1

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION the petition for bail was aborted and instead arraignment took place) when another hearing was scheduled for July 17, 1995. In his comment dated October 16, 1995, respondent Judge alleged that he granted the petition based on the prosecutor's option not to oppose the petition as well as the latter's recommendation setting the bailbond in the amount of P80,000.00. He averred that when the prosecution chose not to oppose the petition for bail, he had the discretion on whether to approve it or not. He further declared that when he approved the petition, he had a right to presume that the prosecutor knew what he was doing since he was more familiar with the case, having conducted the preliminary investigation. Furthermore, the private prosecutor was not around at the time the public prosecutor recommended bail. Respondent Judge stated that in any case, the bailbond posted by accused was cancelled and a warrant for his arrest was issued on account of complainant's motion for reconsideration. The Assistant Provincial Prosecutor apparently conformed to and 3 approved the motion for reconsideration. To date, accused is confined at the La Union Provincial Jail. A better understanding of bail as an aspect of criminal procedure entails appreciating its nature and purposes. "Bail" is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. In theory, the only function of bail is to ensure the appearance of the defendant at the time set for trial. The sole purpose of confining the accused in jail before conviction, it has been observed, is to assure his presence at the 4 trial. In other words, if the denial of bail is authorized in capital offenses, it is only in theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the court. Hence the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of probability of evasion of 5 the prosecution. In practice, bail has also been used to prevent the release of an accused who might otherwise be dangerous to society or whom the judges might not 6 want to release." It is in view of the abovementioned practical function of bail that it is not a matter of right in cases where the person is charged with a capital offense punishable by death, reclusion perpetua or life imprisonment. Article 114, section 7 of the Rules of Court, as amended, states, "No person" charged with a capital offense, or an offense punishable byreclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action." When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot 7 properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be

A.M. No. RTJ-96-1335 March 5, 1997 INOCENCIO BASCO, complainant, vs. JUDGE LEO M. RAPATALO, Regional Trial Court, Branch 32, Agoo, La Union, respondent. RESOLUTION

ROMERO, J.: In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged respondent Judge Leo M. Rapatalo of RTC, Branch 32, Agoo, La Union with gross ignorance or willful disregard of established rule of law for granting bail to an accused in a murder case (Criminal Case No. 2927) without receiving evidence and conducting a hearing. Complainant, who is the father of the victim, alleged that an information for murder was filed against a certain Roger Morente, one of three accused. The accused Morente filed a petition for bail. The hearing for said petition was set for May 31, 1995 by petitioner but was not heard since the respondent Judge was then on leave. It was reset to June 8, 1995 but on said date, respondent Judge reset it to June 22, 1995. The hearing for June 22, 1995, however, did not materialize. Instead, the accused was arraigned and trial was set. Again, the petition for bail was not heard on said date as the prosecution's witnesses in connection with said petition were not notified. Another attempt was made to reset the hearing to July 17, 1995. In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3, 1995. He later learned that the accused was out on bail despite the fact that the petition had not been heard at all. Upon investigation, complainant discovered that 1 bail had been granted and a release order dated June 29, 1995 was issued on the 2 basis of a marginal note dated June 22, 1995, at the bottom of the bail petition by Assistant Prosecutor Manuel Oliva which stated: "No objection: P80,000.00," signed and approved by the assistant prosecutor and eventually by respondent Judge. Note that there was already a release order dated June 29, 1995 on the basis of the marginal note of the Assistant Prosecutor dated June 22, 1995 (when the hearing of

2
submitted to the court, the petitioner having the right of cross examination and to 8 introduce his own evidence in rebuttal." To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature involves the exercise of the judge's individual opinion and the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: "But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by 9 humour; it must not be arbitrary, vague and fanciful; but legal and regular." Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross 10 examination." If a party is denied the opportunity to be heard, there would be a violation of procedural due process. That it is mandatory for the judge to require a hearing in a petition for bail is emphasized in the following cases: (1) People v. Sola decided in 1981. In this case seven separate informations for murder were filed against the accused Sola and 18 other persons. After preliminary investigation. the municipal trial court issued warrants for their arrest. However without giving the prosecution the opportunity to prove that the evidence of guilt against the accused is strong, the court granted them the right to post bail for their temporary release. Citing People v San 12 Diego, we held: "We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there
11

would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. (2) People v. Dacudao decided in 1989. In this case, an information was filed against the accused for murder, a nonbailable offense. The judge, without conducting any hearing, granted bail on the ground that there was not enough evidence to warrant a case for murder because only affidavits of the prosecution witnesses who were allegedly not eyewitnesses to the crime were filed. We held: "Whatever the court possessed at the time it issued the questioned ruling was intended only for prima facie determining whether or not there is sufficient ground to engender a well founded belief that the crime was committed and pinpointing the persons who probably committed it. Whether or not the evidence of guilt is strong for each individual accused still has to established unless the prosecution submits the issue on whatever it has already presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or held. It is equally entitled to due process. (3) People v. Calo decided in 1990. In this case, the prosecution was scheduled to present nine witnesses at the hearings held to determine whether the evidence against the private respondents was strong. After hearing the fifth witness, the respondent judge insisted on terminating the proceedings. We held: "The prosecution in the instant case was not given adequate opportunity to prove that there is strong evidence of guilt and to present within a reasonable time all the evidence it desired to present. (4) Libarios v. Dabalo decided in 1991 which involved an administrative complaint against the respondent judge for ignorance of the law and grave abuse of discretion. In this case, the respondent judge, without conducting any prior hearing, directed the issuance of a warrant of arrest against the accused charged with murder, fixing at the same time the bail at P50,000.00 each on the ground that the evidence against them was merely circumstantial. We held: "Where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding to allow the prosecution to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail in the instant case amounted to a violation of due process." The respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise more care in the performance of his duties. (5) People v. Nano decided in 1992. In this case, the judge issued an order admitting the accused in a kidnapping and murder
16 15 14 13

3
case to bail without any hearing. We held: "The prosecution must first be given an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong." (6) Pico v. Combong, Jr. decided in 1992. In this administrative case, the respondent judge granted bail to an accused charged with an offense punishable by reclusion perpetua, without notice and hearing, and even before the accused had been arrested or detained. We held: "It is well settled that an application for bail from a person charged with a capital offense (now an offense punishable by reclusion perpetua) must be set for hearing at which both the defense and the prosecution must be given reasonable opportunity to prove (in case of the prosecution) that the evidence of guilt of the applicant is strong, or (in the case of the defense) that such evidence of guilt was not strong." The respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise greater care and diligence in the performance of his duties. (7) De Guia v. Maglalang decided in 1993, the respondent judge issued a warrant of arrest and also fixed the bail of an accused charged with the non bailable offense of statutory rape, without allowing the prosecution an opportunity to show that the evidence of guilt against the accused is strong. Respondent judge alleged that the only evidence on record = the sworn statements of the complaining witness and her guardian = were not sufficient to justify the denial of bail. We held: "It is an established principle that in cases where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding, to allow the prosecution an opportunity to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong, before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail amounts to a violation of due process." It was noted that the warrant of arrest was returned unserved and that after the case was re-raffled to the complainant judge's sala, the warrant was set aside and cancelled. There was no evidence on record showing whether the approved bail was revoked by the complainant judge, whether the accused was apprehended or whether the accused filed an application for bail. Hence, the respondent judge was ordered to pay a fine of P5,000.00 instead of the usual P20,000.00 that the court imposes on judges who grant the application of bail without notice and hearing. (8) Borinaga v. Tamin decided in 1993. In this case, a complaint for murder was filed against five persons.While the preliminary investigation was pending in the Municipal Circuit Trial Court, a petition for bail was filed by one of the accused before the
19 18 17

respondent judge in the Regional Trial Court. The respondent judge ordered the prosecutor to appear at the hearing to present evidence that the guilt of the accused is strong.At the scheduled hearing, the public prosecutor failed to appear prompting the respondent to grant the application for bail. We held: "Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present within a reasonable time all evidence it may desire to introduce before the court may resolve the motion for bail." The respondent judge was fined P20,000.00 and was warned that the commission of a similar offense in the future will be dealt with more severely. (9) Aurillo v. Francisco decided in 1994. In this administrative case, the respondent judge issued two separate warrants of arrest against two persons charged with murder and parricide, but fixed the amount of bail for each accused without notifying the prosecution of any motion to fix bail nor of any order granting the 21 same. Citing People v. Dacudao, we held: "A hearing is absolutely indispensable before a judge can properly determine whether the prosecution's evidence is weak or strong. Hence, a denial of the prosecution's request to adduce evidence, deprives it of procedural due process, a right to which it is equally entitled as the defense. A hearing is required to afford the judge a basis for determining the existence of those factors set forth under Rule 114, Sec 6." The respondent judge was ordered to pay a fine of P20,000 with a warning that the commission of the same or similar acts in the future will be dealt with more severely. (10) Estoya v. Abraham-Singson decided in 1994. In this case, an administrative complaint was filed against the respondent judge, alleging, among others, that she granted an application for bail filed by the accused charged with murder. The grant was made over the objection of the prosecution which insisted that the evidence of guilt was strong and without allowing the prosecution to present evidence in this regard. We held: "In immediately granting bail and fixing it at only P20,000.00 for each of the accused without allowing the prosecution to present its evidence, the respondent denied the prosecution due process. This Court had said so in many cases and had imposed sanctions on judges who granted applications for bail in capital offenses and in offenses punishable by reclusion perpetua without giving the prosecution the opportunity to prove that the evidence of guilt is strong." The respondent judge was dismissed from service because the erroneous granting of bail was just one of the offenses found to have been committed by her in the aforesaid complaint. (11) Aguirre v. Belmonte decided in 1994. In this administrative case, the respondent judge issued warrants of arrest and, at the
23 22 20

4
same time and on his own motion, authorized the provisional release on bail of the accused in two criminal cases for murder. The accused were still at large at the time the order granting bail was issued. We held: "A hearing is mandatory before bail can be granted to an accused who is charged with a capital offense." The judge was ordered to pay a fine of P25,000.00 with a warning that a repetition of the same or similar acts in the future will be dealt with more severely. He was meted a fine in a higher amount than the usual P20,000.00 because it involved two criminal cases wherein the respondent judge, "was not only the grantor of bail but likewise the applicant therefor." (12) Lardizabal v. Reyes decided in 1994. In this administrative case, the respondent judge issued an order directing the arrest of the accused charged with rape and, motu proprio, fixed the bail of the accused in the amount of P80,000.00 without any application on the part of the accused to be admitted to bail.When the accused filed a motion to reduce bailbond, the respondent judge, again, without any prior notice and hearing, reduced the bail to P40,000.00. We held: "The rule is explicit that when an accused is charged with a serious offense punishable by reclusion perpetua, such as rape, bail may be granted only after a motion for that purpose has been filed by the accused and a hearing thereon conducted by a judge to determine whether or not the prosecution's evidence of guilt is strong." The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a repetition of similar or the same offense will be dealt with more severely. (13) Guillermo v. Reyes decided in 1995 involving an administrative complaint against the respondent judge for granting bail to the two accused charged with serious illegal detention. When the two accused first filed a joint application for bail, the petition for bail was duly heard and the evidence offered by the accused and the prosecution in opposition thereto were properly taken into account. However, the respondent judge denied the application for bail on the around that it was premature since the accused were not yet in custody of the law. In a subsequent order, the respondent judge, without conducting any hearing on aforestated application and thereby denying the prosecution an opportunity to oppose the same, granted said petition upon the voluntary appearance in court of the two accused. Respondent judge insisted that there was a hearing but the proceeding he adverted to was that which was conducted when the motion for bail was first considered and then denied for being premature. We held: "The error of the respondent judge lies in the fact that in his subsequent consideration of the application for bail, he acted affirmatively thereon without conducting another hearing and what is worse, his order concededly lacked the requisite summary or resume of the evidence presented by the parties and necessary to support the grant of bail." The respondent judge was reprimanded
25 24

because despite the irregularity in the procedure adopted in the proceeding, the prosecution was undeniably afforded the benefit of notice and hearing. No erroneous appreciation of the evidence was alleged nor did the prosecution indicate its desire to introduce additional evidence in an appropriate challenge to the aforestated grant of bail by the respondent. (14) Santos v. Ofilada decided in 1995. In this case, an administrative complaint was filed against the respondent judge, who, without notice and hearing to the prosecution, granted bail to an accused charged with murder and illegal possession of firearm. We held: "Where admission to bail is a matter of discretion, a hearing is mandatory before an accused can be granted bail. At the hearing, both the prosecution and the defense must be given reasonable opportunity to prove, in case of the prosecution, that the evidence of guilt of the applicant is strong, and in the case of the defense, that evidence of such guilt is not strong." The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a repetition of similar acts will warrant a more severe sanction. (15) Sule v. Biteng decided in 1995. In this administrative case, the respondent judge, without affording the prosecution the opportunity to be heard, granted with indecent haste the petition for bail filed by the accused charged with murder because the accused ". . . voluntarily surrendered to the authorities as soon as he was informed that he was one of the suspect (sic) . . . ." We held: "With his open admission that he granted bail to the accused without giving the prosecution any opportunity to be heard, the respondent deliberately disregarded decisions of this court holding that such act amounts to a denial of due process, and made himself administratively liable for gross ignorance of the law for which appropriate sanctions may be imposed." The respondent judge was ordered to pay a fine of P20,000.00 and warned that commission of the same or similar acts in the future will be dealt with more severely. (16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 28 1996. In this administrative case, the respondent judge, without hearing nor comment from the prosecution, granted bail to an accused charged with murder. Notably, no bail was recommended in the warrant of arrest. We held: "When bail is a matter of discretion, the judge is required to conduct a hearing and to give notice of such hearing to the fiscal or require him to submit his recommendation. . . . Truly, a judge would not be in a position to determine whether the prosecution's evidence is weak or strong unless a hearing is first conducted." A fine of P20,000.00 was imposed on the respondent judge with the stern warning that a repetition of the same or similar acts in the future will be dealt with more severely.
27 26

5
The aforecited cases are all to the effect that when bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence, or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. Since the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application for bail to the discretion of the court. Hence: (1) In the case of Gimeno v. Arcueno, Sr., an administrative complaint was filed against the respondent judge for granting bail to one of the accused in a robbery with homicide case without affording the prosecution a chance to be heard. The respondent judge explained that he issued an order for the motion to fix bail but the public prosecutor filed a comment instead which respondent judge thought was adequate compliance with law. Respondent added that the evidence of guilt of the accused, as disclosed by the records, was not so strong as to deny the application for bail. In fact, the accused who filed for bail, together with three others, were later dropped by the Office of the Provincial Prosecutor from the information for failure of the witnesses to positively identify them. We held: "The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecution's evidence of guilt against the accused. . . . A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong." Although the respondent judge's explanation was not enough to completely exculpate him, the circumstances, coupled with his sincere belief in the propriety of his order warranted a mitigation of the usual sanction the court imposes in cases of this nature. The respondent judge was ordered to pay a fine of P5,000.00 and warned that a repetition of the same or similar act in the future will be dealt with more severely. (2) In the case of Concerned Citizens v. Elma, an administrative complaint was filed against the respondent judge for granting bail to a person charged with illegal recruitment in large scale and estafa in five separate informations. The accused filed a motion to fix bail and the respondent judge instead of setting the application for hearing, directed the prosecution to file its comment or opposition. The prosecution submitted its comment leaving the application for bail to the discretion of the court. The respondent judge, in granting the bail of the accused rationalized that in ordering the prosecution to comment on the accused's motion to fix bail, he has substantially complied with the requirement of a formal hearing. He further claimed that he required the prosecution to adduce evidence but the latter refused and left the determination of the motion to his discretion. This Court held, "It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty. .
30 29

. . In the case at bar, however, no formal hearing was conducted by the respondent judge. He could not have assessed the weight of evidence against the accused Gatus before granting the latter's application for bail." The respondent judge was dismissed from service because he was previously fined for a similar offense and was sternly warned that a repetition of the same or similar offense would be dealt with more severely. (3) In the case of Baylon v. Sison, an administrative complaint was filed against the respondent judge for granting bail to several accused in a double murder case. The respondent judge claimed that he granted the application for bail because the assistant prosecutor who was present at the hearing did not interpose an objection thereto and that the prosecution never requested that it be allowed to show that the evidence of guilt is strong but instead, submitted the incident for resolution. The respondent judge further claimed that the motion for reconsideration of the order granting bail was denied only after due consideration of the pertinent affidavits. We held: "The discretion of the court, in cases involving capital offenses may be exercised only after there has been a hearing called to ascertain the weight of the evidence against the accused. Peremptorily, the discretion lies, not in determining whether or not there will be a hearing, but in appreciating and evaluating the weight of the evidence of guilt against the accused." The respondent judge was ordered to pay a fine of P20,000.00 with a stern warning that the commission of the same or similar offense in the future would be dealt with more severely. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. "The importance of a hearing has been emphasized in not a few cases wherein the court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatoryfor the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, 32 against the accused." In the recent case of Tucay v. Domagas, an administrative complaint was filed against the respondent judge for granting bail to an accused charged with murder. The application for bail contained the annotation "No objection" of the provincial prosecutor and the respondent judge, without holding a hearing to determine whether the evidence of the prosecution was strong, granted bail and ordered the release of the accused from detention with instructions to the bondsman to register the bond with the Register of Deeds within ten days. It was later found out that the assessed value of the property given was short of the amount fixed for the release of the accused. We held: "Although the provincial prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution whether the latter was not really contesting the bail application . . . . Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, Sec. 6 for fixing bail should respondent judge have ordered the petition for bail and ordered the release of the accused." Respondent judge herein was ordered to pay a fine of P20,000.00 and was given a stern warning that the commission of a similar offense in the future would be dealt with more severely.
33 31

6
Corollarily, another reason why hearing of a petition for bail is required, as can be gleaned from the abovecited case, is for the court to take into consideration the guidelines set forth in Section 6, Rule 114 of the Rules of Court in fixing the amount of 34 35 bail. This Court, in a number of cases held that even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the court may still require that it answer questions in order to ascertain not only the strength of the state' s evidence but also the adequacy of the amount of bail. After hearing, the court's order granting or refusing bail must contain a summary of 36 the evidence for the prosecution. On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order granting or denying the application for bail may be invalidated because the summary of evidence for the prosecution which contains the judge's evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. This court in the case of Carpio v. Maglalang invalidated the order of respondent judge granting bail to the accused because "Without summarizing the factual basis of its order granting bail, the court merely stated the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently strong" to deny bail to Escano." With the mounting precedents, this Court sees no reason why it has to repeatedly remind trial court judges to perform their mandatory duty of conducting the required hearing in bail applications where the accused stands charged with a capital offense. An evaluation of the records in the case at bar reveals that respondent Judge granted bail to the accused without first conducting a hearing to prove that the guilt of the accused is strong despite his knowledge that the offense charged is a capital offense in disregard of the procedure laid down in Section 8, Rule 114 of the Rules of Court as amended by Administrative Circular No. 12-94. Respondent judge admittedly granted the petition for bail based on the prosecution's declaration not to oppose the petition. Respondent's assertion, however, that he has a right to presume that the prosecutor knows what he is doing on account of the latter's familiarity with the case due to his having conducted the preliminary investigation is faulty. Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor. In the case of Montalbo v. Santamaria, this Court held that the respondent judge is duty bound to exercise judicial discretion conferred upon him by law to determine whether in the case at bar, the proof is evident or the presumption of guilt is strong against the defendant and to grant or deny the petition for provisional liberty. It also
38 37

held that a writ ofmandamus will lie in order to compel the respondent judge to perform a duty imposed upon him by law. The absence of objection from the prosecution is never a basis for granting bail to the accused. It is the court's determination after a hearing that the guilt of the accused is not strong that forms the basis for granting bail. Respondent Judge should not have relied solely on the recommendation made by the prosecutor but should have ascertained personally whether the evidence of guilt is strong. After all, the judge is not bound by the prosecutor's recommendation. Moreover, there will be a violation of due process if the respondent Judge grants the application for bail without hearing since Section 8 of Rule 114 provides that whatever evidence presented for or against the accused's provisional release will be determined at the hearing. The practice by trial court judges of granting bail to the accused when the prosecutor refuses or fails to present evidence to prove that the evidence of guilt of the accused is strong can be traced to the case of Herras Teehankee v.Director of 39 Prisons where this Court gave the following "instructions" to the People's 40 Court, thus: 1) In capital cases like the present when the prosecutor does not oppose the petition for release on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after the approval of the bail which it should fix for the purpose; 2) But if the court has reasons to believe that the special prosecutor's attitude is not justified, it may ask him questions to ascertain the strength of the state's evidence or to judge the adequacy of the amount of bail; 3) When, however, the special prosecutor refuses to answer any particular question on the ground that the answer may involve a disclosure imperiling the success of the prosecution or jeopardizing the public interest, the court may not compel him to do so, if and when he exhibits a statement to that effect of the Solicitor General, who, as head of the Office of Special Prosecutors, is vested with the direction and control of the prosecution, and may not, even at the trial, be ordered by the court to present evidence which he does not want to introduce provided, of course, that such refusal shall 41 not prejudice the rights of the defendant or detainee. The rationale for the first instruction was stated by this Court, as follows: If, for any reason, any party should abstain from introducing evidence in the case for any definite purpose, no law nor rule exists by which he may be so compelled and the court before which the case is pending has to act without that evidence and, in so doing, it clearly would not be failing in its duties. If the Constitution or the law

7
plots a certain course of action to be taken by the court when certain evidence is found by it to exist, and the opposite course if that evidence is wanting, and said evidence is not voluntarily adduced by the proper party, the court's clear duty would be to adopt that course which has been provided for in case of absence of such evidence. Applying the principle to the case at bar, it was no more within the power nor discretion of the court to coerce the prosecution into presenting its evidence than to force the prisoner into adducing hers. And when both elected not to do so, as they had a perfect right to elect, the only thing remaining for the court to do was to grant the application for bail. As for the second instruction, this Court stated that: The prosecutor might not oppose the application for bail and might refuse to satisfy his burden of proof, but where the court has reasons to believe that the prosecutor's attitude is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court must possess a reasonable degree of control over him in the paramount interest of justice. Under such circumstance, the court is authorized by our second instruction to inquire from the prosecutor as to the nature of his evidence to determine whether or not it is strong, it being possible for the prosecutor to have erred in considering it weak and, therefore, recommending bail. As for the third instruction, this Court declared: It must be observed that the court is made to rely upon the official statement of the Solicitor General on the question of whether or not the revelation of evidence may endanger the success of the prosecution and jeopardize the public interest. This is so, for there is no way for the court to determine that question without having the evidence disclosed in the presence of the applicant, disclosure which is sought to be avoided to protect the interests of the prosecution before the trial. It is to be recalled that Herras Teehankee was decided fully half a century ago under a completely different factual milieu. Haydee Herras Teehankee was indicted under a law dealing with treason cases and collaboration with the enemy. The said "instructions" given in the said case under the 1940 Rules of Court no longer apply due to the amendments introduced in the 1985 Rules of Court. In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail" provides, as follows: Sec. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offenses not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. Sec. 7. Capital offense burden of proof. On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that the evidence of guilt is strong is on the prosecution. The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, as amended by Administrative Circular No. 12-94, since some phrases and lines have been intercalated, as shown by the underscored phrases and statements below: Sec. 6. Capital offense, defined. A capital offense, as the term is used in these rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death. Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, of an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Sec. 8. Burden of proof in bail application. At the hearing of an application for admission to bail filed by any person who is in custody for the commission of an offense punishable by death, reclusion perpetuaor life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise unable to testify. It should be noted that there has been added in Section 8 a crucial sentence not found in the counterpart provision, Section 7, Rule 110 of the 1940 Rules of Court. The above-underscored sentence in section 8, Rule 114 of the 1985 Rules of Court, as amended, was added to address a situation where in case the prosecution does not choose to present evidence to oppose the application for bail, the judge may feel duty-bound to grant the bail application. In such a case, the judge may well lose control of the proceedings. In a sense, this undermines the authority of a judge since all that the prosecution has to do to "force" the judge to grant the bail application is to refrain from presenting evidence opposing the same. In effect, this situation makes

8
Sections 6 and 7 of the 1940 Rules of Court on "Bail" meaningless since whether or not the evidence of guilt of a person charged with a capital offense is strong cannot be determined if the prosecution chooses not to present evidence or oppose the bail application in a hearing precisely to be conducted by the trial judge for that purpose, as called for in the two sections. In the event that the prosecution fails or refuses to adduce evidence in the scheduled hearing, then a hearing as in a regular trial should be scheduled. In this regard, a hearing in the application for bail necessarily means presentation of evidence, and the filing of a comment or a written opposition to the bail application by the prosecution will not suffice. The prosecution under the revised provision is duty bound to present evidence in the bail hearing to prove whether the evidence of guilt of the accused is strong and not merely to oppose the grant of bail to the accused. "This also prevents the practice in the past wherein a petition for bail was used as a means to force the prosecution into a premature revelation of its evidence and, if it refused to do so, the accused would 42 claim the grant of bail on the ground that the evidence of guilt was not strong." It should be stressed at this point, however, that the nature of the hearing in an application for bail must be equated with its purpose i.e., to determine the bailability of the accused. If the prosecution were permitted to conduct a hearing for bail as if it were a full-dress trial on the merits, the purpose of the proceeding, which is to secure the provisional liberty of the accused to enable him to prepare for his defense, could be defeated. At any rate, in case of a summary hearing, the prosecution witnesses 43 could always be recalled at the trial on the merits. In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this Court reiterates the duties of the trial judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied. The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or 44 awareness thereof. A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in 45 their grasp of legal principles. Respondent judge herein insists that he could exercise his discretion in granting bail to the accused since the Assistant Prosecutor signified in writing that he had no objection to the grant of bail and recommended, instead, the bailbond in the sum of P80,000.00. It is to be emphasized that although the court may have the discretion to grant the application for bail, in cases of capital offenses, the determination as to whether or not the evidence of guilt is strong can only be reached after due hearing which, in this particular instance has not been substantially complied with by the respondent Judge. While it may be true that the respondent judge set the application for bail for hearing three times, thus showing lack of malice or bad faith in granting bail to the accused, nonetheless, this does not completely exculpate him because the fact remains that a hearing has not actually been conducted in violation of his duty to determine whether or not the evidence against the accused is strong for purposes of bail. Normally, the Court imposes a penalty of P20,000.00 fine in cases where the judge grants the application for bail without notice and hearing. In view however of the circumstances of this case, a reprimand instead of the P20,000.00 would suffice. WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC, Branch 32, Agoo, La Union, is hereby REPRIMANDED with the WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. SO ORDERED.

9
FIRST DIVISION [A.M. No. RTJ-99-1488. June 20, 2000] JUANA MARZAN-GELACIO, complainant, vs. Judge ALIPIO V. FLORES in his capacity as Presiding Judge, Branch 20, RTC, Vigan, Ilocos Sur, respondent. DECISION YNARES_SANTIAGO, J.: Before Us is an administrative complaint for Gross Ignorance of the Law and Evident Partiality brought by Complainant Juana Marzan-Gelacio against respondent Judge Alipio V. Flores, Presiding Judge of the Regional Trial Court (RTC) of Vigan, Ilocos Sur, Branch 20. Culled from the records, the facts of the case, as summed by the Office of the Court Administrator (OCA) are as follows: Ms. Juana Marzan Gelacio filed two (2) counts of rape against Emmanuel Artajos. The said cases were docketed as Criminal Cases Nos. 4187 and 4188. It was thereafter raffled to the sala of respondent Judge Alipio Flores, RTC, Branch 20, Vigan, Ilocos Sur. On February 26, 1988, presumably after going over the records of the case and the recommendation of 1st Assistant Provincial Prosecutor Redentor Cardenas, Judge Flores concluded that the evidence of guilt was weak but made a finding of a probable cause. Consequently, he issued warrants of arrest with a recommendation of P200,000.00 bailbond in both cases. On March 16, 1998, complainant through her private prosecutor, Atty. Jessie Emmanuel A. Vizcarra, filed an Urgent Motion to Deny Bail. Two (2) months thereafter, more particularly on May 27, 1998 counsel for the accused, Atty. Salacnib Baterina filed a Petition to Reduce Bailbond with a notation: "No objection for P100,000.00 in each case by Provincial Prosecutor Jessica G. Viloria." On June 18, 1998, Judge Flores issued an order denying the "Motion to Deny Bail" filed by the Private Prosecutor stating that the proper and appropriate recourse of an aggrieved party, as in these cases, should have been to ask for a reconsideration of the granting of bail to the Provincial Prosecutor and/or appeal direct to the Secretary of Justice, being a capital offense, within the reglementary period set forth by the Rules of said Office. In the same order, the Petition to Reduce Amount of Bail was held in abeyance pending arrest and/or voluntary surrender of the accused. Apparently, on June 22, 1998 Judge Flores issued an order granting Motion for Reduction of Bail of the accused. (No copy of Order dated June 22, 1998 was attached). On July 8, 1998 the Private Prosecution filed a Motion to Cancel Bail Bonds of the Accused with the imprimatur of Assistant Public Prosecutor Arnulfo Manzano. On July 13, 1998, Judge Alipio Flores, acting on the said motion, treated the same as a Motion for Reconsideration on the granting of bail, and granted the same. The motion to cancel bail was held in abeyance pending arrest of the accused. He likewise recalled the Orders dated June 18 and 22, 1998, which he issued and ordered the immediate arrest of the accused. On July 22, 1998, Judge Flores denied the Motion to Cancel Bailbond and reinstated his Orders dated June 18 and 22, 1998. The Order of Arrest for the accused was likewise quashed. Judge Flores in issuing this Order relied on the stand of the Public Prosecutor that in accordance with the guidelines of the Department of Justice the cases are bailable. It was in the granting of a bail in the crime of rape where complainant questions the actuation of respondent Judge. Complainant contends that respondent Judge is ignorant of the law when he granted bail without giving the prosecution a chance to prove the guilt of the accused. She claims that it is very elementary for him not to know that petition for bail must be set for hearing. On August 27, 1998, Court Administrator Alfredo L. Benipayo by way of 1st Indorsement required Judge Alipio V. Flores to answer the complaint of Ms. Juana Marzan Gelacio. Respondent Judge in his comment alleged in sum that: 1.....On or before February 26, 1998, before making a finding of probable cause and issuance of the corresponding Warrants of Arrest in the said cases and finding that 1st Assistant Provincial Prosecutor Redentor Cardenas recommended bailbonds of P200,000.00 for each of the cases, called the branch prosecutor, 3rd Assistant Provincial Prosecutor Arnulfo Manzano in his chambers after the morning session to find out whether or not the

10
recommendation for bail was not inadvertent. The latter informed that the complainant was not able to prove all the elements of rape and under their (Fiscals) guidelines on Bailbonds, the same is bailable. Thereafter, the Fiscals Office even sent their 1997 Guidelines on Bailbonds; 2.....After a careful perusal of the records of the two (2) cases, more particularly the only evidence on record which is the affidavit of the complainant Gelacio and the resolution thereof, he (respondent) concluded that the evidence of guilt was weak but made a finding of probable cause, issued the corresponding warrant of arrest with a recommendation of P200,000.00 bailbond in both cases, both on February 26, 1998; 3.....On March 16, 1998, private complainant through private prosecutor, Atty. Jessie Emmanuel A. Vizcarra, filed an Urgent Motion to Deny Bail, and on May 27, 1998 accused through, Atty. Salacnib Baterina, filed a Petition to Reduce Bailbond with a notation for: No Objection for P100,000.00 in each case by the Provincial Prosecutor Jessica G. Viloria; 4.....Because of the inconsistent stand of the Private Prosecutor and Public Prosecutor, the Court in its order dated June 2, 1998, treated first the Motion' to Deny Bailbond by ordering the Public Prosecutor and defense to comment/oppose the same within 10 days from receipt thereof, with the Petition to Reduce Bailbonds meantime held in abeyance. On June 18, 1998, the Court issued the order now under question. 5.....It is also noteworthy to mention that the private prosecutor on 8 July 1998 filed a Motion to Cancel Bail Bonds of the Accused, which the Court motu proprio set for hearing on July 22, 1998. In said hearing the Public Prosecution through 3rd Assistant Provincial Prosecutor Arnulfo Manzano opposed the cancellation of Bailbonds maintaining the stand of the prosecution that both offenses are bailable. 6.....He does not personally know the accused nor the private complainant, and the questioned cases had resulted in a battle royale between the private prosecution and the public prosecution with respect to the bailbond issue, in which case law and precedents dictate that the public prosecution has control and supervision over the private prosecutor, in spite of this, the Court had always given the latter the right to be heard; 7.....There can be no partiality on his part as this is the only Rape case filed in Court where the Prosecution recommended bail; 8.....The remedy of the Private Prosecution should have been to question his final order by proper proceedings to a higher court to test whether or not he gravely abused its discretion amounting to lack of jurisdiction before an administrative complaint is filed. On October 26, 1998, complainant through counsel filed her position paper refuting the allegations of respondent Judge in his comment and reiterated her former claim that respondent Judge was ignorant of the law in granting bail without any hearing. In his comment to Position Paper of Private Complainant and Rejoinder respondent Judge stressed in sum that in the finding of probable cause and issuance of the corresponding warrant of arrest, the Judge may adopt the finding of the Provincial Prosecutor. On the basis of the foregoing factual narration, the OCA in the evaluation report recommended that the respondent Judge be fined Ten Thousand (P10,000.00) Pesos for granting bail without a hearing with a warning that a repetition of the same or similar acts in the future will be dealt with more severely, reasoning that: In G.R. No. 80906 entitled "Amaya, et al. v. Ordonez", September 5, 1988, the Honorable Court ruled that: "Whatever the fiscal recommends as the amount of bail for the provisional release of an accused is only recommendatory. The Judge still retains the discretion to apply the precedents laid down by the Supreme Court regarding the reasonable nature of the bail to be required. It is not bound by the Fiscals recommendation. More binding are the decisions of the Supreme Court." In the case at bar, respondent Judge does not deny that he granted bail to a person accused of two (2) counts of rape. He however attempted to excuse himself by saying that when he inquired inside his chambers from the Prosecutor as to whether there was really a recommendation of bail for P200,000.00 for each case and he (Fiscal) answered in the affirmative, he had no choice, according to him, but to adopt the same. Moreover, he added the Prosecutor relied on the Bail Bond Guide issued by the Department of Justice. Such an excuse is unacceptable. It only manifested his weakness and displayed his ignorance of the law and several court decisions on matters such as this. It is very elementary that felonies are

11
defined and their corresponding penalties are found in the Revised Penal Code. Hence, respondent Judge should not have been misled by the insinuation of the Fiscal that the 1996 Bail Bond Guide clearly expresses the bail to be recommended in the crime of rape. Instead, mindful perhaps of the basic legal principles, the Revised Penal Code should have prevailed. Besides, he should have known that the Bail [Bond] Guide is addressed to the Prosecutors and their Assistants and not to the Judges. What is even more perplexing is the attitude of the Judge in asking the Prosecutor to explain his recommendation of bail. This is contrary to Rule 2.01 of Canon 2 of the Code of Judicial Conduct. In no case is a Judge allowed to engage in a legal discussion inside his chambers, of the pending incidents of a case, without the presence of the representatives of the parties. Moreover, it was patent error for him to base his order granting bail merely on the supporting affidavits attached to the information since those were merely intended to establish probable cause as a basis for the issuance of an arrest warrant, and not to control his discretion to deny or grant in (sic) bail in all situation i.e., with or without a motion from the accused and even without conducting a hearing on the matter. It is admitted that there was a recommendation of bail. But the prosecutors recommendation, although persuasive, does not necessarily bind the Court. A hearing is indispensable before a Judge can aptly (sic) said to be in a position to determine whether the evidence for the prosecution is weak or strong. And the discretion to determine whether it is weak or strong may be exercised only after the evidence is submitted to the Court at the hearing. Whether in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, as the evidence it may desire to introduce before the court may resolve the motion for bail. Besides, the Judge should have known that even when bail is a matter of right, in fixing the amount of bail, he is required to take into account a number of factors, such as the character and reputation of the accused, forfeiture of other bonds, or whether or not he is a fugitive from justice. The fact that the prosecution refuses to adduce evidence, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused. Where the prosecution does not oppose the application for bail and refuses to satisfy his burden of proof, but the court has reasons to believe that the prosecutors attitude is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of justice, must inquire from the prosecution as to the nature of his evidence to determine whether or not it is strong, it being possible that the prosecutor [may] have erred in considering it weak and therefore, in recommending bail. The foregoing findings and disquisitions of the OCA are well taken. It is [1] imperative that judges be conversant with basic legal principles. Indeed, the Code of Judicial Conduct enjoins judges to "be faithful to the law and [2] maintain professional competence." Respondent judge owes it to the public and to the legal profession to know the law he is supposed to apply to [3] a given controversy. Indeed A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and [be] aware of well-settled authoritative doctrines. He should strive for excellence exceeded only by his passion for truth, to the end that he be the [4] personification of justice and the Rule of Law. Considering that the granting of bail is common in the litigation of criminal cases before trial courts, we are not the least impressed with the explanation proffered by respondent Judge in granting bail in this case. On the contrary, we are dismayed that he granted bail to an applicant charged with two (2) counts of rape merely on the basis of supporting affidavits attached to the information. The Court has not been remiss in keeping trial judges informed of the latest developments on the subject. The following duties of judges in case an application for bail is filed have been clearly and repeatedly spelled out during seminars conducted by the Philippine Judicial Academy, to wit: 1.....In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court, as amended); 2.....Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enablingthe court to exercise its sound discretion; (Sections 7 and 8, supra) 3.....Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution;

12
4.....If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond (Section 19, supra). Otherwise, [5] the petition should be denied. The procedural necessity of a hearing relative to the grant of bail can not be dispensed with especially in this case where the accused is charged with a capital offense. Utmost diligence is required of trial judges in granting bail especially in cases where bail is not a matter of right. Certain procedures must be followed in order that the accused would be present during trial. As a responsible judge, respondent must not be swayed by the mere representations of the parties; instead, he should look into the real and hard facts of the case. To do away with the requisite bail hearing especially in those cases where the applicant is charged with a capital offense "is to dispense with this time[6] tested safeguard against arbitrariness." It must always be remembered that imperative justice requires the proper observance of indispensable [7] technicalities precisely designed to ensure it proper dispensation. In this regard, it needs be stressed that the grant or the denial of bail in capital offenses hinges on the issue of whether or not the evidence of guilt of the accused is strong and the determination of whether or not the evidence is [8] strong is a matter of judicial discretion which remains with the judge. On [9] this point, Cruz v. Yaneza states in no uncertain terms that in order for the judge to properly exercise his discretion, he must first conduct a hearing to determine whether the [10] evidence of guilt is strong. As decreed in Almeron v. Sardido In exercising such judicial discretion, however, a judge is required to conduct a hearing wherein both the prosecution and the defense present evidence that would point to the strength or weakness of the evidence of guilt. The discretion of the judge lies solely in the appreciation and evaluation of the weight of the evidence presented during the hearing and not in the determination of whether or not the hearing itself should be held for such a hearing is considered mandatory and absolutely indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong. Thus, when a judge grants bail to a person charged with a capital offense punishable by reclusion perpetua or life imprisonment without conducting the required hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. Further, in Basco v. Rapatalo, we said: Since the determination of whether or not the evidence of guilt of the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application of bail to the discretion of the court. Even more explicitly in Santos v. Ofilada
[11]

We have held that admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after the evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial [12] discretion but of whim, caprice and outright arbitrariness. xxx........................xxx........................xxx........................xxx Even the alleged failure of the prosecution to interpose an objection to the granting of bail to the accused will not justify such grant without hearing. This Court has uniformly ruled that even if the prosecution refuses to adduce evidence or fails to interpose any objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt or lack of it, against the accused. Where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the States evidence or judge the [13] adequacy of the amount of the bail. Irrespective of respondent judges opinion that the evidence of guilt against the accused is not strong, the law and settled jurisprudence demand that a hearing be conducted before bail may be fixed for the [14] temporary release of the accused, if bail is at all justified.

13
Thus, although the provincial prosecutor had interposed no objection to the grant of bail to the accused, the respondent judge therein should nevertheless have set the petition for bail for hearing and diligently ascertain from the prosecution whether the latter was not in fact contesting the bail application. In addition, a hearing was also necessary for the court to take into consideration the guidelines set forth in the then Section 6, Rule 114 of the 1985 Rules of Criminal Procedure for the fixing of the amount of the bail. Only after respondent judge had satisfied himself that these requirements have been met could he then proceed to rule on [15] whether or not to grant bail. Most emphatic, however, is the recent case of Go, et al. v. Judge Benjamin [16] A. Bongolan where owing to the increasing frequency of incidents regarding so basic a subject in criminal procedure despite repeated reminders thereon, an exasperated Court speaking through Mr. Justice Reynato S. Puno castigated the respondent judge for granting bail in a capital offense without conducting a hearing thus: Complaints involving irregular approval of bailbond and issuance of order of release appear to be a common offense of judges. In the [17] 1996, case of Adapon v. Domagtay, this Court observed: "This is not the first time that a complaint is brought before this Court involving irregular approval of bailbond and issuance of order of release. The Court again reminds judges of lower courts of their role as the embodiment of competence, integrity and independence. This Court believes that in order to achieve justice, judges should, in all cases, diligently ascertain and conscientiously apply the law in relation to the facts of each case they hear and decide, unswayed by partisan interests, public opinion or fear of criticism. This is the least that judges can do to sustain the trust reposed on them by the public." Earlier in Paderanga v. Court of Appeals, this Court painstakingly reminded judges of the procedure to be followed when a motion for admission to bail is filed by the accused. It seems, however, that our reminder has fallen on barren ground. Consequently, we find it opportune to reiterate the rules: "Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In
[18]

pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after the trial would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. "Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. "Where such a hearing is set upon proper motion or petition, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the

14
courts order in respect of (sic) the motion or petition is void. At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that [19] the law requires. xxx........................xxx........................xxx A bail hearing is mandatory to give the prosecution reasonable opportunity [20] to oppose the application by showing that evidence of guilt is strong. We note that the prosecution was caught off guard in the regular hearing of May 20, 1998, when Atty. Astudillo sprang on it a Motion to Amend the Information and Fix Bail. It is true that when asked by Judge Bongolan whether the prosecution would present additional evidence, Prosecutor Gayao responded in the negative. Subsequently, however, the prosecution changed its mind when it stated in its Opposition that a resolution of the Motion for admission to bail would be premature since it has additional witnesses to present. In his Comment, Judge Bongolan contends that it is not necessary for the prosecution to present all its witnesses before he could resolve the motion for bail. The stance cannot be sustained. In Borinaga v. [21] Tamin, we ruled that the prosecution must be given an opportunity to present its evidence within a reasonable time whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial. If the prosecution is denied such an opportunity, there would be a violation of procedural due process. The records show that the prosecution was supposed to present its 6th and 7th witnesses on June 4, 1998 when Judge Bongolan prematurely resolved the motion. A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements. These two rights must be balanced by a magistrate in the scale of justice, hence, the necessity for hearing to guide his exercise of discretion. We note too that Judge Bongolan fixed the bail at P50,000.00 [22] without showing its reasonableness. In Tucay v. Domagas, we held that while the Provincial Prosecutor did not interpose an objection to the grant of bail, still, respondent judge should have set the petition for bail hearing for the additional reason of taking into [23] account the guidelines for fixing the amount of bail. Thus, we fined the erring judge for gross ignorance of the law. It must be pointed out in this regard that "[J]udicial discretion, by its very nature, involves the exercise of the judges individual opinion and the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational latitude for the operation of his own [24] individual views, prevent them from getting out of control. In other words, judicial discretion is not unbridled but must be supported by a finding of the [25] facts relied upon to form an opinion on the issue before the court. In numerous cases we repeatedly ruled that the courts order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong. Indeed, the summary of evidence for the prosecution which contains the judges evaluation of the evidence may be considered as an aspect of [27] judicial due process for both the prosecution and the defense. Nowhere is such summary to be found in the assailed orders of respondent judge. With clear-cut procedural guidelines on bail now incorporated in the Rules of Court, judges have been enjoined to study them well and be guided accordingly. Concededly, judges can not be faulted for honest lapses in judgment but this defense has become shopworn from overuse. To reiterate, although the Provincial Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have set the application or [28] petition for bail for hearing. If the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory [29] questions. For even the failure of the prosecution to interpose an objection to the grant of bail to the accused will not justify such grant without a [30] hearing. As pointedly stated in Bantuas v. Pangadapun "[T]o grant an application for bail and fix the amount thereof without a hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim [32] of good faith or excusable negligence. Furthermore, the Court has held that the failure of the judge to conduct the hearing required prior to the grant of bail in capital offenses is inexcusable and reflects gross ignorance of the [33] law and a cavalier disregard of its requirement." Given the peculiar factual circumstances prevailing in this case, we find the recommended penalty of the OCA in the evaluation report appropriate. WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Ten Thousand Pesos (P10,000.00) and STERNLY WARNED that a repetition of the same or similar infractions complained of will be dealt with more severely. SO ORDERED.
[31] [26]

15
FIRST DIVISION the accused committed the offense, bail for the crime of murder remains to be a matter of discretion. He cited Section 13, Article III, of the Constitution which explicitly provides that (a)ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The respondent Judge added that contrary to the accuseds claim, there is nothing in the records which show that bail was recommended for his temporary liberty. Accused Celso Docil filed a motion for reconsideration reiterating his previous contentions. Then, he filed a manifestation pointing out that on page 49 of the records is an order granting him and his co-accused the recommended bail of P60,000.00. The court gave the prosecution five (5) days within which to file a comment to the accuseds motion for reconsideration but the former failed to do so. On January 15, 2001, the respondent Judge issued a Resolution granting the said motion for reconsideration on the basis of a previous order granting bail to the [5] accused. He ratiocinated that on page 49 of the records, there indeed appears a final and executory order dated July 22, 1994 issued by his predecessor, Judge Paterno T. Alvarez granting bail of P60,000.00 to the accused, hence, the inevitable recourse is to grant bail to accused Celso Docil. On August 16, 2001, the complainant filed the instant administrative case against the respondent Judge for granting bail to accused Celso Docil without conducting a bail hearing. In his Comment, the respondent insisted that he committed no gross ignorance of the law or incompetence. He contended that the prosecution is estopped from objecting to the grant of bail to accused Celso Docil because it questioned the said order issued by his predecessor Judge only on February 4, 2000, or after six (6) years from the issuance thereof on July 22, 1994. He added that despite the five-day period given to the prosecution, it failed to file a comment to the motion for reconsideration of the accused, warranting the presumption that it has no objection to the accuseds petition for bail. On the basis of its evaluation, the Office of the Court Administrator recommended that the instant case be re-docketed as a regular administrative matter and that respondent Judge be fined in an amount equivalent to one (1) month salary, with a warning that the commission of the same or similar acts in the future will be [7] dealt with more severely. In a Resolution dated February 6, 2002, the Court required the parties to manifest whether they are submitting the case for resolution on the basis of the [8] pleadings filed. On April 24, 2002, the respondent Judge manifested his conformity [9] to the said Resolution. The complainants manifestation, on the other hand, was dispensed with by the Court. Jurisprudence is replete with decisions on the procedural necessity of a hearing, whether summary or otherwise, relative to the grant of bail especially in cases involving offenses punishable by death, reclusion perpetua, or life imprisonment, [10] where bail is a matter of discretion. Under the present rules, a hearing is required [11] in granting bail whether it is a matter of right or discretion. It must be stressed that the grant or the denial of bail in cases where bail is a matter of discretion hinges on
[6]

[A.M. No. RTJ- 03-1767. March 28, 2003]

ROSALIA DOCENA-CASPE, complainant, vs. JUDGE ARNULFO O. BUGTAS, Regional Trial Court, Branch II, Borongan, Eastern Samar, respondent. RESOLUTION YNARES-SANTIAGO, J.: The refusal or failure of the prosecution to adduce evidence or to interpose objection to a petition for bail will not dispense with the conduct of a bail [1] hearing. Neither may reliance to a previous order granting bail justify the absence [2] of a hearing in a subsequent petition for bail, more so where said order relied upon [3] was issued without hearing and while the accused was at large. The instant administrative case for gross ignorance of the law and incompetence against respondent judge stemmed from a murder case filed against accused Celso Docil and Juan Docil for the death of Lucio Docena. In her sworn complaint, complainant alleged that on September 3, 1993, Judge Gorgonio T. Alvarez of the Municipal Trial Court of Taft, Eastern Samar, conducted a preliminary investigation on the said murder case, and thereafter issued the corresponding warrants of arrest. No bail was recommended for the two (2) accused who were at large since the commission of the offense on August 29, 1993. Complainant further stated that the information for murder was filed with the Regional Trial Court of Borongan, Eastern Samar, Branch II, then presided by Judge Paterno T. Alvarez. The latter allegedly granted a P60,000.00 bailbond each to both accused without conducting a hearing, and while the two were at large. Meanwhile, accused Celso Docil was apprehended on June 4, 2000. Subsequently, Provincial Prosecutor Vicente Catudio filed before the Regional Trial Court of Borongan, Eastern Samar, Branch II, now presided by respondent Judge Arnulfo O. Bugtas, a motion praying that an alias warrant of arrest be issued for the other accused, Juan Docil; and that both accused be denied bail. Said motion was granted by the respondent Judge. Thereafter, accused Celso Docil filed a motion for reconsideration praying that he be allowed to post bail on the grounds that (1) he is entitled to bail as a matter of right because he is charged with murder allegedly committed at the time when the imposition of the death penalty was suspended by the Constitution; and that (2) both the investigating Judge and the First Assistant Prosecutor recommended P60,000.00 bail for his temporary liberty. On August 11, 2000, the respondent Judge denied said motion. He explained that notwithstanding the suspension of the imposition of the death penalty at the time
[4]

16
the issue of whether or not the evidence on the guilt of the accused is strong, and the determination of whether or not the evidence is strong is a matter of judicial discretion which remains with the judge. In order for the latter to properly exercise his discretion, he must first conduct a hearing to determine whether the evidence of guilt [12] is strong. In Santos v. Ofilada, it was held that the failure to raise or the absence of an objection on the part of the prosecution in an application for bail does not dispense with the requirement of a bail hearing. Thus Even the alleged failure of the prosecution to interpose an objection to the granting of bail to the accused will not justify such grant without hearing. This Court has uniformly ruled that even if the prosecution refuses to adduce evidence or fails to interpose any objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt, or lack of it, against the accused. Where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the States evidence or judge the adequacy of the amount of the bail. Irrespective of respondent judges opinion that the evidence of guilt against the accused is not strong, the law and settled jurisprudence demand that a hearing be conducted before bail may be fixed for the temporary release of the accused, if bail is at all justified. Thus, although the provincial prosecutor had interposed no objection to the grant of bail to the accused, the respondent judge therein should nevertheless have set the petition for bail for hearing and diligently ascertain from the prosecution whether the latter was not in fact contesting the bail application. In addition, a hearing was also necessary for the court to take into consideration the guidelines set forth in the then Section 6, Rule 114 of the 1985 Rules of Criminal Procedure for the fixing of the amount of the bail. Only after respondent judge had satisfied himself that these requirements have been met could he then proceed to rule on whether or not to grant bail. Clearly therefore, the respondent Judge cannot seek refuge on the alleged belated objection of the prosecution to the order dated July 22, 1994 issued by his predecessor, Judge Paterno T. Alvarez; nor on the prosecutions failure to file a comment to the accuseds motion for reconsideration of the August 11, 2000 order denying the application for bail. It is certainly erroneous for the respondent to rely on the order of Judge Paterno T. Alvarez. As a responsible judge, he should have looked into the real and hard facts of the case before him and ascertained personally whether the evidence of guilt [14] is strong. To make things worse, respondent Judge relied on the said July 22, 1994 order despite the fact that the same appears to have been issued by his predecessor Judge also without a hearing and while the accused was at large. In addition to the requirement of a mandatory bail hearing, respondent judge should have known the basic rule that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet [15] to be curtailed.
[13]

In Basco v. Rapatalo, the Court laid down the following rules which outlined the duties of a judge in case an application for bail is filed: (1) (2) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion; Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied.

[16]

(3) (4)

Based on the above-cited procedure and requirements, after the hearing, the courts order granting or refusing bail must contain a summary of the evidence for the [17] prosecution. A summary is defined as a comprehensive and usually brief abstract or digest of a text or statement. Based on the summary of evidence, the judge formulates his own conclusion on whether such evidence is strong enough to indicate [18] the guilt of the accused. In the instant case, it appears that when the respondent judge initially granted the prosecutions motion praying that the accused be denied bail, no hearing was conducted. Irrespective of his opinion on the strength or weakness of evidence of the accuseds guilt, he should have conducted a hearing and thereafter made a summary of the evidence for the prosecution. The importance of a bail hearing and a summary of evidence cannot be downplayed, these are considered aspects of procedural due process for both the prosecution and the defense; its absence will invalidate the grant [19] or denial of bail. The indispensable nature of a bail hearing in petitions for bail has always been ardently and indefatigably stressed by the Court. The Code of Judicial Conduct enjoins judges to be faithful to the law and maintain professional competence. A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and be aware of well-settled authoritative doctrines. He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of [20] justice and the Rule of Law. In Dericto v. Bautista, the Court imposed a fine of P5,000.00 on the respondent Judge for granting bail without conducting a bail hearing. We explained therein that although the Rules of Court authorize the investigating judge to determine the amount of bail, such authority does not include the outright granting of bail without a preliminary hearing on the matter, more so in cases where the crime charged is punishable with death, reclusion perpetua, or life imprisonment. And while it may be true that the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, this discretion lies not in the determination of whether or not a hearing should be held, but in the appreciation and evaluation of the weight of the prosecutions evidence of guilt against the accused.
[21]

17
In Goodman v. De La Victoria, the erring Judge was found guilty of serious misconduct in office and ordered to pay a fine of P5,000.00 for failing to conduct a bail hearing in the manner required by law. It was held that the brief inquiry conducted by the said Judge before granting bail did not constitute the hearing mandated by law, for such proceeding did not elicit evidence from the prosecution to guide respondent in the proper determination of the petition. In Marzan-Gelacio v. Flores, the Court sustained the recommendation of the OCA to impose the penalty of fine in the amount of P10,000.00 on the erring judge for granting bail without hearing to the accused in a rape case. In Cabatingan, Sr. v. Arcueno, the Court imposed the penalty of fine of 15,000.00 on the investigating Judge for denying bail on the ground of lack of jurisdiction. In said case, the accused was arrested in the municipality presided by the respondent judge. The Court ruled that the latter had the authority to grant bail and to order the release of the accused, even if the records of the case had been transmitted for review to the Office of the Provincial Prosecutor. The Court further noted therein that the respondent Judge was previously found guilty of gross ignorance of the law and ordered to pay a fine of P5,000.00, when without a hearing, he granted bail to an accused charged with a capital offense. In the following cases, the Court imposed a P20,000.00 fine on the Judges found to be grossly ignorant of the rules and procedures in granting or denying bail, to wit: (1) Manonggiring v. Ibrahim,[25] where the respondent Judge, in violation of Rule 114, Section 17(b), of the Revised Rules on Criminal Procedure, granted bail to the accused in a criminal case which was then pending with another branch involving an offense punishable by reclusion perpetua to death; (2) Panganiban v. Cupin-Tesorero,[26] where the erring Municipal Trial Court Judge who conducted the preliminary investigation granted bail to the accused (a) without jurisdiction and in violation of Rule 114, Section 17a, of the Revised Rules on Criminal Procedure, the corresponding Information against the accused being pending with the Regional Trial Court; (b) without notice to the prosecutor of the request to approve the bail bond in violation of Rule 114, Section 18; and (c) without conducting a bail hearing; (3) Tabao v. Barataman,[27] and Comia v. Antona,[28] where the Judges concerned entertained an application for bail even though the court had not yet acquired jurisdiction over the person of the accused. (4) Layola v. Gabo, Jr.,[29] where a Regional Trial Court Judge granted bail in a murder case without the requisite bail hearing. The record shows that this is not the first administrative case of the respondent Judge. In a decision promulgated on April 17, 2001, in RTJ-01-1627, he was found guilty of gross inefficiency for failure to resolve a civil case within the three-month reglementary period and consequently ordered to pay a fine of P5,000.00. For this second infraction, respondent Judge deserves a heavier penalty.
[24] [23] [22]

WHEREFORE, in view of all the foregoing, respondent Judge Arnulfo O. Bugtas is ordered to pay a FINE in the amount of Twenty Thousand Pesos (P20,000.00) and STERNLY WARNED that a repetition of the same or similar acts shall be dealt with more severely.

SO ORDERED.

18
FIRST DIVISION surfaced instruments, including fist blows, inflicting upon him serious injuries causing his internal organs to be badly damaged such as his liver, messentery and stomach resulting to the death of said Renato Suba to the damage and prejudice of the heirs of the latter. CONTRARY TO LAW.
[2]

[G.R. No. 152398. April 14, 2005]

Arraignment and Plea EDGAR CRISOSTOMO, petitioner, vs. SANDIGANBAYAN, respondent. DECISION CARPIO, J.: The Case This is an appeal by certiorari under Rule 65 of the Revised Rules on Civil Procedure of the Sandiganbayan Resolutions promulgated on 17 September 2001 and 14 January 2002, denying the Motion for Reconsideration filed by petitioner [1] SPO1 Edgar Crisostomo (Crisostomo) assailing the courts Decision promulgated on 28 November 2000. The Decision found Crisostomo guilty of the crime of murder and sentenced him to suffer the indeterminate penalty of twelve (12) years, five (5) months and eleven (11) days of prision mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum. The Charge On 19 October 1993, Crisostomo, a member of the Philippine National Police and a jail guard at the Solano Municipal Jail was charged with the murder of Renato Suba (Renato), a detention prisoner at the Solano Municipal Jail. The Information alleged that Crisostomo conspired with his co-accused, Dominador C. dela Cruz (dela Cruz), Efren M. Perez (Perez), Raki T. Anggo (Anggo), Randy A. Lumabo (Lumabo), Rolando M. Norberte (Norberte) and Mario Calingayan (Calingayan), all inmates at the Solano Municipal Jail, in murdering Renato. The Information reads in full: That on or about the 14th day of February 1989, in Solano, Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Pat. Edgar T. Crisostomo, a public officer, being then a member of the Philippine National Police (PNP) stationed at Solano Police Station and a jailer thereat, taking advantage of his public position and thus committing the offense in relation to his office, conspiring, confederating and conniving with his co-accused who are inmates of the Solano Municipal Jail, namely: Dominador C. dela Cruz, Efren M. Perez, Raki T. Anggo, Randy A. Lumabo, Rolando M. Norberte and Mario B. Calingayan, with intent to kill and with treachery, taking advantage of superior strength and with the aid of armed men or employing means to weaken the defense or of means or persons to insure or afford impunity, did then and there wil[l]fully, unlawfully and feloniously attack and assault one Renato Suba, a detention prisoner, with the use of roughVersion of the Prosecution On 13 February 1989, Renato was detained at the municipal jail in Solano, Nueva Vizcaya for allegedly hitting the head of one Diosdado Lacangan. The following day, 14 February 1989, at 5:00 p.m., Renatos brother Rizalino Suba (Rizalino) visited him at the municipal jail. Renato asked Rizalino to bring him blanket, toothbrush, clothes and food. Rizalino left the municipal jail that day at 5:20 p.m. At that time, Renato was in good physical condition and did not complain of any bodily pain. Renato was 26 years old, single, and was employed in a logging concession. At 9:00 p.m., a barangay councilman informed Rizalino that policemen assigned at the Solano municipal jail wanted Rizalino to go to the municipal building. Rizalino arrived at the municipal jail at 9:10 p.m. and saw his brother Renato already dead on the floor outside his cell. Renato was detained alone in the third cell, one of the four cells at the municipal jail. Although each of the four cells had an iron grill door equipped with a padlock, the doors were usually left open. The keys to the padlocks were with the jail guard. There was a common front door, which no one could enter but the jail guard. Only one jail guard at a time was assigned at the municipal jail. Crisostomo was the one on duty at the time of the death of Renato. At no time was Renato brought out of the cell during his detention on 13 February 1989 until his death in the evening of the following day. Crisostomos position in relation to the cell where the victim was killed was such that Crisostomo as jail guard could have heard if not seen what was going on inside the cell at the time that Renato was killed. There are unexplained discrepancies in the list of detainees/prisoners and police blotter. The list of detainees/prisoners dated 20 February 1989 shows that there were eight prisoners on 14 February 1989, including Renato, but after Renatos death, only six were turned over by Crisostomo to the incoming jail guard. On 15 February 1989, nine prisoners/detainees were on the list, including Renato who was already dead. However, the police blotter shows that only six prisoners were under custody. The persons who were detained with Renato at the time of his death were released without being investigated by the Solano police. Renato did not commit suicide. His body bore extensive injuries that could have been inflicted by several persons. The exhumation and autopsy reports ruled out suicide as the cause of Renatos death. The deafening silence of the inmates and the On 15 December 1993, Crisostomo assisted by counsel, pleaded not guilty to [3] the crime charged. Thereafter, trial ensued.

19
jail guard, Crisostomo, point to a conspiracy. Crisostomos guilt is made apparent when he jumped bail during trial. Version of the Defense The presentation of evidence for Crisostomos defense was deemed waived for his failure to appear at the scheduled hearings despite notice. Calingayan, Crisostomos co-accused, was the sole witness for the defense. Calingayan was only 16 years old at the time that he was charged with the murder of Renato. Calingayan denied killing Renato. Calingayan was detained at the Solano Municipal Jail on 12 February 1989 because his brother-in-law, Patrolman Feliciano Leal (Leal), also a jail guard, had him arrested for pawning some of the belongings of Leal. Leal told Calingayan that he had him detained for safekeeping to teach him a lesson. Renato was detained on 13 February 1989. Calingayan learned that Renato was detained for hitting somebodys head. There were four cells at the municipal jail. Calingayan was detained with five other inmates in the second cell. Renato was detained alone in the third cell. The four cells had their own separate doors with padlocks but each door was always open. It was up to the inmates to close the doors. A common door leading to the four cells was always padlocked and no one could enter the door without the jail guards permission. The jail guard had the keys to the cells and the common door. Only one jail guard was assigned to guard the cells. Crisostomo was the jail guard on duty at the time that Renato died. Calingayan was in jail for three days or until 15 February 1989. Calingayan last saw Renato alive between 5 to 6 p.m. of 14 February 1989. Just as Calingayan was about to take a bath after 6 p.m., he saw Renato lying down. One of the inmates asked for Renatos food because he did not like to eat his food. After taking a bath, Calingayan went back to his cell and played cards with his three cellmates whose names he could not recall. Calingayan did not leave his cell during the four hours that he played cards but one of his cellmates went out. Calingayan discovered Renatos body on 14 February 1989 between 9:00 p.m. to 10:00 p.m. Calingayan went to the fourth cell, where the comfort room was located, to urinate. While urinating, Calingayan saw at the corner of the cell a shadow beside him. A bulb at the alley lighted the cell. Calingayan ran away and called the other inmates, telling them that the person in cell number four was in the dark place. The other inmates ran towards the place and shouted si kuwan, si kuwan. Crisostomo was in the room at the left side from where Calingayan was detained, about fifteen meters away. Upon hearing the shouts, Crisostomo opened the main door. Once inside the cell, Crisostomo instructed the inmates to bring down Renatos body that was hanging from the iron bars of the window of the cell. At that time, Calingayan did not notice what was used in hanging Renato but when the body was brought outside, Calingayan saw that Renato had hanged himself with a thin blanket. The four cells are not similar in area and size. The cell where Renato stayed is the smallest. The cells are separated by a partition made of hollow blocks as high as the ceiling. The four cells are in one line so that if you are in one cell you cannot see what is happening in the other cells. The inmates could go to any of the four cells in the prison but they could not get out of the main door without the permission of the jail guard. The comfort room is in the fourth cell, which is also open so that the inmates would not anymore ask for the key from the office of the jail guard. The blanket that Renato used to hang himself was tied to the iron grills of the window of the cell. The window is small, only about two feet by one and one-half feet with eight iron bars. The window is nine feet from the floor. No other person was admitted on 14 February 1989. Calingayan does not have a grudge against Renato. He could not recall if there was any untoward incident between Renato and the other inmates. The Solano police investigated Calingayan the next morning. The Ruling of the Sandiganbayan Only Crisostomo and Calingayan stood trial. The other accused, dela Cruz, Perez, Anggo, Lumabo and Norberte were at large. The Sandiganbayan found sufficient circumstantial evidence to convict Crisostomo and Calingayan of murder. TheSandiganbayan relied on the autopsy and exhumation reports in disregarding the defense theory that Renato committed suicide by hanging himself with a blanket. The Sandiganbayan thus held: Premises considered, accused Edgar Crisostomo and Mario Calingayan are hereby found guilty of the crime of murder. xxx There being no attending mitigating or aggravating circumstance in the case of accused Edgar Crisostomo, and taking into consideration the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment for the period from twelve (12) years, five (5) months and eleven (11) days of prision mayor, minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, maximum. xxx As to the other accused, Dominador C. Dela Cruz, Efren M. Perez, Raki T. Anggo, Randy A. Lumabo and Rolando M. Norberte, considering they are still at-large up to the present time, let an alias warrant of arrest be issued against them. In the meantime, the cases against them are hereby ordered archived. SO ORDERED.
[4]

The Issues

20
Crisostomo continues to assail the Sandiganbayans jurisdiction. He raises the following issues: WHETHER THE SANDIGANBAYAN HAS JURISDICTION OVER THE CRIME OF MURDER CHARGED AGAINST CRISOSTOMO WHO IS A SENIOR POLICE OFFICER 1 (SPO1) AT THE TIME OF THE FILING OF THE INFORMATION AGAINST HIM. EVEN ASSUMING ARGUENDO THAT THE RESPONDENT COURT HAS JURISDICTION, WHETHER THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT CRISOSTOMO IS GUILTY OF HAVING CONSPIRED IN THE MURDER OF RENATO DESPITE THE SANDIGANBAYANS ADMISSION IN ITS DECISION THAT THERE IS NO DIRECT EVIDENCE THAT WILL SHOW THE PARTICIPATION [5] OF CRISOSTOMO IN THE DEATH OF THE VICTIM. The Courts Ruling The Sandiganbayan had jurisdiction to try the case. However, the prosecution failed to prove Crisostomo and Calingayans guilt beyond reasonable doubt. Thus, we acquit Crisostomo and Calingayan. The Sandiganbayan had Jurisdiction to Try the Case Crisostomo argues that the Sandiganbayan was without jurisdiction to try the case. Crisostomo points out that the crime of murder is not listed in Section 4 of Presidential Decree No. 1606 (PD 1606) as one of the crimes that the Sandiganbayan can try. Crisostomo faults the Sandiganbayan for not applying the [6] ruling in Sanchez v. Demetriou to this case. In Sanchez v. Demetriou, the Court ruled that public office must be a constituent element of the crime as defined in the statute before the Sandiganbayan could acquire jurisdiction over a case. Crisostomo insists that there is no direct relation between the commission of murder and Crisostomos public office. Crisostomo further contends that the mere allegation in the Information that the offense was committed in relation to Crisostomos office is not sufficient to confer jurisdiction on the Sandiganbayan. Such allegation without the specific factual averments is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of Crisostomos official duties. Indeed, murder and homicide will never be the main function of any public office. No public office will ever be a constituent element of murder. When then would murder or homicide, committed by a public officer, fall within the exclusive and [7] original jurisdiction of the Sandiganbayan? People v. Montejo provides the answer. The Court explained that a public officer commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper or irregular manner, his official functions and he cannot commit the offense without holding his public office. In such a case, there is an intimate connection between the offense and the office of the accused. If the information alleges the close connection between the offense charged and the office of the accused, the case falls within the jurisdiction of the Sandiganbayan. People v. Montejo is an exception that Sanchez v. Demetriou recognized. Thus, the jurisdiction of the Sandiganbayan over this case will stand or fall on this test: Does the Information allege a close or intimate connection between the offense charged and Crisostomos public office? The Information passes the test. We are not convinced. Since the crime was committed on 14 February 1989, the applicable provision of law is Section 4 of PD 1606, as amended by Presidential Decree No. 1861 (PD 1861), which took effect on 23 March 1983. The amended provision reads: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving: The Information alleged that Crisostomo a public officer, being then a member of the Philippine National Police (PNP) stationed at Solano Police Station and a jailer thereat, taking advantage of his public position and thus committing the offense in relation to his office conspired, confederated and connived with his coaccused who are inmates of the Solano Municipal Jail to kill Renato, a detention prisoner. If the victim were not a prisoner, the Information would have to state particularly the intimate relationship between the offense charged and the accused public officers office to vest jurisdiction on the Sandiganbayan. This is not the case here. The law xxx (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in governmentowned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prisioncorreccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. Crisostomo was charged with murder, the penalty for which is reclusion temporal in its maximum period to death, a penalty within the jurisdiction of the Sandiganbayan. Crisostomo would have the Court believe that being a jail guard is a mere incidental circumstance that bears no close intimacy with the commission of murder. Crisostomos theory would have been tenable if the murdered victim was not a prisoner under his custody as a jail guard. The function of a jail guard is to insure the safe custody and proper confinement of persons detained in the jail. In this case, the Information alleges that the victim was a detention prisoner when Crisostomo, the jail guard, conspired with the inmates to kill him.

21
restrains the liberty of a prisoner and puts him under the custody and watchful eyes of his jail guard. Again, the two-fold duties of a jail guard are to insure the safe custody and proper confinement of persons detained in the jail. The law restricts access to a prisoner. However, because of the very nature of the work of a jail guard, he has access to the prisoner. Crisostomo, as the jail guard, could not have conspired with the inmates to murder the detention prisoner in his cell if Crisostomo were not a jailer. The Information accused Crisostomo of murdering a detention prisoner, a crime that collides directly with Crisostomos office as a jail guard who has the duty to insure the safe custody of the prisoner. Crisostomos purported act of killing a detention prisoner, while irregular and contrary to Crisostomos duties, was committed while he was performing his official functions. The Information sufficiently apprised Crisostomo that he stood accused of committing the crime in relation to his office, a case that is cognizable by the Sandiganbayan, not the Regional Trial Court. There was no prejudice to Crisostomos substantive rights. Assuming that the Information failed to allege that Crisostomo committed the crime in relation to his office, the Sandiganbayan still had jurisdiction to try the case. The Information was filed with the Sandiganbayan on 19 October 1993. Deloso v. [8] Domingo, promulgated on 21 November 1990, did not require that the information should allege that the accused public officer committed the offense in relation to his office before the Sandiganbayan could assume jurisdiction over the case. The ruling inDeloso v. Domingo relied solely on PD 1606. Aguinaldo v. Domagas, promulgated on 26 September 1991, modified Deloso v. Domingo. Aguinaldo v. Domagas clarified that offenses specified in Section 4(a)(2) of PD 1606, as amended by PD 1861, must be committed by public officers and employees in relation to their office and the information must [10] allege this fact. The succeeding cases of Sanchez v. Demetriou and Natividad v. [11] Felix, reiterated the Aguinaldo v. Domagas ruling. However, despite the subsequent cases clarifying Deloso v. Domingo, the [12] Court in Republic v. Asuncion, promulgated on 11 March 1994, applied the ruling in Deloso v. Domingo. Since the effects of the misapprehension of Deloso v. Domingodoctrine were still persistent, the Court set out the following directives in Republic v. Asuncion: The dismissal then of Criminal Case No. Q-91-23224 solely on the basis of Deloso vs. Domingo was erroneous. In the light of Aguinaldo and Sanchez, and considering the absence of any allegation in the information that the offense was committed by private respondentin relation to his office, it would even appear that the RTC has exclusive jurisdiction over the case. However, it may yet be true that the crime of homicide charged therein was committed by the private respondent in relation to his office, which fact, however, was not alleged in the information probably because Deloso vs. Domingo did not require such an allegation. In view of this eventuality and the special circumstances of this case, and to avoid further delay, if not confusion, we shall direct the court a quo to conduct a preliminary hearing in this case to determine whether the crime charged in Criminal Case No. Q-91-23224 was committed by the private respondent in relation to his office. If it be determined in the affirmative, then it shall order the transfer of the case to the Sandiganbayan which shall forthwith docket and proceed
[9]

with the case as if the same were originally filed with it. Otherwise, the court a quo shall set aside the challenged orders, proceed with the trial of the case, and render judgment thereon. Republic v. Asuncion ordered the trial court to conduct a preliminary hearing to determine whether the accused public officer committed the crime charged while performing his office. If so, the trial court must order the transfer of the case to the Sandiganbayan as if the same were originally filed with the Sandiganbayan. In the present case, the Information was filed with the Sandiganbayan upon the recommendation of the Office of the Deputy Ombudsman in a Resolution dated 30 June 1993. That Crisostomo committed the crime in relation to his office can be gleaned from the Deputy Ombudsmans resolution as it stated that: (1) Crisostomo was the jail guard on duty at the time that Renato was killed; (2) from the time that Crisostomo assumed his duty up to the discovery of Renatos body, no one had entered the jail and no one could enter the jail, as it was always locked, without the permission of the jail guard; (3) the key is always with the jail guard; (4) Renato sustained severe and multiple injuries inflicted by two or more persons indicating conspiracy; and (5) the relative position of the jail guard to the cell is in such a way that any activity inside the cell could be heard if not seen by the jail guard. Based on the foregoing findings, as well as on the Deloso v. Domingo ruling and the Courts instructions in Republic v. Asuncion, the Sandiganbayan had every reason to assume jurisdiction over this case. Crisostomo waited until the very last stage of this case, the rendition of the verdict, before he questioned the Sandiganbayans jurisdiction. Crisostomo is already estopped from questioning the [13] Sandiganbayans jurisdiction. Crisostomos Guilt was not Proven Beyond Reasonable Doubt In the exercise of the Courts judicial discretion, this petition for certiorari will be treated as an appeal from the decision of the Sandiganbayan to prevent the manifest [14] miscarriage of justice in a criminal case involving a capital offense. An appeal in a [15] criminal case opens the entire case for review. The reviewing tribunal can correct errors though unassigned in the appeal, or even reverse the lower courts decision on [16] grounds other than those the parties raised as errors. In this case, the prosecution had the burden to prove first, the conspiracy to murder Renato, and second, Crisostomos complicity in the conspiracy. The prosecution must prove that Renatos death was not the result of suicide but was produced by a deliberate intent to kill him with the attendant circumstances that would qualify the killing to murder. Since Crisostomo had no direct hand in the killing of Renato, the conviction could only be sustained if the murder was carried out through a conspiracy between Crisostomo and his co-accused, the inmates. It must be proven beyond reasonable doubt that Crisostomos action and inaction were all part of a scheme to murder Renato. Renato was Killed with Deliberate Intent To prove that Renatos death is a case of homicide or murder, there must be [17] incontrovertible evidence, direct or circumstantial, that he was deliberately killed. Intent to kill can be deduced from the weapons used by the malefactors, the nature,

22
location and number of wounds sustained by the victim and the words uttered by the [18] malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively [19] presumed. The prosecution established that Renato did not commit suicide. Witnesses for the prosecution vouched that Renato was in good health prior to his death. Calingayan, the sole witness for the defense, did not point out that there was any thing wrong with Renato prior to his death. The autopsy and exhumation reports debunked the defenses theory that Renato hanged himself to death. Renatos injuries were so massive and grave that it would have been impossible for these injuries to have been self-inflicted by Renato. The extent of Renatos injuries indicates the perpetrators deliberate intent to kill [20] him. Dr. Ruben M. Agobung (Dr. Agobung), the NBI Medico Legal Officer who [21] exhumed and re-autopsied Renatos body, stated in his affidavit that Renato sustained several external and internal injuries, the most significant of which are the ruptured liver, torn messentery and torn stomach. The injuries caused massive intraabdominal hemorrhage that ultimately caused Renatos death. Dr. Agobung further declared that Renatos injuries could bring about death in a matter of minutes to a few hours from the time of infliction, if not promptly and properly attended to by a competent surgeon. Renatos internal injuries were so severe that the injuries could not have been sustained prior to his detention at the Solano Municipal Jail. If this were so, Renato would have experienced continuous and severe body pains and he would have fallen into shock, which could have been obvious even to those who are not doctors. Dr. Agobung also concluded that Renatos injuries could have been inflicted by the application of considerable force with the use of a hard and rough surface as well as hard smooth surface instruments, fist blows included. While the blanket that was tied around Renatos neck caused abrasion and contusion on the neck area, these injuries, however, did not cause Renatos death [22] because the blood vessels on his neck were still intact. The Exhumation [23] [24] Report and Exhumation Findings stated that Renato died due to hemorrhagic shock, secondary to multiple internal organ injuries. These findings lead to the inevitable conclusion that Renato was killed with deliberate intent and his body was hanged just to simulate suicide. Prosecution Failed to Prove Crisostomos Involvement in the Killing No direct evidence linked Crisostomo to the killing of Renato. The prosecution relied on circumstantial evidence to prove that there was a conspiracy to kill Renato and Crisostomo participated in carrying out the conspiracy. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the [25] main fact may be inferred according to reason and common experience. Section 4, Rule 133 of the Revised Rules of Evidence states that circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In convicting Crisostomo, the Sandiganbayan cited the following circumstantial evidence: 1. The deceased, Renato Suba, was brought to the police station on the night of February 13, 1989 for investigation for allegedly hitting the head of a certain Diosdado Lacangan; and that after investigation, the deceased was brought to the detention cell (tsn, hearing of April 21, 1994, pp. 5-11). 2. On the following day at 5:00 oclock in the afternoon, the deceased was visited by his brother, Rizalino Suba; that the deceased asked his brother to bring him a blanket, toothbrush, clothes and foods (ibid, pp. 13-14). 3. Rizalino Suba left the municipal jail on February 14, 1989, at almost 5:20 p.m., while his other brother, Rolando, brought the things to the deceased in jail; and that Rolando left their house at about 5:30 p.m. and came back at 6:00 oclock in which Rizalino asked him (Rolando) if he (Renato Suba) was able to finish the food that he sent and he answered in the affirmative (ibid, pp. 16, 18-19). 4. At that time, the deceased was in good health and in good condition and that he was not complaining anything about his body; and that the deceased was then 26 years old, single and had finished advance ROTC and worked in a logging concession (ibid, pp. 16-18). 5. Accused Mario Calingayan saw the deceased still alive lying down after 6:00 p.m. when he was about to take a bath; and that after taking a bath, he (witness) went to his cell and played cards with his three (3) cellmates (whose names he could not recall) for about four (4) hours (tsn, hearing of April 4, 1995, pp. 16-17). 6. At around 9:00 oclock of the same day, Mr. Baldovino, a barangay councilman, informed them that they should go to the municipal building as per request of the policemen; that Rizalino Suba, first asked his uncle David Suba and Manuel Rollo, a barangay councilman, to accompany him; that they arrived at the municipal building at 9:10 p.m. and they saw that the deceased was already lying dead on the cement floor outside the cell 1 in the municipal building (tsn, hearing of April 21, 1994, pp. 20-22). 7. Accused Mario Calingayan was detained with five (5) others at the second cell among four (4) cells in the jail; that the deceased, Renato Suba, was detained alone at the third cell (tsn, hearing of April 4, 1995, pp. 6-7). 8. The four (4) cells, although having their own separate doors, made of iron grills and equipped each with a padlock, were always open; that it was up to them whether to close the doors; that the keys of the padlocks are held by the guard; and that any detention prisoner could go to any cell inside the prison (ibid, pp. 7-8, 21, 23). 9. There was a common door located in front, leading inside to the cells which no one could enter because it is padlocked, except with the jail guards permission; and that the comfort room is located in the 4th cell which is not equipped with a padlock so that if you want to go to the comfort room, you do not anymore need the key in the office of the jail guard (ibid, p. 22).

23
10. There is only one guard assigned in the cells and accused Edgar Crisostomo was the one who was rendering duty at the time of the death of the victim (ibid, pp. 9, 13). 11. There was no other person who was admitted on February 12, 13 and 14, 1989, and there was no instance when Suba was brought out of the prison cell from the time he was detained on February 14, 1989 (ibid, p. 29). 12. The persons who were detained together with the deceased at the time of his death were released without any investigation having been conducted by the local police (tsn, hearing of April 21, 1994, pp. 28-29). 13. The apparent inconsistency in the list of detainees/prisoners dated February 20, 1989 (Exhibit I) and the police blotter (Exhibits J and J-1) whereby in the former there were eight prisoners on February 14, 1989 including the victim but only six were turned over by accused Crisostomo to the incoming jail guard after the death of the victim; the list contains nine (9) detainees/prisoners on February 15, 1989 which includes the victim, who was then dead, while the police blotter shows that only six prisoners were under their custody. Why the apparent inconsistency? 14. Accused Mario Calingayans claim that he was detained on February 12, 1989, which is contrary to the master list of detainees showing that he was detained only on February 14, 1989 (tsn, hearing of April 4, 1995, p. 19). 15. Accused Mario Calingayans allegation that when Renato Suba was brought outside, he saw that he hanged himself with a thin blanket (tsn, hearing of April 4, 1995, pp. 12-13) which was what the policemen also told the brother of the victim (tsn, hearing of April 21, 1994, pp. 23-24). 16. After the prosecution rested its case and after co-accused Mario Calingayan was finished with his testimony in court, accused Edgar Crisostomo jumped bail and up to this day had remained at large (Rollo, pp. 297-298, 305). 17. The fact that accused Dominador C. Dela Cruz, Efren M. Perez, Raki T. Anggo, Randy [26] A. Lumabo and Rolando M. Norberte are also still at-large. The Sandiganbayan also relied on the Memorandum Report dated 22 October 1991 of Oscar Oida, then National Bureau of Investigation (NBI) Regional Director for Region II, who evaluated the NBIs investigation of the case. The Sandiganbayan quoted the following portions of the report: xxx 5. That when he [victim] was brought to the Solano Municipal Jail at around 12:00 midnight on 14 February 1989 (the same was corrected by witness Oscar Oida to be February 13, 1989 when he testified in open court), he was accompanied by his brother, Rizalino Suba, his
[27]

cousin, Rodolfo Suba and Brgy. Councilman Manuel Rulloda in good physical condition with no injuries[;] 6. That when Luis Suba, father of the victim, Renato Suba, visited him in jail at around 8:00 a.m., on February 14, 1989 and brought food for his breakfast, he was in good physical condition, and did not complain of any physical injury or pain. In fact, he was able to eat all the food[;] 7. That when Rizalino Suba, brother of the victim, visited the latter at around 5:00 oclock p.m. on 14 February 1989, victim was in good spirit and never complained of any injury or bodily pain. He was in good physical condition. He even requested that he be brought his clothes, beddings and food[;] That when Rolando Suba, another brother of victim, brought the clothes, bedding and food as requested by the latter at around 6:00 oclock p.m. on 14 February 1989, he was in good physical condition and did not complain of any injury or body pain[;] That the good physical condition of victim, Renato Suba was even corroborated by his four co-inmates, namely, Arki Anggo, Randy A. Lumabo, Rolando M. Norberte and Mario B. Calingayan and by the jailer, Pat. Edgar T. Crisostomo, when he was placed under detention in the Solano Municipal Jail;

8.

9.

10. That the jailer Pat. Edgar Crisostomo from the time he assumed his tour of duty from 4:00 oclock p.m. on 14 February 1989, up to the time the victim was discovered allegedly dead and hanging inside the jail at 9:00 oclock p.m. on that same day, nobody entered the jail and no one would enter said jail, as it was always locked, without the permission of the jailer. The key is always with the jailer; 11. That the only companions of the victim at the time of the discovery of his death on 14 February 1989 at around 9:00 p.m. were his six (6) co-inmates namely: Dominador C. dela Cruz, Edren M. Perez, Raki T. Anggo, Randy A. Luma[b]o, Rolando M. Norbert[e] and Mario Calingayan; 12. That definitely the cause of death was not suicide by hanging but due to several injuries sustained by the victim. The most significant and remarkable of which are the ruptured liver, torn messentery and a torn stomach which injuries resulted into massive intra-abdominal hemorrhage that ultimately caused the death of said victim per autopsy examination; 13. That said injuries can bring about death in a matter of minutes to a few hours if not promptly and properly attended by a competent surgeon; 14. That said injuries could not have been sustained by victim before he was detained at the Solano Municipal Jail as he could have been experiencing continuous severe pain which can easily be observed by the policemen who arrested him on 14 February 1989 at around 12:00

24
midnight and therefore should have been brought to the hospital and not confined in the detention cell; 15. That the several injuries sustained by victim were caused by hard rough-surfaced as well as hard smooth surfaced instruments, fist blows included; 16. That the multiple injuries and the gravity of the injuries sustained by victim indicate that they were inflicted by more than two persons; 17. That the nature of the injuries sustained by victim were almost in one particular part of the body, shown by the fact that the internal organs badly damaged were the liver, messentery and stomach indicating that the victim was defenseless and helpless thus affording the assailants to pounce on continuously with impunity almost on one spot of the body of the victim. The victim could have been held by two or more assailants while the others were alternately or giving victim blows on his body with hard rough surfaced as well as hard smooth surfaced instruments, fist blows included; 18. That with the location and gravity of the injuries sustained by victim, the persons who inflicted the injuries know fully well that victim will die and knew the consequences of their acts; 19. That the motive was revenge, as victim before he was killed, hit in the head a certain Diosdado Lacangan with a wood causing serious injury. Lacangan was in serious condition at the time victim was killed[;] 20. That the claims of the Solano police and the six (6) co-inmates of victim that the latter committed suicide by hanging is only a cover up to hide a heinous offense[;] 21. That the extreme silence of the suspects regarding the death of victim is so deafening that it established only one thing, conspiracy. It is unusual for a person not to volunteer information as to who could be the author of the offense if he is not a participant to a heinous offense particularly in this case where the circumstances show that there can be no other person responsible for the death of the victim except the suspects in this instant case[;] 22. That the victim was killed between 6:00 PM to 9:00 PM on 14 February 1989 inside the Solano Municipal Jail[;] xxx The relative position of the jailer to the cell where victim was killed was such that the jailer and the policemen present, could hear if not see what was going inside the cell at the time the victim was killed. The injuries sustained by victim could not be inflicted without victim shouting and crying for help. Even the assailants when they inflicted these injuries on victim could not avoid making loud noises that could attract the attention of the police officers present. Conspiracy to kill the victim among the inmates and the police officers was clearly [28] established from the circumstances preceding and after the killing of victim. In sum, the Sandiganbayan believed that Crisostomo took part in the conspiracy to kill Renato because of these three circumstances: 1) Crisostomo as the jail guard on duty at the time of Renatos killing had in his possession the keys to the main door and the cells; (2) Crisostomo was in such a position that he could have seen or heard the killing of Renato; and (3) there are discrepancies between the list of detainees/prisoners and the police blotter. According to the Sandiganbayan, there is a prima facie case against Crisostomo. Except for the extensive injuries that Renatos body bore, there is no other evidence that proves that there was a prior agreement between Crisostomo and the [29] six inmates to kill Renato. In People v. Corpuz, one of the inmates killed by the other inmates sustained stab wounds that were possibly inflicted by ten persons. The Court ruled that conspiracy could not be inferred from the manner that the accused inmates attacked their fellow inmate because there was no sufficient showing that all the accused inmates acted pursuant to a previous common accord. Each of the accused inmates was held liable for his individual act. Although no formal agreement is necessary to establish conspiracy because conspiracy may be inferred from the circumstances attending the commission of the [30] crime, yet conspiracy must be established by clear and convincing evidence. Even if all the malefactors joined in the killing, such circumstance alone does not satisfy the requirement of conspiracy because the rule is that neither joint nor simultaneous [31] action is per se sufficient proof of conspiracy. Conspiracy must be shown to exist [32] as clearly and convincingly as the commission of the offense itself. Thus, even assuming that Renato was simultaneously attacked, this does not prove conspiracy. The malefactors who inflicted the fatal injuries may have intended [33] by their own separate acts to bring about the death of the victim. No evidence was presented to show that Crisostomo and the inmates planned to kill Renato or that Crisostomos overt acts or inaction facilitated the alleged plan to kill Renato. The prosecution had the burden to show Crisostomos intentional participation to the furtherance of the common design and purpose. The pieces of circumstantial evidence are not sufficient to create a prima facie case against Crisostomo. When the three circumstances are examined with the other evidence on record, it becomes all the more clear that these circumstances do not lead to a logical conclusion that Crisostomo lent support to an alleged conspiracy to murder Renato. First, while Crisostomo as jail guard had in his possession the keys to the main door and individual cells, there is no proof that Crisostomo allowed an outsider inside the prison. Calingayan, the sole witness for the defense, testified that no new [34] [35] detainee was admitted from 13 to 14 of February 1989. The NBI Report relied upon by the Sandiganbayan confirms Calingayans testimony that nobody entered the [36] jail and that Renatos only companions inside the jail were the six inmates. There is also no proof that Crisostomo purposely left the individual cells open to allow the inmates to attack Renato who was alone in the third cell. Calingayan, who [37] was detained ahead of Renato, testified that while each of the four cells had a

25
padlock, the cells had always been kept open. The inmates had always been allowed to enter the cells and it was up to the inmates to close the doors of the [39] cells. The inmates could freely go to the fourth cell, which was the inmates comfort room so that they would no longer ask for the key from the jail guard every time the [40] inmates would use the comfort room. Second, the Sandiganbayan should not have absolutely relied on the NBI [41] Report stating that Crisostomo as jail guard was in such a position that he could have seen or heard the killing. The prosecution failed to establish that Crisostomo actually saw and heard the killing of Renato. Based on Calingayans testimony, it was not impossible for Crisostomo not to have actually seen and heard the killing of Renato. On cross-examination, [42] Calingayan testified that all of the cells were in one line. Crisostomos office was at the left side of the cells about 15 meters away from cell number two, the cell where [43] Calingayan was detained. Hollow blocks from the floor to the ceiling separated [44] each of the four cells. With the partition, an inmate in one cell could not see what [45] was happening in the other cells. Calingayan further testified that Renatos body [46] was in a dark place, as it was lighted from outside only by a bulb at the alley, at [47] the corridor. Since Renatos body was found in cell number four, this would make the distance between Crisostomos office and the crime scene more than 15 meters. Crisostomo could not have had a full view of cell number four because of the distance between Crisostomos office and cell number four, the partitions of the four cells and poor lighting in the jail. Calingayans description of the jail, the cells, the location of Renatos body and Crisostomos actual position was not contradicted by the prosecution. There is no other evidence on record that describes the layout and conditions of the jail at the time of Renatos death. The prosecution had the burden to present evidence that Crisostomo indeed saw and heard Renatos killing and Crisostomo consented to the killing as part of the plan to kill Renato. The absence of such evidence does not preclude the possibility that Renato was covertly killed and the sounds were muffled to conceal the crime from Crisostomo, the jail guard. Or Crisostomo as jail guard was simply negligent in securing the safety of the inmates under his custody. If Crisostomo were negligent, this would be incompatible with conspiracy because negligence denotes the absence [48] of intent while conspiracy involves a meeting of the minds to commit a crime. It was the prosecutions burden to limit the possibilities to only one: that Crisostomo conspired with the inmates to kill Renato. The prosecution failed to do so. Third, the prosecution was not clear as to the implication of the discrepancies between the list of detainees/prisoners and police blotter to the conspiracy to murder Renato. The prosecution did not even pinpoint which of the two documents is the accurate document. The prosecution merely asked: why the apparent [49] inconsistency? Courts must judge the guilt or innocence of the accused based on facts and not [50] on mere conjectures, presumptions or suspicions. The inconsistency between the two documents without anything more remains as merely that an inconsistency. The inconsistency does not even have any bearing on the prosecutions conspiracy
[38]

theory. The NBI Report and Calingayans testimony stated that six inmates were with Renato inside the jail. This was also the same number of inmates turned over by [51] Crisostomo to the incoming jail guard after Renatos death. The alleged motive for Renatos killing was to avenge the attack on Lacangan who was then in a serious condition because Renato hit him on the head with a piece of wood. No evidence was presented to link Crisostomo to Lacangan or to show what compelling motive made Crisostomo, a jail guard, abandon his duty and instead facilitate the killing of an inmate under his custody. Motive is generally held to be [52] immaterial because it is not an element of the crime. However, motive becomes important when the evidence on the commission of the crime is purely circumstantial [53] or inconclusive. Motive is thus vital in this case. Clearly, the Sandiganbayan had no basis to convict Crisostomo because the prosecution failed to produce the evidence necessary to overturn the presumption of innocence. The insufficiency of evidence was the same reason why the National Police Commission dismissed the administrative case for grave misconduct (murder) [54] against Crisostomo on 24 October 1990. The circumstances in this case did not constitute an unbroken chain that would lead to a reasonable conclusion that Crisostomo played a role in the inmates supposed preconceived effort to kill Renato. Thus, Crisostomo must be acquitted. The deafening silence of all of the accused does not necessarily point to a conspiracy. In the first place, not all of the accused remained silent. Calingayan put himself on the witness stand. Calingayan further claimed that the Solano police investigated him and his handwritten statements were taken the morning following [55] Renatos death. Secondly, an accused has the constitutional right to remain silent [56] and to be exempt from being compelled to be a witness against himself. A judgment of conviction must be predicated on the strength of the evidence for [57] the prosecution and not on the weakness of the evidence for the defense. The circumstantial evidence in this case is not sufficient to create a prima facie case to shift the burden of evidence to Crisostomo. Moreover, Calingayans testimony inured to Crisostomos favor. The supposed waiver of presentation of evidence did not work against Crisostomo because the prosecution failed to prove Crisostomos guilt beyond reasonable doubt. In Salvatierra v. CA, upon ruling for the defendants acquittal, the Court disregarded the issue of whether the defendants jumped bail for failing to attend trial and whether their absence should be considered as flight and as evidence of guilt. Even with this ruling in Salvatierra v. CA, which is applicable to this case, and Crisostomos failure to question the violation of his right to procedural due process before the Court, we cannot simply ignore the Sandiganbayans grave abuse of discretion. The records show that the Sandiganbayan set the hearing of the defenses presentation of evidence on 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled because of lack of quorum in the regular membership of the [59] Sandiganbayans Second Division and upon the agreement of the parties. The hearing was reset the next day, 22 June 1995. Crisostomo and his counsel failed to attend the 22 June 1995 hearing. The Sandiganbayan, on the very same day, issued [60] an order directing the issuance of a warrant for the arrest of Crisostomo and
[58]

26
ordering the confiscation of his surety bond. The order further declared that Crisostomo had waived his right to present evidence because of his non-appearance [61] at yesterdays and todays scheduled hearings. The Sandiganbayan terminated the trial and gave the parties thirty days within which to file their memoranda, after which, with or without the memoranda, the case would still be deemed submitted for decision. The Sandiganbayans error is obvious. Strictly speaking, Crisostomo failed to appear only on the 22 June 1995 hearing. Crisostomos appearance on the 21 June 1995 hearing would not have mattered because the hearing on this date was cancelled for lack of quorum of justices in the Sandiganbayans Second Division. Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomos non-appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on such date only and not for the succeeding trial [62] dates. Section 1(c) of Rule 115 clearly states that: xxx The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be present during that trial. When an accused under custody had been notified of the date of the trial and escapes, he shall be deemed to have waived his right to be present on said date and on all subsequent trial dates until custody is regained. Moreover, Crisostomos absence on the 22 June 1995 hearing should not have been deemed as a waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be clear and must be coupled with an actual [63] intention to relinquish the right. Crisostomo did not voluntarily waive in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayans counsel. In criminal cases where the imposable penalty may be death, as in the present case, the court is called upon to see to it that the accused is personally made aware [64] of the consequences of a waiver of the right to present evidence. In fact, it is not enough that the accused is simply warned of the consequences of another failure to [65] attend the succeeding hearings. The court must first explain to the accused personally in clear terms the exact nature and consequences of a [66] waiver. Crisostomo was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing. Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court could personally conduct a searching [67] inquiry into the waiver. Moreover, the searching inquiry must conform to the [68] procedure recently reiterated in People v. Beriber, to wit: 1. The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard. 2. The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings. 3. During the hearing, it shall be the task of the trial court to a. ask the defense counsel a series of question[s] to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation. b. inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any or in default thereof, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time for this purpose. c. elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver. d. all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for this purpose as well as reflect the corresponding translation thereof in English. If no waiver of the right to present evidence could be presumed from Crisostomos failure to attend the 22 June 1995 hearing, with more reason that flight could not be logically inferred from Crisostomos absence at that hearing. Crisostomos absence did not even justify the forfeiture of his bail bond. A bail bond may be forfeited only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person [69] as so required. Crisostomo was not specifically required by the Sandiganbayan or the Rules of Court to appear on the 22 June 1995 hearing. Thus, there was no basis for the Sandiganbayan to order the confiscation of Crisostomos surety bond and assume that Crisostomo had jumped bail. Prior to his absence on the 22 June 1995 hearing, Crisostomo had regularly attended the hearings of the case. When it was Crisostomos turn to present his evidence, Atty. Anecio R. Guades (Atty. Guades), Crisostomos former counsel, instructed Crisostomo to wait for the notice of hearing from him and the Sandiganbayan. Crisostomo did not receive any notice from the Sandiganbayan or

27
from Atty. Guades who disappeared without informing Crisostomo of his new office address. Upon notification of the promulgation of the case scheduled on 28 November 2000, Crisostomo voluntarily appeared before the Sandiganbayan. Crisostomo then terminated the services of Atty. Guades and engaged the services of another counsel. In the omnibus motion for new trial filed by Crisostomos new counsel, Crisostomo denied that he went into hiding. If given the chance, Crisostomo would have presented his pay slips and certificates of attendance to prove that he [70] had been reporting for work at the Police Station in Solano, Nueva Vizcaya. We could not absolutely fault the Sandiganbayan for not correcting its 22 June 1995 Order. The Sandiganbayan lost the opportunity to review the order when Crisostomos new counsel changed his legal strategy by withdrawing the omnibus motion for new trial and instead sought the nullification of the Sandiganbayans decision for lack of jurisdiction over the case. However, the withdrawal of the omnibus motion could not erase the Sandiganbayans violation of Crisostomos right to procedural due process and Atty. Guades gross negligence. Atty. Guades failed to protect his clients interest when he did not notify Crisostomo of the scheduled hearings and just vanished without informing Crisostomo and the Sandiganbayan of his new office address. The 22 June 1995 Order was served on Atty. Guades but he did not even comply with the directive in the Order to explain in writing his absence at the 21 and 22 June 1995 hearings. Atty. Guades did not file the memorandum in Crisostomos behalf required by the same Order. Atty. Guades did not also question the violation of Crisostomos right to procedural due process. The subsequent notices of hearing and promulgation were not served on Atty. Guades as he could not be located in the building where his office [71] was located. Clearly, Atty. Guadess negligence was so gross that it should not prejudice [72] Crisostomos constitutional right to be heard, especially in this case when the imposable penalty may be death. At any rate, the remand of the case is no longer [73] necessary. The prosecutions evidence failed to overturn the constitutional presumption of innocence warranting Crisostomos acquittal. The Sandiganbayan imposed an indeterminate sentence on Crisostomo. The Indeterminate Sentence Law (ISL) is not applicable to persons convicted of offenses [74] punished with the death penalty or reclusion perpetua. Since Crisostomo was accused of murder, the penalty for which is reclusion temporal in its maximum period to death, the Sandiganbayan should have imposed the penalty in its medium period [75] since it found no aggravating circumstance. The medium period of the penalty is reclusion perpertua. Calingayan must be also Acquitted The Sandiganbayan cited only two circumstances as evidence of Calingayans guilt. The Sandiganbayan held that Calingayans claim that he was detained on 12 February 1989 is contrary to the master list of detainees showing that Calingayan was [76] detained on 14 February 1989. Second is Calingayans allegation that when Renato Suba was brought outside, he saw that he hanged himself with a thin blanket, [77] which was what the policemen also told the brother of the victim. The Sandiganbayan did not elaborate on this circumstance. The Sandiganbayan was apparently suspicious of Renatos knowledge of the material that was used to hang Renato. Renato could have been killed by two or more inmates or possibly even by all of the inmates. However, since no conspiracy was proven to exist in this case, the perpetrators of the crime needed to be identified and their independent acts had to be [78] proven. The two circumstances that were held against Calingayan are not sufficient proof that Calingayan was one of the inmates who killed Renato. Thus, Calingayan must be also acquitted. Section 11(a) of Rule 122 of the Rules of Court provides that [a]n appeal taken by one or more [of] several accused shall not affect those who did not appeal, except insofar as the judgment of the appellant court is favorable and applicable to the latter. In this case, only Crisostomo questioned the jurisdiction and decision of the Sandiganbayan. However, the evidence against Crisostomo and Calingayan are inextricably linked as their conviction hinged on the prosecutions unproven theory of conspiracy. Thus, Crisostomos acquittal, which is favorable and applicable to [79] Calingayan, should benefit Calingayan. WHEREFORE, the Decision of the Sandiganbayan in Criminal Case No. 19780 convicting appellant EDGAR CRISOSTOMO and co-accused MARIO B. CALINGAYAN is hereby REVERSED. EDGAR CRISOSTOMO and co-accused MARIO B. CALINGAYAN are ACQUITTED of the crime of murder and ordered immediately released from prison, unless held for another lawful cause. The Director of Prisons is directed to report to this Court compliance within five (5) days from receipt of this Decision. No costs. SO ORDERED.

28 Atty. Franklin Gacal, the private prosecutor in Criminal Case No. 1136-03 of the Regional Trial Court (RTC) in Alabel, Sarangani entitled People v. Faustino Ancheta, a prosecution for murder arising from the killing of Felomino O. Occasion, charges Judge Jaime I. Infante, Presiding Judge of FIRST DIVISION Branch 38 of the RTC to whose Branch Criminal Case No. 1136-03 was raffled for arraignment and trial, with gross ignorance of the law, gross incompetence, and evident partiality, for the latters failure to set a hearing before granting bail to the accused and for releasing him immediately after ATTY. FRANKLIN G. GACAL, A.M. No. RTJ- 04-1845 allowing bail. Complainant, [Formerly A.M. No. IPI No. 03-1831-RTJ] Present: CORONA, C.J., LEONARDO-DE CASTRO, BERSAMIN, JUDGE JAIME I. INFANTE, REGIONAL DEL CASTILLO, and TRIAL COURT, BRANCH 38, IN ALABEL, VILLARAMA, JR., JJ. SARANGANI, Respondent. Promulgated: October 5, 2011 - versus Antecedents On March 18, 2003, Judge Gregorio R. Balanag, Jr. of the Municipal Circuit Trial Court of Kiamba-Maitum, Sarangani issued a warrant for the arrest of Faustino Ancheta in connection with a murder case. Judge Balanag did not recommend bail. Ancheta, who had meanwhile gone into hiding, was not arrested. Upon review, the Office of the Provincial Prosecutor, acting through Assistant Provincial Prosecutor Alfredo Barcelona, Jr., affirmed the findings and recommendation of Judge Balanag on the offense to be charged, and accordingly filed in the RTC an information for murder on April 21, 2003 (Criminal Case No. 1136-03), but with a recommendation for bail in the amount of P400,000.00. Criminal Case No. 1136-03 was raffled to Judge Infantes Branch. On April 23, 2003, Judge Infante issued twin orders, one granting bail to Ancheta, and another releasing Ancheta from custody. On April 25, 2003, Atty. Gacal, upon learning of the twin orders issued by Judge Infante, filed a so-called Very Urgent Motion For Reconsideration And/Or To Cancel Bailbond With Prayer To Enforce Warrant Of Arrest Or Issue Warrant Of Arrest Anew Or In The Alternative Very Urgent Motion For This Court To Motu Prop[r]io Correct An Apparent And Patent Error (very urgent motion). In the hearing of the very urgent motion on April 29, 2003, only Atty. Gacal and his collaborating counsel appeared in court. Judge Infante directed the public prosecutor to comment on the very urgent motion within five days from notice, after which the motion would be submitted for resolution with or without the comment. Ancheta, through Republic of the Philippines Supreme Court Manila

x-----------------------------------------------------------------------------------------x DECISION

BERSAMIN, J.: It is axiomatic that bail cannot be allowed to a person charged with a capital offense, or an offense punishable with reclusion perpetua or life imprisonment, without a hearing upon notice to the Prosecution. Any judge who so allows bail is guilty of gross ignorance of the law and the rules, and is subject to appropriate administrative sanctions.

29 counsel, opposed, stating that the motion did not bear the conformity of the public prosecutor. At the arraignment of Ancheta set on May 15, 2003, the parties and their counsel appeared, but Assistant Provincial Prosecutor Barcelona, Jr., the assigned public prosecutor, did not appear because he was then following up his regular appointment as the Provincial Prosecutor of Sarangani Province. Accordingly, the arraignment was reset to May 29, 2003. On May 21, 2003, Judge Infante denied Atty. Gacals very urgent motion on the ground that the motion was pro forma for not bearing the conformity of the public prosecutor, and on the further ground that the private prosecutor had not been authorized to act as such pursuant to Section 5, Rule 110, of the Rules of Court. Judge Infante directed that the consideration of the bail issue be held in abeyance until after the public prosecutor had submitted a comment, because he wanted to know the position of the public prosecutor on Atty. Gacals very urgent motion having been filed without the approval of the public prosecutor.[1] On May 29, 2003, the public prosecutor appeared, but did not file any comment. Thereupon, Atty. Gacal sought authority to appear as a private prosecutor. The public prosecutor did not oppose Atty. Gacals request. With that, Atty. Gacal moved for the reconsideration of the grant of bail to Ancheta. In response, Judge Infante required the public prosecutor to file his comment on Atty. Gacals motion for reconsideration, and again reset the arraignment of the accused to June 20, 2003.[2] On June 4, 2003, the public prosecutor filed a comment, stating that he had recommended bail as a matter of course; that the orders dated April 23, 2003 approving bail upon his recommendation and releasing the accused were proper; and that his recommendation of bail was in effect a waiver of the public prosecutors right to a bail hearing. By June 20, 2003, when no order regarding the matter of bail was issued, Atty. Gacal sought the inhibition of Judge Infante on the ground of his gross incompetence manifested by his failure to exercise judicial power to resolve the issue of bail. In his motion for inhibition,[3] Atty. Gacal insisted that the issue of bail urgently required a resolution that involved a judicial determination and was, for that reason, a judicial function; that Judge Infante failed to resolve the issue of bail, although he should have acted upon it with dispatch, because it was unusual that several persons charged with murder were being detained while Ancheta was let free on bail even without his filing a petition for bail; that such event also put the integrity of Judge Infantes court in peril; and that although his motion for reconsideration included the alternative relief for Judge Infante to motu proprio correct his apparent error, his refusal to resolve the matter in due time constituted gross ignorance of law. Atty. Gacal contended that Judge Infante was not worthy of his position as a judge either because he unjustifiably failed to exercise his judicial power or because he did not at all know how to exercise his judicial power; that his lack of judicial will rendered him utterly incompetent to perform the functions of a judge; that at one time, he ordered the bail issue to be submitted for resolution, with or without the comment of the public prosecutor, but at another time, he directed that the bail issue be submitted for resolution, with his later order denoting that he would resolve the issue only after receiving the comment from the public prosecutor; that he should not be too dependent on the public prosecutors comment considering that the resolution of the matter of bail was entirely within his discretion as the judge;[4] and that the granting of bail without a petition for bail being filed by the accused or a hearing being held for that purpose constituted gross ignorance of the law and the rules.[5] Finally, Atty. Gacal stated that Judge Infante and the public prosecutor were both guilty of violating the Anti-Graft and Corrupt Practices Act[6] for giving undue advantage to Ancheta by allowing him bail without his filing a petition for bail and without a hearing being first conducted.[7] On July 9, 2003, Judge Infante definitively denied Atty. Gacals very urgent motion. On August 5, 2003, the Office of the Court Administrator (OCAd) received from the Office of the Ombudsman the indorsement of the administrative complaint Atty. Gacal had filed against Judge Infante (CPL-M03-0581 entitledGacal v. Infante, et al.), forwarding the records of the

30 administrative case for appropriate action to the Supreme Court as the exclusive administrative authority over all courts, their judges and their personnel.[8] On August 21, 2003, then Court Administrator Prebitero J. Velasco, Jr. (now a Member of the Court) required Judge Infante to comment on the administrative complaint against him, and to show cause within 10 days from receipt why he should not be suspended, disbarred, or otherwise disciplinarily sanctioned as a member of the Bar for violation of Canon 10, Rule 10.03 of the Code of Professional Responsibility pursuant to the resolution of the Court En Bancin A.M. No. 02-9-02-SC dated September 17, 2002.[9] On October 6, 2003, the OCAd received Judge Infantes comment dated September 22, 2003, by which he denied any transgression in the granting of bail to Ancheta, stating the following: 2. At the outset, as a clarificatory note, accused Faustino Ancheta is out on bail, not because he applied for bail duly granted by the court but because he posted the required bail since in the first place the Fiscal recommended bail, duly approved by the Undersigned, in the amount of P400,000.00. Underscoring is made to stress the fact that accused Ancheta had actually never filed an application for bail. Perforce, the court had nothing to hear, grant or deny an application/motion/petition for bail since none was filed by the accused. 3. Thus, the twin Orders dated April 23, 2003 are exactly meant as an approval of the bailbond (property) posted by accused Ancheta, it being found to be complete and sufficient. They are not orders granting an application for bail, as misconstrued by private prosecutor. (Certified true machine copy of the twin Orders dated April 23 marked as Annex-2 and 2-a are hereto attached) 4. On April 25, 2003, private complainant in the cited criminal case, thru counsel (the Gacal, Gacal and Gacal Law Office), filed a Very Urgent Motion for Reconsideration or in the alternative Very Urgent Motion for this Court to Moto Propio Correct an Apparent Error, praying that the twin Orders dated April 23, 2003 be reconsidered. (Certified machine copy of the said urgent motion marked as Annex 3 is hereto attached)

5. On April 29, 2003, during the hearing on motion, the private complainant and his counsel (private prosecutor) appeared. The Fiscal was not present. The court nonetheless ordered the Fiscal to file his comment/s on the said motion. The accused thru private counsel in an open court hearing opposed the subject motion inasmuch as the same bears no conformity of the Fiscal. In that hearing, the court advised the private prosecutor to coordinate and secure the conformity of the Fiscal in filing his motion. (Certified machine copy of the Order dated April 29, 2003, marked as Annex 4 is hereto attached.) 6. On May 15, 2003, the scheduled date for the arraignment of accused Ancheta, the parties and private prosecutor appeared. Again, the 1st Asst. Provincial Fiscal, Alfredo Barcelona, Jr., failed to appear who, being the next highest in rank in their Office, was processing his application for regular appointment as Provincial Fiscal of Sarangani Province. He was then the Acting Provincial Fiscal Designate in view of the appointment of former Provincial Fiscal Laureano T. Alzate as RTC Judge in Koronadal City. Due to the absence of the Fiscal and the motion for reconsideration then pending for resolution, the scheduled arraignment was reset to May 29, 2003, per Order dated May 15, 2003, (certified machine copy of which marked as Annex 5 is hereto attached). 7. On May 21, 2003, the Undersigned resolved to deny for being pro forma the pending motion for reconsideration. As held in the Order of denial, it was found that the private prosecutor was not duly authorized in writing by the provincial prosecutor to prosecute the said criminal case, nor was he judicially approved to act as such in violation of Section 5, Rule 110 of the Revised Rules on Criminal Procedure. The bail issue, however, was held in abeyance until submission of the comment thereon by the Fiscal as this Presiding Judge would like then to know the position of the Fiscal anent to the cited motion without his approval. The arraignment was reset to June 20, 2003. Again, the private prosecutor was orally advised to coordinate and secure the approval of the Fiscal in filing his motions/pleadings. (Certified machine copy of the Order dated May 21, 2003 marked as Annex 6 hereto attached) 8. On June 4, 2003, the Fiscal finally filed his Comment on the Very Urgent Motion for Reconsideration filed by private complainant thru counsel

31 (private prosecutor). Consistently, the Fiscal in his comment recommended bail as a matter of course and that he claimed that Orders dated April 23, 2003 approving bail upon his recommendation are proper, waiving in effect his right for a bail hearing. (Certified true machine copy of the Fiscals comment marked as Annex-7 is hereto attached).[10] Under date of February 16, 2004, the OCAd recommended after investigation that the case be re-docketed as a regular administrative matter, and that Judge Infante be fined in the amount of P20,000.00,[11] viz: EVALUATION: The 1987 Constitution provides that, all persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law (Sec. 13, Art. III). The Revised Rules of Criminal Procedure provides that, no person charged with a capital offense or offense punishable by reclusion perpetua or life imprisonment shall be admitted to bail when the evidence is strong, regardless of the stage of the criminal prosecution (Sec. 7, Rule 114). With the aforequoted provisions of the Constitution and the Rules of Criminal Procedure as a backdrop, the question is: Can respondent judge in granting bail to the accused dispense with the hearing of Application for Bail? The preliminary investigation of Criminal Case No. 03-61, entitled Benito M. Occasion vs. Faustino Ancheta for Murder was conducted by Judge Gregorio R. Balanag, Jr., of MCTC, Kiamba-Maitum, Sarangani. Finding the existence of probable cause that an offense of Murder was committed and the accused is probably guilty thereof, he transmitted his resolution to the Office of the Provincial Prosecutor, together with the records of the case, with No Bail Recommended. Upon review of the resolution of the investigating judge by the OIC of the Office of the Provincial Prosecutor of Sarangani, he filed the information for Murder against accused Faustino Ancheta but a bail of P400,000.00 for the provisional liberty of the latter was recommended. Relying on the recommendation of the Fiscal, respondent judge granted the Application for Bail of the accused. The offense of Murder is punishable by reclusion temporal in its maximum period to death (Art. 248, RPC). By reason of the penalty prescribed by law, Murder is considered a capital offense and, grant of bail is a matter of discretion which can be exercised only by respondent judge after the evidence is submitted in a hearing. Hearing of the application for bail is absolutely indispensable before a judge can properly determine whether the prosecutions evidence is weak or strong (People vs. Dacudao, 170 SCRA 489). It becomes, therefore, a ministerial duty of a judge to conduct hearing the moment an application for bail is filed if the accused is charged with capital offense or an offense punishable by reclusion perpetua or life imprisonment. If doubt can be entertained, it follows that the evidence of guilt is weak and bail shall be recommended. On the other hand, if the evidence is clear and strong, no bail shall be granted. Verily, respondent judge erred when he issued an order granting the application for bail filed by the accused (Annex C) based merely on the order issued by the Fiscal (Annex A) recommending bail of P400,000.00 for the provisional liberty of the accused without even bothering to read the affidavits of the witnesses for the prosecution. Respondent judge cannot abdicate his right and authority to determine whether the evidence against the accused who is charged with capital offense is strong or not. After the respondent judge has approved the property bond posted by the accused, the complainant, as private prosecutor filed a Motion for Reconsideration and/or Cancel Bailbond or in the alternative, Very Urgent Motion to Moto Proprio correct an Apparent Error. On the hearing of the Motion on 29 April 2003, the Fiscal was absent but he (the Fiscal) was given five (5) days from receipt of the order within which to file his comment and, with or without comment the incident is deemed submitted for resolution and, hearing of the Motion was reset to May 15, 2003. But the Fiscal again failed to appear on said date and, the arraignment of the accused was set on 29 May 2003. On 21 May 2003, respondent judge resolved to deny the Motion on the ground that the private prosecutor was not authorized in writing by the Chief of the Prosecutions Office or the Regional State Prosecutor to prosecute the case, subject to the approval of the court, pursuant to Sect. 5, Rule 110 Revised Rules of Criminal Procedure. The need for an authority in writing from the Chief of the Prosecutions Office or Regional State Prosecutor to the Private Prosecutor to prosecute

32 the case, subject to the approval of the court, contemplates of a situation wherein there is no regular prosecutor assigned the court, or the prosecutor assigned, due to heavy work schedule, cannot attend to the prosecution of pending criminal cases to expedite disposition of the case. This provision of the Rules of Criminal Procedure does not prevent the offended party who did not reserve, waive nor institute separate civil action, from intervening in the case through a private prosecutor. Intervention of the offended party in Criminal Action Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 11, the offended party may intervene by counsel in the prosecution of the offense (Sec. 16, Rule 110 [Supra]). When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action (Sec. 1 (a), Rule 111 [Supra]). The offended party in Criminal Case No. 1136-03 did not reserve his right to institute separate civil action, he did not waive such right and did not file civil action prior to the criminal action, so the offended party may under the law intervene as a matter of right. The authority to intervene includes actual conduct of trial under the control of the Fiscal which includes the right to file pleadings. According to respondent judge, he advised the private prosecutor to coordinate with the fiscal and secure his approval in accord with the mandate of Section, 5, Rule 110 of the Revised Rule of Criminal Procedure: On this point, respondent judge again erred. The right of the offended party to intervene is conferred by law and the approval of the Fiscal or even the court is not all necessary (Sec. 1 (a), Rule 111, [Supra]). Respondent Judge, however, is correct when he stated that the motions filed by the private prosecutor should be with the conformity of the Fiscal. Respondent judges errors are basic such that his acts constitutes gross ignorance of the law. RECOMMENDATION: Respectfully recommended for the consideration of the Honorable Court is the recommendation that the instant I.P.I. be redocketed as a regular administrative matter and respondent Judge be held ordered to pay a fine ofP20,000.00. On March 31, 2004,[12] the Court directed that the administrative case be docketed as a regular administrative matter. On December 01, 2004,[13] the Court denied Atty. Gacals ancillary prayer to disqualify Judge Infante from trying Criminal Case No. 1138-03 pending resolution of this administrative matter. Ruling We approve and adopt the findings and recommendation of the OCAd, considering that they are well substantiated by the records. We note that Judge Infante did not deny that he granted bail for the provisional release of Ancheta in Criminal Case No. 1138-03 without conducting the requisite bail hearing. I Bail hearing was mandatory in Criminal Case No. 1138-03

Judge Infante would excuse himself from blame and responsibility by insisting that the hearing was no longer necessary considering that the accused had not filed a petition for bail; that inasmuch as no application for bail had been filed by the accused, his twin orders of April 23, 2003 were not orders granting an application for bail, but were instead his approval of the bail bond posted; and that Atty. Gacals very urgent motion and other motions and written submissions lacked the requisite written conformity of the public prosecutor, rendering them null and void. We cannot relieve Judge Infante from blame and responsibility. The willingness of Judge Infante to rely on the mere representation of the public prosecutor that his grant of bail upon the public prosecutors recommendation had been proper, and that his (public prosecutor)

33 recommendation of bail had in effect waived the need for a bail hearing perplexes the Court. He thereby betrayed an uncommon readiness to trust more in the public prosecutors judgment than in his own judicious discretion as a trial judge. He should not do so. Judge Infante made the situation worse by brushing aside the valid remonstrations expressed in Atty. Gacals very urgent motion thusly: This Court is not unaware that the charge of murder being a capital offense is not bailable xxx xxxx The phrase xxx application for admission to bail xxx is not an irrelevant but a significant infusion in the cited rule (section 8), the plain import of which is that bail hearing is preceded by a motion/petition for admission to bail filed by a detained accused himself or thru counsel. The peculiar feature of the instant case, however, is the absence of a petition/motion for admission to bail filed by the herein accused. On the contrary, it is the consistent position of the fiscal to recommend bail since the prosecution evidence being merely circumstantial, is not strong for the purpose of granting bail. xxx. This court believes that bail hearing, albeit necessary in the grant of bail involving capital offense, is not at all times and in all instances essential to afford the party the right to due process especially so, when the fiscal in this case was given reasonable opportunity to explain his side, and yet he maintained the propriety of grant of bail without need of hearing since the prosecution evidence is not strong for the purpose of granting bail. Further, while it is preponderant of judicial experience to adopt the fiscals recommendation in bail fixing, this court, however, had in addition and in accord with Section 6(a) of the Revised Rules on Criminal Procedure, evaluated the record of the case, and only upon being convinced and satisfied that the prosecution evidence as contained in the affidavits of all the prosecution witnesses, no one being an eye-witness are merely circumstantial evidence, that this court in the exercise of sound discretion allowed the accused to post bail. xxxx The convergence of the foregoing factors - absence of motion for admission to bail filed by the accused, the recommendation of the fiscal to grant bail, the pro forma motion of the private prosecutor for lack of prior approval from the fiscal and this courts evaluation of the records sufficiently warrants the grant of bail to herein accused.[14]

Judge Infante specifically cited judicial experience as sanctioning his adoption and approval of the public prosecutors recommendation on the fixing of bail. Yet, it was not concealed from him that the public prosecutors recommendation had been mainly based on the documentary evidence adduced,[15] and on the public prosecutors misguided position that the evidence of guilt was weak because only circumstantial evidence had been presented. As such, Judge Infantes unquestioning echoing of the public prosecutors conclusion about the evidence of guilt not being sufficient to deny bail did not justify his dispensing with the bail hearing. Judge Infante apparently acted as if the requirement for the bail hearing was a merely minor rule to be dispensed with. Although, in theory, the only function of bail is to ensure the appearance of the accused at the time set for the arraignment and trial; and, in practice, bail serves the further purpose of preventing the release of an accused who may be dangerous to society or whom the judge may not want to release,[16] a hearing upon notice is mandatory before the grant of bail, whether bail is a matter of right or discretion.[17] With more reason is this true in criminal prosecutions of a capital offense, or of an offense punishable by reclusion perpetua or life imprisonment. Rule 114, Section 7 of the Rules of Court, as amended, states that: No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of criminal action. In Cortes v. Catral,[18] therefore, the Court has outlined the following duties of the judge once an application for bail is filed, to wit: 1. In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Revised Rules of Court, as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless or whether or not the prosecution refuses

34 to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, id); 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond (Section 19, id); otherwise, the petition should be denied. [emphasis supplied] The fact that the public prosecutor recommended bail for Ancheta did not warrant dispensing with the hearing. The public prosecutors recommendation of bail was not material in deciding whether to conduct the mandatory hearing or not. For one, the public prosecutors recommendation, albeit persuasive, did not necessarily bind the trial judge,[20] in whom alone the discretion to determine whether to grant bail or not was vested. Whatever the public prosecutor recommended, including the amount of bail, was non-binding. Nor did such recommendation constitute a showing that the evidence of guilt was not strong. If it was otherwise, the trial judge could become unavoidably controlled by the Prosecution. Being the trial judge, Judge Infante had to be aware of the precedents laid down by the Supreme Court regarding the bail hearing being mandatory and indispensable. He ought to have remembered, then, that it was only through such hearing that he could be put in a position to determine whether the evidence for the Prosecution was weak or strong.[21] Hence, his dispensing with the hearing manifested a gross ignorance of the law and the rules. 2. Public prosecutors failure to oppose application for bail or to adduce evidence did not dispense with hearing

II Judge Infante disregarded rules and guidelines in Criminal Case No. 1138-03 Ostensibly, Judge Infante disregarded basic but well-known rules and guidelines on the matter of bail. 1. In case no application for bail is filed, bail hearing was not dispensable

Judge Infante contends that a bail hearing in Criminal Case No. 1138-03 was not necessary because the accused did not file an application for bail; and because the public prosecutor had recommended bail. Judge Infantes contention is unwarranted. Even where there is no petition for bail in a case like Criminal Case No. 1138-03, a hearing should still be held. This hearing is separate and distinct from the initial hearing to determine the existence of probable cause, in which the trial judge ascertains whether or not there is sufficient ground to engender a well-founded belief that a crime has been committed and that the accused is probably guilty of the crime. The Prosecution must be given a chance to show the strength of its evidence; otherwise, a violation of due process occurs.[19]

That the Prosecution did not oppose the grant of bail to Ancheta, as in fact it recommended bail, and that the Prosecution did not want to adduce evidence were irrelevant, and did not dispense with the bail hearing. The gravity of the charge in Criminal Case No. 1138-03 made it still mandatory for Judge Infante to conduct a bail hearing in which he could have made on his own searching and clarificatory questions from which to infer the strength or weakness of the evidence of guilt. He should not have readily and easily gone along with the public prosecutors opinion that the evidence of guilt, being circumstantial, was not strong enough to deny bail; else, he might be regarded as having abdicated from a responsibility that was his alone as the trial judge.

35 Judge Infantes holding that circumstantial evidence of guilt was of a lesser weight than direct evidence in the establishment of guilt was also surprising. His training and experience should have cautioned him enough on the point that the lack or absence of direct evidence did not necessarily mean that the guilt of the accused could not anymore be proved, because circumstantial evidence, if sufficient, could supplant the absence of direct evidence.[22] In short, evidence of guilt was not necessarily weak because it was circumstantial. Instead, Judge Infante should have assiduously determined why the Prosecution refused to satisfy its burden of proof in the admission of the accused to bail. Should he have found that the public prosecutors refusal was not justified, he could have then himself inquired on the nature and extent of the evidence of guilt for the purpose of enabling himself to ascertain whether or not such evidence was strong. He could not have ignored the possibility that the public prosecutor might have erred in assessing the evidence of guilt as weak.[23] At any rate, if he found the Prosecution to be uncooperative, he could still have endeavored to determine on his own the existence of such evidence,[24]with the assistance of the private prosecutor. 3. Judge Infantes granting of bail without a hearing was censurable for gross ignorance of the law and the rules Prosecutions evidence of guilt against the accused.[29] His fault was made worse by his granting bail despite the absence of a petition for bail from the accused.[30] Consequently, any order he issued in the absence of the requisite evidence was not a product of sound judicial discretion but of whim and caprice and outright arbitrariness.[31] III Imposable Penalty We next determine the penalty imposable on Judge Infante for his gross ignorance of the law and the rules. The Court imposed a fine of P20,000.00 on the respondent judge in DocenaCaspe v. Bugtas.[32] In that case, the respondent judge granted bail to the two accused who had been charged with murder without first conducting a hearing. Likewise, in Loyola v. Gabo,[33] the Court fined the respondent judge in the similar amount of P20,000.00 for granting bail to the accused in a murder case without the requisite bail hearing. To accord with such precedents, the Court prescribes a fine of P20,000.00 on Judge Infante, with a stern warning that a repetition of the offense or the commission of another serious offense will be more severely dealt with. WHEREFORE, we FIND AND DECLARE Judge Jaime I. Infante guilty of gross ignorance of the law and the rules; and, accordingly, FINE him in the amount of P20,000.00, with a stern warning that a repetition of the offense or the commission of another serious offense will be more severely dealt with. Let a copy of this Decision be furnished to the Office of the Court Administrator for proper dissemination to all trial judges. SO ORDERED. In that light, the failure of Judge Infante to conduct a hearing prior to the grant of bail in capital offenses was inexcusable and reflected gross ignorance of the law and the rules as well as a cavalier disregard of its requirement.[27]He well knew that the determination of whether or not the evidence of guilt is strong was a matter of judicial discretion,[28] and that the discretion lay not in the determination of whether or not a hearing should be held, but in the appreciation and evaluation of the weight of the

Every judge should be faithful to the law and should maintain professional competence.[25] His role in the administration of justice requires a continuous study of the law and jurisprudence, lest public confidence in the Judiciary be eroded by incompetence and irresponsible conduct.[26]

36
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents.

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of 1 the accused therein. From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a lettercomplaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. 2 Lejano and six (6) other persons, with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the 3 preliminary investigation of those charged with the rape and killing on June 4 30, 1991 of Carmela N. Vizconde; her mother Estrellita Nicolas5 6 Vizconde, and her sister Anne Marie Jennifer in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica 7 M. Alfaro who allegedly saw the commission of the crime; (2) the sworn statements of two (2) of the former housemaids of the Webb family in the 8 persons of Nerissa E. Rosales and Mila S.Gaviola; (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the 9 crime at bar; (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had 10 nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). The 11 genital examination of Carmela confirmed the presence of spermatozoa. Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;

PUNO, J.:

37
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina 13 Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said 14 dates and that he was issued by the State of California Driver's License 15 No. A8818707 on June 14, 1991. Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss 16 denying their complicity in the rape-killing of the Vizcondes. Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known 17 address. In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co18 respondents, On the same date, it filed the corresponding 19 Information against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2)
12

38
the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is

39
reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against 20 unreasonable searches and seizures of whatever nature . . ." An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the 21 State. Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are 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 22 be arrested. Other jurisdictions utilize the termman of reasonable 24 caution 23 or the term ordinarily prudent and cautious man. The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the 25 street. It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material 26 inconsistencies in her two (2) sworn statement, thus: xxx xxx xxx To illustrate, the following are some examples inconsistencies in the two sworn statements of Alfaro: of On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of 27 Alfaro. We quote the pertinent ruling, viz.: xxx xxx xxx First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open."

On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies

40
As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a coconspirator, it is well to note that confessions of a coconspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the 28 assistance of counsel and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their 29 statements as follows: xxx xxx xxx

41
According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male

42
passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the 30 exculpatory evidence of petitioners. It ruled: xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).

43
Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put 31 in Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides:

44
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. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors 32 LaFave and Israel, thus: "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense 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 things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of 33 arrest and search warrants in Soliven vs.Makasiar, thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, 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. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for

45
the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates 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. Clearly then, the Constitution, the Rules of Court, and our case 34 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 26page report, the two (2) sworn statements of Alfaro and the sworn 35 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 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 36 the records of the case. Petitioners' reliance on the case of Allado vs. Diokno is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General,viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and
37

46
Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) dayselapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissedmotu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the

47
motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The 38 argument is based on Section 9, Rule 119 which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the

48
prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from 39 prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative 40 bodies/courts." Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary 41 investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in 42 possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at 43 arraignment and to prepare for trial. This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one 44 whose high duty is to be fair and impartial. As this Court 45 emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney

49
v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its 48 possession. The rationale is well put by Justice Brennan 49 inBrady "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings 50 in Civil Case No. 951099. As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a 51 part of their evidence. Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot 52 be struck down as done with grave abuse of discretion. On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case 53 of Richmond Newspapers, Inc. v.Virginia, it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this

50
unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, 54 et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair 55 administration of justice. The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED.

51
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting moral wounds which directly caused the death of the said Maureen Hultman. CONTRARY TO LAW. G.R. Nos. 111206-08 October 6, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLAUDIO TEEHANKEE, JR., accused-appellant.
3

Finally, the Information for Frustrated Murder in Criminal Case No. 91-4607 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Jussi Olavi Leino on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Jussi Olavi Leino, thereby performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Jussi Olavi Leino which prevented his death. Contrary to law.
4

PUNO, J.: Three (3) separate Informations were filed against accused Claudio Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino and Maureen Hultman. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman died on October 17, 1991, during the course of the trial, the Information for Frustrated Murder against accused was amended to 1 MURDER. The Information for murder in Criminal Case No. 91-4605 thus reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with and shoot with the said handgun Roland John Chapman who war hit in the chest, thereby inflicting mortal wounds which directly caused the death of said Roland John Chapman. Contrary to law.
2

In the two (2) Informations for frustrated murder initially filed against accused, bail was set at twenty thousand pesos (P20,000.00) each. No bail was recommended for the murder of Roland John Chapman. A petition for bail was thus filed by accused. Hearing was set on August 9, 1991, while his arraignment was scheduled on August 14, 1991. At the hearing of the petition for bail on August 9, 1991, the prosecution manifested that it would present the surviving victim, Jussi Leino, to testify on the killing of Chapman and on the circumstances resulting to the wounding of the witness himself and Hultman. Defense counsel Atty. Rodolfo Jimenez objected on the ground that the incident pending that day was hearing of the evidence on the petition for bail relative to the murder charge for the killing of Chapman only. He opined that Leino's testimony on the frustrated murder charges with respect to the wounding of Leino and 5 Hultman would be irrelevant. Private prosecutor, Atty. Rogelio Vinluan, countered that time would be wasted if the testimony of Leino would be limited to the killing of Chapman considering that the crimes for which accused were charged involved only one continuing incident. He pleaded that Leino should be allowed to testify on all three (3) charges to obviate delay and the inconvenience of recalling him later to prove the two (2) frustrated 6 murder charges.

The Amended Information for Murder in Criminal Case No. 91-4606 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation, and by

52
By way of accommodation, the defense suggested that if the prosecution wanted to present Leino to testify on all three (3) charges, it should wait until after the arraignment of accused on August 14, 1991. The defense pointed out that if accused did not file a petition for bail, the prosecution would still have to wait until after 7 accused had been arraigned before it could present Leino. The private prosecutor agreed to defer the hearing on the petition for bail until after arraignment of accused on the condition that there shall be trial on the merits and, at 8 the same time, hearing on the petition for bail. The defense counsel acceded. Upon arraignment, accused pleaded not guilty to the three (3) charges. The prosecution then started to adduce evidence relative to all three (3) cases. No 9 objection was made by the defense. A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino invited Roland Chapman, Maureen Hultman and other friends for a party at his house in Forbes Park, Makati. The party started at about 8:30 p.m. and ended at past midnight. They then proceeded to Roxy's, a pub where students of International School hang 10 out. After an hour, they transferred to Vintage, another pub in Makati, where they stayed until past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up 11 a friend of Maureen, then went back to Leino's house to eat. After a while, Maureen requested Leino to take her home at Campanilla Street, 12 Dasmarias Village, Makati. Chapman tagged along. When they entered the village, Maureen asked Leino to stop along Mahogany Street, about a block away from her house in Campanilla Street. She wanted to walk the rest of the way for she did not like to create too much noise in going back to her house. She did not want her parents to know that she was going home that late. Leino offered to walk with her 13 while Chapman stayed in the car and listened to the radio. Leino and Maureen started walking on the sidewalk along Mahogany Street. When they reached the corner of Caballero and Mahogany Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: "Who are you? (Show me your) I.D." Leino thought accused only wanted to check their identities. He reached into his pocket, took out his plastic wallet, and handed to accused his Asian Development Bank (ADB) 14 I.D. Accused did not bother to look at his I.D. as he just grabbed Leino's wallet and 15 pocketed it. Chapman saw the incident. All of a sudden, he manifested from behind Leino and inquired what was going on. He stepped down on the sidewalk and asked accused: "Why are you bothering us?" Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: "Why did you shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave 16 Chapman alone. Accused then turned his ire on Leino. He pointed gun at him and asked: "Do you want a trouble?" Leino said "no" and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody help us?" All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. He knew he could not run far without being shot by accused. Maureen continued to be hysterical. She could not stay still. She strayed to the side of accused's car. Accused tried but failed to grab her. Maureen circled around accused's car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and 17 sit down beside Leino. Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in 18 front of them stood accused. For a moment, accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw 19 accused return to his car and drive away. Leino struggled to his knees and shouted for help. He noticed at least three (3) 20 people looking on and standing outside their houses along Caballero Street. The three were: DOMINGO FLORECE, a private security guard hired by Stephen Roxas to secure his residence at #1357 Caballero Street, Dasmarias Village, 21 Makati; VICENTE MANGUBAT, a stay-in driver of Margarita Canto, residing at 22 #1352 Caballero Street, corner Mahogany Street, Dasmarias Village; and AGRIPINO CADENAS, a private security guard assigned at the house of Rey Dempsey, located at #1351 Caballero Street, corner Mahogany Street, Dasmarias 23 Village. Security guards Florece and Cadenas were then on duty at the house of their employer, while driver Mangubat was in his quarters, preparing to return to his own house. These three (3) eyewitnesses heard the first gunshot while at their respective posts. Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance 24 from the scene of the crime, he was not able to discern the face of the gunman. He saw the control numbers of the gunman's car as 566. He described the gateway car 25 as a box-type Lancer, its color somewhat white ("medyo maputi"). Cadenas noticed

53
in full the plate number of the getaway car and gave it as PDW 566. He described the 26 car as silver metallic gray. Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from 27 the gunman's car, while Mangubat was about twenty (20) meters away from the 28 scene of the crime. The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco 29 lamppost at the time of the incident. After the gunman sped away, Mangubat ran outside his employer's house and went near the scene of the crime. He noticed security guard Florece along Caballero Street. A man on a bike passed by and Mangubat requested him to report the 30 shooting incident to the security officers of Dasmarias Village. Meanwhile, Florece returned to his post and narrated to his employer, Mrs. Helen Roxas, what he saw. Mrs. Roxas repaired to the crime scene while Florece noted the incident in his logbook (Exhibit "B"). He also jotted down the license plate control number of the 31 gunman's car as 566. The security guards of Dasmarias Village came after a few minutes. They rushed 32 Leino and Maureen to the Makati Medical Center for treatment. The Makati police and agents of the NBI also came. Patrolman JAMES BALDADO of the Makati police, together with SPO3 ALBERTO FERNANDEZ, investigated the 33 incident. Their initial investigation disclosed that the gunman's car was a box-type Mitsubishi Lancer with plate control number 566. They checked the list of vehicles registered with the village Homeowners' Association and were able to track down two (2) Lancer cars bearing plate control number 566. One was registered in the name of JOSE MONTAO of 1823 Santan Street, Dasmarias Village, with plate number PKX 566, and another was traced to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street, Dasmarias Village, with plate number PDW 566. SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was 34 also tasked by then NBI Director Alfredo Lim to head a team to investigate the shooting. Ranin's team immediately proceeded to the house of Jose 35 Montao where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montao whether the white Lancer car registered in the name of Mr. Montao and bearing plate number 566 was the gunman's car. Mrs. Montao denied and declared they had already sold the car to Saldaa Enterprises. She averred the car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montao called up her husband and informed him about the investigation. She also 36 called up Conti and asked him to bring the car to the house. Jose Montao came around noon. Conti followed with white Lancer car. Ranin brought them to the NBI office for investigation, together with Lancer car. At the NBI Ranin inquired from Montao the whereabouts of his car on July 12 and 13, 1991. Montao informed him that the car was at the residence of his employee, Ben Conti, at E. Rodriguez Street, Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13, 1991, Conti drove the car to their office at Saldaa Enterprises. Conti confirmed this information. Ranin received the same confirmation from two (2) NBI agents who made a countercheck of the allegation. Upon Ranin's request, Montao left his car at the NBI parking lot pending identification by possible 37 witnesses. On July 14, 1991, a team of NBI agents conducted an on-the-spot investigation and neighborhood inquiry of the shooting incident. They interviewed Domingo Florece and 38 asked him to report to their office the next day for further investigation. They also interviewed Agripino Cadenas who was reluctant to divulge any information and even denied having witnessed the incident. Sensing his reluctance, they returned to Cadenas' post at Dasmarias Village that night and served him a subpoena, inviting 39 him to appear at the NBI office for investigation the next day. The NBI agents also talked with Armenia Asliami, an Egyptian national residing at #1350 Caballero Street, Dasmarias Village, near the scene of the crime. Asliami informed the agents that the gunman's car was not white but light gray. A foreign national, Asliami was afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a 40 representative of the Egyptian embassy to coax Asliami to cooperate. They failed. On July 15, 1991, Florece and Cadenas appeared at the NBI office as summoned. 41 Florece readily executed a sworn statement. Cadenas, however, continued to feign ignorance and bridled his knowledge of the incident. He was lengthily interviewed. At around 2:00 p.m., the NBI agents informed SOG Chief Ranin that Cadenas was still withholding information from them. Ranin talked to Cadenas in his office. Cadenas confided to Ranin his fear to get involved in the case. He was apprehensive that the gunman would harass or harm him or his family. After Ranin assured him of NBI 42 protection, Cadenas relented. The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He described the gunman's car as a box-type Lancer with plate number PDW 566. He was brought to the NBI parking lot where Montao's white Lancer car was parked to identify the gunman's car. Ranin asked Cadenas if Montao's was the gunman's car. Cadenas replied that its color was different. Ranin directed him to look around the cars in the parking lot and to point the color that most resembled the color of the gunman's car. He pointed to a light gray car. Ranin told him that the color of the car he pointed to 43 was not white but light gray. Ranin then asked Cadenas if he could identify the gunman. Cadenas replied in the affirmative. Ranin led Cadenas to his office and showed him ten (10) pictures of different men (Exhibits "CC-1" to "CC-10) taken from the NBI files. One of the pictures belonged to accused Claudio Teehankee, Jr. Cadenas studied the pictures, picked accused's picture (Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his name and the date at the back of said picture. Atty. Alex Tenerife of the NBI then 44 took down Cadenas' statement. Ranin sent his agents and the witnesses to the Makati Regional Trial Court to apply for a search warrant. After a searching examination of the witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit "RR"), authorizing the NBI to search and seize the silver metallic gray, 1983 Mitsubishi Lancer car owned by accused, bearing

54
plate number PDW 566. Ranin and his agents drove to accused's house at #1339 45 Caballero Street, Dasmarias Village, to implement the warrant. At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of accused, of their search warrant. Ranin also told Mrs. Teehankee that they had orders from Director Lim to invite accused to the NBI office for investigation. Mrs. Teehankee informed them that accused was not in the house at that time. She excused herself, 46 went to the kitchen and called up someone on the phone. In the meantime, Ranin and his men slipped to the Teehankee garage and secured accused's car. After a while, Mrs. Teehankee joined them. Ranin asked her for the car keys but she told him that the keys were with accused. Upon Ranin's request, Mrs. Teehankee got in touch with accused on the phone. Ranin conversed with accused and invited him to the NBI for investigation. Accused assured Ranin that he would report to the NBI later that day. The agents then towed the car of accused to the NBI 47 office. At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the NBI office and waited for accused. Accused came, escorted by three (3) Makati policemen, after an hour. He informed them that he just came from the Makati police station where he was also investigated. He told Lim that he was given a statement to the Makati police 48 and was brought to the PC Crime Laboratory for paraffin test. Accused's NBI investigation started. Lim asked accused of the whereabouts of his Lancer car at the time of the shooting. Accused claimed that his car was involved in an accident a few weeks back and was no longer functioning. The car had been parked in his mother's house at Dasmarias Village since then. Due to the lateness of 49 the evening, the group decided to continue the investigation the following day. The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim pressed accused on what really happened at Dasmarias Village. Accused said he did not see anything. Lim apprised accused that he would be confronted with some 50 eyewitnesses. Accused sank into silence. Lim directed Ranin to prepare a lineup at his office. Accused was requested to join the lineup composed of seven (7) men and he acceded. Cadenas was called from an 51 adjoining room and Ranin asked him to identify the gunman from the lineup. 52 53 Forthwith, Cadenas pointed to accused. Accused merely stared at Cadenas. On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2) other agents brought accused to Forbes Park for further identification by the surviving victim, Jussi Leino. Leino has just been discharged from the hospital the day before. Since Leino's parents were worried about his safety, they requested the NBI to conduct the identification of the gunman in Forbes Park where the Leinos also reside. 54 The NBI agreed. House security agents from the U.S. embassy fetched Leino at his house and escorted him and his father to a vacant house in Forbes Park, along Narra Avenue. After a couple of minutes, Leino was brought out of the house and placed in a car with slightly tinted windows. The car was parked about five (5) meters away from the house. Inside the car with Leino was his father, NBI-SOG Chief Salvador Ranin and a driver. Leino was instructed to look at the men who would be coming out of the house 55 and identify the gunman from the lineup. A group of five to six men (including accused) then came out of the unoccupied house, into the street, in a line-up. Leino noticed that one of them was wearing sunglasses. Since Leino could not yet speak at that time due to the extensive injury on his tongue, he wrote down on a piece of paper a request for one of the men in the lineup to remove his sunglasses. Leino handed this written request to his father. The men in the lineup were herded back inside the house. After a couple of minutes, they again stepped out and none was wearing sunglasses. From the lineup, Leino 56 identified accused as the gunman. The agents brought back accused to the NBI. They prepared and referred the cases of murder and double frustrated murder against accused to the Department of Justice for appropriate action. At the inquest, Fiscal Dennis Villa-Ignacio did not recommend bail insofar as the murder charge was concerned. Hence, accused was detained at 57 the NBI. The shooting incident was also investigated by the Makati Police. Pat. Baldado went to see security guard Vicente Mangubat at his post, at the residence of his employer in Dasmarias Village. Baldado interviewed Mangubat and invited him to the Makati 58 police station where his statement (Exhibit "D") was taken. The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched Mangubat from his house and brought him to the Makati police station. At the station, Baldado told him to wait for a man who would be coming and see if the person was the gunman. 59 Mangubat was posted at the top of the stairs at the second floor of the station. After a couple of hours, accused, came with Makati police Major Lovete. He ascended the stairs, passed by Mangubat and proceeded to Major Lovete's office at the second floor. While accused was going up the stairs, Pat. Baldado inquired from Mangubat if accused was the gunman. Mangubat initially declined to identify accused, saying that he wanted to see the man again to be sure. He also confided to Pat. Baldado that he was nervous and afraid for accused was accompanied by a police Major. When accused came out from Major Lovete's office, Pat. Baldado again asked Mangubat if accused was the gunman. Mangubat nodded his head in 60 response. Accused, together with Major Lovete and Pat. Baldado, boarded a Mercedes Benz and left. Mangubat was brought back to his post at Dasmarias Village by other Makati 61 policemen. Two (2) days later, Pat. Baldado visited Mangubat at his employer's house and asked him again if accused was really the gunman. Once more, Mangubat answered in the affirmative. Pat. Baldado told Mangubat that he would no longer ask him to sign a

55
statement which he (Baldado) earlier prepared (Exhibit "HHH"). 63 left.
62

Baldado then

SKULL CHEST FOR July 13, 1991

RIBS

X-RAY

#353322

In the afternoon of July 23, 1991, Mangubat was also questioned by the NBI agents. Director Lim asked Mangubat if he could recognize the gunman. Mangubat said he could. Mangubat was shown twelve (12) pictures (Exhibits "E" to "E-11) of different men and was asked to identify the gun gunman from them. He chose one picture (Exhibit "E-10"), that of accused, and identified him as the gunman. Mangubat's statement was taken. He was asked to return to the NBI the next day to make a 64 personal identification. When Mangubat returned, a lineup was prepared in Lim's office in the presence of the media. At that time, accused's counsels, Attys. Jimenez and Malvar, were at the office of then Asst. Director Epimaco Velasco protesting to the submission of accused to identification. They pointed out that since the cases against accused had already been filed in court and they have secured a court order for the transfer of accused to the Makati municipal jail, any identification of accused should be made in the courtroom. Asst. Director Velasco insisted on the identification as it was part of their on-going investigation. Eventually, accused's counsels acquiesced but requested that identification be made without the presence of the media. Velasco turned them down and explained that if accused is not identified n the lineup, the media coverage would 65 favor accused. All that time, accused was at the SOG office. He refused to join the lineup at Lim's office and remained seated. Ranin was compelled to bring to the SOG office the men composing the lineup and he asked them to go near accused. Ranin then told Mangubat to go in the office. Mangubat pointed to accused as the gunman. With the identification of accused by Mangubat, the NBI wrote finis to its 66 investigation. JUSSI LEINO, the surviving victim, suffered the following injuries: FINDINGS: = Abrasion, 0.5 cm., temporal area, left. = Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter, located at the upper lip, mouth, along the medial line, directed backwards and downwards, fracturing the maxillary bone and central and lateral incisors, both sides, to the buccal cavity then lacerating the tongue with fragments of the bullet lodged in the right palatine, tongue and tonsillar region.

No demonstrable evidence of fracture. Note of radioopaque foreign body (bullet fragments) along the superior alveolar border on the right. No remarkable findings. CT SCAN #43992 July 13, 1991 Small hyperdensities presumably bullet and bone fragments in the right palatine, tongue and tonsillar regions with associated soft tissue swelling. Anterior maxillary bone comminuted fracture. Temporal lobe contusions with small hematomata on the right side. Minimal subarachnoid hemorrhage. Intact bone calvarium. xxx xxx xxx
67

Dr. Pedro Solis, testified that the bullet entered the left temple of Leino. After entering Leino's head, it fractured his upper jaw and his front teeth. Some of the bullet fragments pierced his palette and tongue. Brain scanning revealed contusions on the temporal lobe and hemorrhage on the covering of the brain. Physical deformity resulted as a consequence of the gunshot wound because of the fractured upper jaw and the loss of the front teeth. Sutures were performed on the upper portion of his tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty in 68 speaking. Dr. Solis also testified as to the relative position of Leino and the gunman. He opined that the muzzle of the gun, like in the case of Maureen, must have been at a higher level than the victim's head. He concluded that the gun must have been pointed above Leino's head considering the acuteness and downward trajectory of the 69 bullet. Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center, operated on MAUREEN HULTMAN. He testified that when he first saw Maureen, she was unconscious and her face was bloodied all over. Maureen had a bullet hole on the left side of the forehead, above the eyebrow. Brain tissues were oozing out of her nostrils 70 and on the left side of the forehead where the bullet entered.

56
They brought Maureen to the x-ray room for examination of her skull. She was also given a CT scan. The examination revealed that she suffered injuries on the skull and brain. There were several splintered bullets in her brain and the major portion of the 71 bullet, after it fragmented, was lodged beneath her right jaw. Maureen was rushed to the operating room for surgery. Dr. Isabela led a team who operated on her brain to arrest the bleeding inside her head, remove devitalized brain tissues and retrieve the splintered bullets embedded in her brain. Due to the extensive swelling of Maureen's brain and her very unstable condition, he failed to 72 patch the destroyed undersurface covering of her brain. After the surgery, Maureen's vital signs continued to function but she remained unconscious. She was wheeled to the ICU for further observation. Two (2) weeks later, brain tissues and fluid continue to flow out of Maureen's nostrils due to the unpatched undersurface covering of her brain, leaving the swollen portion of her brain exposed. A second surgery was made on July 30, 1991 to repair Maureen's brain covering. He used the fascia lata of Maureen's right thigh to replace the destroyed covering of the brain. Nonetheless, Maureen remained unconscious. The trickle of brain tissues through her nose was lessened but Maureen developed infection as a result of the destruction of her brain covering. Maureen developed brain abscess because of the infection. She underwent a third operation to remove brain 73 abscess and all possible focus of infection. Testifying on the extensive injuries suffered by Maureen Hultman, Dr. Solis explained that Maureen was shot at the left side of the forehead. The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the forehead, the bullet fragmented into pieces and went from the left to the right side of the temple, fracturing the frontal bone of the 74 skull. The bullet eventually settled behind the right jaw of Maureen. The wound inflicted on Maureen was mortal for it hit one of the most vital parts of the body, the brain. When Maureen was subjected to CT scan, they discovered hemorrhage in her brain. After the bullet hit her head, it caused hemorrhagic lesion on 75 the ventricles of the brain and the second covering of the brain. The bullet also injured Maureen's eye sockets. There was swelling underneath the forehead brought about by edema in the area. Scanning also showed that Maureen's right jaw was affected by the fragmented bullet. The whole interior portion of her nose 76 was also swollen. A team of doctors operated on Maureen's brain. They tried to control the internal bleeding and remove the splintered bullets, small bone fragments and dead tissues. The main bullet was recovered behind Maureen's right jaw. There was also an acute downward trajectory of the bullet. Hence, it was opined that Maureen was shot while 77 she was seated. With each passing day, Maureen's condition deteriorated. Even if Maureen survived, she would have led a vegetating life and she would have needed assistance in the 78 execution of normal and ordinary routines. She would have been completely blind on the left eye and there was possibility she would have also lost her vision on the right eye. All her senses would have been modified and the same would have affected her motor functions. There was practically no possibility for Maureen to 79 return to normal. Maureen did not survive her ordeal. After ninety-seven (97) days of confinement in the hospital, she ceased to be a breathing soul on October 17, 1991. For his exculpation, accused relied on the defense of denial and alibi. Accused claimed that on said date and time, he was not anywhere near the scene of the crime. He alleged that he was then in his house at #53 San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13, 1991 and woke up at around 8:00 or 9:00 a.m. that same morning. Accused avowed his two (2) maids could attest to his 80 presence in his house that fateful day. Accused averred that he only came to know the three (3) victims in the Dasmarias shooting when he read the newspaper reports about it. He denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente Mangubat before they 81 identified him as the gunman. Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident in February 1991. Since May 1991 until the day of the shooting, his Lancer car had been parked in the garage of his mother's house in Dasmarias Village. He has not used this car since then. Accused, however, conceded that although the car was not in good running condition, 82 it could still be used. Accused said that on July 16, 1991, he went to the Makati police station at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac and Major Lovete who wanted to ask him about the ownership of the Lancer car parked in his mother's house. He readily gave a statement to the Makati police denying complicity in the crime. He submitted himself to a paraffin test. He was accompanied by the Makati police to the Crime Laboratory in Camp Crame and was tested negative for 83 gunpowder nitrates. After the test, he asked the Makati policemen to accompany him to the NBI for he had earlier committed to his mother that he would present 84 himself to Director Lim. He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He furnished Lim with the statement he earlier gave to the Makati police. Thereafter, Lim detained him at the 85 NBI against his will. The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7) slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the 86 lineup, Cadenas identified him as the gunman.

57
A second identification was made on the same day at a house in Forbes Park. The NBI agents brought him to Forbes Park but he never saw Jussi Leino who allegedly 87 identified him as the gunman in a lineup. A third identification was conducted on July 24, 1991. He was then seated at the office of Ranin for he refused to join another lineup. Despite his protest, the NBI agents insisted on the conduct of the identification and ordered a group of men to line up alongside him. While thus seated, he was identified by Mangubat as the gunman. He complained that he was not assisted by counsel at any stage of said 88 investigation. The defense also presented CLAUDIO TEEHANKEE III, son of accused Claudio Teehankee, Jr. He testified that from May 1989 to February 1991, he had been using 89 his father's Lancer car bearing plate number PDW 566 in going to school. In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the 90 death of the bicycle driver and damage to his father's car, especially on its body. The timing of the engine became a little off and the car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmarias Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been 91 made. Accused also imputed the commission of the crimes at bar to Anders Hultman, adoptive father of deceased victim Maureen Hultman. He capitalized on a newspaper report that the gunman may have been an overprotective father. This theory was formed when an eyewitness allegedly overheard Maureen pleading to the gunman: "Huwag Daddy. Huwag, Daddy." The defense presented Anders Hultman as a hostile witness. ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian Hultman were married in the Philippines in 1981. Vivian had two (2) children by her previous marriage, one of whom was Maureen. He legally adopted Vivian's two (2) daughters 92 in 1991. He and Vivian had three (3) children of their own. The defense confronted Anders with one of the angles of the crime in the initial stage of the investigation, i.e., that Maureen was overhead pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders explained that Maureen could not have uttered those words for Maureen never spoke Tagalog. He also said that all his 93 children call him "Papa," not "Daddy." On July 12, 1991, he and Vivian permitted Maureen to have a night out but instructed her to be home by 2:00 a.m. Maureen just received her first salary in her first job and she wanted to celebrate with friends. At the time of the shooting, he and his wife were sleeping in their house. He woke up at around 5:15 a.m. of July 13, 1991 when a 94 security guard came to their house and informed them about the killings. Anders admitted he had been vocal about the VIP treatment accorded to accused at the Makati municipal jail. On several occasions, he checked on accused in jail and discovered that accused was not in his cell. The jail guards even covered up accused's whereabouts. His complaint was investigated by the Congressional 95 Committee on Crime Prevention, headed by Congressman Concepcion. The defense also presented two (2) Makati policemen, PAT. JAMES F. BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the shooting. Pat. Baldado testified that in the course of his investigation, he learned from Mr. Jose Montao that he sold his white Lancer car, with plate number PKX 566, to Saldaa Lending Investors in February 1991. This car was assigned to Ben Conti, Operations Manager of said company and was in the residence of Conti at the time of the shooting. The other witnesses he interviewed confirmed that Montao's white Lancer 96 car was not in the vicinity of Montao's residence at the time of the incident. SPO3 Fernandez testified that he interviewed security guard Vicente Mangubat. Mangubat saw the gunman and the get-away car but could not give the central letters of the car's license plate. Fernandez went to one of the houses at the corner of Mahogany and Caballero Streets and asked the maid therein if he could use the phone. After placing a call, the maid told him that he saw the gunman and heard one of the victims say: "Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's name but the latter refused. The defense did not present this maid in court nor asked the court to subpoena her to testify. Neither was the alleged statement of the maid included in the Progress Report (Exhibit "13") prepared by the Makati police 97 investigators. SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he and Baldado fetched the latter at Dasmarias Village for identification of the gunman at the Makati police station. At the police station, Fernandez and Baldado posted Mangubat at the lobby. After a few minutes, accused and company arrived. When accused passed by them, they instructed Mangubat to look around and see if he could identify the gunman. Mangubat failed to identify accused. Mangubat told Fernandez that the gunman was 98 younger and shorter than accused. SPO3 Fernandez also took the statement of security guard Domingo Florece (Exhibit "MM"). It was signed by Florece in his presence. In said statement, Florece described 99 the gunman's car as "medyo puti" (somewhat white).

58
ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory, testified on 100 the paraffin test she conducted on July 17, 1991 on both hands of accused. As per 101 Chemistry Report No. C 274-91, the test yielded a negative result of gunpowder nitrates on accused's hands. In said Report, she noted that accused was subjected to paraffin test more than seventy-two (72) hours after the shooting incident. She explained that 72 hours is the reasonable period within which nitrate residues may not be removed by ordinary washing and would remain on the hands of a person who has 102 fired a gun. ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took the stand for the defense. He testified that in the course of handling the cases, he was able to confer with Ponferrada, Cadenas' supervisor at the Security agency where Cadenas was employed. Ponferrada informed him that Cadenas confided to him that he was tortured at the NBI and was compelled to execute a statement. Ponferrada, allegedly, refused to testify. Atty. Malvar, however, admitted the defense did not compel the attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the torture story. Atty. Malvar also admitted that he and Atty. Jimenez were aware of the irregularities committed in the off-court identification of their client. When asked what he did to remedy this perceived irregularity, Malvar said he objected to the conduct of the lineup. When further pressed whether he filed a petition for review raising this issue with the Department of Justice upon the filing of the cases therewith, he said he did not. He offered the excuse that he deferred to Atty. Jimenez, the principal counsel of accused at that time. He also declared that although they knew that arraignment would mean waiver of the alleged irregularities in the conduct of the investigation and 103 preliminary investigation, he and Atty. Jimenez allowed accused to be arraigned. The defense likewise relied on a number of news accounts reporting the progress in the investigation of the case. It presented seven (7) newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer, Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's Journal and Elena Aben of the Manila Bulletin. The bulk of defense evidence consists of newspaper clippings and the testimonies of the news reporters, thus: NESTOR BARRAMEDA, a news reporter of the Manila Times identified two (2) news reports as having been partly written by him. One was a news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO KILLINGS" (Exhibit "1"), 104 appearing on the July 16, 1991 issue of the Manila Times. He, however, clarified that a news report is usually the product of collaborative work among several reporters. They follow the practice of pooling news reports where several reporters are tasked to cover one subject matter. The news editor then compiles the different 105 reports they file and summarizes them into one story. The defense lifted only certain portions of Exhibit "1" and marked them in evidence as follows: Exhibit "1-A": Bello directed NBI Deputy Director Epimaco Velasco to take over the investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25, and three members of a family Estrellita Vizconde and her daughters, Carmela, 19, and Anne Marie Jennifer, 7. Exhibit "1-B" Police said that Chapman's assailant could have been angered when Hultman, a 10th grader at the International School in Makati was escorted home by Chapman after going to a disco. Exhibit "1-C" The lone gunman, witnesses told police, first pistol-whipped Hultman. Exhibit "l-D" The same witnesses said Chapman and Leino were shot when they tried to escape. Exhibit "1-E" Other angles Velasco said "we are pursuing two angles" in the Chapman murder. One, he said, is the jealousy angle and the other is a "highly 106 sensitive" matter that might involve influential people. Barrameda testified that he had no personal knowledge of the content of the news items marked as Exhibits "1-C" to "1-D". He just culled them from previous news reports of other newspapers. He admitted that the only portion he wrote based on an actual interview with NBI Asst. Director Velasco was Exhibit "I-E." Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions thereof, which were not written by 107 Barrameda, were lifted by the defense and offered in evidence, viz: Exhibit "2-a"

59
Superintendent Lucas Managuelod, CIS director for the national capital region, claims, however, that another security guard, Vic Mangubat, had testified before the police that another man, not Teehankee, had fired at Chapman and his companions. Exhibit "2-b" The CIS official added that the absence of nitrite or powder burns on Teehankee's hands as shown by paraffin tests at the CIS 108 laboratory indicated that he may not have fired the gun. MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two (2) newspaper clippings which were partly written by him. One news item, which appeared on the July 17, 1991 issue of the Philippine Daily 109 Inquirer, was entitled: "FBI JOINS PROBE OF DASMA SLAY" (Exhibit "3"). Again, the defense marked in evidence certain portions of Exhibit "3", thus: Exhibit "3-a" Witnesses said Hultman talked with the gunman whom she called "Daddy" shortly before Chapman's shooting. Exhibit "3-b" But Ranin said they were also looking into reports that Hultman was a dancer before she was adopted by her foster parent. Exhibit "3-c" Investigations showed that the gunman sped along Caballero street inside the village after the shooting and was believed to have proceeded toward Forbes Park using the Palm street gate. On cross-examination, Marfil admitted that he did not write Exhibits "3-a" and "3-c". He just reiterated previous reports in other newspapers. They were based on speculations. Marfil also wrote some portions of a news item, entitled: "TEEHANKEE SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue of the Philippine Daily Inquirer (Exhibit "4"), viz: Exhibit "4-B" The witness said the gunman was standing a few feet away near the car and was talking to Hultman, who was shouting "Huwag! 110 Daddy!" several times. Marfil's source of information was Director Lim. On cross-examination, Marfil admitted that the news reports marked as Exhibits "3" and "4" were written 111 based on information available at that time. NIDA MENDOZA, a reporter of the Malaya identified a news report, entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared on the July 18, 1991 issue of Malaya. She testified that she wrote a portion thereof, marked as Exhibit "5-c", and the sources of her information were several Makati 112 policemen. Exhibit "5-c" reads: Makati policemen, meanwhile, disputed Teehankee was arrested at his house. NBI accounts that According to NBI Director Alfredo Lim, the break in the case came when the witness showed up and said that the gunman was on board a silver-metallic Lancer. Exhibit "4-C"

They said Teehankee, the last remaining owner of a car with plate control number 566 who had not been questioned, voluntarily went to police headquarters upon invitation of Makati police chief 113 Superintendent Remy Macaspac. The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted effort of the investigators to implicate accused as the lone gunman; (b) that there were other suspects aside from accused and that someone whom Maureen called as "Daddy" was the actual gunman; (c) that the initial police investigation showed that the gunman's car was a white Lancer with plate no. 566; and, (d) that after the NBI took over the investigation, the white Lancer car of the gunman became a silver gray Lancer of accused and thereafter, he became the gunman. ITCHIE CABAYAN, a reporter of the People's Journal identified the portions she wrote in the news item, entitled: ''I WILL HOUND YOU", which appeared on the October 24, 1991 issue of People's Journal (Exhibit "6"). She identified the source of 114 her information as Mr. Anders Hultman himself. The portions thereof were marked in evidence by the defense, viz: Exhibit "6-a"

60
"I will be visiting him often and at the most unexpected occasion," Hultman said the day after his 17-year old daughter was 115 cremated. Exhibit "6-b" The day Maureen died, a congressional hearing granted the Hultman family's request for permission to visit Teehankee in his cell "at anytime of their choice." Exhibit "6-c" "If on my next visit he still refuses to come out and is still hiding behind the curtain," Hultman said, "Congress told me that I can 116 take the curtain down and jail authorities will pull him out." ALEX ALLAN, also a reporter of People's Journal co-wrote the news item marked as 117 Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-e" which read: Exhibit "6-d" Exhibit "8-e" "Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was quoted as telling Vergel de Dios. Exhibit "6-e" BIR insiders said Ong has shown a keen interest in the ChapmanHultman, Vizconde and Eldon Maguan cases because he belongs to a secret but very influential multi-sectoral group monitoring graft and corruption and other crimes in high levels of government and 118 society. Allan was not able to check or verify the information in Exhibit "6-e" given to him by 119 BIR insiders for the latter refused to be identified. Exhibit "6" and its sub-markings were offered to prove: (a) the alleged blind and consuming personal rage and bias of Anders Hultman against accused; and (b) the unwarranted pressure, prejudice and prejudgment by some congressional leaders in favor of the Hultmans in violation of due process. DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified the news account which appeared on the July 16, 1991 issue of the Inquirer, entitled: "DASMA SLAY SUSPECT IDENTIFIED" (Exhibit "7"). He wrote a portion of said article (Exhibit 120 "7-c") and the source of his information was Camp Crame. It reads: Exhibit "7-c" The source said that the police's "prime witness," identified only as Mangubat, saw everything that happened in the early morning of July 13. The witness, however, failed to identify Teehankee as the 122 gunman. Veridiano was shown another news report, entitled: "CIS GIVES UP CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the Philippine Daily 123 124 Inquirer (Exhibit 9). He wrote the entire news account, portions of which were marked by the defense in evidence, thus: Exhibit "9-a" The CIS pulled out from the case a day after its so-called "surprise witness" picked Claudio Teehankee, Jr. from an NBI lineup. He gathered this information from his source but he was not able to interview 125 Mangubat himself. Exhibit "9-b" Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon bigla niyang ituturo, said a red-faced Makati investigator who, as usual, did not want to be identified. At the Criminal Investigation Service, however, an investigator who asked not to be identified insisted that the NBI got the wrong man. The NBI has taken over the case from the CIS. Exhibit "8-c" He said the CIS will shortly identify the suspect killer whom he described as "resembling Teehankee but looks much younger." Witnesses said the gunman fled aboard a white Mitsubishi Lancer with plate number "566." The witnesses cannot tell the plate's 121 control letters. Veridiano likewise identified a news item which appeared on the July 1991 issue of the Inquirer, entitled: "N.B.I. FINDINGS DISPUTED, SECOND WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item which he wrote were marked in evidence by the defense, viz: Exhibit "8-a"

61
ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on the July 14, 1991 issue of 126 the Manila Bulletin (Exhibit "10"). Two (2) portions thereof were marked as evidence by the defense, viz: Exhibit "10-a-1" The victims were on their way home in Olanileino's Mercedez Benz with a diplomat's plate number when a white Lancer with plate number PKX-566 blocked its path. Exhibit "10-a-2" US embassy spokesman Stanley Schrager said Chapman's father is a communications specialist. He said the shooting could be the 127 result of an altercation on the street. Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the news account he wrote which appeared on the July 16, 1991 issue of the Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of said news item were marked by the defense as follows: Exhibit "22-b" . . . He was shot to death by a group of armed men at the corner of Mahogany and Caballero Sts. in Dasmarias Village at past 4 a.m. Friday. Exhibit "22-c" The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the victim's Mercedes Benz car inside the village before the shooting. Exhibit "22-a-1" The gunmen then alighted from their car and at gunpoint ordered Chapman to alight from the car. They shot Chapman several times in the body, while his companions identified as Maureen Hultman, and Jussi Olanileino, were seriously wounded when the gunmen sprayed the car with bullets. The gunmen escaped after the shooting. Lim said he will announce later the names of the detained suspects after their initial 128 investigation. Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit "23"), which appeared on the July 18, 1991 issue of the Manila Bulletin, was introduced by the defense in evidence as follows: Exhibit "23-a-1" The NBI said Teehankee was one of four men who blocked Chapman's car on Mahogany St. in the subdivision. Exhibit "23-a-2" Witnesses said they saw Teehankee order Chapman and his two companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of their car. Exhibit "23-a-3" They identified the car used by the suspect, a silver gray Lancer with plate No. PDW 566. They added that they saw the same car in 129 the garage of the Teehankee family. On cross-examination, Vega declared that the source of his two (a) stories was the 130 NBI and they were based on information available to the NBI at that time The prosecution recalled to the stand eyewitness VICENTE MANGUBAT as its rebuttal witness. Mangubat insisted that he was able to identify accused when he saw the latter at the Makati police station. Her reiterated that the next day, Pat. Baldado of the Makati police went to his place of work in Dasmarias Village and asked him if he was sure about the identity of the gunman. He told Baldado he was positive. Baldado then said him he would no longer require him to sign the statement he prepared for 131 him earlier. LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the NBI, was also presented as a prosecution rebuttal witness. She testified that extensive washing of hands or excessive perspiration can eliminate gunpowder nitrates lodged on skin pores of the hands. Continued washing with hot water can induce perspiration and remove nitrate residue embedded in the skin pores. Application of vinegar on the 132 hand can register the same effect. She testified that their practice at the NBI is to take the paraffin test on a suspect within 72 hours from the time of the alleged firing of a gun, during which time, any 133 possible trace of nitrate may still be found.

62
She divulged that questions have been raised regarding the reliability of the paraffin test. She related that she once attended a training in Baguio City where they tried to test the accuracy of a paraffin test. In said training, two (2) NBI agents fired a .38 revolver. One of them washed his hands. They then subjected both agents to a paraffin test using diphylamine reagent. Both yielded a negative result. Thus, she opined, the result of a paraffin test should merely be taken as a corroborative 134 evidence and evaluated together with other physical evidence. The records show that the case was set for hearing on October 29, 1992 for the presentation by the defense of sur-rebuttal evidence. However, a day before the 135 scheduled hearing, the defense filed a Constancia manifesting that it shall waive its right to present sur-rebuttal evidence, the same being unneccesary. The defense, however, declared that this is without prejudice to the presentation of its evidence in the trial proper should the same be necessary. At the hearing of October 29, 1992, the defense counsels did not appear. The prosecution moved in open court that the main cases and the petition for bail be submitted for decision in view of the absence of defense counsels who had manifested that they would no longer present their sur-rebuttal evidence. The motion was granted and the parties were given ten (10) days from receipt of the Order within 136 which to submit their simultaneous Memorandum. It does not appear that the defense objected to this Order. The records show that the defense even filed a 137 motion asking for additional time to file its Memorandum. In due time, both parties submitted their respective Memorandum. On December 22, 1992, the trial court convicted accused CLAUDIO TEEHANKEE, 138 JR. of the crimes charged. The dispositive portion of the Decision reads: WHEREFORE, premises considered, the Court hereby renders judgment: (1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Roland John Chapman, and sentencing said accused to suffer imprisonment of Reclusion perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50, 000.00), Philippine Currency, plus moderate or temperate and exemplary damages in the sum of Five Hundred Thousand Pesos (P500,000.00), Philippine Currency; (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, plus the sums of Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83), Philippine Currency, as actual damages; Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of earning capacity of the said deceased; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages; (3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages. (4) In all these three cases ordering said accused to pay all the offended parties the sum of Three Million Pesos (P3,000,000.00), Philippine Currency, as and for attorney's fees and expenses of litigation; and (5) To pay the costs in these three cases. Consequently the petition for bail is hereby denied for utter lack of merit. SO ORDERED. Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan, Jr. He filed 139 a Motion for New Trial, alleging for the first time that the trial court erred in considering as submitted for decision not only the petition for bail but also the case on the merits. He claimed that accused's right to adduce further evidence was violated. His motion for new trial was denied. Accused interposed the present appeal.
140

He contends that:

I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS THE ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO HULTMAN.

63
II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL. IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS ATTENDED BY TREACHERY. V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY. VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE MILLION PESOS (P3,000,000.00). VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING THE ACCUSED'S MOTION FOR NEW TRIAL. We shall discuss these alleged errors in seriatim. Appellant was convicted on the strength of the testimonies of three (3) eyewitnesses who positively identified him as the gunman. He vigorously assails his out-of-court identification by these eyewitnesses. He starts by trying to discredit the eyeball account of Jussi Leino, the lone surviving victim of the crimes at bar. Appellant urges: First, that Leino's identification of him outside an unoccupied house in Forbes Park was highly irregular. Second, that Leino saw his pictures on television and the newspapers before he identified him. Third, that Leino's interview at the hospital was never put in writing. Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was suppressed by the NBI. It is surmised that the sketch must have Using the totality of circumstances test, we hold that the alleged irregularities cited by appellant did not result in his misidentification nor was he denied due process. There is nothing wrong in Leino's identification of appellant in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation. Lastly, that Leino could not have remembered the face of appellant. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunman's face. His senses were also dulled by the five (5) bottles of beer he imbibed that night. It is understandable for appellant to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as "inherently 141 suspect." The causes of misidentification are known, thus: xxx xxx xxx Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities 142 and suggestive influences. (Emphasis Supplied) Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-ofcourt identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of 143 the identification procedure.

64
security reasons. The need for security even compelled that Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high 145 security risk. Leino's fear for his safety was not irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin, Chief of the Special Operations Group of the NBI, correctly testified that there is no hard and fast rule as to the place where suspects are identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of 146 the victim. Appellant cannot also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. Indeed, the records show that on July 15, 1991, while Leino was still in the hospital, he was shown three (3) pictures of different men by the investigators. He identified appellant as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of appellant or read any report relative 147 to the shooting incident. The burden is on appellant to prove that his mug shot identification was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-of-court identification by Leino. We have no reason to doubt the correctness of appellant's identification by Leino. The scene of the crime was well-lighted by a Meralco lamp post. Appellant was merely 2-3 meters away when he shot Leino. The incident happened for a full five (5) minutes. Leino had no ill-motive to falsely testify against appellant. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of appellant. When asked how sure he was that appellant was responsible for the crime, he confidently replied: "I'm very 148 sure. It could not have been somebody else." Appellant cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leino's extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his 149 throat. There is also no rule of evidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing. 150 Reliance by appellant on the case of People v. Alindog to erode Leino's credibility is misplaced. In Alindog, accused was acquitted not solely on the basis of delay in taking his statement, but mainly on the finding that the prosecution evidence was, at best, circumstancial and "suspiciosly short in important details," there being no investigation whatsoever conducted by the police. We also reject appellant's contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble appellant is not evidence. It is unmitigated guesswork.
144

We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, 151 can remember with a high degree of reliability the identity of criminals. We have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression 152 which cannot be easily erased from their memory. In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit. Appellant also assails his identification by Cadenas. He contends that Cadenas did not witness the crime. He stresses that when the Dasmarias security force and the Makati police conducted an on-the-spot investigation on the day of the incident, neither came across Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent interviewed Cadenas and asked if he saw the incident. He merely replied: "Nakita ko pero patay na." He did not volunteer information to anyone as to what he supposedly witnessed. That same night, the NBI subpoenaed him for investigation. He went to the NBI the next morning. It was only the next day, July 16, 1991, that he gave his statement to the NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI tortured him. We reject appellant's submission. Cadenas' initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial. He related that he feared for his and his family's safety. His fear was not imaginary. He saw with his own eyes the senseless violence perpetrated by appellant. He knew appellant belonged to an influential family. It was only after consistent prodding and assurance of protection from NBI officials that he agreed to cooperate with the 153 authorities. The Court has taken judicial notice of the natural reticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court has not considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as 154 an indicium of credibility. It will not depart from this ruling. Appellant's assertion that Cadenas was tortured by the NBI is not borne out by the records. Supposedly, Cadenas passed on to his superior, a certain Ponferrada, information about his torture. The allegation is an out and out hearsay as Ponferrada was not presented in the witness stand. Cadenas himself stoutly denied this allegation of torture. The claim of torture is also belied by the fact that Cadenas' entire family was allowed to stay with him at the NBI headquarters and likewise extended 155 protection. Appellant then discredits his identification by VICENTE MANGUBAT, citing the testimony of defense witness Pat. James Baldado of the Makati Police. Pat. Baldado testified that Mangubat failed to identify appellant as the gunman the first time he was brought to the Makati police station. Mangubat, however, belied Baldado's story. He

65
declared he positively identified appellant as the gunman at the Makati police station. He averred that the day after he identified appellant, Pat. Baldado returned to his place of work in Dasmarias and asked him again whether appellant was the gunman. Again, he replied in the affirmative. Forthwith, Pat. Baldado said he would 156 no longer ask him to sign a statement (Exhibit "HHH") earlier prepared by Baldado. In said statement previously prepared by Baldado, Mangubat was supposed to state that appellant, whom he saw at the Makati police station, was NOT the gunman. We give more weight to the testimony of Mangubat. We find nothing in the records to suspect that Mangubat would perjure himself. The Court cannot be as generous to Pat. Baldado of the Makati Police. Mr. Hultman has proved that the Makati police, including some of its jail officials, gave appellant favored treatment while in their custody. The anomaly triggered nothing less than a congressional investigation. II We now rule on appellant's second assignment of error, i.e., that the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, he claims the trial court erred in citing in its Decision his involvement in previous 157 shooting incidents for this contravenes the rule that evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmarias Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates. Appellant points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b) JOSE MONTAO, another resident of Dasmarias Village, who had a white Lancer car, also bearing license plate number 566. We reject appellant's thesis as bereft of merit. Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios acta when he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting appellant. As aforestated, the appellant was convicted mainly because of his identification by three (3) eyewitnesses with high credibility. The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate appellant. The omitted comparison cannot nullify the evidentiary value of the positive identification of appellant. There is also little to the contention of appellant that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmarias Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of appellant. Clearly, the car was towed not because it was not in running condition. Even appellant's evidence show that said car could run. After its repairs, appellant's son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmarias Village, in Makati, where it was 162 parked. Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said 163 the car was somewhat white ("medyo puti"); Mangubat declared the car was 164 165 white; and Cadenas testified it was silver metallic gray. These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence. Appellant's attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. Appellant cites a newspaper Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a 158 new trial." The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been 159 occasioned." American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the 160 parties." We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly 161 admitted evidence against the prejudiced party.

66
item where Maureen was allegedly overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy." The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak 167 Tagalog, and she addressed Anders Hultman as "Papa," not "Daddy." Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders 168 Hultman was NOT the gunman. Leino is a reliable witness. Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these 169 substances are present in the products of combustion of tobacco." In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction 170 of a strong wind is against the gunman at the time of firing. In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been 171 172 removed by washing or perspiration. In the Report on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting. III In his third assigned error, appellant blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for high-ranking government officials avidly followed the developments in the case (as no less than Vice-President Joseph Estrada and then Department of Justice Secretary Franklin Drilon attended some of the hearings and, President Corazon Aquino even visited victim Maureen Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. He claims there were placards displayed during the hearing of the cases, spectators inside the courtroom clapped their hands and converted the proceedings into a carnival. In another instance, he was allegedly given the "finger sign" by several young people while he was leaving the courtroom on his way back to his cell.
166

We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes 173 to extensive public scrutiny and criticism." Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity . . . Why could not the jury law be so altered as to give men of brains 174 and honesty an equal chance with fools and miscreants?" Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the 175 case. In Martelino, et al. v. Alejandro, et a1., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. We have minutely examined the transcripts of the proceedings and they do not disclose that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct

67
inside the courtroom during the trial of the case at bar. The transcripts reveal the following: 1. At the August 14, 1991 hearing, the defense counsel called the attention of the court to the visible display of a placard inside the courtroom. Acting on the manifestation, the trial judge immediately directed that the placard be hidden. Only then did he order the start 176 of the arraignment of accused. On the same hearing, the defense counsel asked for the exclusion of the media after they had enough opportunity to take pictures. The court granted defense's request, noting that the courtroom was 177 also too crowded. 2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court 178 regarding media coverage of the trial proceedings. Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat 179 it. 3. At the hearing of July 14, 1992, the parties again argued on the coverage of the trial by the press. The defense alleged that the media coverage will constitute mistrial and deny accused's constitutional right to due process. It invoked the provision in the Rules of Court which allows the accused to exclude everybody in the courtroom, except the organic personnel. The prosecutor, however, argued that exclusion of the public can be ordered only in prosecution of private offenses and does not apply to murder cases. He added that the public is entitled to observe and witness trial of public offenses. He quoted the U.S. case of Sheppard v. 180 Maxwell where it was held: "A responsible press is always regarded as the handmaiden of effective judicial administration especially in the criminal field. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, the prosecutors and judicial processes to extensive public scrutiny and criticism. What transpires in the courtrooms public property." The trial judge then ruled that the media should be given a chance to cover the proceedings before the trial proper but, thereafter, he prohibited them from taking pictures during the trial. They were allowed to remain inside the courtroom but were ordered to desist from taking live coverage of 181 the proceedings. 4. At the August 14, 1992 hearing, before the hearing began, the trial judge gave the media two (2) minutes to take video coverage 182 and no more. Trial then ensued. 5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly admonished to remain silent, to 183 quietly observe the proceedings and just take down notes. 6 On September 10, 1992 before the start of the afternoon session, the judge admonished the media people present in the courtroom 184 to stop taking pictures. Parenthetically, appellant should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than seven (7) newspaper reporters and relied heavily on selected portions of their reports for his defense. The defense's documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time. Finally, it would not be amiss to stress that on May 29, 1992, the trial judge voluntarily inhibited himself from further hearing the case at bar to assuage appellant's suspicion 185 of bias and partiality. However, upon elevation of the trial judge's voluntary Order of Inhibition to this Court, we directed the trial judge to proceed with the trial to speed 186 up the administration of justice. We found nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge. IV In his fourth assigned error, appellant claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. Appellant asserts that mere suddenness of attack does not prove treachery. The three (3) Informations charged appellant with having committed the crimes at bar with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to appellant and vice-versa It, however, appreciated the presence of the qualifying circumstance of treachery.

68
We hold that the prosecution failed to prove treachery in the killing of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, appellant suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, appellant pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. "Why did you shoot me?" was all Chapman could utter. Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that appellant consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. It appears to us that appellant acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of appellant rather than a deliberate act of will. We have consistently ruled that mere suddenness of the attack on the victim would not, 187 by itself, constitute treachery. Hence, absent any qualifying circumstance, appellant should only be held liable for Homicide for the shooting and killing of Chapman. As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned. V and VI We come now to the civil liability imposed against appellant. Appellant posits that the awards of moral and exemplary damages and for loss of earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino were exorbitant. He likewise claims that the trial court's award of attorney's fees was excessive. In its Decision, the trial court awarded to Jussi Leino end the heirs of victims Hultman and Chapman the following damages: 1. For the murder of Roland John Chapman, appellant was sentenced to pay the heirs of the deceased the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for death and the sum of Five Hundred Thousand Pesos (P500,000.00) as moderate or temperate and exemplary damages. 2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages. 3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay: Thirty thousand pesos (P30,000.00) as indemnity for the injury; One Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos of U.S.$55,600.00, both as actual damages; an amount equivalent in Philippine pesos of U.S.$40,000.00, for loss of earning capacity of Jussi Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages. 4. In all three cases, appellant was also ordered to pay each of the offended parties the sum of One Million Pesos (or a total of three million pesos) for attorney's fees and expenses of litigation. 5. Costs of litigation.
188

The early case of Heirs of Raymundo Castro v. Bustos discussed in detail the matter of damages recoverable in case of death arising from a felony, thus: When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, ". . . subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code) Thus, "every person criminally liable for a felony is also civilly liable." (Art. 100, Revised Penal Code). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and said consequential damages in turn include ". . . those suffered by his family or by a third person by reason of the crime." (Art. 107, id.) Since these

189

69
provisions are subject, however, as above indicated, to certain provisions of the Civil Code, (w)e will now turn to said provisions. The general rule in the Civil Code is that: In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Art. 2202) When, however, the crime committed involves death, there is Art. 2206 which provides thus: The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the descendant's inheritance by law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v. Pantoja, G.R. No. L-18793, promulgated October 11, 1968 , and it must be stressed that this amount, as well as the amount of moral damages, may be adjudicated even without proof of pecuniary loss, the assessment of the moral damages being "left to the discretion of the court, according to the circumstances of each case." (Art. 2216) Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid to the offended party." (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the court will decide whether or not they should be given. (Art. 2233) In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art. 2206) and is cases wherein exemplary damages are awarded precisely because of the attendance of aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances," (Art. 2204) "but the party suffering the loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be recovered only when exemplary damages have been granted (Art. 2208, par. 1) or . . . when there is a separate civil action. Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages: 1. As indemnity for the death of the victim of the offense P12,000.00 (now P50,000.00), without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. 2. As indemnity for loss of earning capacity of the deceased an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the
190

70
accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court. 3. As moral damages for mental anguish, an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased. 4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, an amount to be fixed in the discretion of the court, the same to be considered separate from fines. 5. As attorney's fees and expenses of litigation, the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded). 6. Interests in the proper cases. 7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 191 and 4 above, for obvious reasons. We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law. Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless. We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness. The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the 192 New Civil Code. It states: Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition: xxx xxx xxx (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman. We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN. Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her. We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides: xxx xxx xxx (2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; xxx xxx xxx (5) When only the adopters survive, they shall inherit the entire estate;

71
It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis. Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced. We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twentythree (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital 193 bills. Maureen never regained consciousness until her demise on October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable. Moreover, we find that the grant of exemplary damages is called for by the 194 circumstances of the case. Under Article 2229 of the Civil Code, in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender. In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood, for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new 195 Civil Code, we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against appellant for the death of Maureen Hultman. We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO. From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to 196 mind. Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity. He had to relocate his 197 entire family to Europe where he felt they would be safe. Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable. As in the case of Hultman, since the shooting of Leino was committed with treachery 198 and pursuant to Article 2229 of the New Civil Code, appellant is additionally adjudged liable for the payment to Leino of Two Million (P2,000,000.00) pesos as exemplary damages. We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN. To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga 199 v. Laguna Tayabas Bus Company, we awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies. In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to justify a reasonable assumption that Leino would have been

72
able to finish his studies at the Manila Aero Club and ultimately become a professional pilot. We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records. In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus: ATTY. VINLUAN: Q Mr. Witness, if Maureen would not been (sic) shot and she continued her studies, what professional career would she (sic) like to pursue considering her interests and inclinations? WITNESS: A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate. ATTY. VINLUAN: Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned? A. Not less than Two Thousand Dollars a 200 month. Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden. In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one 201 hundred eighteen pesos (P118.00). Allowing for reasonable and necessary expenses in the amount of P19,800.00, her net income per annum would amount to 202 203 P26,859.17. Hence, using the formula repeatedly adopted by this Court: (2/3 x [80 age of victim at time of death]) x a reasonable portion of the net income which 204 would have been received by the heirs as support, we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57). It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the 205 basis of the life expectancy of the deceased, and not the beneficiary. Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant. We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight (68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the 206 trial. Given these circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable. VII In his last assigned error, appellant urges that the hearings conducted on the cases, 207 where no less than forty-one (41) witnesses were presented by the parties, were merely hearings on the petition for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence. Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for

73
bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991. Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant. After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on 208 August 14, 1991. The prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel 209 agreed. As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the 210 defense. Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz: 1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages. These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail. 2. After the prosecution and the defense rested their cases, the trial 211 court issued an Order directing the parties to submit their Memorandum, after which "the main case as well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present. 3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail. 4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor. All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for new 212 trial, through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his 213 alibi. We note that in his motion for new trial, appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court. IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus: (1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages. (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her

74
death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages. (3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor as minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred SixtyNine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages. (4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and (5) To pay the costs in all three (3) cases. SO ORDERED.

75

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21741 January 25, 1924

could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays. Once before, as intimidated, the petitioner had to come to us for redress of her grievances. We thought then we had pointed out the way for the parties. But it seems not. Once again therefore and finally, we hope, we propose to do all in our power to assist this poor woman to obtain justice. On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law. We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of First Instance, Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No. 21236.1 The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further attempts to prosecute the accused pursuant to informations growing out of the facts set forth in previous informations, and the charges now pending before the justice of the peace of Lucena, Tayabas, are ordered dismissed, with cost against the respondent fiscal. We append to our order the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of record, will take such administrative action as to him seems proper to the end that incidents of this character may not recur. So ordered.

AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting provincial fiscal of Tayabas, and FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents. Godofredo Reyes for petitioner. Attorney-General Villa-Real for respondents. MALCOLM, J.: Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to no less than five informations for various crimes and misdemeanors, has appeared with her witnesses and counsel at hearings no less than on eight different occasions only to see the cause postponed, has twice been required to come to the Supreme Court for protection, and now, after the passage of more than one year from the time when the first information was filed, seems as far away from a definite resolution of her troubles as she was when originally charged. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information,

76

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-64086 March 15, 1990 PETER PAUL ABALLE Y MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE JUDGE BERNARDO V. SALUDARES, respondents. Faustino C. Fanlo counsel de oficio for petitioner.

At daybreak of the following day, November 8, 1980, acting on information furnished by the victim's father, a police team headed by Sergeant Herminigildo Marante sought the accused Peter Paul Aballe for questioning. They found him just as he was coming out of the communal bathroom in Saypon and wearing what appeared to be a bloodstained T-shirt. Upon seeing Sgt. Marante, the accused without anyone asking him, orally admitted that he killed Jennie Banguis. Sgt. Marante subsequently brought him to the Toril police station for interrogation. While under custodial investigation, Aballe, 17 years old, a school dropout (he finished second year high school) and next door neighbor of the victim, brought the police to his house and pointed to them the pot at the "bangera" where he had concealed the death weapon which was a four-inch kitchen 4 knife. Also taken from Aballe was the bloodstained red and white striped T5 shirt which he claimed he wore during the commission of the crime. Aballe also made an extrajudicial confession admitting his guilt in killing Jennie 6 while under the influence of liquor and marijuana. The sworn affidavit in the main reads as follows: Preliminary Question: Mr. Aballe, you are under investigation in connection with an offense. Any statement you may give may be use (sic) for or against you in court in the future. Under our New Constitution, you have the right to remain silent and the right to the presence and assistance of a counsel of your own choice, do you understand? Do you waive all these rights? Answer: Yes sir. Q After apprising you of your rights under our new Constitution, do you still wish to proceed with this investigation? A Yes sir. Q Are you willing to waive all these rights? A Yes sir. . . . Q If so will you please state your name and other personal circumstances. A Peter Paul Aballe y Mendoza, 17 years old, single, a high school drop out, jobless and presently residing at Saypon, Crossing Bayabas, Toril, Davao City.

FERNAN, C.J.: This is a direct appeal from the decision of the then Court of First Instance of Davao City, Branch II, finding petitioner Peter Paul Aballe y Mendoza guilty of homicide and sentencing him to an indeterminate penalty of eight (8) years and one (1) day of prision mayor to sixteen (16) years of reclusion temporal with all the accessory penalties and ordering him to indemnify the heirs of the deceased Jennie Banguis y Aquino in the amount of P12,000.00 1 and to pay the amount of P5,000.00 as actual and compensatory damages. At around seven o'clock in the evening of November 7, 1980 in Saypon, Toril, Davao City, Quirino Banguis, a 42-year old driver, attended a birthday party at the residence of his neighbor Aguilles Mora. He brought along his wife and other children, leaving his 12-year-old daughter Jennie alone in their 2 house. Upon their return at around 8:30 that same night, Quirino found Jennie in the sala, lying prostrate, bathed in her own blood with multiple wounds on different parts of her body. There were no eyewitnesses to the bizarre killing. The postmortem report disclosed that Jennie sustained a total of thirty-two (32) stab wounds. Cause of death was attributed to hemorrhage secondary 3 to multiple stab wounds.

77
Q Are you aware on why you are in this Office? A I am here sir in connection with the death of a minor JENNY BANGUIS Y AQUINO, our neighbor in the night of November 7, 1980. Q What do you know about the death of the said JENNY BANGUIS? A I was the one who killed her sir while she was sleeping alone at their residence by stabbing her with the use of a kitchen knife for several times while I was under the influence of liquor and marijuana at about 6:30 P.M. November 7, 1980. Q Where did you get the said marijuana you were referring to? A From one alias Dodong Flores who sold it to me for Fifteen pesos (P15.00) per match box. Q Showing you this kitchen knife and this blooded (sic) T-shirt, (Investigator showing the subject a kitchen knife measuring about (4) inches in length with a wooden handle and a striped T-shirt with blood stains) can you identify this (sic)? A That is the very same knife sir I used in stabbing JENNY BANGUlS and that was the T-shirt I wore during the incident. Q Do you have any standing grudge with the said JENNY? A No sir, for I only stabbed her when she slapped me after I woke her up at their residence where she was sleeping alone. Q You mean to say that you just stabbed her because she slapped you when you woke her up? A Yes sir, and I was not at my right sense for I was under influence of liquor and the marijuana I took. Q After you have stabbed her, where did you go? A I went to watch television at the residence of one Alias Ma at Saypon, Crossing Bayabas, Toril, Davao City and I only knew that the said JENNY BANGUIS was dead the morning after and I was apprehended by the Police and was brought to this office. Q I have no more to ask, do you have something more to say in investigation? A No more sir. Q Are you willing to affix your signature in this statement signifying veracity to the best of your knowledge and belief ? A Yes sir, . . . .
7

Whereupon, an information was filed against Aballe, charging him with 8 homicide penalized under Article 249 of the Revised Penal Code. At his 9 arraignment on April 13, 1981, he pleaded not guilty. He also disavowed his extrajudicial confession on the ground that it was obtained through coercion and in the absence of counsel. Aballe's repudiation of his earlier confession notwithstanding, the trial court 10 convicted the accused of the crime of homicide. In this petition for review on certiorari, Aballe contends that the trial court erred in giving full weight to his extrajudicial confession taken during custodial investigation and in imposing a penalty which was not in accordance with law. The argument that Aballe's extrajudicial admission should have been disregarded by the lower court for having been obtained in violation of Aballe's constitutional rights is well taken. Throughout the custodial interrogation, the accused's parents and relatives were almost always around but at no stage of the entire proceedings was it shown that the youthful offender was ever represented by counsel. Since the execution of the 11 extrajudicial statement was admittedly made in the absence of counsel, whether de oficio or de parte, and the waiver of counsel was not made with the assistance of counsel as mandated by the provisions of Section 20, Article IV of the 1973 Constitution, said confession should have been 12 discarded by the lower court. Indeed, equally inadmissible is the kitchen knife recovered from Aballe after his capture and after the police had started to question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirmed interrogation and must consequently be disallowed. 14 The bloodstained T-shirt, however, is admissible, being in the nature of an 15 evidence in plain view which an arresting officer may take and introduce in evidence. The prevailing rule in this jurisdiction is that "an officer making an arrest may take from the person arrested any money or property found upon
13

78
his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the 16 cause . . ." But even with the exclusion of the extrajudicial confession and the fatal weapon we agree with the trial court that the guilt of the accused has been established beyond reasonable doubt. It is well to note that even before the taking of the extrajudicial confession, the accused, upon being picked up in the morning of November 8, 1980 as he was coming out of the communal bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to positively link the accused to the aforesaid killing. His testimony reads in part: Q: In the morning of November 8, 1980, where were you at that time? A: At the police station. Q: And could you tell us of any unusual incident? A: The father of the deceased came to the office and he told us that he suspected somebody whom he observed to be suspicious so we responded immediately to the call of assistance of the father and went back to the scene of the incident and asked for the whereabouts of the person whom he confided to us the name. Q: And what did you find out? A: Somebody told us that the subject was still in a common bathroom so I posted myself outside the bathroom. Q: This subject you are referring to Sgt. Marante, who is he? A: Peter Paul Aballe. xxx xxx xxx Q: And after finding out that . . . ah, by the way, where was the bathroom? A: It was a common bathroom located just a few meters away from infront of his house. xxx xxx xxx Q: And when you found out that the subject was still in the bathroom what did you do? A: I waited until he came out. Q: And did that person come outside? A: Yes, sir. Q: Is he the accused? A: Yes, sir. Q: What happened next? A: I saw bloodstains in his T-shirt and I pointed to the bloodstain and he tried to cover it and I notice again that he had a swollen knuckle and I asked him what is this and then he broke down, held my hand, knelt down and confessed that he was the one who killed the victim and I said you stop that because whatever you will say now might led (sic) you to jail and he continued and so I asked him where is (sic) his parents and the mother was nowhere to be found and I asked for his relatives and they accompanied him to the police station. At the police station the mother later arrived and I told her that your son confessed to the commission of the crime. Q: And in the station what did you do per your procedure? A: As I was appraising (sic) him or asking him in front of her (sic) mother I still repeated the same thing. I appraised (sic) him if he needs a lawyer and he said he does not need a lawyer because he just wanted to tell the truth. And in the course, I called the desk officer to record what he mentioned as to the commission of the crime. Q: Aside from the admission of the accused in this case what other physical objects of the crime were you able to recover?

79
A: I was able to recover the fatal weapon, the knife. Q: Where? A: From the house of the accused. Q: Who gave it to you? A: The accused himself. Q: What else? A: The T-shirt with bloodstain. Q: Where is the knife now? A: In the possession of the desk officer in Toril. Q: And also the T-shirt? A: Yes sir. Q: So after interviewing the accused, what other procedure followed? A: The accused was indorsed to the office investigator to take down the statement of said accused. xxx xxx xxx Q: When did you apprehend the accused, while he was inside or already outside the bathroom? A: He was coming out. xxx xxx xxx Q: What was he wearing? A: T-shirt with bloodstain on the breast that is why I asked him immediately what is this and I pointed to the bloodstain. Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having 20 slain the victim. The penalty decreed by the lower court must however be modified. The killing of Jennie is mitigated by minority (the accused was born on June 29, 1963), but it is aggravated by dwelling since Jennie was fatally stabbed while in her parents' house, a fact overlooked by the trial court. Not having been Q: Mr. Marante you immediately asked or rather you informed the accused immediately of the death of Jennie Banguis after getting out of the bathroom? A: He confessed to me. Q: You just answer the question, did you inform him? A: No, I did not. Q: So without informing him about it as you said he immediately confessed. A: Yes, sir. Q: At that time were you in your police uniform? A: No, I was in civilian. Q: Without even introducing yourself at that time is was only after bringing the accused to the police station did he know that you were a Deputy District Commander of the police in Toril? A: Probably yes.
17

"The declaration of an accused expressly acknowledging his guilt of the 18 offenses charged may be given in evidence against him." The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. (23 C.J.S. 19 196)

80
alleged in the information, dwelling is considered generic and cannot therefore offset minority which is a privileged mitigating circumstance. The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. For being only 17 years, 4 months and 8 days of age at the time of the commission of the offense, the penalty next lower than that prescribed by law shall be imposed on the accused but always in the proper period. With the aggravating circumstance of dwelling, the penalty is imposable in its maximum period or from ten (10) years and one (1) day to 21 twelve (12) years or prision mayor maximum. Applying the Indeterminate Sentence Law, the range of the penalty next lower is from six (6) months and one (1) day to six (6) years of prision correccional. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED with the penalty modified to an indeterminate sentence of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. The civil indemnity is increased to P30,000.00 in accordance with recent jurisprudence. Costs against the accused Peter Paul Aballe. SO ORDERED.