RICARDO DE LA CAMARA, petitioner, vs. HON.

MANUEL LOPEZ ENAGE, Presiding Judge of the Court of First Instance of Agusan del Norte and Butuan City (Branch II), respondents. Demosthenes Mediante, Puro Valdez, Francisco Fabe, Federico del Ruerto and Pelaez, Jalandoni and Jamer for petitioner. Hon. Manuel Lopez Enage in his own behalf. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BAIL; A MATTER OF RIGHT BEFORE CONVICTION. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. 2. ID.; ID.; ID.; BAIL RENDERED NUGATORY WHERE SUM IS EXCESSIVE. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there where no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest American decision, "the sole permissible function of money bail is to assure the accused's presence at trial, and declared that 'bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eight Amendment.'" 3. ID.; ID.; ID.; FIXED AT P1,195,200 FOR TWO OFFENSES, CLEARLY EXCESSIVE. Nothing can be clearer, therefore, than that the challenged order of August 10, 1790 fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for the information charging multiple murder, there being fourteen victims, and the sum of P335,200.00 for the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of this constitutional provision. Under the circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recommend the total sum of P40,000.00 for the two offenses. 4. ID.; ID.; ID.; GUIDELINES IN FIXING AMOUNT THEREOF. The guidelines in the fixing of bail was there summarized, in the opinion of Justice Sanchez, as follows: "(1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds, (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases." Respondent Judge, however, did ignore this decisive consideration appearing at the end of the above opinion: "Discretion, indeed, is with the court called upon to rule on the question of bail. We must

stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." [G.R. No. 79269. June 5, 1991.] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived.

SYLLABUS 1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO BAIL; GOVERNED BY THE LAW AT THE TIME THE COURT RESOLVED THE PETITION FOR BAIL. At the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. 2. ID.; ID.; ABSOLUTE WHEN THE OFFENSE CHARGED IS PUNISHABLE BY ANY PENALTY LOWER THAN RECLUSION PERPETUA. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution and provides thus: Section 3, Rule 114 of the Rules of Court, as amended. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute. 3. ID.; ID.; ID.; CANNOT BE DENIED EVEN IF THE SECURITY OF THE STATE SO REQUIRES; PEOPLE VS. HERNANDEZ, ET AL. (99 PHIL. 515) CITED. And so, in a similar case for rebellion, People vs. Hernandez,

et al., 99 Phil 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom." 4. ID.; ID.; ID.; SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: "The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection." 5. ID.; ID.; SUBJECT TO THE SOUND DISCRETION OF THE COURT IF THE OFFENSE CHARGED IS PUNISHABLE BY RECLUSION PERPETUA. If the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. (Teehankee vs. Director of Prisons [76 Phil. 756, 770] But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In the same case, We held: "The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: 'The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!" 6. ID.; ID.; RIGHT OF PROSECUTION TO PRESENT EVIDENCE TO DENY THEREOF; WHEN AVAILABLE. The prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail.

7. ID.; ID. ; GUIDELINES IN FIXING BAILBOND. We agree with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: "Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . ." 8. ID.; ID.; SUBJECT TO THE LIMITATION THAT PERSON APPLYING FOR ADMISSION TO BAIL SHOULD BE IN THE CUSTODY OF THE LAW; APPLICABLE IN CASE AT BAR. He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." When the parties in G. R. No. 76009 stipulated that: "b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person." they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. 9. ID.; ID.; MAY BE WAIVED BY THE ACCUSED. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be heard. Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states : ". . . These rights cannot be waived except in writing and in the presence of counsel." This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or

manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the Constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. 10. CRIMINAL LAW; REBELLION; IMPOSABLE PENALTY AS AMENDED BY R. A. NO. 6968. It must be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: "Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua." 11. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. Republic Act No. 6968 cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." 12. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED AND PURPOSE. In defining bail as: ". . . the security given for the release of a person in custody of the law, . . ." Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 13. CIVIL LAW; WAIVER OF RIGHT; CONSTRUED. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 14. ID.; ID.; RULE. As to what rights and privileges may be waived, the authority is settled: ". . . the doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver' covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone

has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver." REYNALDO C. VILLASEOR, petitioner, vs. HON. MAXIMO ABAO, Judge of the Court of First Instance of Marinduque, and the PROVINCIAL FISCAL OF MARINDUQUE, respondents. Maximo Abao for respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL. In bail fixing, "the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of his flight to avoid punishment." 2. ID.; ID.; ID.; BAIL, EXCESSIVENESS OF. Here, petitioner is charged with a capital offense, direct assault upon an agent of a person in authority with murder. HELD: Whereas the reasonableness of Circular 47 of the Department of Justice, series of 1946, reiterated by Circular 48, series of 1963, which directs prosecuting attorneys to recommend bail at the rate of P2,000 per year of imprisonment corresponding to the medium period of the penalty prescribed for the offense charged, has already received this Court's imprimatur in one case, we are unprepared to downgrade this method of computation, what with compound of reduced peso value and the aggravated crime climate. We see no discernible abuse of discretion, given the facts and the law, when respondent Judge fixed petitioner's bail at P60,000. 3. ID.; ID.; ID.; SURETIES; QUALIFICATIONS OF; RULES OF COURT; RULE 114, SEC. 9. Where the respondent Judge required that the property bond be posted only by "residents of the province of Marinduque actually staying therein," in apparent collision with Sec. 9 of Rule 114 of the Rules of Court which provides that each of the sureties "must be a resident householder or freeholder within the Philippines," we read this directive to mean that it is but a minimum requirement. It is not intended to tie up the hands of a Judge to approve bail so long as it is offered by a resident householder or freeholder within the Philippines. It is to be treated as cumulative, rather than exclusive, of the inherent power of the courts to determine whether bail proffered should be accepted, for, in principle, a court has broad powers essential to its judicial function. And where petitioner failed to aver that the requirement that his bondsmen be actual residents of the province would cause him prejudice, such failure weighs heavily against him as it is not shown that, if error there was on the part of the respondent Judge, it was a prejudicial error calling for correction.

4. ID.; ID.; ID.; DISCRETION OF JUDGE. Discretion, indeed, is with the court called upon to rule on the question of bail. However, where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. FERNANDO, J., concurring: 1. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO BAIL; SUPREME COURT TO EXERCISE ITS SUPERVISORY POWERS SO AS NOT TO RENDER THE RIGHT NUGATORY. I join the Court in the decision arrived at, in view of the categorical assurance in its opinion expressed thus: "We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. 2. ID.; ID.; ID.; CONSTITUTIONAL MANDATE MUST BE FOLLOWED. It must not be forgotten that the Constitution stands for the proposition that public welfare is best served if the rights of an accused therein guaranteed are accorded due respect. As in so many cases in public law, there is here a need for the reconciliation of ends desirable in themselves, which, at times, may come into conflict and collision. With all due allowance, however, for the undeniable necessity for more effective law enforcement to deter rampant criminality and with full recognition of what Justice Cardozo correctly stressed, that "justice though due to the accused is due to the accuser also," with the courts then, as he stressed, having to keep the balance true, the imperative mandate of the Bill of Rights must be followed to the letter. 3. ID.; ID.; ID.; PROPERTY BOND REQUIRED IN CASE AT BAR NOT EXCESSIVE. What removes the taint of constitutional infirmity is that the bail in this case is not in cash, but a property bond. Considering the rapid increase in value of real estate and the undoubted fact that under the prevailing family relationship, embracing as it does not only the immediate household unit, but distant relations, the probability of an accused languishing in detention even if ultimately proven innocent, is not as great as .otherwise it might have been. It is for that reason that I do not deem the amount of P60,000.00 here imposed excessive and thus violative of a constitutional prescription. SECOND DIVISION [G.R. No. 129297. March 17, 2000.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMULO SAN DIEGO y ESPIRITU, accusedappellant. The Solicitor General for plaintiff-appellee. Tagle-Chua Cruz & Aquino for accused-appellant.

SYNOPSIS Accused-appellant Romulo San Diego appealed the decision of the Regional Trial Court, Branch 80, Tanay, Rizal, finding him guilty of rape and sentencing him to suffer the penalty of reclusion perpetua. Petitioner contended that the trial court seriously erred in convicting him on the basis of the incredible and conflicting testimonies of the prosecution witnesses and in disregarding the clear, convincing and well-corroborated testimony of the accused. IDSEAH The Supreme Court found the appeal meritorious and acquitted accused-appellant of the crime charged. The element of force and intimidation was not sufficiently established in the case at bar. The Court cannot imagine how appellant could have undressed the victim, kissed her all over her body, fondled her private parts, inserted his penis into her vagina, and mashed her breasts while all the time pointing a knife at her side. The duration of the alleged rape three hours during which, the victim said, appellant kissed her all over the body before inserting his penis into her vagina, tended to show that appellant and the victim engaged in consensual sex rather than that she had merely been forced into the act. The test of sufficiency of force or intimidation in rape, is whether it produces a reasonable fear in the victim that if she resists or does not give in to the sexual demands of the accused, the threat would be carried out. Assuming that a knife was really poked at the victim's side, it could not have been held by the appellant for the entire three-hour period that she was being raped. The victim could have done something during that time to fight off appellant but she did not do anything, not even an attempt to escape. SYLLABUS 1. CRIMINAL LAW; RAPE; ELEMENT OF FORCE AND INTIMIDATION; NOT ESTABLISHED IN CASE AT BAR. Ailene alleges that force and intimidation were used against her by accused-appellant. However, her account of how the rape took place and her demeanor during the one month and a half that she was allegedly detained by accused-appellant is not credible. We cannot imagine how accused-appellant could have undressed her, kissed her all over her body, fondled her private parts, insert his penis into her vagina, and mashed her breasts while all the time pointing a knife at her side. The duration of the alleged rape three hours during which, Ailene said, accused-appellant kissed her all over the body before inserting his penis into her vagina, tends to show that accused-appellant and complainant engaged in consensual sex rather than that complainant had merely been forced into the act. Indeed, we have ruled that the test of sufficiency of force or intimidation in rape is whether it produces a reasonable fear in the victim that if she resists or does not give in to the sexual demands of the accused, the threat would be carried out. Assuming that a knife was really poked at Ailene's side, it could not have been held by the accused-appellant for the entire three-hour period that she was being raped. Ailene could have done something during that time to fight off accused-appellant. Besides, we cannot understand how Ailene could have been frightened by the warning, "May kukunin ako sa inyo," which was allegedly uttered by accused-appellant while he was raping her. If at all, threats of this kind are generally made by rapists to prevent their victim from reporting the rape rather than to force submission to their demands.

2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; VICTIM'S TESTIMONY FAILED TO ENGENDER THAT WELL-FOUNDED BELIEF THAT ACCUSED-APPELLANT COMMITTED THE CRIME. The factual findings of the trial court are generally accorded great respect unless it is shown that certain facts of value have been plainly overlooked. In the case at bar, the trial court relied on Ailene's testimony, which, to our mind, failed to engender that well-founded belief that accused-appellant committed the crime. In rape cases, courts are guided by the following considerations: (1) An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person, though innocent, to disprove the same; 2) In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) The evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. Applying these guidelines, we hold that Ailene's testimony can not pass muster, especially given the requirement that the prosecution must prove beyond all reasonable doubt that accused-appellant is guilty. CAIaHS Comendador vs De villa These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident. The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 95020, Ltc. Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No. 14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No. 14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On August 22, 1990, the trial court rendered judgment inter alia. (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court-Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14 Franklin Brawner and Arsenio Tecson. On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpus on the ground that they were being detained in Camp Crame without charges. The

petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist." The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on 'provisional' bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. [G.R. No. 122770. January 16, 1998.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO AGBAYANI y MENDOZA, accusedappellant. The Solicitor General for plaintiff-appellee. Froilan V. Siobal for accused-appellant. SYNOPSIS Eduardo Agbayani was sentenced to death by the Regional Trial Court, Branch 106 of Quezon City for raping her 14-year old daughter, Eden. The conviction was based on the testimonies of prosecution witnesses, Dr. Florante Baltazar, the victim and SPO1 Salvador Buenviaje. ECcTaS The defense, on the other hand, interpose the defense of denial and alibi, and one of the evidence presented was the affidavit of desistance of the victim. However, it was retracted by the victim during

the presentation of the rebuttal evidence claiming that she was only pressured by her mother and sister to sign it. Hence, in this appeal the appellant questioned the credibility of the testimony of the victim in view of her execution of the affidavit of desistance. The Court ruled that affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court, and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. cIHCST The decision of the trial court is affirmed. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; PRESUMPTION OF REGULAR PERFORMANCE OFFICIAL DUTY; TRIAL COURT PRESUMED TO HAVE COMPLIED WITH ITS DUTY TO INFORM ACCUSED OF HIS RIGHT TO COUNSEL. The trial court's order of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 of Rule 116 of the Rules of Court; namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. 2. ID.; ID.; ID.; ID.; ID.; FAILURE OF THE RECORD TO DISCLOSE AFFIRMATIVELY THAT TRIAL JUDGE ADVISED ACCUSED OF HIS RIGHT TO COUNSEL, NOT SUFFICIENT TO REVERSE CONVICTION. It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. IDTSaC 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; RIGHT TO QUESTION FAILURE OF TRIAL COURT TO INFORM ACCUSED OF RIGHT TO COUNSEL DEEMED WAIVED BY HIS CONSENT TO BE ASSISTED BY TWO (2) COUNSEL DE OFICIO. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the

first witness for the prosecution, Dr. Florante Baltazar. Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform him of his right to counsel. 4. REMEDIAL LAW; COURTS; TRIAL COURTS' COMPLIANCE WITH THEIR PRE-ARRAIGNMENT DUTIES MUST APPEAR ON RECORD. We take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. 5. ID.; CRIMINAL PROCEDURE; TWO (2) DAYS TIME TO PREPARE FOR TRIAL MUST BE EXPRESSLY DEMANDED, OTHERWISE, IT IS DEEMED WAIVED. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial Section 9 of Rule 116 of the Rules of Court reads: SEC. 9. Time to prepare for trial After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. 6. ID.; EVIDENCE; CREDIBILITY; THIS COURT WILL NOT GENERALLY INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT IN PASSING UPON CREDIBILITY OF OPPOSING WITNESSES. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked, she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt 7. ID.; ID.; ID.; MOTIVE OF 14-YEAR OLD DAUGHTER IN CHARGING HER OWN FATHER OF RAPE. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological

and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. 8. CRIMINAL LAW; RAPE; MAY BE COMMITTED WHERE PEOPLE CONGREGATE. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside, within school premises, and inside a house where there are other occupants. In People v. Opena, rape was committed in a room occupied also by other persons. In the instant case, EDEN's other companions in the room when she was molested by appellant were young girls who were all asleep. DHSaCA

9. ID.; ID.; FORCE OR INTIMIDATION; SUBSTITUTED BY MORAL ASCENDANCY OR INFLUENCE BY THE FATHER OVER HIS DAUGHTER. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help. In any event, in a rape committed, by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with equanimity of disposition and with nerves of steel or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout, some may faint, and some may be shocked into insensibility; while others may openly welcome the intrusion. 10. ID.; ID.; INTIMIDATION; SUFFICIENT IF IT PRODUCED FEAR FOR VICTIM'S LIFE; RESISTANCE, UNNECESSARY. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim' s submission to the sexual act voluntary. 11. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF; DESISTANCE; CONSIDERED INFERIOR TO THE TESTIMONY GIVEN IN OPEN COURT. Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex

parte, are generally considered inferior to the testimony given in open court; and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. 12. CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY FOR RAPE. To take appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law. People vs Terrobias

Appellant claims of having been denied his constitutional right by the mere fact that the trial of the case took only four days is entirely without basis. He had presented all his evidence which was duly submitted by his counsel who never asked for more time to do so. His right to cross-examine the witnesses against him was exercised to the fullest. Neither is his claim of lack of authority of the trial judge to decide the instant case with any legal support to stand on. While by the Resolution of the Supreme Court 12 the authority of the trial judge to try criminal cases in Branch II of the Court of First Instance of Catanduanes was up to March 2, 1978, it does not preclude submission of memoranda even after such date, as long as the trial was completed, and the order to file memorandum given, before the expiration of his authority to try the case. Much less was the trial judge divested of the authority to decide the case which he can do anytime after the trial of the case, under Section 51 of the Judiciary Act, the filing of memoranda not being a part of the trial, nor is the memorandum itself an essential, much less an indispensable, pleading before a case may be submitted for decision. It is intended primarily to aid the court in the rendition of the decision in accordance with law and the evidence, and should not, therefore, be the cause for the loss of the authority of the judge who heard the case to decide it. WHEREFORE, as recommended by the Solicitor General, the judgment appealed from being in accordance with law and the evidence, is hereby affirmed in toto, with costs. [G.R. No. 126959. March 28, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERVANDO SATURNO, ARMAN SOLIMAN, ABRAHAM RODRIGUEZ, BENIGNO ANDRES and DELFIN GREGORIO, accused. SERVANDO SATURNO, ABRAHAM RODRIGUEZ and BENIGNO ANDRES, accused-appellants.

The Solicitor General for plaintiff-appellee. Domingo V. Pascua for accused-appellant Servando Saturno. Esguerra, Esguerra & Associates for accused appellants Abraham Rodriguez and Benigno Andres. SYNOPSIS The Regional Trial Court, Branch 39, San Jose City, Nueva Ecija convicted accused-appellant Servando Saturno, Abraham Rodriguez and Benigno Andres of the crime of multiple murder. In this appeal, the accused-appellants contended that prosecution witness Lucila Valdez was not able to positively identify them. HAaDcS The Court ruled that witness Lucila's testimony regarding the identity of the accused was too general to deserve consideration. On the other hand, accused-appellants were able to present convincing evidence that they could not possibly be at the scene of the crime at the time of its commission. The prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; TWO-FOLD TASK OF THE PROSECUTION. The task of the prosecution is two-fold: first, to prove that a crime has been committed, and second, that the accused is the person responsible therefor. Thus, the prosecution must be able to overcome the constitutional presumption of innocence with evidence beyond reasonable doubt to justify the conviction of the accused. ASIDTa 2. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; ELUCIDATED. It is a basic rule that the guilt of an accused must be proved beyond reasonable doubt. Before he is convicted, there must be moral certainty of guilt a certainty that convinces and satisfies the reason and conscience of those who are to act upon it that he is guilty of the crime charged. Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. 3. ID.; ID.; ADMISSIBILITY; OBJECTS NOT IDENTIFIED DURING TRIAL NOR FORMALLY OFFERED ARE INADMISSIBLE AS EVIDENCE. The fatigue cap and the light brown jacket (and the bloodstains found on it) were the basis for implicating accused Saturno. These were not identified during the trial nor formally offered in evidence. As a matter of fact, the jacket was never seen after it was submitted for examination. The chemist who examined the bloodstains in the jacket was not presented to identify the report and the jacket. 4. ID.; ID.; ID.; NO SUFFICIENT PROOF THAT SLUGS WERE FIRED FROM ACCUSED'S GUN. There was also no convincing proof that the slugs, which were presented during the trial were the same slugs

recovered from the scene of the crime. Barangay Chairman Jaime Collado admitted that after he removed the slugs from the cadavers, he did not immediately give them to the police officers. The slugs, which were submitted for ballistic examination, could have been those used when Sgt. Apostol firetested the gun on July 1, 1989. There was no sufficient proof that they were fired from accused Saturno's gun. The ballistician, after testifying that there is no margin of error in his report, could not estimate when the gun was last fired. The other homemade gun also alleged to have been used in the killing was tested in court and it was shown that it could not be operated easily. Using the court's own words, the gun was "pasumpong-sumpong". IEHaSc 5. ID.; ID.; CREDIBILITY OF WITNESSES; IDENTIFICATION; TOO GENERAL TO DESERVE CONSIDERATION. Witness Lucila Valdez hesitated at first to point at accused Saturno's tricycle because it looked different from the one used by the assailants which was color red and with a tail. She did not also recognize the inscription "SATURNO FAMILY" at the back of the tricycle. Witness Lucila Valdez was covering her face during the incident. She claimed that the man who was wearing a light brown jacket had a well-chiseled or occidental nose and his face was oblong; that the gun used in killing her husband appeared to have a circular object in the middle; that the man who hog-tied the other victims was of medium height, a well-built man, dark skinned and the other who helped him was also well-built and fair-complexioned and a little bit handsome. She stated that the person who dumped Florencio Bulatao in front of the other victims "was wearing a belt which was borrowed from my husband", and she assumed that it was Benigno Andres because she remembered the latter borrowing her husband's belt. Witness Lucila's testimony regarding the identity of the accused, however, is too general to deserve consideration. 6. ID.; ID.; ID.; PROSECUTION WITNESS' CONFLICTING TESTIMONIES AS TO HER DISPOSITION AT THE TIME OF THE INCIDENT CREATE A REASONABLE DOUBT ON HER CAPABILITY TO POSITIVELY IDENTIFY THE KILLERS. Bgy. Chairman Collado and Mayor George Castaeda testified that Lucila Valdez told them that she was not able to recognize the assailants. It is inconceivable for Lucila not to tell the barangay officials that her long-time compadre Benigno Andres assisted in the killing. On rebuttal, she said that she had not seen accused Saturno and Andres prior to June 23, 1989. Witness Lucila testified that she was afraid and trembling after she saw that her husband was shot, yet she also testified that she was composed and normal all throughout the incident. Her conflicting testimony as to her disposition at that time creates a reasonable doubt on her capability to positively identify the killers. TSacAE 7. ID.; ID.; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; NOT ESTABLISHED IN CASE AT BAR. In the case at bar, the prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. 8. ID.; ID.; ADMISSIBILITY; AFFIDAVITS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED ARE INADMISSIBLE AS EVIDENCE. The court a quo gave weight to the affidavits executed by the accused wherein they admitted their participation in the killing. However, they were

able to prove that their affidavits were solely prepared by the police investigators, that they were not apprised of their constitutional rights, and that they were forced to sign the affidavits lest they be maltreated again. DHSEcI 9. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI; GAINS CONSIDERABLE STRENGTH IN VIEW OF UNRELIABLE IDENTIFICATION OF THE PERPETRATORS OF THE CRIME. True, the settled rule is that alibi is a weak defense. It has been held that courts will not at once look with disfavor on the defense of alibi. Alibi may be considered in light of all the evidence for it may be sufficient to acquit the accused. Appellants' alibi and denial gain considerable strength in view of the unreliable identification of the perpetrators of the crime. 10. ID.; ID.; EQUIPOISE RULES; ELUCIDATED. Where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. CADSHI People vs De los santos

1.

A father who ravages his own daughter reduces himself to the level of a beast and forfeits his membership in the world of civilized men.

Nenita de los Santos was only 14 years old when her father, accused-appellant Romeo de los Santos, sexually abused her. She narrated that on July 31, 1997 at around 9 o'clock in the evening while she was about to go to sleep, her father suddenly approached her, held her waist and poked a knife at her side, threatening to kill her if she tells anyone what he was about to do to her.

Upon arraignment, accused-appellant pleaded not guilty to the crimes charged. The prosecution accordingly presented as its first witness Dr. Felma Caybot, the physician who examined the victim. Dr. Caybot testified; among other things that: (1) she was able to insert her two fingers in Nenita's private part with minimal resistance and there was not even a change in the facial expression of the patient, and (2) in the examination of the hymen of the patient, she found healed lacerations at 6 o'clock and 3 o'clock positions (tsn, p. 3, July 7, 1998). The prosecution then called Nenita as its next witness. Nenita had barely started her narration of the incidents when accused-appellant manifested in court that he was changing his plea from "not guilty" to "guilty" provided the Information is amended to a single-charge of rape. The trial court put accused appellant on the witness stand, and after seemingly satisfying itself that accused-appellant understood the full consequences of his plea of guilty, the court a quo allowed

the amendment of the Information to one charge of rape and changed accused-appellant's plea of "not guilty" to "guilty".

On February 10, 1999, the court a quo convicted accused-appellant of the crime of rape and imposed on him the supreme penalty of death, thusly: WHEREFORE, the Court finds accused ROMEO DELOS SANTOS, GUILTY beyond reasonable doubt as principal of the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as amended by R.A. No. 7659, Sec. 11 thereof and hereby imposes upon the accused Romeo delos Santos the penalty of DEATH; to pay the victim Nenita delos Santos civil indemnity in the amount of FIFTY THOUSAND (P50,000.00) PESOS and the costs. We find the contention partially meritorious, but not sufficient to warrant the reversal of the finding of guilt by the court a quo. Section 3, Rule 116 of the 1985 Rules on Criminal Procedure (the Rule then prevailing when the instant crime was committed and tried, and which remains unamended in the present 2000 Rules) states the procedure to be followed where the accused, with the assistance of counsel, voluntarily pleads to a capital offense: Sec. 3. When an accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability The accused may also present evidence in his behalf: (1985 Rules on Criminal Procedure) Thus, where the accused enters a plea of guilty to a capital offense, the trial court is called upon to observe the following procedure: the court shall conduct a searching inquiry into the voluntariness and the accused's full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of his culpability. The accused may also present evidence in his behalf (People vs. Dayot, 187 SCRA 637 [1990]). In the case at bar, the trial court asked accused-appellant the following questions to determine the voluntariness and full comprehension of his change of plea from "not guilty" to "guilty", thus:

1.

It is observed that the procedure followed by the trial court in respect of the affirmative plea of accused-appellant leaves much to be desired. As required under Section 3, Rule 116 of the 1985 Rules of Criminal Procedure (supra), the trial court should have taken the necessary measures to see to it that accused-appellant really and freely comprehended the meaning, full significance and consequences of his plea. In the case at bar, accusedappellant pleaded guilty to raping his daughter because he pitied her (tsn, July 9, 1998, p. 5). This is not a sufficient reason for the trial court to allow a change of plea from "not

2.

3.

guilty" to one of "guilty". Aside from ensuring the voluntariness of accused-appellant's plea and his full comprehension of the consequences of the same, the trial court should also have impressed on him that by changing his plea from "not guilty" to "guilty", he was, in effect, admitting authorship of the crime of rape against his own daughter. This the trial court failed to do. Nevertheless, even without considering said plea of guilty on the part of accusedappellant as above discussed, there is adequate evidence to warrant and justify the conviction of accused-appellant, namely: the medical certificate attesting to the fact that the victim, Nenita, has a lacerated hymen, and, the testimony of Nenita herself that her father, herein accused-appellant, forced her to have sexual intercourse with him, not just once but several times. This testimony was unrebutted as accused-appellant did not present any evidence to prove his innocence even when asked to do so by the court a quo. His plea of guilty effectively corroborated and substantiated Nenita's allegations that her father indeed raped her. Of no small significance too is the fact that accused-appellant changed his plea of "not guilty" to one of "guilty" after arraignment, and after the prosecution has presented its witnesses the physician who examined Nenita, and, Nenita herself. Republic Act No. 7659 or the Death Penalty Law, punishes the rape of a minor with death. The allegation of minority must, however, be proved with equal certainty and clearness as the crime itself. Thus, in People vs. Javier (311 SCRA 122 [1999]), we required the presentation of the birth certificate of the victim to prove her minority, failing which the imposition of the death penalty cannot be upheld. It is a common observance that in this age of modernity, a physically developed 14-year old girl may be mistaken for an 18-year old young woman, in the same manner that a frail and youthfullooking 18-year old lady may pass as a 14-year old minor. Thus, it is in this context that proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act No. 7659. In the case at hand, the prosecution did not present any independent proof of Nenita's minority. It merely alleged in the Information that Nenita was 14 years old when her father raped her. In the light of our discussion in Javier (supra), this failure effectively removes the instant case from the operation of the Death Penalty Law. It is a time-honored principle that in a criminal prosecution, especially where the life of another human being is hanging on the balance, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which the accused is charged must be established in order for the corresponding penalty thereto to be upheld. The prosecution, in the instant case, was remiss in this regard. The applicable penalty is, therefore, reclusion perpetua and this penalty being an indivisible penalty, the benefits under the Indeterminate Sentence Law are not applicable (Section 2, Act No. 4103, as amended).

Pursuant to prevailing jurisprudence the indemnity for rape is now P50,000.00

FIRST DIVISION [G.R. No. 126959. March 28, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERVANDO SATURNO, ARMAN SOLIMAN, ABRAHAM RODRIGUEZ, BENIGNO ANDRES and DELFIN GREGORIO, accused. SERVANDO SATURNO, ABRAHAM RODRIGUEZ and BENIGNO ANDRES, accused-appellants. The Solicitor General for plaintiff-appellee. Domingo V. Pascua for accused-appellant Servando Saturno. Esguerra, Esguerra & Associates for accused appellants Abraham Rodriguez and Benigno Andres. SYNOPSIS The Regional Trial Court, Branch 39, San Jose City, Nueva Ecija convicted accused-appellant Servando Saturno, Abraham Rodriguez and Benigno Andres of the crime of multiple murder. In this appeal, the accused-appellants contended that prosecution witness Lucila Valdez was not able to positively identify them. HAaDcS The Court ruled that witness Lucila's testimony regarding the identity of the accused was too general to deserve consideration. On the other hand, accused-appellants were able to present convincing evidence that they could not possibly be at the scene of the crime at the time of its commission. The prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; TWO-FOLD TASK OF THE PROSECUTION. The task of the prosecution is two-fold: first, to prove that a crime has been committed, and second, that the accused is the person responsible therefor. Thus, the prosecution must be able to overcome the constitutional presumption of innocence with evidence beyond reasonable doubt to justify the conviction of the accused. ASIDTa 2. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; ELUCIDATED. It is a basic rule that the guilt of an accused must be proved beyond reasonable doubt. Before he is convicted, there must be moral certainty of guilt a certainty that convinces and satisfies the reason and conscience of those who are to act upon it that he is guilty of the crime charged. Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. 3. ID.; ID.; ADMISSIBILITY; OBJECTS NOT IDENTIFIED DURING TRIAL NOR FORMALLY OFFERED ARE INADMISSIBLE AS EVIDENCE. The fatigue cap and the light brown jacket (and the bloodstains found on it) were the basis for implicating accused Saturno. These were not identified during the trial nor formally offered in evidence. As a matter of fact, the jacket was never seen after it was submitted for

examination. The chemist who examined the bloodstains in the jacket was not presented to identify the report and the jacket. 4. ID.; ID.; ID.; NO SUFFICIENT PROOF THAT SLUGS WERE FIRED FROM ACCUSED'S GUN. There was also no convincing proof that the slugs, which were presented during the trial were the same slugs recovered from the scene of the crime. Barangay Chairman Jaime Collado admitted that after he removed the slugs from the cadavers, he did not immediately give them to the police officers. The slugs, which were submitted for ballistic examination, could have been those used when Sgt. Apostol firetested the gun on July 1, 1989. There was no sufficient proof that they were fired from accused Saturno's gun. The ballistician, after testifying that there is no margin of error in his report, could not estimate when the gun was last fired. The other homemade gun also alleged to have been used in the killing was tested in court and it was shown that it could not be operated easily. Using the court's own words, the gun was "pasumpong-sumpong". IEHaSc 5. ID.; ID.; CREDIBILITY OF WITNESSES; IDENTIFICATION; TOO GENERAL TO DESERVE CONSIDERATION. Witness Lucila Valdez hesitated at first to point at accused Saturno's tricycle because it looked different from the one used by the assailants which was color red and with a tail. She did not also recognize the inscription "SATURNO FAMILY" at the back of the tricycle. Witness Lucila Valdez was covering her face during the incident. She claimed that the man who was wearing a light brown jacket had a well-chiseled or occidental nose and his face was oblong; that the gun used in killing her husband appeared to have a circular object in the middle; that the man who hog-tied the other victims was of medium height, a well-built man, dark skinned and the other who helped him was also well-built and fair-complexioned and a little bit handsome. She stated that the person who dumped Florencio Bulatao in front of the other victims "was wearing a belt which was borrowed from my husband", and she assumed that it was Benigno Andres because she remembered the latter borrowing her husband's belt. Witness Lucila's testimony regarding the identity of the accused, however, is too general to deserve consideration. 6. ID.; ID.; ID.; PROSECUTION WITNESS' CONFLICTING TESTIMONIES AS TO HER DISPOSITION AT THE TIME OF THE INCIDENT CREATE A REASONABLE DOUBT ON HER CAPABILITY TO POSITIVELY IDENTIFY THE KILLERS. Bgy. Chairman Collado and Mayor George Castaeda testified that Lucila Valdez told them that she was not able to recognize the assailants. It is inconceivable for Lucila not to tell the barangay officials that her long-time compadre Benigno Andres assisted in the killing. On rebuttal, she said that she had not seen accused Saturno and Andres prior to June 23, 1989. Witness Lucila testified that she was afraid and trembling after she saw that her husband was shot, yet she also testified that she was composed and normal all throughout the incident. Her conflicting testimony as to her disposition at that time creates a reasonable doubt on her capability to positively identify the killers. TSacAE 7. ID.; ID.; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; NOT ESTABLISHED IN CASE AT BAR. In the case at bar, the prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge

the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. 8. ID.; ID.; ADMISSIBILITY; AFFIDAVITS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED ARE INADMISSIBLE AS EVIDENCE. The court a quo gave weight to the affidavits executed by the accused wherein they admitted their participation in the killing. However, they were able to prove that their affidavits were solely prepared by the police investigators, that they were not apprised of their constitutional rights, and that they were forced to sign the affidavits lest they be maltreated again. DHSEcI 9. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI; GAINS CONSIDERABLE STRENGTH IN VIEW OF UNRELIABLE IDENTIFICATION OF THE PERPETRATORS OF THE CRIME. True, the settled rule is that alibi is a weak defense. It has been held that courts will not at once look with disfavor on the defense of alibi. Alibi may be considered in light of all the evidence for it may be sufficient to acquit the accused. Appellants' alibi and denial gain considerable strength in view of the unreliable identification of the perpetrators of the crime. 10. ID.; ID.; EQUIPOISE RULES; ELUCIDATED. Where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. CADSHI

The Solicitor General contends that the trial court correctly gave credence to the testimony of Lucila Valdez and that the defense of alibi is weak. He maintains that appellants' alibi cannot prevail over the positive identification made by witness Lucila that they were the perpetrators of the crime as it is an entrenched jurisprudential doctrine that positive identification prevails over denial and alibi. 28 We find the appeal meritorious. It is a basic rule that the guilt of an accused must be proved beyond reasonable doubt. 29 Before he is convicted, there must be moral certainty of guilt a certainty that convinces and satisfies the reason and conscience of those who are to act upon it that he is guilty of the crime charged. 30 Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. 31 The task of the prosecution is two-fold: first, to prove that a crime has been committed, and second, that the accused is the person responsible therefor. Thus, the prosecution must be able to overcome the constitutional presumption of innocence with evidence beyond reasonable doubt to justify the conviction of the accused. 32

The fatigue cap and the light brown jacket (and the bloodstains found on it) were the basis for implicating accused Saturno. These were not identified during the trial nor formally offered in evidence. As a matter of fact, the jacket was never seen after it was submitted for examination. The chemist who examined the bloodstains in the jacket was not presented to identify the report and the jacket. The identification of appellants as the assailants could in no way be considered as positive and credible. In the case at bar, the prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. 42 Accused-appellants testified that they were somewhere else when the killing occurred, and that it was impossible for them to have committed the crime. The court a quo gave weight to the affidavits executed by the accused wherein they admitted their participation in the killing. 43 However, they were able to prove that their affidavits were solely prepared by the police investigators, that they were not apprised of their constitutional rights, and that they were forced to sign the affidavits lest they be maltreated again. True, the settled rule is that alibi is a weak defense. It has been held that courts will not at once look with disfavor on the defense of alibi. Alibi may be considered in light of all the evidence for it may be sufficient to acquit the accused. 44 Appellants' alibi and denial gain considerable strength in view of the unreliable identification of the perpetrators of the crime. 45 Thus, where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 46 The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. 47 WHEREFORE, the Court REVERSES the appealed decision of the Regional Trial Court, Branch 39, San Jose City, Nueva Ecija in Criminal Case No. L-15 (89). The Court ACQUITS accused-appellants SERVANDO SATURNO, ABRAHAM RODRIGUEZ and BENIGNO ANDRES for failure of the prosecution to prove their guilt beyond reasonable doubt. The Director of Corrections is hereby directed to forthwith release accused-appellants unless they are lawfully held for another cause, and to inform the Court of their release within ten (10) days from notice. THIECD Alejandro vs Pepito "Let it be made of record, in black and white, that the accused in this case admits in open court that he killed the deceased but that he acted in self-defense. For this reason, the Court requires the defense counsel, first to prove evidence in self-defense and the prosecution to present its evidence to disprove the same." 1

On the other hand, the prosecution maintained that section 3, Rule 119 is not mandatory, relying on the ruling in U.S. vs. Gaoiran, 17 Phil. 404 (1910) to the effect that a departure from the order of trial, when rights of the defendant are not prejudiced, does not constitute a reversible error; that the admission by the accused of having killed in self-defense did not give rise to the presumption of his guilt beyond reasonable doubt but, rather, would result in his acquittal, if self-defense is proved; and finally, citing People vs. Besana, 64 SCRA 84 (1975), that having pleaded self-defense, petitioner admitted having stabbed and killed the deceased so that the burden is shifted on him to establish that he was justified in doing so. The court is pretty aware of the sequence in the presentation of the evidence of the parties indicated in Sec. 3, Rule 119 of the Rules of Court to be generally followed in criminal cases. While sec. 3 of Rule 119 of the Rules of Court generally establishes a procedure to secure an orderly conduct in judicial proceedings in criminal cases, the Court, however, in an effort to find ways and means to speedily dispose of the cases to de-clog its docket has altered the sequence above referred to without in any way prejudicing the substantial rights of the accused herein. "The accused is still presumed innocent, only that he was ordered to first present his evidence on selfdefense as the killing has been admitted but that he acted in self-defense. It will indeed save time by dispensing with proof of death and injuries causing death a matter admitted by the accused in open court before actual trial on the merits. Hence, this Petition for Certiorari, with petitioner alleging that respondent Judge acted without or in excess of his jurisdiction and with grave abuse of discretion in requiring defense counsel to present first its evidence of self-defense and the prosecution to present its evidence to disprove the same; that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law available to him and that unless respondent Judge is properly restrained, petitioner will suffer irreparable damage and prejudice. We find the recommendation well taken. Enshrined in our Constitution as a protection to accused persons in criminal cases is the requirement that no person shall be held to answer for a criminal offense without due process of law. 3 That requirement simply requires that the procedure established by law shall be followed. 4 Section 3 of Rule 119 prescribes the order of trial in criminal cases, to wit: "SEC. 3. Order of Trial. The plea of not guilty having been entered, the trial must proceed in the following order: (a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges. (b) The defendant or his attorney may offer evidence in support of the defense.

(c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question.

(d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case." It behooved respondent Judge to have followed the sequence of trial set forth. That procedure observes, in the words of Chief Justice Fernando, the "mandate of reason and the guarantee of fairness with which due process is identified". 5 The procedure outlined safeguards and protects the fundamental right of the accused to be presumed innocent until the contrary is proved. That right is founded on the principle of justice and is intended not to protect the guilty but to prevent as far as human agencies can, the conviction of an innocent person. 6 Indeed, the form of a trial is also a matter of public order and interest; 7 the orderly course of procedure requires that the prosecution shall go forward and present all of its proof in the first instance. 8 The following excerpt from People vs. Balicasan 17 SCRA 1119 (1966) shows fidelity to that procedure: llcd "In view of the assertion of self-defense in the testimony of the accused, the court should have taken anew defendant's plea and then proceeded with the trial of the case, in the order set forth in Section 3 of Rule 119 of the Rules of Court. In deciding the case upon the merits without the requisite trial, the court not only erred in procedure but also deprived the prosecution of its day in court and right to be heard." It is noteworthy also that the Information filed herein alleges that the heirs of the deceased suffered damages in the amount of P20,000.00. The prosecution should prove this first before the defense presents its evidence. It is true that in the case of U.S. vs. Gaoiran, 17 Phil. 404 (1910), relied upon by the prosecution and the trial Court, the defense had produced its proofs before the prosecution presented its case, and it was held that no substantial rights of the accused were prejudiced. There is one radical difference, however, since in that case, no objection was entered in the Court below to the procedure followed in the presentation of proof. In this case, the change in order of trial made by respondent Judge was promptly and timely objected to by the defense. Respondent Judge's desire to abbreviate the trial and unclog his docket is commendable but it must yield to the paramount objective of safeguarding the rights of an accused at all stages of criminal proceedings, and to the interest of orderly procedure adopted for the public good. WHEREFORE, granting the Writ prayed for, the Orders issued by respondent Judge on July 6, 1979 and October 9, 1979, respectively, are hereby annulled and set aside, the Restraining Order heretofore issued is lifted, and respondent Judge hereby directed to proceed with the trial in accordance with section 3, Rule 119 of the Rules of Court. Sacay vs Sandiganbayan

The main issue in this petition is whether or not petitioner has convincingly established that he acted in self-defense and/or in fulfillment of duty. Relative thereto, petitioner also claims that he has been deprived of procedural due process. We shall deal first with the procedural issue. At the initial hearing, the testimony of Veneranda Lagrimas was interrupted when the accused, through his counsel, admitted that he shot the deceased Tepace and Lerma, but invoked self-defense and fulfillment of duty. The prosecution then moved that the reverse procedure be adopted in view of the admission that the accused shot the deceased. No objection was interposed by the accused or his counsel. After presenting Mrs. Leonida N. Tepace and Mrs. Francisca Lerma Y. Naldo to prove damages and the death and medical certificates of the deceased, the prosecution rested. Petitioner claims that the order of trial provided in Section 3j Rule 119 of the Rules of Court was not followed and in support of his claim quotes the ruling of this Court in the case of Alejandro vs. Pepito, as follows: "It behooved respondent Judge to have followed the sequence of trial set forth. That procedure observes in the words of Chief Justice Fernando, the 'Mandate of reason and the guarantee of fairness with which due process is identified.' The procedure outlined safeguards and protects the fundamental right of the accused to be presumed innocent until the contrary is proved. That right is founded on the principle of justice and is intended not to protect the guilty but to prevent as far as human agencies can, the conviction of an innocent person. Indeed, the form of a trial is also a matter of public order and interest; the orderly course of procedure requires that the prosecution shall go forward and present all of its proof in the first instance." 19 However, this ruling is not applicable in the case at bar inasmuch as the accused did not object to the procedure followed. In the above-cited case of Alejandro vs. Pepito, this Court also stated: "It is true that in the case of U.S. vs. Gaoiran, 17 Phil. 404 (1910), relied upon by the prosecution and the trial Court, the defense had produced its proofs before the prosecution presented its case, and it was held that no substantial rights of the accused were prejudiced. There is one radical difference, however, since in that case, no objection was entered in the Court below to the procedure followed in the presentation of proof. In this case, the change in order of trial made by respondent Judge was promptly and timely objected to by the defense." 20 It should be noted that this procedure is now expressly sanctioned in Section 3(e), Rule 119 of the 1985 Rules on Criminal Procedure which provides as follows: "However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly." We shall now deal with the main issue the sufficiency of petitioner's evidence of self-defense and/or fulfillment of duty.

After petitioner had presented his evidence, the prosecution presented its sole rebuttal witness, Veneranda Lagrimas, who disputed the testimony of petitioner. At the close of her direct examination she was asked to confirm the truth of the contents of her sworn statement, Exhibit "F", which she did, after which the following took place: "PJ PAMARAN Cross examination? ATTY. SANCHEZ If Your Honor please, I think this is the only witness for the prosecution. In order to give the accused, Your Honor, the prepared cross-examination . . . . I am not or I was not able to read all the stenographic notes neither all the affidavit, may I be given an opportunity . . . . PJ PAMARAN Denied. You cross examination her based on that. Proceed." 21 Atty. Demetrio Sanchez, an attorney of the Citizens Legal Assistance Office, who had been appointed counsel de officio for petitioner upon the withdrawal of counsel de parte, Atty. Santiago Inoferio, on the ground of a permanent ailment, should have been given a little time to prepare for cross-examination. Moreover, in the case of People vs. Estenzo, this Court frowned upon the procedure proposed by counsel for the defense of submitting the affidavits of his witnesses subject to cross-examination by the prosecution, and stated: "There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally in court. Rules governing the examination of witnesses are intended to protect the rights of litigants and to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules of evidence, is relevant to, and competent to prove, the issue of the case, may be propounded to the witness. A witness may testify only on those facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not allowed, except on preliminary matters, or when there is difficulty in getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feeble-minded, or a deaf-mute. (Section 5, Rule 132, of the Rules of Court.) It is obvious that such purpose may he subverted, and the orderly dispatch of the business of the courts thwarted, if trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court." 22 Similarly, Veneranda Lagrimas should have been examined directly on the statements in her affidavit. Respondent Sandiganbayan gave credence to the testimony of Veneranda Lagrimas and found "the version of the defense too incredible and repugnant to human experience to induce faith and reliance."

It is well settled that the findings of facts of the Court of Appeals (now Intermediate Appellate Courts are conclusive on the parties and on this Court, 23 unless (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; 24 (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; 25 (10) the finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by evidence on record. 26 The same exceptions apply to the findings of fact of the Sandiganbayan. As this Court stated in the case of Cesar vs. Sandiganbayan: "Considering further that no less than three senior members of this Court, Justices Teehankee, Makasiar and Fernandez dissented from the Court's opinion in Nuez (111 SCRA 433) partly because of the absence of an intermediate appeal from Sandiganbayan, this Court has been most consistent in carefully examining all petitions seeking the review of the special court's decisions to ascertain that the fundamental right to be presumed innocent is not disregarded. This task has added a heavy burden to the workload of this Court but it is a task which is steadfastly discharged." 27 Since the testimony of Veneranda Lagrimas is the only evidence of the prosecution to rebut the evidence of petitioner, it becomes necessary to scrutinize the same carefully. Moreover, this witness volunteered to testify only about five (5) months after the incident when she executed her affidavit on September 14, 1979. Asked why it took her so long a time to go to the police headquarters, she replied: "Because I thought the relatives of Antonio Tepace would not file a complaint." 28 In the case of People vs. Mula Cruz, it was held that the long delay of forty-two (42) days after the incident by a witness, an Army man, in reporting a crime to the authorities, not caused by threat, intimidation or coercion, rendered the evidence for the prosecution insufficient to establish appellant's guilty connection to the requisite moral certainty. 29 The fact that there was a riot going on at the Don Bosco Youth Center in Tondo and that petitioner was dispatched to proceed to the place and investigate the incident was clearly established by the testimonies of Corporal Juanito Yang and the Security Guard, Bonifacio Abao. 30 And yet, Lagrimas denied that there was a clash between the two gangs in the Don Bosco compound. 31 On May 31, 1982, Lagrimas testified that before the shooting there were many people who were playing basketball, 32 but on June 13, 1983, she stated that no basketball game was going on that afternoon and that the people were to enter the church to attend mass. 33 More significant is the fact that according to Lagrimas, Antonio Tepace was lying flat on his stomach with his hands stretched forward when he was shot. 34 This is contradicted by the expert testimony of

Dr. Luis Larion, medico-legal officer of the Western Police District, who testified on sur-rebuttal as follows: THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FERNANDO DE FERNANDO, defendantappellant. W. A. Armstrong for appellant. Attorney-General Jaranilla for appellee. SYLLABUS 1. CRIMINAL LAW; HOMICIDE. An agent of the law, to whom notice had been given of the presence of suspicious looking persons, who might be escaped prisoners from a nearby penitentiary, proving around the vicinity, and who enters a house to keep watch and later in the evening sees a person with a bolo in hand approaching the house in the attitude of going up the stairs who does not answer the challenge of the officer of the law, and continues his advance notwithstanding that the latter had fired a shot into the air, and the said agent of the law considering that the said stranger has not been recognized by any person in the household and thinking him to be an evil-doer shoots and kills him, is not guilty of murder or homicide. 2. ID.; ID.; HOMICIDE THROUGH RECKLESS NEGLIGENCE. The said office of the law, however, acted with reckless negligence in failing to exercise by inquiring of the occupants of the house whether the stranger was known to them, as he seemed to have called somebody, in the house, or was really what he thought him to be, before shooting him, which makes said officer guilty of homicide through reckless negligence, under article 568, in connection with article 404, of the Penal Code. DECISION VILLA-REAL, J p: This appeal has been taken by the defendant Fernando de Fernando from the judgment of the Court of First Instance of Zamboanga, in which he was held guilty of the crime of murder and sentenced to suffer the penalty of twenty years cadena temporal to indemnify the heirs of the deceased Buenaventura Paulino in the sum of P1,000 and to pay the costs, by virtue of a complaint filed by the fiscal charging him the said crime. As a basis for his appeal the accused assigns the following errors as committed by the trial court: (1) In holding that the acts committed by the accused constituted the crime of murder; (2) in not holding that the accused was exempt from criminal liability and in not acquitting him. At the trial he following facts were proven beyond a reasonable doubt: Before the day of the crime several Moro prisoners had escaped from the Penal Colony of San Ramon, Zamboanga. The residents of the barrio of Municahan of the municipality of Zamboanga were alarmed by the presence of three suspicious looking persons who were prowling around the place. The accused Fernando del Fernando

who, at that time, was a municipal policeman, when passing in front of the house of one Remigio Delgado, was called by the latter's daughter Paciencia Delgado, who stated that her father wished to see him. When the policeman came up the house Remigio Delgado informed him that three unknown and suspicious looking persons, dressed remained in the said house talking with Paciencia Delgado, both being seated on a bench near the window. While they were thus talking, at about 7 o'clock at night, there appeared in the dark, at about 4 meters from the stairs, a person dressed in dark clothes, calling "Nong Miong." At the time neither the accused nor Paciencia Delgado knew who was thus calling. The accused inquired what he wanted but instead of answering he continued advancing with bolo in hand. Upon seeing this Fernando de Fernando took out his revolver and fired a shot in the air. As she saw that the unknown disappeared and ran to the house of a neighbor Leon Torres where, after placing upon a table the bolos that he carried, he fell on the floor and expired. Remigio Delgado, who was in the kitchen and had recognized the voice of the unknown, on hearing the shots ran into the parlor, took hold of the arm of the defendant and asked him why he had fired at Buenaventura Paulino. Fernando de Fernando only said "Let me go, that is a cross eyed person" and immediately repaired to the house of the teniente of the barrio, Santiago Torres, from where he telephoned to the chief of police advising him of what had happened. When the body was examined it was found that a bullet had penetrated the base of the neck at the right, imbedding itself in the left side under the skin. The status of the accused on the night in question was that of an agent of the law, to whom notice had been given of the presence of suspicious looking persons who might be the Moro prisoners who had escaped from the Penal Colony of San Ramon. The appearance of a man, unknown to him, dressed in clothes similar in color to the prisoners' uniform, who was calling the owner of the house, and the silence of Paciencia Delgado, who did not at the time recognize the man, undoubtedly caused the accused to suspect that the unknown man was one of the three persons that the owner of the house said were prowling around the place. The suspicion became a reality in his mind when he saw that the man continued ascending the stairs with a bolo in his hand, not heeding his question as to who he was. In the midst of these circumstances and believing undoubtedly that he was a wrongdoer he tried to perform his duty and first fired into the air and then at the alleged intruder. But it happened that what to him appeared to be a wrongdoer was the nephew of the owner of the house who was carrying three bolos tied together. At that psychological moment when the forces of fear and the sense of duty were at odds, the accused was not able to take full account of the true situation and the bundle of bolos seemed to him to be only one bolo in the hands of a suspicious character who intended to enter the house. There is, however, a circumstance that should have made him suspect that the man was not only a friend but also a relative of the owner of the house from the fact that he called "Nong Miong," which indicated that the owner of the house might be an older relative of the one calling, or an intimate friend; and in not asking Paciencia Delgado who it was that was calling her father with such familiarity, he did not use the ordinary precaution that he should have used before taking such fatal action. Taking into consideration the state of mind of the accused at the time, and the meaning that he gave to the attitude of the unknown person, in shooting the latter he felt that he was performing his duty by defending the owners of the house against an unexpected attack, and such act cannot constitute the crime of murder, but only that of simple homicide He cannot be held guilty, however, as principal, with

malicious intent, because he thought at the time that he was justified in acting as he did, and he is guilty only because he failed to exercise the ordinary diligence which, under the circumstances, he should have by investigating whether or not the unknown man was really what he thought him to be. In firing the shot, without first exercising reasonable diligence, he acted with reckless negligence. The crime committed by the accused, therefore, is homicide through reckless negligence defined and punished in Article 568, in relation with article 404, of the Penal Code, the penalty prescribed by law being arresto mayor in its maximum degree to prision correccional in its minimum degree. In view of the foregoing and reversing the appealed judgment, the accused is held guilty of the crime of homicide through reckless negligence, and he is sentenced to suffer one year of prision correccional, to pay the amount of P500 to the heirs of the deceased as an indemnity, with subsidiary imprisonment in case of insolvency, the costs and with credit of one-half of the preventive imprisonment already suffered. So ordered. Avancea, C.J., Street, Malcolm, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

SECOND DIVISION [G.R. No. L-50103. November 24, 1986.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO TOLENTINO, accused, HAMID DUMA, accused-appellant. The Solicitor General for plaintiff-appellee. Bienvenido G. Martin and Cecilio G. Martin counsel de oficio for accused appellant Hamid Duma. Wilfredo Ramirez for accused Leonardo Tolentino. SYLLABUS 1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED AGAINST SELF-INCRIMINATION; RULE ON PRESUMPTION OF REGULARITY OF OFFICIAL ACTS RELATIVE TO ADMISSIBILITY OF STATEMENTS, ABROGATED; IN-CUSTODY CONFESSION HELD INADMISSIBLE. The Court held that appellant's incustody confession is not admissible in evidence and that the remaining circumstantial evidence does not fulfill the degree of moral certainty required to sustain the judgment of conviction. It appears that in giving credence to the confession, the trial court applied the rule in People vs. Castro, where it was stated that the burden of proof to show the involuntariness of a confession rests on the accused. The trial court concluded that since herein appellant failed "to adequately meet or put up convincingly this burden of proof," the presumption of voluntariness stands and the fact that the same was obtained from him while under arrest does not affect its admissibility. However, the Castro ruling, which is

premised on the presumption of regularity of official acts, is no longer controlling in so far as it concerns the application of Section 20, Article IV of the 1973 Constitution. 2. ID.; ID.; PROSECUTION HAS BURDEN TO PROVE THAT ACCUSED DURING IN-CUSTODY INTERROGATION WAS WARNED OF HIS RIGHTS. In People vs. Duero, the Court en banc pronounced that the rights enumerated in Section 20, except the first sentence, were adopted from Miranda vs. Arizona, a case decided by the United States Supreme Court on June 13, 1966. This Court then ruled that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence." In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionality protected rights. In Miranda, Chief Justice Warren, who delivered the opinion of the Court, laid down the rule on admissibility of statements, i.e., that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. Precisely, the Miranda doctrine was formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring. 3. ID.; RIGHT TO COUNSEL WHEN ACCUSED IS INDIGENT; PREREQUISITE. The answer of appellant to the questions propounded to him is not the kind of waiver contemplated in Miranda, which dictates that it must be made voluntarily, knowingly and intelligently. Moreover, appellant was not informed of another absolute prerequisite that if he is indigent, a lawyer will be appointed to represent him. Without the additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey subjected to interrogation the knowledge that he too has a right to have counsel present and only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. 4. REMEDIAL LAW; EVIDENCE; PRESENCE OF ACCUSED AT THE SCENE OF THE CRIME SHORTLY AFTER ITS COMMISSION; NOT INDICATIVE OF GUILT; CASE AT BAR. While flight, when unexplained, is presumptive evidence of guilt, mere presence of the accused within the vicinity of the scene of the crime barely three hours after its commission raises no such presumption. This proposition is supported by Duma's explanation that at or about 11 o'clock in the evening of February 23, 1977, upon reaching the gate of the Weyerheauser compound on his way home, he was spotted by the investigators and then mauled. Moreover, it has not been disputed that appellant's house is situated within the Weyerheauser compound and that he has to pass through the gate of the said compound in going to

and from the poblacion of Isabela, Basilan. Even assuming that appellant appeared at the office at the time when the investigation was going on, although he had no business to be there, as claimed by the prosecution, still, this has no probative value. Guilt is not imputable to Duma for his actuation is susceptible of two interpretations. Thus the time-honored principle in criminal law that if the inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test of moral certainty, finds application in this case. This is rightly so as every circumstance against guilt and in favor of innocence must be considered and suspicion no matter how strong should not sway judgment, for well-established is the rule that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. SECOND DIVISION [G.R. No. L-50103. November 24, 1986.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO TOLENTINO, accused, HAMID DUMA, accused-appellant. The Solicitor General for plaintiff-appellee. Bienvenido G. Martin and Cecilio G. Martin counsel de oficio for accused appellant Hamid Duma. Wilfredo Ramirez for accused Leonardo Tolentino. SYLLABUS 1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED AGAINST SELF-INCRIMINATION; RULE ON PRESUMPTION OF REGULARITY OF OFFICIAL ACTS RELATIVE TO ADMISSIBILITY OF STATEMENTS, ABROGATED; IN-CUSTODY CONFESSION HELD INADMISSIBLE. The Court held that appellant's incustody confession is not admissible in evidence and that the remaining circumstantial evidence does not fulfill the degree of moral certainty required to sustain the judgment of conviction. It appears that in giving credence to the confession, the trial court applied the rule in People vs. Castro, where it was stated that the burden of proof to show the involuntariness of a confession rests on the accused. The trial court concluded that since herein appellant failed "to adequately meet or put up convincingly this burden of proof," the presumption of voluntariness stands and the fact that the same was obtained from him while under arrest does not affect its admissibility. However, the Castro ruling, which is premised on the presumption of regularity of official acts, is no longer controlling in so far as it concerns the application of Section 20, Article IV of the 1973 Constitution. 2. ID.; ID.; PROSECUTION HAS BURDEN TO PROVE THAT ACCUSED DURING IN-CUSTODY INTERROGATION WAS WARNED OF HIS RIGHTS. In People vs. Duero, the Court en banc pronounced that the rights enumerated in Section 20, except the first sentence, were adopted from Miranda vs. Arizona, a case decided by the United States Supreme Court on June 13, 1966. This Court then ruled that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he

knowingly and intelligently waived those rights, his confession is inadmissible in evidence." In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionality protected rights. In Miranda, Chief Justice Warren, who delivered the opinion of the Court, laid down the rule on admissibility of statements, i.e., that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. Precisely, the Miranda doctrine was formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring. 3. ID.; RIGHT TO COUNSEL WHEN ACCUSED IS INDIGENT; PREREQUISITE. The answer of appellant to the questions propounded to him is not the kind of waiver contemplated in Miranda, which dictates that it must be made voluntarily, knowingly and intelligently. Moreover, appellant was not informed of another absolute prerequisite that if he is indigent, a lawyer will be appointed to represent him. Without the additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey subjected to interrogation the knowledge that he too has a right to have counsel present and only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. 4. REMEDIAL LAW; EVIDENCE; PRESENCE OF ACCUSED AT THE SCENE OF THE CRIME SHORTLY AFTER ITS COMMISSION; NOT INDICATIVE OF GUILT; CASE AT BAR. While flight, when unexplained, is presumptive evidence of guilt, mere presence of the accused within the vicinity of the scene of the crime barely three hours after its commission raises no such presumption. This proposition is supported by Duma's explanation that at or about 11 o'clock in the evening of February 23, 1977, upon reaching the gate of the Weyerheauser compound on his way home, he was spotted by the investigators and then mauled. Moreover, it has not been disputed that appellant's house is situated within the Weyerheauser compound and that he has to pass through the gate of the said compound in going to and from the poblacion of Isabela, Basilan. Even assuming that appellant appeared at the office at the time when the investigation was going on, although he had no business to be there, as claimed by the prosecution, still, this has no probative value. Guilt is not imputable to Duma for his actuation is susceptible of two interpretations. Thus the time-honored principle in criminal law that if the inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test of moral certainty, finds application in this case. This is rightly so as every circumstance against guilt and in favor of innocence must be considered and

suspicion no matter how strong should not sway judgment, for well-established is the rule that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. DECISION FERNAN, J p: In Criminal Case No. 151 of the then Court of First Instance of Basilan, Hamid Duma, Leonardo Tolentino and Romeo Palermo were accused of the crime of robbery with homicide said to have been committed as follows: "That on or about the 23rd day of February, 1977 and within the jurisdiction of this Honorable Court, viz., at the Office of the Zamboanga Coconut Planters Trading, Inc., Municipality of Isabela, Province of Basilan, Philippines, the above named accused, taking advantage of the night to better accomplish their purpose and forming a group of three [3] persons armed with axe, bolo and knife, conspiring and confederating together, aiding and assisting one another, and by means of violence and treachery, did then and there wilfully, unlawfully and feloniously, take, steal and carry away cash money in the amount of FOUR THOUSAND FOUR HUNDRED THIRTY-SEVEN PESOS [P4,437.80] and EIGHTY CENTAVOS, Philippine Currency, which money was placed inside a steel cabinet, belonging to the Zamboanga Coconut Planters Trading, Inc.; that in the commission of the crime above-described, the said accused did wilfully, unlawfully and feloniously assault, attack, hack, stab and hit with said axe, bolo and knife one Benjamin Pollisco, thereby inflicting hacked and stabbed wounds upon his body which caused his death." 1 In a decision promulgated on January 8, 1979, Romeo Palermo was acquitted on the ground of insufficiency of evidence while Hamid Duma and Leonardo Tolentino were found guilty as charged and sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify the relatives of the victim the sum of P12,000.00 and the Zamboanga Coconut Planters Trading, Inc. the amount of P4,437.80 without subsidiary imprisonment in case of insolvency, in either case, and to pay the costs. The judgment of conviction against Leonardo Tolentino has become final since he did not appeal therefrom. 2 On the other hand, the Court accepted on March 21, 1979 the appeal interposed by Hamid Duma. Thus, this review will deal only with said appeal. The People narrates the facts as follows: "The Zamboanga Coconut Planters Trading, Inc. was a corporation engaged in copra buying with branch office at Isabela, Basilan [pp. 4-5, tsn., June 3, 1977: p. 145, tsn, June 9, 1977]. It had only two security guards deceased Benjamin Pollisco and accused Leonardo Tolentino [pp. 4-5, 8-9, tsn, June 3, 1977; p. 149, tsn, June 9, 1977; p. 197, tsn, July 6, 1977]. Appellant Hamid Duma and accused Romeo Palermo were laborers of the corporation [p. 5, tsn, June 3, 1977; p. 201, tsn, July 6, 1977]. "At about 6:45 p.m., on February 23, 1977, the security guard on duty was the deceased whose shift was from 3:00 p.m. to 11:00 p.m. [p. 14, tsn, June 3, 1977; p. 149, tsn, June 9, 1977; p. 198, tsn, July 6, 1977].

The shift of accused Tolentino was from 11:00 p.m. of the same day to 7:00 a.m. of the following day, February 24, 1977 [pp. 14, 29, tsn, June 3, 1977; p. 150, tsn, June 9, 1977; p. 198, tsn, July 6, 1977]. "At about 10:45 o'clock in the evening of February 27, 1977 Rasul Alibasa, the corporation's branch manager, and his assistant, Domingo Araneta, arrived at the office of the corporation where they also resided. They had just come from a conference with Benjie Arsenia at Pardo's residence [pp. 17-18, 20, tsn, June 3, 1977]. Upon entering the door of their office, they saw a body sprawled on the floor. When the light inside the building was switched on, they identified the victim as Benjamin Pollisco whose body was full of blood. They also saw the steel cabinet in their office with its first drawer forced open and deformed. The steel cabinet was pushed to the floor so that its handles were facing upward [pp. 20-25, 28, 63-66, tsn, June 3, 1977; pp. 191-192, 221, tsn, July 6, 1977]. Immediately, they reported the incident to the nearby army detachment. Araneta called up by telephone the Integrated National Police [pp. 27-28, 65, 67, tsn, June 3, 1977; pp. 192, 221, tsn, July 6, 1977; p. 359, tsn, Oct. 6, 1977].

"In a few moments, military personnel and policemen arrived. During their investigation, the police found the steel cabinet of the corporation pushed down the floor with its handles up and its top drawer forcibly opened, Of the amount of P9,437.80 inside it, P4,437.80 was gone [pp. 23-24, 43, 65, 67, tsn, June 3, 1977; p. 92, tsn, June 8, 1977; pp. 147-148, 177, 182, tsn, June 9, 1977; p. 199, tsn, July 6, 1977; pp. 362, 364, tsn, Oct. 6, 1977]. "While the police authorities were still inside the building investigating and searching the premises for possible clues, at about 11:45 o'clock that night, appellant Hamid Duma appeared at the scene of the crime with bloodstains on his shirt [pp. 30, 68, tsn, June 3, 1977; pp. 193, 221, tsn, July 6, 1977; p. 366, tsn, Oct. 6, 1977]. Cpl. Conrado Francisco of the Integrated National Police investigated him. Appellant Duma admitted having participated in the commission of the crime [Exh. "J", pp. 5-7, Folio of Exhs.; pp. 30, 33, 35, 68-69, tsn, June 3, 1977; pp. 84, 86-87, 91, 100, tsn, June 8, 1977; pp. 194, 227-234, tsn, July 6, 1977; pp. 366-367, 381, tsn, Oct. 6, 1977]. His shirt was found to be positive of human blood [Exh. "L", p. 52, rec.; p. 257, tsn, July 7, 1977]. "A few minutes later, at about 12:10 a.m., of the following day, February 24, 1977, accused Tolentino also arrived at the scene of the crime without uniform and slippers and appeared drunk and aggressive [pp. 36-37, 69-70, tsn, June 3, 1977; pp. 119-120, tsn, June 8, 1977; p. 194, 198-199, tsn, July 6, 1977; p. 369, tsn, Oct. 6, 1977]. Immediately, appellant Duma pointed at him as one of those who killed the deceased [pp. 36, 70, tsn, June 3, 1977; p. 95, tsn, June 8, 1977; p. 195, tsn, July 6, 1977; pp. 371, 418, tsn, Oct. 6, 1977]. In the course of the investigation of Tolentino by Cpl. Francisco, Tolentino likewise admitted having participated in the commission of the crime [Exh. "B," p. 46, rec.; pp. 37-39, 70, tsn, June 3, 1977]. His shirt was also found to be positive of human blood [Exh. "K", p. 52, rec.; pp. 39-40, tsn, June 3, 1977; p. 256, tsn, July 7, 1977]. When Tolentino was searched, the police found a knife [Exh. E] tucked to his waist [pp. 42-43, tsn, June 3, 1977]. Tolentino led the lawmen to his room and showed an ax and bolo [Exh. D] under his bed [p. 39, tsn, id.].

"Both appellant Duma and accused Tolentino implicated accused Romeo Palermo as their companion in the commission of the crime. Palermo, however, denied participation [p. 53, tsn, June 5, 1978; pp. 96, 99, tsn; June 6, 1978]. When searched, Palermo had P100.00 in cash in his possession [pp. 376, 394, tsn, Oct. 6, 1977]. His shirt which was full of blood was found in the house of his parents [pp. 16-19, tsn, June 3, 1977; pp. 373-375, tsn, Oct. 6, 1977]. On the night of the incident instead of sleeping in his parent's house, Palermo slept in the house of Mrs. Selsa Montez [pp. 373-374, 393, tsn, Oct. 6, 1977; p. 23, tsn, May 16, 1978; p. 6, tsn, June 5, 1978]. "During the preliminary investigation before the Provincial Fiscal of Basilan, both appellant Duma and accused Tolentino confessed participation in the commission of the crime [Exhs. "P" and "Q", pp. 33-66 and 9-26, respectively, Folio of Exhs.; pp. 304-316, tsn, Aug. 10, 1978]. Accused Palermo, however, refused to confess and denied having participated in it [p. 64, tsn, June 6, 1978]. "A certification issued by Dr. Purita Suson, Municipal Health Officer of Isabela, Basilan, showed that the deceased suffered the following injuries: '1. 2. 3. Hacked wound, multiple, face, right. Hacked wound, temporal region, right. Stabbed wound, ear, left.

4. Contusion with abrasion face, left.' [Exhs. "G" and "H", pp. 2 and 3, respectively, Folio of Exhs. pp. 124-126, 132, 133, tsn, June 9, 1977]. His death was instantaneous due to "Hemorrhage secondary to multiple hack, lacerated and stab wounds [Exhs. "G-2" and "H-3", pp. 2 and 3 respectively, Folio of Exhs.; p. 141, tsn, June 9, 1977; p. 361, tsn, Oct. 6, 1977]. "The amount of P5,000.00 was found by Rasul Alibasa and the police officers in the first drawer of the steel cabinet mixed with other documents. It was subsequently deposited with the Office of the Municipal Treasurer [pp. 43-46, tsn, June 7, 1977]." 3 On the other hand, appellant's version of the incident is as follows: "On February 23, 1977, at or about 7:00 o'clock in the evening, appellant and some of the laborers thereof were still in the premises of the Coconut Planters at Weyerheauser, Isabela, Basilan, on account of management's order that it was expecting delivery of copra from the coconut producers from Sumisip, Basilan Province [testimony of Fausta Tagud, t.s.n., page 181, Volume I]. "When management was certain that no copra delivery was forthcoming, most of the laborers, including the herein appellant, went home or at least, left the premises of the Coconut Planters compound leaving the manager, Rasul Alibasa alone with the deceased, Benjamin Pollisco, in the office of the Coconut Planters, Isabela, Basilan [testimony of Fausta Tagud, t.s.n. pages 175 and 184, Volume I].

"At or about 7:30 o'clock in the evening, Rasul Alibasa together with Domingo Araneta left the office of the Coconut Planters on board a motorcycle and proceeded to Sariling Atin, a restaurant located at the poblacion of Isabela, for their supper, and the only persons who were left in the office of the Coconut Planters were Benjamin Pollisco and Romeo Palermo. After taking their supper thereat, they went back to the office of the Coconut Planters for Alibasa's jacket and, thereupon, they saw Benjamin Pollisco and Romeo Palermo therein. The time was 8:10 o'clock in the evening. A little later, Alibasa and Araneta, on board a motorcycle went to Pardo's residence, a place situated nearby, on the invitation of one Benjie Arsenia for a conference. At 10:45 o'clock in the evening, or there about, Alibasa and Araneta went back to the office at the Coconut Planters, a place which was used by Alibasa as his sleeping quarter, and therein found Benjamin Pollisco, a security guard thereof, dead. [Testimony of Rasul Alibasa, t.s.n, pages 18-25, Volume I]. "Having found the dead body of Benjamin Pollisco thereat, said Alibasa and Araneta immediately sought the assistance of the police, and the army soldiers at a nearby military detachment, which was only a few meters distance from the scene of the crime. Pursuant thereto, Sgt. Mabalot of the Philippine Army and his men responded [sic] the call and about half an hour later, a team of policemen headed by homicide investigator, Corporal Conrado Francisco arrived thereat and who, thereupon, made his ocular inspection of the crime scene and other police routinary investigation thereof. "The investigation of Conrado Francisco revealed that the top drawer of the steel filing cabinet therein was forcibly opened and the money inside in the sum of P4,437.80 was missing but the sum of P,000.00 was not, however, taken and remained inside the drawer mixed with other papers and other documents therein. "In the meantime, the appellant, whose house is situated within the Weyerheauser compound, has to pass through the gate of the said compound in going to and from the poblacion of Isabela, Basilan. Incidentally, at or about 11:00 o'clock in the evening of February 23, 1977, appellant, while on his way home from a drinking joint at Tondo, Isabela, Basilan, and upon reaching the gate of the Weyerheauser compound, for no apparent reason and without provocation on his part, was mauled and assaulted by a group of soldiers there and, who thereafter, brought him to the office of the Coconut Planters for investigation in connection with the death of Benjamin Pollisco, with his mouth splattered with blood and other body injuries sustained by him as a result thereof [Testimony of Hamid Duma, t.s.n. pages 1020, Volume II]. "Appellant was immediately pointed to by Rasul Alibasa apparently on account of the blood stains splattered on appellant's shirt as a result of the body injuries sustained by him from the foregoing beatings. By reason thereof, the appellant was immediately placed under custodial investigation and focusing on him as the principal suspect in the killing and robbery of February 23, 1977 mentioned above. From 12:00 o'clock midnight of February 23, 1977 till 2:00 o'clock of the following day, appellant, in the course of the interrogation, had vomited blood and left unconscious for a period of one hour as a result of the continuous beatings and assault upon his person by Conrado Francisco, PC Rebollos and a certain Sammy. When appellant can no longer sustain the beatings, assault, maltreatment and intimidations of death upon him by Francisco and his men, he was finally compelled to falsely admit and

make untruthful statements incriminating himself and his two other co-accused. Testimony of Hamid Duma, t.s.n. pages 13-20, Volume II]. "After having falsely admitted participation in the killing of Benjamin Pollisco and the robbery therein, appellant was immediately brought to the police station by Corporal Francisco and his men after passing by the Army Battalion at Menzi, Isabela wharf; Tondo and Sta. Cruz, Isabela, Basilan. "At the police station, appellant's right hand was handcuffed by Corporal Francisco and thereafter, hanged by his right hand until only his toes were touching the floor of the police station. Appellant's statement, however, was taken at the police station by Corporal Francisco at 2:20 o'clock in the morning of February 24, 1977 as borne out in Exhibit "J" for the prosecution and admission of Corporal Conrado Francisco [Cross-examination on Conrado Francisco, t.s.n. page 4-8, Volume I]. On the same date, appellant was brought before Ruben Ramos, Clerk of Court II, Municipal Court of Isabela, Basilan before whom the statement of appellant was sworn to and subscribed. The appellant simply did not register his complaint to the said clerk of court indicating the circumstances under which Exhibit "J" was taken for fear of his life and other forms of intimidations by Corporal Francisco should appellant show the slightest sign of non-conformity in affixing his signature in the prepared statement [Exhibit "J"] before Ruben Ramos [Testimony of Hamid Duma, t.s.n. pages 4-30, Volume II]. Thereafter, appellant was held incommunicado (sic) for the period of one week. "On March 5, 1977, in a preliminary investigation conducted by the Provincial Fiscal of Basilan, the appellant and his co-accused were not assisted by counsel or informed of such right nor were they informed of their right to remain silent pursuant to Section 20, Article IV of the 1973 Constitution [Crossexamination on [sic] Pelagio Santos, t.s.n., pages 325, Volume I, S. Manzanaris]. And while the Provincial Fiscal had not intimidated appellant and his two other co-accused into submitting themselves to preliminary investigation, the presence of Corporal Conrado Francisco, who remained outside of the Fiscal's Office and monitoring the proceedings therein to the mind of the appellant, was enough intimidation to himself into repeating the untruthful statements treated in Exhibit "J" during the preliminary investigation." 4 Since there was no eyewitness to the commission of the crime, the trial court, in assessing the evidence, accorded importance to [a] the in-custody confession of appellant which it characterized as voluntary; [b] the circumstance that appellant's shirt [Exhibit "O"]) was "found to be with human blood"; and [c] the circumstance that appellant, who was an ordinary laborer of the Zamboanga Coconut Planters Trading, Inc. "appeared at the office at 11:45 in the evening of February 23, 1977 when it was not his duty to go to the office at that time for as stated by witnesses both for the prosecution and the defense, that at 6:45 p.m., the laborers were informed that no copra would be forthcoming and that they could go home." 5 The main thrust of appellant Duma's arguments is that the trial court erred in convicting him on the basis of his extrajudicial confession [Exhibit "J"] allegedly obtained in violation of Section 20, Article IV of the 1973 Constitution, which provides:

"SEC. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." Appellant claims that his confession should have been ruled out as evidence as it was extracted "as a result of torture, intimidation, force, threats, violence and coercion upon his person" and without the assistance of counsel. After a careful review of the records, we find for the appellant. We hold that this in-custody confession is not admissible in evidence and that the remaining circumstantial evidence does not fulfill the degree of moral certainty required to sustain the judgment of conviction. It appears that in giving credence to the confession, the trial court applied the rule in People vs. Castro, 6 where it was stated that the burden of proof to show the involuntariness of a confession rests on the accused. The trial court concluded that since herein appellant failed "to adequately meet or put up convincingly this burden of proof," the presumption of voluntariness stands and the fact that the same was obtained from him while under arrest does not affect its admissibility. However, the Castro ruling, which is premised on the presumption of regularity of official acts, is no longer controlling in so far as it concerns the application of Section 20, Article IV of the 1973 Constitution. In People vs. Duero, 7 the Court en banc pronounced that the rights enumerated in Section 20, except the first sentence, where adopted from Miranda vs. Arizona, 8 a case decided by the United States Supreme Court on June 13, 1966. This Court then ruled that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. "In effect, the Court not only abrogated the rule on presumption of regularity of official acts related to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionality protected rights. In Miranda Chief Justice Warren, who delivered the opinion of the Court, laid down the rule on admissibility of statements, i.e., that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 9 The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. 10 Precisely, the Miranda doctrine was formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring. 11

Prescinding from these principles, the U.S. Supreme Court enumerated the procedural safeguards which must be adhered to as follows: cdphil "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. "An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. "In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly waived his privilege against self-incrimination and his right to retained or appointed counsel." 12 The admission of appellant Duma's in-custody confession having been based on an abandoned doctrine, there is a need to re-evaluate the evidence of the prosecution. The Solicitor General maintains that the appellant was duly informed of his constitutional rights to remain silent and to counsel. However, the following revealing testimonies of at least three of the prosecution witnesses indicate otherwise: Cpl. Conrado Francisco, before whom the statement was taken, testified: "Q. Do you expect, Mr. Francisco, that Hamid Duma could possibly communicate at 2:20 in the morning of February 24, 1977 to any member of the bar at least to assist him in the investigation conducted by you on February 24, 1977? A. As it is stipulated therein that if he is willing to hire or look for a counsel to assist him in the investigation or the investigator concerned will be the one to afford him.

Q. Why do you have to conduct this investigation at 2:20 in the morning of February 24, 1977 when you could have waited, let's say, at 8:00 o'clock, 9:00 o'clock or 10:00 o'clock in the morning so that he could, at least, have a chance to look for or to, at least, look for a lawyer or to inform his relatives requesting for assistance of a lawyer in the investigation? A. I would like to tell this Honorable Court that element of time is very important, sir." [Vol. I, T.S.N., October 6, 1977, pp. 432-433] (Emphasis supplied). Ruben Ramos, the Clerk of Court, before whom the statement was subscribed and sworn to stated: "Q. The affiant was not aided nor accompanied by a counsel when he appeared before you to sign this document? A. Q. I have not seen any counsel. My question is, was be accompanied or aided by counsel?

A. No, he was not accompanied. He was only brought in by the interpreter. [Vol. I, T.S.N., July 6, 1977, pp. 236-237]. Q. According to you, you only asked of him that whatever statement embodied in Exhibit "J" may or may not be used against him and he voluntarily said that the statement as embodied in Exhibit "J" are voluntary? A. Q. Yes. And on that basis, he signed this statement?

A. And I asked him whether he was willing to sign his statement and he said he is signing that voluntarily. Q. A. Q. A Q. He was not assisted by any counsel? Not. Of course, yon did not inform him that he has a right to be presented by counsel? I did not inform him any more inasmuch as the Judge was there. You did not inform him whether he can remain silent or he can refuse?

A. I informed him. That is why I said he can sign or not sign that document and he said he is willing to sign. Q. You did not inform him that he has a right to be represented by counsel because Judge Principe was present at the time when he signed this document? A. I did not bother." [Vol. I, T.S.N., July 7, 1977, pp. 243-244]. (Emphasis supplied)

Pelagio S. Santos, the Court Stenographer of the Court of First Instance of Basilan who acted as stenographer in the preliminary investigation conducted in the office of the Provincial Fiscal on March 5, 1977, declared: "Q. At the start of this investigation all the three accused in this case were not represented by counsel? A. No, sir.

Q. And were they informed by the Provincial Fiscal of Basilan to the effect that they are entitled to counsel considering the nature or gravity of the case they are being subjected to at that time? FISCAL SAAVEDRA: I think the best evidence, Your Honor, I would like to object on the question. The best evidence is the record of the stenographic notes. xxx COURT: Then the record is the best evidence. However, if you will ask the question not in relation to the record, you may be allowed. xxx xxx xxx xxx xxx

A. No, sir, because if they were informed it will be reflected on the record." [Vol. I, T.S.N., October 6, 1977, pp. 321-322] (Emphasis supplied) The statement of Hamid Duma given to Cpl. Francisco in the Office of the Investigation Section on February 24, 1977 at 2:20 a.m. contains the following preliminaries: "PRELIMINARY: You are under investigation for the murder of BENJAMIN POLLISCO, of legal age, married, Security Guard of the Zamboanga Coconut Planters, Basilan Branch, and a resident of San Rafael St., Isabela, Basilan Province. You have the right to remain silent, anything you may declare hereof may be used in evidence against you. You have the right to assistance/presence of a counsel at your own choice. Q. A. Q. Do you want to declare in this investigation or you want to remain silent? Yes, sir, I will declare in this investigation. Do you need the assistance/presence of a counsel in this investigation?

A. No, sir, I do not need the assistance/presence of a counsel in this investigation for what I will declare here is the truth and nothing but the whole truth. 13

Assuming that the foregoing questions were propounded to appellant despite the latter's assertion to the contrary, still, it is not the kind of waiver contemplated in Miranda, which dictates that it must be made voluntarily, knowingly and intelligently. Moreover, appellant was not informed of another absolute prerequisite that if he is indigent, a lawyer will be appointed to represent him. Without the additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent the person most often subjected to interrogation the knowledge that he too has a right to have counsel present and only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. 14 Since the prosecution utterly failed to demonstrate compliance with the procedural safeguards, the Court finds the extrajudicial confession objectionable and therefore inadmissible in evidence for being in violation of the inhibition against compulsory self-incrimination. With the exclusion of the confession of Duma, there is no necessity to deliberate on the appellant's allegations of intimidation and maltreatment which attended its execution. As aforesaid, the other circumstantial evidence failed to produce the degree of moral certainty to overcome the constitutional presumption of innocence of the appellant. The prosecution inferred that the appellant must be guilty of the crime charged because of the bloodstains on his shirt. However, this circumstance merits scant consideration, there being no other evidence to support the inference. Prosecution witness Oliva Perez, the forensic chemist of the PC Criminal Laboratory who conducted a test on the bloodstains, testified that she failed to ascertain the blood type on the shirt. 15 She further testified that the blood type of the deceased was also not determined because when the specimen reached the laboratory, it was already "putrified and rendered unsuited for examination." 16 Hence, the tests neither confirmed nor refuted appellant's claim that the blood stains were that of his own. While flight, when unexplained, is presumptive evidence of guilt, mere presence of the accused within the vicinity of the scene of the crime barely three hours after its commission raises no such presumption. This proposition is supported by Duma's explanation that at or about 11 o'clock in the evening of February 23, 1977, upon reaching the gate of the Weyerheauser compound on his way home, he was spotted by the investigators and then mauled. Moreover, it has not been disputed that appellant's house is situated within the Weyerheauser compound and that he has to pass through the gate of the said compound in going to and from the poblacion of Isabela, Basilan. cdll Even assuming that appellant appeared at the office at the time when the investigation was going on, although he had no business to be there, as claimed by the prosecution, still, this has no probative value. Guilt is not imputable to Duma for his actuation is susceptible of two interpretations. Thus the time honored principle in criminal law that if the inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test

of moral certainty, finds application in this case. 17 This is rightly so as every circumstance against guilt and in favor of innocence must be considered and suspicion no matter how strong should not sway judgment, for well-established is the rule that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. 18 Finally, in People vs. Peralta, 19 it was held that the presence of the accused in the place in question shortly after the commission of the offense is a circumstance favorable to him, because, as a general rule, the wicked flee when no man pursueth, but the righteous are as bold as a lion. WHEREFORE, the decision of the Court of First Instance of Basilan in Criminal Case No. 151 is hereby REVERSED and the appellant Hamid Duma is ACQUITTED of the crime charged on grounds of reasonable doubt, with costs de oficio. In view of the circumstances obtaining in the case which cast doubt on the validity and admissibility of the statements of the co-accused Leonardo Tolentino who was likewise convicted by the trial court but who for reasons not shown in the record failed to appeal, let a copy of this decision be furnished the Honorable Minister of Justice for possible recommendation of executive clemency. 20 SO ORDERED. Feria, Alampay, Gutierrez, Jr. and Paras, JJ ., concur. Footnotes 1. p. 6, Rollo.

2. Apparently, accused Leonardo Tolentino was confident that his conviction had been appealed to this Court. In a letter dated April 4, 1980, he moved to withdraw his appeal. Said letter was noted by the Court and Tolentino was accordingly informed that "there was no appeal to withdraw." 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. pp. 3-7, Brief for the Appellee. pp. 3-8, Brief for the accused-appellant. p. 17, Rollo. 11 SCRA 699. 104 SCRA 379. 384 U.S. 436, 16 l. Ed. 2nd 694. Miranda vs. Arizona, supra, p. 706. [Underscoring supplied]. Miranda vs. Arizona, supra, p. 724. Miranda vs. Arizona, supra, p. 713. Miranda vs. Arizona, supra, pp. 720-724.

13. 14. 15. 16. 17. 18. 19. 20.

Exhibit "J", p. 5, Original Exhibits. Miranda vs. Arizona, supra, p. 723. Vol. I, t.s.n., July 7, 1977, p. 261. Vol. I, t.s.n., July 7, 1977, p. 272. People vs. Santos, 85 SCRA 630. People vs. Clores, 125 SCRA 67, citing People vs. Inguito, 117 SCRA 641. 67 Phil. 293. People vs. Inguito, 117 SCRA 641.