifying accused-appellant as the person who had robbed and raped
her.[14] She testified that she and her friends had gone to the Coffee Break
Corner sometime in September or October 1996. On the way home, she was
approached by accused-appellant. He asked Michelle what her name was, and
she gave it to him, albeit reluctantly. She usually passed by the said caf when
going home and accused-appellant would often whistle at her and call her a
beautiful girl. Michelle had simply ignored him and gone on her way.[15]
Dr. Joy Ann C. Jocson, Medical Officer IV of the Bacolod City Health
Department, examined Michelle Darunday and made the following findings and
remarks:
1. Abrasions noted on the right and left Labia Minora and on the
posterior fourchette.
2. New Lacerations noted on the hymenal ring on the following
location 1 oclock position, 3 oclock position, and 9
oclock position.
3. Vaginal introitus admits 2 fingers but with pain.
4. Presently, patient with menstruation.
In my opinion, the patient would need a urinalysis (since she complains
of pain upon urination) and possible Medical treatment if necessary, for
about 7 to 10 days. And if necessary, psychiatric evaluation &
management is also recommended.[16]
Testifying in court, Dr. Jocson said there was penetration of the victims
vagina as shown by the fact that the hymenal rim had lacerations at the 1, 3,
and 9 oclock positions. Since the edges of the lacerations were sharp, she
concluded that these lacerations were less than a week old at the time of the
examination. According to Dr. Jocson, these were caused by abrasions due to
force or pressure applied on the vaginal area. When asked during cross-
examination whether the victim had abrasions or contusions on her body at the
time of her examination, Dr. Jocson said that she could not remember. She
could not remember either whether there was sperm in the victims vagina when
she examined the latter. She said that no sperm specimen had been taken from
the victim. She testified that it could not be determined how many times the
victim had previously engaged in sexual intercourse because this would depend
on the elasticity of the victims hymen. She opined, however, that it would be less
than 10 times in the case of the victim. Dr. Jocson stated it was possible the
victim agreed to have sexual intercourse voluntarily based on the lack of marks
of violence on the latter, although it was also possible that she was merely forced
to have sex because she was threatened. On re-direct examination, she stated
it was possible that seminal fluid was not found on the victims private parts
because the victim was having her monthly period. She said the lacerations on
the victims vagina would result whether the sexual intercourse was voluntary or
involuntary on the part of the victim.[17]
Leo Asan, an employee at the City Health Office in Bacolod, testified that
the medical certificate presented by the prosecution, which was undated, was a
faithful reproduction of what was written by Dr. Joy Ann Jocson on January 3,
1997 in the logbook.[18]
The defense presented as its witnesses Elias Sombito, Aaron Lavilla,
PO2 Rodolfo Gemarino, Ricardo Villaspen, Nestor Dojillo, accused-appellant
Anthony Escordial, Jerome Jayme, and Lucila Jocame. These witnesses gave
a different account of the events that led to the arrest of accused-appellant. Their
version is as follows:
Accused-appellant testified that he was employed by
Fidel Hinolan on January 21, 1996. He said he started on August 6, 1996 as a
dishwasher and was later made cashier. Accused-appellant said that he went
home to Pontevedra, Negros Occidental on December 24, 1996, arriving there
at 2 oclock in the afternoon. Hinolan paid him P500.00, which he gave to his
mother as his Christmas gift. He dropped by the house of Aaron Lavilla. At 5:30
p.m., he returned to Coffee Break Corner in Bacolod City.
In the evening of December 26, 1996, accused-appellant asked
permission from Hinolan to go home to Pontevedra to stay there until January
1997 as the restaurant would be closed anyway during this period. Hinolan gave
accused-appellant his permission and paid the latter his salary of P600.00 as
well as a P200.00 bonus. Hence, at 2 oclock in the afternoon of December 27,
1996, accused-appellant took the bus home, arriving
in Barangay Miranda, Pontevedra, Negros Occidental an hour later. He went
straight home to his mother and gave her P600.00, telling her to use P400.00
for New Years Day.[19]
Accused-appellant also saw Elias[20] Sombito, who told him to look for
Aaron Lavilla because a cockfight derby was being held that day in
their barangay. Accused-appellant, therefore, looked for Aaron Lavilla and
found him at the basketball court. Aarons mother asked accused-appellant to
help her bring to the cockpit some cases of beer which she planned to sell there.
Accused-appellant obliged.
At the cockpit, Elias Sombito asked him to take care of his cocks.
Accused-appellant asked Aaron Lavilla to go with him to the cockpit, but the
latter continued playing basketball and only proceeded to the cockpit after the
game was finished. The derby ended at around 9 oclock in the evening.
At about 10 oclock that night, accused-appellant and Aaron Lavilla went
to the latters house and slept there. The following day, December 28, 1996,
accused-appellant helped Aaron Lavillas mother with the household chores,
cutting the grass and feeding the cocks. He stayed in Barangay Miranda
until January 3, 1997.[21] Accused-appellants testimony as to his whereabouts
from December 27, 1996 to January 3, 1997 was corroborated
by Elias Sombito[22] and Aaron Lavilla.[23]
As to the circumstances of accused-appellants arrest, PO2
Rodolfo Gemarino and Ricardo Villaspen testified that at around 11 oclock in the
morning of January 3, 1997, three members of the Bacolod police, led by PO3
Nicolas Tancinco, went to the headquarters of the Pontevedra police to ask for
help in locating a person named Anthony Escordial, said to be a resident
of Barangay Miranda, Pontevedra, Negros Occidental, who was wanted in
connection with a case for robbery with rape. Although Tancinco and his
companions showed their mission order to Gemarino, they did not show a
warrant for accused-appellants arrest. Nonetheless, Gemarino told
PO2 Gella of the Pontevedra police and Ricardo Villaspen,
the tanod commander of Barangay Miranda, to help the Bacolod policemen
look for accused-appellant. The group left the police station,
although Tancincos other companions, Michelle Darunday and PacitaAguillon,
stayed in the headquarters.[24]
The arresting party, composed of Tancinco, PO2 Gella, and Villaspen,
proceeded to the house of accused-appellant in Barangay Miranda, but the
latter was not there. They found accused-appellant at the basketball court
watching a game. After informing him that he was a suspect in a robbery case,
the group invited accused-appellant to go with them to the police headquarters.
Nestor Dojillo, the barangay captain of Barangay Miranda, was at the
police station. He testified that when accused-appellant, together
with Tancinco and his companions, arrived at the police station, he
(Nestor Dojillo) followed them to the investigating room. Inside the room were
Michelle Darunday, three members of the Bacolod police, Villaspen,
and Gemarino.Gemarino asked Michelle if she could identify accused-appellant
as her attacker, but the latter said that she could do so only if she could see a
lump on his back. Gemarino told accused-appellant to take off his t-shirt. When
accused-appellant did as Gemarino ordered, Michelle looked at his back for
identifying marks, while Allan Aguillon took his photograph. Gemarino then
asked Michelle whether accused-appellant was her attacker, but she replied that
she was not sure because the attacker was wearing a mask when she was
raped. The Bacolod policemen requested Gemarino to allow them to bring
accused-appellant to Bacolod City as they still had some witnesses who could
identify the suspect there. Accused-appellant was allowed to go with them
after Dojillo and Gemarino asked the Bacolod policemen not to harm
him.[25] Dojillos testimony was corroborated by the testimonies of PO2
Rodolfo Gemarino,[26] Ricardo Villaspen,[27] and accused-appellant.[28]
Accused-appellant further testified that on the way to Bacolod City,
PO3 Tancinco began beating him and hitting him with the butt of a shotgun to
force him to admit liability for the crime. Because accused-appellant refused to
do so, he was taken by Tancinco and his companions to a lodging house where
he was subjected to torture. Accused-appellant was told to take off his clothes
and to lie down. PO3 Tancinco and his companions then proceeded to hit him
with a belt. Afterwards, they covered his mouth and took him to the
bathroom. Tancinco put a knife to his neck, telling him that he would be killed if
he refused to admit that he was the culprit. As he continued to deny liability for
the crime, accused-appellant was subjected to further torture. Later on, the
driver entered the room and brought with him a child, whose head was covered,
who was instructed to identify accused-appellant. The child, however, did not
react upon seeing accused-appellant, who was thus brought back to the
headquarters where he was again maltreated. Accused-appellant said that he
was left alone in his cell and tied to a chair. He also said that at around 8
oclock that evening, two of the complainants arrived and the police told them to
identify accused-appellant as their attacker. But these two complainants just
kept looking at accused-appellant and even asked the policemen if he was the
suspect.
After the two women had left, PO3 Tancinco took accused-appellant to a
house so that he could be identified by another complainant. But this
complainant likewise said that he was not the assailant, as the latter had a
heavier build and longer hair. Accused-appellant was returned to the police
headquarters.
At the headquarters, PO3 Tancinco talked to accused-appellant and told
him that he would help him if accused-appellant confessed to the crime. But
accused-appellant again refused because he said he had not done anything
wrong. The police then began beating him up again. PO3 Tancinco burnt
accused-appellants lips and tongue with a lighted cigarette.[29]
At around 12:00 noon of January 6, 1997, Gemarino, Dojillo,
and Villaspen, together with accused-appellants grandfather, a certain
Inspector Tamayo, and reporters from BomboRadyo, went to the Bacolod police
station to visit accused-appellant. They found him tied to a chair. When they
entered the cell, accused-appellant, thinking that they were members of
the Bacolod police, held up his hands and asked for pity. The visitors assured
accused-appellant that they would not hurt him. Accused-appellant had a limp
because his feet were injured. For this reason, Dojillo and his companions
asked the Bacolod police to let them take accused-appellant to the hospital for
treatment. Accused-appellant was thus brought to the provincial hospital
in Bacolod for x-ray and medical treatment. He was taken back to the police
station thereafter.[30]
Lucila Jocame, Records Officer of the
Corazon Locsin Montelibano Memorial Regional Hospital (CLMMH), identified
in court[31] the medical certificate (Exh. 12) issued by the said hospital, showing
the injuries sustained by accused-appellant, to wit:
# 5 CM LINEAR ABRASION WITH CONTUSION HEMATOMA LEFT
SCAPULAR AREA.
# 1 CM LINEAR ABRASION RIGHT SCAPULAR AREA.
# 4 x 2 CM CONTUSION HEMATOMA LEFT LATERAL CHEST LEVEL OF
T12.
# 2 x 2 CM CONTUSION HEMATOMA M/3 RIGHT LEG ANTERIOR ASPECT.
# 2 x 4 CM CONTUSION HEMATOMA RIGHT KNEE LATERAL ASPECT.
# 3 x 3 CM SWELLING AND TENDER LEFT ANKLE.
# 1 x 1 CM CONTUSION HEMATOMA D/3 RIGHT LEG POSTERIOR
ASPECT.
# 1 x 1 CM CONTUSION HEMATOMA M/3 RIGHT THIGH POSTERIOR
ASPECT.
# 2 x 2 CM CONTUSION HEMATOMA RIGHT PERI AURICULAR AREA.
X-RAY # 280 dated January 6, 1997: SKULL APL: CHEST BUCKY
RIGHT THIGH: APL: RIGHT AND LEFT FOOT APO.
No Radiographic evidence of fracture in this examination.[32]
The last witness presented by the defense was Jerome[33] Jayme, General
Manager of Royal Express Transport, Inc., who testified that the last bus trip
from Kabankalan to Bacolod on December 27, 1996 left at 6 oclock in the
evening. The trip
from Kabankalan to Barangay Miranda, Pontevedra, Negros Occidental would
take one hour. On cross-examination, Jaymestated that the said bus would
reach Bacolod City by 7:40 to 8:00 p.m. if it left Kabankalan at 6:00 p.m. His
companys buses were not allowed to pick up passengers along the
way to Bacolod City because of the incidence of highway
robbery. Jayme identified in court a certification (Exh. 12-a) he issued which
stated that the last bus trip of their company on December 27, 1996 was at 6:00
p.m.[34]
On February 26, 1999, the trial court rendered a decision,
the dispositive portion of which stated:
WHEREFORE, it is the well-considered view of this court, after a thorough,
painstaking and exhaustive review and examination of the evidence adduced
in this case, that the accused ANTHONY ESCORDIAL y GALES, is GUILTY,
beyond a reasonable doubt of the crime of Robbery with Rape, punished under
Art. 294, paragraph 1 of the Revised Penal Code, as amended. The
commission of the crime was attended by three aggravating circumstances of
nighttime, that the crime was committed in the dwelling of the offended party,
and that craft, fraud and disguise were employed by the accused in the
commission of the crime under paragraphs 3, 6, and 14 of Art. 14 of the
Revised Penal Code. There is no mitigating circumstance. Applying Article 63,
paragraph 1, the accused is hereby sentenced to the maximum penalty of
DEATH.
He is also condemned to pay private complainant the sum of P3,650.00,
representing the money taken by the accused; P50,000.00 as moral
damages, P30,000.00 as exemplary damages, and the costs.
SO ORDERED.[35]
Hence this appeal. Accused-appellant contends that:
1. THE COURT A QUO ERRED IN DISREGARDING THE
DEFENSE OF THE ACCUSED TO THE EFFECT THAT
ANTHONY ESCORDIAL CAN NEVER BE THE ROBBER-
RAPIST WHO RAVISHED MICHELLE DARUNDAY ON THAT
FATEFUL NIGHT OF DECEMBER 27, 1996, AS THE
FORMER (ESCORDIAL) DID NOT HAVE THE QUALITIES,
CHARACTER AND EXPERTISE OF THE LATTER (ROBBER-
RAPIST).
 2. THE COURT A QUO ERRED IN CONCLUDING THAT THE
DESCRIPTION OF THE ASSAILANT AS DESCRIBED BY THE
COMPLAINANT AND HER WITNESSES FIT WITH THAT OF
HEREIN ACCUSED, THE TRUTH OF THE MATTER IS THAT
THERE WAS NO DESCRIPTION OF THE ASSAILANT EVER
MADE BY ANYBODY PRIOR TO THE WARRANTLESS
ARREST OF THE ACCUSED. THE AFFIDAVITS OF THE
COMPLAINANT AND HER WITNESSES WERE IN FACT
DRAFTED, EXECUTED AND SIGNED ONLY SEVERAL DAYS
AFTER THE ACCUSED WAS BROUGHT INTO THE
CUSTODY OF THE BACOLOD POLICE.
3. THE COURT A QUO ERRED IN DISREGARDING THE
TESTIMONIES OF WITNESSES PO2 RODOLFO GEMARINO
(DEP. CHIEF OF POLICE OF PONTEVEDRA), BRGY. CAPT.
NESTOR DOJILLO (BRGY. CAPT. OF MIRANDA AND THEN
MEMBER OF THE SANGGUNIANG BAYAN OF
PONTEVEDRA), AND RICARDO VILLASPEN (THEN
COMMANDER OF BARANGAY TANOD IN PONTEVEDRA)
TO THE EFFECT THAT MICHELLE DARUNDAY FAILED TO
IDENTIFY THE ACCUSED DURING THEIR ENCOUNTER IN
PONTEVEDRA POLICE STATION.
4. THE COURT A QUO ERRED IN NOT EXCLUDING ALL
EVIDENCES, TESTIMONIAL AND DOCUMENTARY,
OBTAINED BY THE PROSECUTION DURING THE
WARRANTLESS ARREST OF THE ACCUSED AND THE
LATTERS SUBJECTION TO CUSTODIAL INVESTIGATION
WITHOUT LETTING HIM KNOW OF HIS CONSTITUTIONAL
RIGHTS, PARTICULARLY HIS RIGHT TO COUNSEL OF
CHOICE.
5. THE COURT A QUO ERRED IN CONCLUDING THAT
PROSECUTION WITNESSES WERE ABLE TO POSITIVELY
IDENTIFY THE ACCUSED IN A POLICE LINE UP DESPITE
THE FACT THAT OF THE PERSONS BEING LINED UP ONLY
THE ACCUSED WAS HANDCUFFED.
6. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE
TESTIMONIES OF PROSECUTION WITNESSES TO THE
EFFECT THAT THEY WERE ABLE TO IDENTIFY THE
ASSAILANT BY FACE THAT VERY EVENING OF
DECEMBER 27, 1996 AMIDST THE IMPOSSIBILITY OF
DOING THE SAME, GIVEN THE DISTANCE, THE INTENSITY
OF LIGHT, AND THE TERRIFYING SITUATION, WHICH ALL
OBSCURE, IF NOT DESTROY, THE CLARITY OF HUMAN
MEMORY AND PERCEPTION.
7. THE COURT A QUO ERRED IN CONCLUDING THAT THE
DEFENSE FAILED TO SHOW THE IMPOSSIBILITY OF
ACCUSED TO GO TO BACOLOD THAT EVENING
OF DECEMBER 27, 1996, DESPITE OVERWHELMING
EVIDENCE SUBMITTED, BY SIMPLY RELYING ON THE
POSSIBILITY OF THE ACCUSED TAKING A CARGO TRUCK
FROM PONTEVEDRA TO BACOLOD.
8. THE COURT A QUO ERRED IN CONCLUDING THAT
ACCUSED ANTHONY ESCORDIAL HAD MOTIVE TO
COMMIT THE CRIME CHARGED BASED ON A WRONG
PREMISE THAT THE DEFENSE ALLEGEDLY DID NOT
REFUTE THE ALLEGATIONS OF THE COMPLAINANT THAT
ACCUSED ATTEMPTED TO BE ACQUAINTED WITH THE
COMPLAINANT AND WHISTLED AT THE LATTER SEVERAL
TIMES.[36]
The issues raised by accused-appellant concern (1) the alleged violations
of his constitutional rights and the consequent admissibility of the evidence
against him and (2) the credibility of the prosecution witnesses.
I. Alleged Violations of Accused-appellants Constitutional Rights
A. Accused-appellant questions the legality of his arrest without a
warrant. Indeed, PO3 Nicolas Tancinco admitted that he and his companions
had arrested accused-appellant without any warrant issued by a judge.[37] Art.
III, 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
To implement this provision, Rule 113, 5 of the Revised Rules of Criminal
Procedure provides that a peace officer or a private person may, without a
warrant, arrest a person only under the following circumstances:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending,
or has escaped while being transferred from one confinement
to another.
The cases at bar do not fall under paragraphs (a) or (c) of
the aforequoted rule. At the time of his arrest, accused-appellant was watching
a game in a basketball court
in BarangayMiranda, Pontevedra, Negros Occidental. He was not committing or
attempting to commit a crime when he was arrested by the police on that
day. Nor was he an escaped prisoner whose arrest could be effected even
without a warrant.
The question is whether these cases fall under paragraph (b) because the
police officers had personal knowledge of facts and circumstances that would
lead them to believe that accused-appellant had just committed a crime. The
phrase personal knowledge in paragraph (b) has been defined in this wise:
Personal knowledge of facts in arrests without a warrant under Section 5(b) of
Rule 113 must be based upon probable cause which means an actual belief or
reasonable grounds of suspicion. The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting officers, the suspicion that
the person to be arrested is probably guilty of committing the offense is based
on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the peace officer making the
arrest.[38]
In these cases, the crime took place on December 27, 1996. But,
accused-appellant was arrested only on January 3, 1997, a week after the
occurrence of the crime. As the arresting officers were not present when the
crime was committed, they could not have personal knowledge of the facts and
circumstances of the commission of the crime so as to be justified in the belief
that accused-appellant was guilty of the crime. The arresting officers had no
reason for not securing a warrant.
However, the records show that accused-appellant pleaded not guilty to
the crimes charged against him during his arraignment on February 25,
1997 without questioning his warrantless arrest.[39] He thus waived objection to
the legality of his arrest.[40] As this Court has held in another case:
[The accused] waived objections based on the alleged irregularity of their
arrest, considering that they pleaded not guilty to the charges against them
and participated in the trial. Any defect in their arrest must be deemed cured
when they voluntarily submitted to the jurisdiction of the court. For the legality
of an arrest affects only the jurisdiction of the court over the person of the
accused. Consequently, if objections based on this ground are waived, the fact
that the arrest was illegal is not a sufficient cause for setting aside an
otherwise valid judgment rendered after a trial, free from error. The technicality
cannot render subsequent proceedings void and deprive the State of its right to
convict the guilty when all the facts on record point to the culpability of the
accused.[41]
B. Accused-appellant invokes Art. III, 12(1) of the Constitution which
provides that [a]ny person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one.These rights
cannot be waived except in writing and in the presence of counsel. He contends
that he was subjected to custodial interrogation without being informed of his
right to remain silent and to have independent counsel preferably of his
choice. Hence, he contends, the trial court erred in not excluding evidence
obtained from him during such interrogation for violation of accused-appellants
rights under this provision.
 While it cannot be denied that accused-appellant was deprived of his right
to be informed of his rights to remain silent and to have competent and
independent counsel, he has not shown that, as a result of his custodial
interrogation, the police obtained any statement from him whether inculpatory or
exculpatory - which was used in evidence against him. The records do not show
that he had given one or that, in finding him guilty, the trial court relied on such
statement. In fact, accused-appellant testified that at no point, even when
subjected to physical torture, did he ever admit committing the crime with which
he was charged. In other words, no uncounseled statement was obtained from
accused-appellant which should have been excluded as evidence against him.
C. Of greater significance is the fact that accused-appellant was never
assisted by counsel, whether of his own choice or provided by the police officers,
from the time of his arrest in Pontevedra, Negros Occidental to the time of his
continued detention at the Bacolod police station. Although accused-appellant
made no statement during this time, this fact remains important insofar as it
affects the admissibility of the out-of-court identification of accused-appellant by
the prosecution witnesses, namely, Michelle Darunday, Erma Blanca, Ma.
Teresa Gellaver, Mark Esmeralda, and Jason Joniega.
As a rule, an accused is not entitled to the assistance of counsel in a police
line-up considering that such is usually not a part of the custodial
inquest.[42] However, the cases at bar are different inasmuch as accused-
appellant, having been the focus of attention by the police after he had been
pointed to by a certain Ramie as the possible perpetrator of the crime, was
already under custodial investigation when these out-of-court identifications
were conducted by the police.
An out-of-court identification of an accused can be made in various
ways. In a show-up, the accused alone is brought face to face with the witness
for identification, while in a police line-up, the suspect is identified by a witness
from a group of persons gathered for that purpose. [43] During custodial
investigation, these types of identification have been recognized as critical
confrontations of the accused by the prosecution which necessitate the
presence of counsel for the accused. This is because the results of these pre-
trial proceedings might well settle the accuseds fate and reduce the trial itself to
a mere formality.[44] We have thus ruled that any identification of
an uncounseled accused made in a police line-up, or in a show-up for that
matter, after the start of the custodial investigation is inadmissible as evidence
against him.[45]
Here, accused-appellant was identified by Michelle Darunda in a show-up
on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega,
and Mark Esmeralda in a police line-up on various dates after his arrest. Having
been made when accused-appellant did not have the assistance of counsel,
these out-of-court identifications are inadmissible in evidence against him.
Consequently, the testimonies of these witnesses regarding these identifications
should have been held inadmissible for being the direct result of the illegal lineup
come at by exploitation of [the primary] illegality.[46]
Be that as it may, as the defense failed to object immediately when these
witnesses were presented by the prosecution or when specific questions
regarding this matter were asked of them, as required by Rule 132, 36 of the
Rules on Evidence, accused-appellant must be deemed to have waived his right
to object to the admissibility of these testimonies.[47]
Furthermore, the inadmissibility of these out-of-court identifications does
not render the in-court identification of accused-appellant inadmissible for being
the fruits of the poisonous tree.[48] This in-court identification was what formed
the basis of the trial courts conviction of accused-appellant. As it was not derived
or drawn from the illegal arrest of accused-appellant or as a consequence
thereof,[49] it is admissible as evidence against him. However, whether or not
such prosecution evidence satisfies the requirement of proof beyond reasonable
doubt is another matter altogether.
II. Credibility of the Prosecution Witnesses
Accused-appellant contends that: (1) he does not possess the character,
qualities, and expertise of the assailant who robbed and raped
Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver; (2) the records are
bereft of any description of the assailant made by these prosecution witnesses
prior to his arrest as the affidavits of Darunday, Blanca, Joniega, and Esmeralda
were executed only after his arrest; (3) the testimonies of the defense witnesses,
namely, PO2 Rodolfo Gemarino, Barangay Captain Nestor Dojillo, and
Ricardo Villaspen, show that Michelle Darunday failed to identify accused-
appellant when the latter was presented to her at the Pontevedra police station;
(4) Tancincos testimony that Michelle Darunday properly identified accused-
appellant at the Pontevedra police station could not be believed as the said
witness had motive to testify falsely against accused-appellant; (4) the
identification of accused-appellant at the Bacolod police station was tainted
because only accused-appellant was handcuffed among the persons presented
to the prosecution witnesses; and (5) it was highly improbable for the
prosecution witnesses to identify the assailant by face considering the distance,
the intensity of light, and the circumstances at the time of the commission of the
crime.
A. Jason Joniega[50] and Mark Esmeralda[51] pointed to accused-appellant
as the man they saw on the night of December 27, 1996 and the person they
identified inside a jail cell at the Bacolod police station. Erma Blanca, on the
other hand, testified that she saw through her blindfold accused-appellant raping
Michelle Darunday. She identified accused-appellant in court as their assailant
and as the man whom she saw inside the jail cell at the Bacolod police
station.[52] Ma. Teresa Gellaver[53] and Michelle Darunday[54] identified accused-
appellant as the suspect brought before them at the Bacolod police station and
the Pontevedra police station, respectively.
The test is whether or not the prosecution was able to establish by clear
and convincing evidence that the in-court identifications were based upon
observations of the suspect other than the line-up identification.[55] As held
in United States v. Wade:[56]
We think it follows that the proper test to be applied in these situations is that
quoted in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455,
83 S Ct 407, [W]hether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by exploitation
of that illegality or instead by means sufficiently distinguishable to be purged of
the primary taint. Maguire, Evidence of Guilt 221 (1959). See also Hoffa
v United States, 385 US 293, 309, 17 L ed 2d 374, 386, 87 S Ct
408. Application of this test in the present context requires consideration of
various factors; for example, the prior opportunity to observe the alleged
criminal act, the existence of any pre-line-up description and the defendants
actual description, any identification prior to lineup of another person, the
identification by picture of the defendant prior to the lineup, failure to identify
the defendant on a prior occasion, and the lapse of time between the alleged
act and the lineup identification. It is also relevant to consider those facts
which, despite the absence of counsel, are disclosed concerning the conduct
of the lineup.
We now consider whether the testimonies of the prosecution witnesses
meet the test as laid down in that case.
1. Michelle Darunday testified that her assailants face was covered with
cloth when he entered the room and that she was blindfolded when she was
raped.[57] She could thus only see the assailants eyes, which Michelle described
as chinito (chinky),[58] although she testified that she could also identify his
voice.[59] Otherwise, Michelle did not see her attacker. Yet, she testified that she
immediately recognized accused-appellant as the assailant when she saw him
at the Pontevedra police station. Michelle stated:
PROS. CARDINAL:
Madam Witness, a few days thereafter, can you recall any
development of your case?
WITNESS:
That was in January 3, when somebody told us to identify a suspect
in the City Hall of Pontevedra.
PROS. CARDINAL:
Who was with you when you went to Pontevedra?
WITNESS:
My aunt and my uncle and the police investigators.
....
PROS. CARDINAL:
Upon arrival at Pontevedra, what happened?
WITNESS:
We waited for a while because they will find the suspect and I was
there in the room of the police sitting.
....
PROS. CARDINAL:
 So, you stayed behind and the policemen pick up the suspect?
WITNESS:
I and my aunt waited in the police of the policemen, and then later
the suspect arrived.
PROS. CARDINAL:
When that suspect arrived inside the room where you were, can you
tell us what was the reaction of the suspect?
WITNESS:
When the suspect arrived, at first, he was not able to see me
because I was behind the desk after the door, and then he
was so fresh saying that he was a good man, but when he
saw me he blushed and moving his head
asking, Ano ang sala ko sa imo? (What did I do to you?), I did
not do anything. But when I looked at his eyes and heard his
voice, I was sure that he was the man.
PROS. CARDINAL:
When that person said, what did I do to you, I did not do anything,
what was [your] reaction?
WITNESS:
I just looked at him and he was so fresh that he has not done
anything, but the policeman said that his case is rape. Then,
he was asked to take off his t-shirt and I just looked at him
and then later, the policeman asked to borrow the man for
investigation and while the policeman was recording, that
suspect approached me and told me that, You do not
know me., and asked, Do you know me?
PROS. CARDINAL:
What was your reaction?
WITNESS:
I just [kept] quiet but my aunt reacted by saying, You think you
cannot be identified because you covered yourself?
PROS. CARDINAL:
And then what did he answer?
WITNESS:
He just stand outside while we went ahead to go back to our
home.[60]
A show-up, such as what was undertaken by the police in the identification
of accused-appellant by Michelle Darunday, has been held to be an
underhanded mode of identification for being pointedly suggestive, generat[ing]
confidence where there was none, activat[ing] visual imagination, and, all told,
subvert[ing] their reliability as [an eyewitness].[61] In these cases, Michelle knew
that she was going to identify a suspect when she went to Pontevedra. Upon
seeing accused-appellant escorted by Tancinco and his colleagues in
the Bacolod police, she knew that he was the suspect she was supposed to
identify. When accused-appellant was thus shown to her, there could be no
doubt as to what was expected of her. Further aggravating the situation were
the reply of the policeman to accused-appellants protestations of innocence that
he was being held for rape and Michelles aunts obvious assumption of his guilt.
Michelles immediate conclusion, therefore, that accused-appellant was her
attacker was understandable. As has been explained:
Social psychological influences. Various social psychological factors also
increase the danger of suggestibility in a lineup confrontation. Witnesses, like
other people, are motivated by a desire to be correct and to avoid looking
foolish. By arranging a lineup, the police have evidenced their belief that they
have caught the criminal; witnesses, realizing this, probably will feel foolish if
they cannot identify anyone and therefore may choose someone despite
residual uncertainty. Moreover, the need to reduce psychological discomfort
often motivates the victim of a crime to find a likely target for feelings of
hostility.
Finally, witnesses are highly motivated to behave like those around them. This
desire to conform produces an increased need to identify someone in order to
show the police that they, too, feel that the criminal is in the lineup, and makes
the witnesses particularly vulnerable to any clues conveyed by the police or
other witnesses as to whom they suspect of the crime. . .[62]
Coupled with the failure of Michelle to see the face of her assailant, the
apparent suggestiveness of the show-up places in doubt her credibility
concerning the identity of accused-appellant. The possibility that her
identification of accused-appellant was merely planted in her mind both by the
circumstances surrounding the show-up and her concomitant determination to
seek justice cannot be disregarded by this Court.
Michelles identification of accused-appellant is further rendered dubious
by the disparity between her description of her attacker and the appearance of
accused-appellant. In her affidavit, dated January 4, 1997, Michelle described
her attacker as follows:
P
- Sadtong tinion nga ginahimoslan ikaw sining suspetsado n
akita mo bala ang iya hitsura? (At the time that you were
abused by the suspect, did you see what he looked like?)
S- Wala, kay tungod nga may tabon ang akon mata, apang matan
daan ko guid ang iya tingog, mata, ang iya malaka nga bigut
i, ang structure
sang iya lawas, ang supat sang iya kamot, ang iyabibig, ang
madamo nga kelloid sa iya lawas kag ang iya baho. (No,
because I was blindfolded but I can remember his voice, his
eyes, his thin mustache, his body structure, the smoothness
of his hands, his mouth, and the numerous keloids on his
body, and his smell.)[63]
Michelles affidavit clearly indicated that she felt the keloids on the back of
her assailant when the latter was raping her. But, when she testified in court,
Michelle admitted that she did not see keloids on accused-appellant although
she said that his skin was rough.[64] This is corroborated by the testimony of PO2
Rodolfo Gemarino who said that he did not see any lump on the back of
accused-appellant when he tried to look for it.[65] In fact, it would appear that
accused-appellant had no such markings on his back but had only small patches
which could not even be readily seen.[66]
In dismissing the disparity between accused-appellants appearance and
Michelles description of her attacker, the trial court dwelt on the apparent
roughness of accused-appellants skin and the probability that Michelle might
have felt only the arch of the spinal cord of her assailant. [67] However, mere
speculations and probabilities cannot take the place of proof beyond reasonable
doubt required by law to be established by the
prosecution.[68] Michelle Darunday was a civil engineer in the City Engineers
Office in Bacolod City. Considering her educational attainment and professional
status, it is improbable that she was mistaken as to what she felt on her attackers
back at the time she was raped. A mere protrusion on the back of the neck of
the assailant could not possibly have been mistaken for keloids.
Another circumstance casting doubt on the credibility of Michelles
identification is her lack of reaction upon seeing accused-appellant at
the Pontevedra police headquarters. Defense witnesses PO2
Rodolfo Gemarino,[69] Ricardo Villaspen,[70] and Nestor Dojillo[71] testified that
Michelle failed to see any identifying marks on accused-appellant and that she
showed hesitation in pinpointing the latter as the culprit. With Gemarino being a
policeman, Villaspen a barangay tanod, and Dojillo a barangay captain, these
witnesses were all, in one form or another, connected with law enforcement. The
prosecution having failed to ascribe any ill motive on the part of these defense
witnesses, who are without doubt respectable members of the community, their
testimonies that Michelle showed no reaction in seeing accused-appellant at the
show-up in Pontevedra police station deserve greater credence than the
testimony of Tancinco that Michelle confirmed to him that accused-appellant
was her attacker. The defense evidence established that Tancinco was an
abusive policeman who had made up his mind as to accused-appellants guilt
and who had no compunction in doing whatever means necessary, legal or
illegal, to ensure his conviction. We note further that the testimonies of these
defense witnesses coincide with Michelles testimony that she kept quiet when
she saw accused-appellant at the Pontevedra police station on January 3,
1997. This being so, her reaction to the show-up at the Pontevedra police
station upon seeing accused-appellant, the man who supposedly raped her
twice in an ignominious manner, is contrary to human nature.[72] It may be that
she was filled with rage so that upon seeing accused-appellant she was unable
to show any emotion. But it is equally possible that, as defense
witnesses Gemarino, Villaspen, and Dojillotestified, Michelle did not
immediately recognize accused-appellant as her attacker and only pointed to
him as her assailant upon promptings by the police and her companions.
[W]here the circumstances shown to exist yield two (2) or more inferences, one
of which is consistent with the presumption of innocence, while the other or SO ORDERED.
others may be compatible with the finding of guilt, the court must acquit the
accused: for the evidence does not fulfill the test of moral certainty and is
insufficient to support a judgment of conviction.[73]

For the foregoing reasons, we find both the out-of-court and in-court
identification of Michelle Darunday to be insufficient to establish accused-
appellant as the person who robbed and raped her and her companions on the
night of December 27, 1996.

2. Erma Blanca testified that she saw through her blindfold the assailant
when he was raping Michelle Darunday. She identified accused-appellant in
open court as the person whom she saw that night.[74] Certain circumstances in
these cases lead us to believe, however, that Erma Blanca did not really see the
assailant and that her testimony otherwise was a mere afterthought. These are:

First, the police blotter, dated December 28, 1996,[75] prepared by PO3
Nicolas Tancinco, referred to an unknown suspect who allegedly entered the
boarding house of Pacita Aguillonand robbed Ma. Teresa Gellaver and
Michelle Darunday. This casts doubt on Ermas credibility because she testified
that she had known accused-appellant for a long time prior to December 27,
1996. During her testimony, Erma claimed that accused-appellant approached
her and Michelle sometime in September or October 1996 to ask for the name
of the latter. In addition, Erma said she had seen accused-appellant whenever
he passed by their boarding house or stayed in her Tiyo Anongs store
nearby.[76] It would thus seem that Erma was familiar with accused-appellant.
But, if she had actually seen him on that night of the robbery, why did she not
report this to the police immediately? Being a victim herself, Erma had every
motive to reveal the identity of the robber that same night the crime was
committed. But she did not do so. We are therefore left with the conclusion that
the police blotter referred to an unknown suspect because the identity of the
assailant had not been determined at the time the crime was reported to the
police.

Second, Erma was not the one who accompanied the Bacolod police
when the latter sought accused-appellant in Pontevedra, Negros Occidental.
PO3 Tancinco testified that he took Michelle Darunday along with his other
companions when they went to Pontevedra, Negros Occidental so that she
could identify if the suspect was the person who had raped her. But Michelle
admitted that she did not see the face of the assailant. Erma Blanca, who
claimed she recognized accused-appellant, was not taken along by the police
to Pontevedra, NegrosOccidental. Why not? Why did they bring instead
Michelle Darunday?

Third, the affidavit of Erma Blanca[77] was prepared on January 4, 1997, a

day after the arrest of accused-appellant. This delay belies Ermas claim that she
saw the assailant through her blindfold on the night of the incident. For the
normal reaction of one who actually witnessed a crime and recognized the
offender is to reveal it to the authorities at the earliest opportunity.[78] In these
cases, the crime took place on December 27, 1996, but Erma Blanca executed
her affidavit only on January 4, 1997, more than a week after the occurrence of
the crime. Delay in reporting the crime or identifying the perpetrator thereof will
not affect the credibility of the witness if it is sufficiently explained. [79] But here,
no explanation was given by the prosecution why Erma Blanca executed her
affidavit one week after the crime took place and one day after accused-
appellants arrest. The most likely explanation for such lapse is that Erma Blanca
was used merely to corroborate what would otherwise have been a weak claim
on the part of Michelle Darunday. The same may be said of the testimonies of
Jason Joniegaand Mark Esmeralda.

B. Accused-appellants testimony that he was at the cockpit

in Barangay Miranda, Pontevedra, Negros Occidental on December 27, 1996 is
corroborated by Aaron Lavilla,[80] Elias Sombito,[81] and
Nestor Dojillo.[82] Considering the improbabilities and uncertainties surrounding
the testimonies of the prosecution witnesses, the defense of alibi by accused-
appellant deserves credence.[83]

To summarize, we find that the prosecution failed to meet the degree of

proof beyond reasonable doubt required in criminal cases. The acquittal of
accused-appellant is thus in order.

WHEREFORE, the decision of the Regional Trial Court, Branch

53, Bacolod City, finding accused-appellant guilty of robbery with rape and
sentencing him to death, is hereby REVERSED and accused-appellant is
ACQUITTED on the ground of reasonable doubt. Accused-appellant is ordered
immediately released unless there are other legal grounds for his continued
detention.

The Director of Prisons is directed to implement this Decision and to report

to the Court immediately the action taken hereon within five (5) days from receipt
hereof.