[G.R. No. 106632.

October 9, 1997]

DORIS TERESA HO, petitioner, vs. PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and the SANDIGANBAYAN (Second Division), respondents.

[G.R. No. 106678. October 9, 1997]

ROLANDO S. NARCISO, petitioner, vs. PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and the SANDIGANBAYAN (Second Division), respondents. DECISION PANGANIBAN, J.: May a judge issue a warrant of arrest solely on the basis of the report and recommendation of the investigating prosecutor, without personally determining probable cause by independently examining sufficient evidence submitted by the parties during the preliminary investigation?

The Case This is the main question raised in these two consolidated petitions for certiorari under Rule 65 of the Rules of Court challenging the Sandiganbayans August 25, 1992 Resolution[1] which answered the said query in the affirmative.

The Facts Both petitions have the same factual backdrop. On August 8, 1991, the Anti-Graft League of the Philippines, represented by its chief prosecutor and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a complaint[2] against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and 106678, respectively), Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoo. The complaint was for alleged violation of Section 3 (g) of Republic Act 3019[3] prohibiting a public officer from entering into any contract or transaction on behalf of the government if it is manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or will profit thereby. After due notice, all respondents therein filed their respective counter-affidavits with supporting documents. On January 8, 1992, Graft Investigation Officer Titus P. Labrador (hereafter, GIO Labrador) submitted his resolution [4] with the following recommendations: WHEREFORE, all premises considered, it is respectfully recommended that an information for violation of Section 3 (g) of R.A. 3019 as amended be filed against respondent Rolando S. Narciso before the Sandiganbayan.

It is likewise recommending that the case against the other respondents be DISMISSED for insufficiency of evidence. However, after a review of the above resolution, Special Prosecution Officer Leonardo P. Tamayo (hereafter, SPO Tamayo) recommended that both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A. 3019. The resolution of GIO Labrador, as modified by the memorandum[5] of SPO Tamayo, was approved by Ombudsman Conrado M. Vasquez on May 5, 1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan in an information[6] filed on May 18, 1992. Attached to the information were the resolution of GIO Labrador and the memorandum of SPO Tamayo. The said information reads: The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses ROLANDO NARCISO and DORIS TERESA HO, President of National Marine Corporation, of violation of Section 3(e) of RA 3019, as amended, committed as follows: That on or about April 4, 1989, and for sometime prior and/or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO NARCISO, a public officer, being then the Vice-President of the National Steel Corporation (NSC), a government-owned or controlled corporation organized and operating under the Philippine laws, and DORIS TERESA HO, a private individual and then the President of National Marine Corporation (NMC), a private corporation organized and operating under our Corporation law, conspiring and confederating with one another, did then and there wilfully, unlawfully and criminally, with evident bad faith and through manifest partiality, cause undue injury to the National Steel Corporation (NSC), by entering without legal justification into a negotiated contract of affreightment disadvantageous to the NSC for the haulage of its products at the rate of P129.50/MT, from Iligan City to Manila, despite their full knowledge that the rate they have agreed upon was much higher than those offered by the Loadstar Shipping Company, Inc. (LSCI) and Premier Shipping Lines, Inc. (PSLI), in the amounts of P109.56 and P123.00 per Metric Ton, respectively, in the public bidding held on June 30, 1988, thereby giving unwarranted benefits to the National Marine Corporation, in the total sum of One Million One Hundred Sixteen Thousand Fifty Two Pesos and Seventy Five Centavos (P1,116,052.75), Philippine Currency, to the pecuniary damage and prejudice of the NSC in the aforestated sum. The said offense was committed by Rolando S. Narciso in the performance of his official functions as Vice-President of the National Steel Corporation. CONTRARY TO LAW. Acting on the foregoing information, the Sandiganbayan issued the now questioned warrant of arrest against Petitioners Ho and Narciso. Petitioner Ho initially questioned the issuance thereof in an Urgent Motion to Recall Warrant of Arrest/Motion for Reconsideration which was adopted by Petitioner Narciso. They alleged that the Sandiganbayan, in determining probable cause for the issuance of the warrant for their arrest, merely relied on the information and the resolution attached thereto, filed by the Ombudsman without other supporting evidence, in violation of the requirements of Section 2, Article III of the Constitution, and settled jurisprudence. Respondent Sandiganbayan denied said motion in the challenged Resolution. It ratiocinated in this wise: Considering, therefore, that this Court did not rely solely on the certification appearing in the information in this case in the determination of whether probable cause exists to justify the issuance of the warrant of arrest but also on the basis predominantly shown by the facts and evidence appearing in the resolution/memorandum of responsible investigators/ prosecutors, then the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so, when the information, as filed, clearly shows that it is sufficient in form and substance based on the facts and evidence adduced by both parties during the preliminary investigation. To require this Court to have the entire record of the preliminary investigation to be produced before it, including the evidence submitted by the complainant and the accused-respondents, would appear to be an exercise in futility. Thus, these petitions.

The Issue Petitioner Ho raises this sole issue: May a judge determine probable cause and issue [a] warrant of arrest solely on the basis of the resolution of the prosecutor (in the instant case, the Office of the Special Prosecutor of the Ombudsman) who conducted the preliminary investigation, without having before him any of the evidence (such as complainants affidavit, respondents counter-affidavit, exhibits, etc.) which may have been submitted at the preliminary investigation?[7] In his separate petition, Rolando S. Narciso adopts the foregoing and raises no other distinct issue. Petitioners Ho and Narciso similarly contend that a judge, in personally determining the existence of probable cause, must have before him sufficient evidence submitted by the parties, other than the information filed by the investigating prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such evidence should not be merely described in a prosecutors resolution. Citing People vs. Inting,[8] petitioners insist that the judge must have before him the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents which are material in assisting the judge to make his determination.

The Courts Ruling The petitions are meritorious. The pertinent provision of the Constitution reads: Section 2 [, Article III]. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and nosearch warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. (Underscoring supplied.) In explaining the object and import of the aforequoted constitutional mandate, particularly the power and the authority of judges to issue warrants of arrest, the Court elucidated in Soliven vs. Makasiar[9]: What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.[10] [underscoring supplied] We should stress that the 1987 Constitution requires the judge to determine probable cause personally. The word personally does not appear in the corresponding provisions of our previous Constitutions. This emphasis shows the present Constitutions intent to place a greater degree of responsibility upon trial judges than that imposed under the previous Charters. While affirming Soliven, People vs. Inting[11] elaborated on what determination of probable cause entails, differentiating the judges object or goal from that of the prosecutors.

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutors certification of probable cause is ineffectual. It is the report, the affidavits the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines prob able cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper -- whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial -- is the function of the Prosecutor.[12] And clarifying the statement in People vs. Delgado[13] -- that the trial court may rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest -- this Court underscored in Lim Sr. vs. Felix[14] that [r]eliance on the COMELEC resolution or the Prosecutors certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. We added, The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. Summing up, the Court said: We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscals bare certification. All of these should be before the Judge. The extent of the Judges personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judges examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutors certification and investigation report whenever necessary. He should call for [the] complainant and [the] witnesses themselves to answer the courts probing questions when the circumstances of the case so require.[15] [underscoring supplied] The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado vs. Diokno[16] where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested.[17] Hence, the judge, before issuing a warrant of arrest, must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof.[18] At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause.[19] In Webb vs. De Leon,[20] we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutors initial determination finding probable cause to see if it is supported by substantial evidence. In the recent case of Roberts Jr. vs. Court of Appeals,[21] this Courts application of the dictum laid down in Soliven -- affirmed and fortified in Inting, Lim Sr., Allado and Webb -- should lay to rest the issue raised in

the instant petitions. In Roberts Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order of the respondent judge directing inter alia the issuance of warrants of arrest against the accused, reasoning that said judge did not personally determine the existence of probable cause, since he had only the informat ion, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutors finding of probable cause. In like manner, herein Respondent Sandiganbayan had only the information filed by the Office of the Ombudsman, the thirteen-page resolution of the investigating officer and the three-page memorandum of the prosecution officer, when it issued the warrant of arrest against the petitioners. The latter two documents/reports even had dissimilar recommendations -- the first indicting only Petitioner Narciso, the second including Petitioner Ho. This alone should have prompted the public respondent to verify, in the records and other documents submitted by the parties during the preliminary investigation, whether there was sufficient evidence to sustain the Ombudsmans action charging both petitioners with violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of the warrant, the Sandiganbayan simply said: JUSTICE ESCAREAL: xxx xxx xxx

But in this particular case we believe there is a prima facie case based on our examination of the resolution because we believe, we think the Ombudsman will not approve a resolution just like that, without evidence to back it up.[22] In attempting to further justify its challenged action, the public respondent explained in its assailed Resolution: In the instant case, there are attached to the information, two (2) Memorandum/Resolution (sic) emanating from the Offices of the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19, respectively, Record) which clearly and indubitably established, firstly, the conduct of a due and proper preliminary investigation, secondly, the approval by proper officials clothed with statutory authority; and thirdly, the determination and ascertainment of probable cause based on the documentary evidence submitted by the complainant (Anti-Graft League of the Philippines), foremost among which is the Contract of Affreightment entered into between National Steel Corporation (NSC), and National Marine Corporation (NMC) and the COA-NSC audit report, together with the counter-affidavits of accused Rolando Narciso and NMC officials, among whom is accusedmovant. Outlined in detail in the aforesaid Resolution of Titus P. Labrador, Graft Investigation Officer II, which was reviewed by Attys. Romeo I. Tan and Arturo Mojica, Director, Community Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the facts leading to the questioned transaction between NSC and NMC, together with an evaluation of the propriety and legality of the bidding process involved therein and which revealed that there were supposed non-compliance with proper bidding procedures. GIO Labradors findings and recommendations, extensively set out in his thirteen-page resolution, is complemented by the three-page Memorandum of Special Prosecution Officer II Leonardo P. Tamayo, both of which meticulously delved into the merits and demerits of the evidence presented by the complainant and accusedrespondents and which resulted in their respective recommendation which led the Honorable Conrado M. Vasquez to approve the recommendations of Deputy Special Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A. Desierto for the filing of the information in the case at bar. xxx xxx xxx

Considering, therefore, that this Court did not rely solely on the certification appearing in the information in this case in the determination of whether probable cause exists to justify the issuance of the warrant of arrest but also on the basis predominantly shown by the facts and evidence appearing in the resolution/memorandum of responsible investigators/ prosecutors, then the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so, when the information, as filed, clearly shows that it is sufficient in form and substance based on the facts and evidence adduced by both parties during the preliminary investigation. To require this Court to have the entire record of the preliminary investigation to be produced before it, including

the evidence submitted by the complainant and the accused-respondents, would appear to be an exercise in futility.[23] In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting,the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. [24] Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutors report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutors bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.[25] Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge.[26] We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. True, in Webb vs. De Leon, we found that the painstaking recital and analysis of the parties evidence made in the DOJ Panel Report satisfied both judges that there [was] probable cause to issue warrants of arrest against petitioners. This statement may have been wrongly construed by the public respondent to mean that the narration or description of portions of the evidence in the prosecutors report may serve as sufficient basis to make its own independent judgment. What it should bear in mind, however, is that, aside from the 26-page report of the DOJ panel, the sworn statements of three witnesses and counter-affidavits of the petitioners in Webb were also submitted to the trial court, and the latter is presumed to have reviewed these documents as well, prior to its issuance of the warrants of arrest. In the instant case, the public respondent relied fully and completely upon the resolution of the graft investigation officer and the memorandum of the reviewing prosecutor, attached to the information filed before it, and its conjecture that the Ombudsman would not have approved their recommendation without supporting evidence. It had no other documents from either the complainant (the Anti-Graft League of the Philippines) or the People from which to sustain its own conclusion that probable cause exists. Clearly and ineluctably, Respondent Courts findings of the conduct of a due and proper preliminary investigation and the approval by proper officials clothed with statutory authority are not equivalent to the independent and personal responsibility required by the Constitution and settled jurisprudence. At least some of the documentary evidence mentioned (Contract of Affreightment between National Steel Corporation and National Marine Corporation, the COA-NSC audit report, and counter-affidavits of Rolando Narciso and NMC officials), upon which the investigating officials of the Ombudsman reportedly ascertained the existence

of probable cause, should have been physically present before the public respondent for its examination, to enable it to determine on its own whether there is substantial evidence to support the finding of probable cause. But it stubbornly stood pat on its position that it had essentially complied with its responsibility. Indisputably, however, the procedure it undertook contravenes the Constitution and settled jurisprudence. Respondent Court palpably committed grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis of the prosecutors findings and recommendation, and without determining on its own the issue of probable cause based on evidence other than such bare findings and recommendation. WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET ASIDE. The warrant issued by the Sandiganbayan (Second Division) on May 20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho and Rolando Narciso is hereby declared NULL AND VOID. SO ORDERED.

.R. No. L-27511

November 29, 1968

IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, SIMON LUNA, petitionerappellant, vs. HON. LORENZO M. PLAZA, as Judge of the Municipal Court of Tandag, Surigao del Sur; HON. SANTOS B. BEBERINO as Provincial Fiscal of Surigao del Sur; and THE PROVINCIAL WARDEN of Surigao del Sur,respondents- appellees. Sisenando Villaluz and Juan T. David for petitioner-appellant. Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M. Amores for other respondents-appellees. Provincial Fiscal Santos B. Beberno in his own behalf as respondent-appellee. ZALDIVAR, J.: Appeal from the decision of the Court of First Instance of Surigao del Sur, dated April 20, 1967, dismissing the petition for a writ of habeas corpus, filed by herein petitioner-appellant Simon Luna hereinafter referred to simply as petitioner who was charged with murder in Criminal Case No. 655-New of the same court. The criminal action was commenced by T-Sgt. Candido Patosa, PC investigator of Tandag, Surigao del Sur, by filing with respondent Municipal Judge Lorenzo M. Plaza, of the Municipal Court of Tandag, criminal case No. 1138 charging the accused, herein petitioner, with the crime of murder. Supporting the complaint were sworn statements of the witnesses for the prosecution, in the form of questions and answers taken by T-Sgt. Patosa, and subscribed and sworn to before the respondent Judge at the time of the filing of the complaint. The respondent Judge examined the prosecution witnesses by reading to them "all over again the questions and answers" in their statements in writing, and the witnesses-affiants declared before said Judge that the questions were propounded by T-Sgt. Candido Patosa, and that the answers were made by them. The affiants further declared before respondent Judge that their answers were true, and were freely and voluntarily made; that they fully understood the questions and answers, and that they were willing to sign their respective affidavits. The affiants signed their respective affidavits in the presence of the respondent Judge, who also signed after the usual procedure of administering the oath. Considering the answers of the affiants to the questions contained in their sworn statements, together with the post-mortem and autopsy report on the dead body of the victim Jaime Diaz Ng, the certificate of death, the sketch showing the position of the victim and the accused, and Exhibits 6, 7, 8, 12, and 13 of herein respondents, the respondent Judge opined that there was reasonable ground to believe that the crime of murder had been committed and the accused was probably guilty thereof. Respondent Judge issued the order and warrant of arrest, specifying therein that no bail should be accepted for the provisional release of the accused. On February 20, 1967, upon motion of petitioner that he be admitted to bail upon the ground that the evidence of guilt was not strong, respondent Judge issued an order granting bail, fixing it at P30,000.00; which order, however, respondent Judge later revoked, and petitioner was denied bail. The case was subsequently remanded to the Court of First Instance of Surigao del Sur, after petitioner filed a waiver of his right to preliminary investigation. On March 9, 1967 respondent Provincial Fiscal filed an information charging herein petitioner with the crime of murder. The petitioner was detained in the provincial jail of Surigao del Sur under the custody of respondent Provincial Warden. On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with the Court of First Instance of Surigao del Sur, therein docketed as Special Proceedings No. 105-New, claiming that he was being deprived of liberty without the due process of law, on the ground that the imprisonment and detention was the result of a warrant of arrest issued by respondent Judge in violation of Republic Act No. 3828, and praying for the annulment of the order for his arrest and his discharge from confinement.

Herein respondents filed their answer, alleging that Republic Act No. 3828 had been substantially complied with; that a motion to quash, and not a petition for habeas corpus was the proper remedy; and that petitioner's application for bail constituted a waiver of the right to question the validity of the arrest. After trial, the Court of First Instance of Surigao del Sur rendered its decision, dated April 20, 1967, holding that respondent Municipal Judge had substantially complied with Republic Act No. 3828, and consequently denied the application for the writ of habeas corpus, and dismissed the case. Hence this appeal. Petitioner, in his assignment of errors, claims that the trial court erred, as follows: 1. In giving absolute credence to the oral testimony of the respondent Judge to the effect that he adopted and made his own the questions and answers taken by T-Sgt. Patosa, PC Investigator, one of the prosecution witnesses, because the records show the contrary; 2. In denying the writ of habeas corpus and in dismissing the petition. 1. In support of his first assignment of error, petitioner contends that Republic Act No. 3828 imposes on a municipal judge, before he can issue a warrant of arrest, two specific duties, to wit: (1) personally examine the complainant and witnesses with "searching questions and answers", which means that the judge must crossexamine them in case their affidavits are presented; and (2) said examination must be reduced to writing and form part of the records of the case. The record of the instant case, according to petitioner, does not show said examination was performed by respondent Judge. Petitioner urges that the absence of any document in the record that shows that respondent Judge had performed the examination is positive proof that respondent Judge did not perform his duty, notwithstanding his testimony before the Court of First Instance of Surigao del Sur, during the hearing of this case, to the effect that he adopted the questions propounded to each of the prosecution witnesses by T-Sgt. Patosa. Petitioner maintains that this testimony, being self-serving intended to cover up the failure to comply with the law, should not have been believed by the Court of First Instance, and said court thereby committed errors when, believing said testimony, it found that there had been substantial compliance with the requirement that the municipal judge should personally examine the witnesses. Petitioner further maintains that assuming that the adoption of the questions made by T-Sgt. Patosa constituted substantial compliance with the requirement that the judge should examine the witnesses by asking searching questions, still the second requirement, that of reducing to writing the said procedure of adoption, has not been complied with; and so, Republic Act No. 3828 was still violated, and the issuance of the warrant of arrest was in violation of said Act and the Constitution and constituted denial of due process. Petitioner contends that the trial court erred in giving absolute credence to the testimony of respondent Municipal Judge. Regarding credibility of witnesses, this Court has consistently held that, as a general rule, the lower court's findings as to the credibility of witnesses will not be interfered with by appellate courts. Thus, in the case of People vs. Sinaon1 this Court said: Time and again, we have held that as a rule where the issue is one of credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, considering that it is in a better position to decide the question, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless there is a showing that it has overlooked certain facts of substance and value, that if considered, might affect the result of the case. Petitioner has appealed "from the decision/order" of the trial court "to the Honorable Supreme Court of the Philippines, on the ground that the same is contrary to law and the Philippine Constitution" and prayed that "all the records of the proceeding and the evidence, oral and documentary, be transmitted or forwarded to the Honorable Supreme Court ...".2 Since petitioner appealed directly to this Court he must, therefore, raise only questions of law and he has thereby waived the right to raise any question of fact, 3 and the findings of facts of the trial court, under the rules and precedents, must be deemed final and binding upon this Court.4 The findings of facts of the trial court are found in the following portion of the decision appealed from, to wit:

There is no dispute that there is a valid complaint charging the accused Simon Luna, the herein petitioner with the crime of Murder filed with the respondent Judge authorized to conduct the examination of the witnesses for the prosecution for the purpose of determining the existence of probable cause before the issuance of the corresponding warrant of arrest; that the complaint is supported by the statements of the witnesses under oath in writing in the form of questions and answers and other documents attached to the complaint; that before the issuance of the corresponding warrant of arrest, the respondent judge personally examined the witnesses for the prosecution on their statements taken by T-Sgt. Candido Patosa by reading the questions and answers all over again to the affiants who confirmed to the respondent Judge that the statements contained in their sworn statements are true; that being satisfied that the questions and answers contained in the sworn statements taken by T-Sgt Patosa partake of the nature of his searching questions and answers as required by law, the respondent Judge adopted them as his own personal examination of the witnesses for the purpose of determining the existence of probable cause, the order and the warrant of arrest were issued to take the accused into custody for the commission of the offense charged (Exhibits "H", "H-1", "I", and "I-1"-petitioner); and that the petitioner waived his right to the preliminary investigation (Exhibit "12"-respondent) and applied to be admitted to bail. Petitioner, however, claims that the failure of respondent Judge to put in writing that he adopted the questions asked by T-Sgt. Patosa and his failure to ask "searching questions" violated Republic Act No. 3828. Republic Act No. 3828, approved June 22, 1963, inserted in section 87 (e) of the Judiciary Act of 1948 the following paragraph: No warrant of arrest shall be issued by any justice of the peace in any criminal case filed with him unless he first examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in the form of searching questions and answers. Before a municipal judge may issue a warrant of arrest, the following conditions must first be fulfilled: (1) he must examine the witnesses personally; (2) the examination must be under oath; (3) the examination must be reduced to writing in the form of searching questions and answers. Were these conditions fulfilled in the instant case? The first condition was fulfilled. The trial court found as a fact that "the respondent judge personally examined the witnesses for the prosecution ...;" that respondent judge adopted as his own personal examination the questions asked by T-Sgt. Patosa as appearing in the written statements, which he read over again to the witnesses together with the answers given therein, asking the witnesses whether said answers were theirs, and whether the same answers were true, to which the witness answered in the affirmative. Republic Act No. 3828 does not prohibit the municipal Judge from adopting the questions asked by a previous investigator. It appears that the sworn statements5 of the witnesses state at the beginning that the sworn statement was "taken by T-Sgt. Candido L. Patosa", and does not state that it was taken by the respondent municipal Judge himself. This circumstance is explained by the fact that said written statements already taken by T-Sgt. Patosa were delivered to respondent Municipal Judge who adopted the questions therein in his examination, because he considered them searching questions. Respondent Judge presumably did not consider it necessary to change the introductory remarks in each of the written statements. But that he made the examination personally cannot be doubted; it is so stated in the order dated February 18, 1967, which recites: After examining the witness personally and under oath there is reasonable ground to believe that an offense for murder has been committed and that the accused, Simon Luna, is probably guilty thereof. (Exh. H) The ruling in Doce vs. Branch II of the Court of First Instance of Quezon, et al.,6 wherein this Court held that the warrant of arrest issued therein was irregularly issued is not applicable to the case at bar for the simple reason that the facts are different. This Court in that case said:

There is merit in the assertion that the warrant of arrest was irregularly issued. Section 87 of the Judiciary Act as amended by Republic Act 3828 requires that the Municipal Judge issuing the same, personallyexamine under oath the witnesses, and by searching questions and answers which are to be reduced to writing. Here, instead of searching questions and answers, we have only the affidavits of respondent and her one witness. Moreover, said affidavits were sworn to before Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest. In the instant case, as stated above, the respondent Municipal Judge personally examined under oath the witnesses by asking questions, that were adopted from a previous investigation, and considered by him as sufficiently searching and which questions and the answers thereto were in writing and sworn to before him prior to his issuance of the order of arrest. The second condition required by Republic Act No. 3828 for the issuance of a warrant of arrest was also fulfilled. The trial court found that the complaint was "supported by statements of the witnesses under oath." The record also shows the following documents to have been subscribed and sworn to before respondent Judge, namely: Exhibit B, sworn statement of herein petitioner Simon Luna y Albay; Exhibit C, sworn statement of Eusebio Corpuz; Exhibit D, sworn statement of Bruno M. Zafra; Exhibit E, sworn statement of Martiliano J. Bautista; Exhibit F, sworn statement of Janedina Diaz y Bandoy. The third condition required by Republic Act No. 3828 was likewise fulfilled. The examination of the witnesses was written down, in the form of searching questions and answers. The term "searching questions and answers" means only, taking into consideration the purpose of the preliminary examination which is to determine "whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial",7 such questions as have tendency to show the commission of a crime and the perpetrator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and place of its commission, the possible motives for its commission; the subject, his age, education, status, financial and social circumstances, his attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and social circumstances, characteristics, etc. The points that are the subject of inquiry may differ from case to case. The questions, therefore, must to a great degree depend upon the Judge making the investigation. At any rate, the court a quo found that respondent judge was "satisfied that the questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his searching questions and answers as required by law," so the respondent Judge adopted them. Petitioner's further contention that the issuance of the warrant of arrest was a violation of the constitution and of procedural due process is likewise untenable. The Constitution, in Section 1(3), Article III, provides that no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The constitutional requirement of examination of witnesses under oath was, as shown above, fulfilled. The existence of probable cause depended to a large degree upon the finding or opinion of the judge conducting the examination. Respondent judge found that there was probable cause, as stated in his order of arrest, that "after examining the witnesses personally and under oath there is a reasonable ground to believe that an offense of murder has been committed and that the accused, Simon Luna, is probably guilty thereof." Petitioner's last contention that the warrant of arrest issued was a violation of procedural due process because of the alleged defective preliminary examination has no leg to stand on, in view of what we have hereinbefore stated. Moreover, this Court has held that preliminary examination is not an essential part of due process of law.8Preliminary examination may be conducted by the municipal judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence, of the accused. The record shows that herein petitioner waived the preliminary investigation before respondent Municipal Judge, and instead, he filed a petition for bail. The petition for bail was at first granted by respondent Judge, but later the order granting bail was revoked. This conduct of petitioner indicates that he had waived his objection to whatever defect, if any, in the preliminary examination conducted by respondent Judge prior to the issuance of the warrant of arrest. Indeed, petitioner has no substantial much less legal ground to complain that he was denied the due process of law.

We find that the trial Judge committed no error when he held that, based upon the facts shown during the hearing of this case, respondent Municipal Judge had substantially complied with the requirements of the law specifically Republic Act 3828 before issuing the warrant of arrest in this case. 2. In the light of what has been said above, it appears clear that petitioner's second assignment of error, that the trial court erred in denying the writ of habeas corpus, is untenable. Moreover, Section 4 of Rule 102; of the Rules of Court provides in part, as follows: SEC. 4. When writ not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge ... and that the court or judge had jurisdiction to issue the process ... or make the order the writ, shall not be allowed.... All the conditions, in the afore-quoted Section 4, set forth to deny the writ, are present in the instant case. It is shown that petitioner is detained and is in the custody of the respondent Provincial Warden by virtue of the order of arrest dated February 18, 1967, and the order dated February 21, 1967, of respondent Judge, to confine petitioner in the provincial jail. It is not disputed by petitioner that respondent Judge had jurisdiction to issue the warrant of arrest and the order of commitment under the provisions of Section 47, Republic Act No. 409, as amended by Republic Act No. 1201, although petitioner did question the validity of the warrant of arrest for allegedly having been issued in violation of Republic Act No. 3828 which claim We have found to be untenable. Consequently, the trial Judge did not commit an error in denying the writ of habeas corpus prayed for. At any rate, we believe that, if at all, the remedy available to the petitioner herein, under the circumstances stated in this opinion, is not a petition for a writ of habeas corpus but a petition to quash the warrant of arrest or a petition for a reinvestigation of the case by the respondent Municipal Judge or by the Provincial Fiscal. We wish to stress, however, that what has been stated in this opinion is certainly not intended to sanction the return to the former practice of municipal judges of simply relying upon affidavits or sworn statements that are made to accompany the complaints that are filed before them, in determining whether there is a probable cause for the issuance of a warrant of arrest. That practice is precisely what is sought to be voided by the amendment of Section 87 (c) of Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of arrest he should first satisfy himself that there is a probable cause by examining the witnesses personally, and that the examination must be under oath and reduced to writing in the form of searching questions and answers. It is obvious that the purpose of this amendment is to prevent the issuance of a warrant of arrest against a person based simply upon affidavits of witnesses who made, and swore to, their statements before a person or persons other than the judge before whom the criminal complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the provision of Section 87 (c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid malicious and/or unfounded criminal prosecution of persons.9 In the case now before Us, while it is true that the respondent Municipal Judge did not himself personally cause to be reduced to writing in the form of questions and answers the examination of witnesses presented before him by the person who filed the criminal complaint, We are satisfied that, as shown by the evidence, respondent Judge had personally examined the witnesses under oath and that the questions asked by the Judge and the answers of the witnesses were reflected in writings which were actually subscribed and sworn to before him. Moreover, We are of the considered view that no substantial right of the petitioner had been violated because, as hereinbefore adverted to, petitioner waived his right to preliminary investigation after he was arrested, and he took the step of applying for bail before respondent Municipal Judge. These acts of the petitioner subsequent to his arrest, constitute an implied admission on his part that here was a probable cause for the issuance of the warrant of arrest against him. Those acts of the petitioner constitute a waiver of whatever irregularity, if any there was, that attended his arrest.10 WHEREFORE, the decision of the trial court dated April 20, 1967, appealed from, is affirmed. Costs against petitioner-appellant. It is so ordered.

G.R. Nos. L-91011-12 November 24, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO MACAM y LONTOC, EUGENIO CAWILAN, JR. y BELEN, ANTONIO CEDRO y SANTOS, ERNESTO ROQUE y MARIANO AND DANILO ROQUE y MARIANO, accused. DANILO ROQUE and ERNESTO ROQUE,accused-appellants. The Solicitor General for plaintiff-appellee. Conde and Associates for accused-appellants.

QUIASON, J.: This is an appeal from the decision of the Regional Trial Court, Branch 104, Quezon City in Criminal Case No. Q-53781, finding Danilo Roque and Ernesto Roque guilty beyond reasonable doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of reclusion perpetua. I In Criminal Case No. Q-53781, appellants, together with Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr., were accused of Robbery with Homicide as defined and penalized under Article 294(1) of the Revised Penal Code, committed as follows: That on or about the 18th day of August, 1987, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused; conspiring together, confederating with and mutually helping one another, with intent to gain, and by means of intimidation and/or violence upon person, armed with a firearm and bladed weapons, did, then and there, wilfully, unlawfully and feloniously rob one BENITO MACAM y SY in the manner as follows: on the date and in the place aforementioned, the said accused, pursuant to their conspiracy, entered the residence of said offended party located at No. 43-A Fema Road, Brgy. Bahay Toro, this City, and thereafter divested the said offended party of the following properties: One (1) model .59 cal. 9mm (toygun) One (1) Walter P 38 cal. 9mm (toygun) One (1) airgun rifle with leather attache case One (1) master CO2 refiller One (1) Sony TV antennae Three (3) betamax tapes One (1) Kenyo betamax rewinder One (1) Samsonite attache case One (1) set of four pieces of trays One (1) Airmail typewriter One (1) Sony betamax One (1) Sony TV Trinitron One (1) chessboard One (1) Toyota Crown car bearing plate No. CAS-997 Assorted jewelry Cash money (still undetermined) One (1) .22 Walter valued in the total amount of P454,000.00, more or less, Philippine Currency, and by reason of the crime of Robbery, said accused, with intent to kill, did, then and there, wilfully, unlawfully

and feloniously attack, assault and employ personal violence upon the person of one Leticia Macam y Tui, thereby inflicting upon her serious and mortal injuries which were direct and immediate cause (sic) of her untimely death, and on the occasion of said offense, one Benito Macam y Sy, Salvacion Enrera y Escota, and Nilo Alcantara y Bautista, all sustained physical injuries which have required medical attendance for a period of more than thirty (30) days and which have incapacitated all of them from performing their customary labor for the said period of time, to the damage and prejudice of the heirs of the late LETICIA MACAM y TUI and to the damage and prejudice of the said offended parties in such amount as may be awarded under the provisions of the Civil Code (Rollo, pp. 3-4). Together with Criminal Case No. Q-53781, Criminal Case No. Q-53783 was filed against Eugenio Cawilan, Sr. for violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law (Rollo, p. 31). Upon being arraigned, all the accused in Criminal Cases Nos. Q-53781 and Q-53783 pleaded "not guilty" to the crimes charged. After the prosecution had presented its evidence on July 4, 1989, accused Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr., assisted by their respective counsels, changed their plea from "not guilty" to "guilty" (Rollo, p. 23). Consequently, a separate judgment was rendered sentencing each of them to suffer the penalty ofreclusion perpetua and ordering each of them to pay P30,000.00 to the heirs of Leticia Macam without subsidiary imprisonment in case of insolvency, but with all the accessory penalties provided for by law, and to pay the costs (Rollo, p. 24). The trial proceeded with respect to Eugenio Cawilan, Sr. and appellants. Of the latter, only Danilo Roque testified. On September 26, 1989, the trial court rendered its judgment finding appellants guilty beyond reasonable doubt of the crime of Robbery with Homicide in Criminal Case No. Q-53781 and acquitting Eugenio Cawilan, Sr. of violation of the Anti-Fencing Law in Criminal Case No. Q-53783 (Rollo, pp. 43-44). II The trial court accepted the prosecution's version as correct and made the following findings of fact: The prosecution evidence, stripped of non-essentials, shows that on August 18, 1987, Eduardo Macam, Antonio Cedro, Eugenio Cawilan, Jr., Danilo Roque and Ernesto Roque went to the house of Benito Macam located at 43 Fema Road, Quezon City, and that upon arrival at said place, Eduardo Macam, a nephew of Benito Macam, entered the house and talked to Benito Macam. Benito then offered lunch to Eduardo, who told him that he had companions waiting outside. Benito then told his maid, Salvacion Enrera, to call the said companions of Eduardo and ask them to enter the house and have their lunch. Salvacion went outside and called the persons waiting in a tricycle who, she positively identified, were Antonio Cedro, Eugenio Cawilan, Jr., Danilo Roque and Ernesto Roque. Salvacion Enrera testified that only Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque entered the house and that Ernesto Roque remained in the tricycle. After Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque had taken their lunch, Eduardo Macam suddenly grabbed the clutch bag of Benito Macam and pulled out Benito's gun and after they announced a hold-up, they started ransacking the place and looking for valuables. After tying up the members of Benito Macam's household, namely, Leticia Macam, Nilo Alcantara, Salvacion Enrera, and the children of Benito Macam, the same persons brought them to a room upstairs. After a while, Leticia Macam, Nilo Alcantara, Salvacion Enrera, and Benito Macam were taken out of the room and brought to another room where Leticia Macam was killed and Benito Macam, Nilo Alcantara, and Salvacion Enrera were stabbed. The prosecution presented as Exhibit "C" a list of the items taken by the said persons with a total value of P536,700.00.

Nilo Alcantara testified that while he was being brought downstairs by Antonio Cedro, he saw Leticia Macam being held by Danilo Roque inside the comfort room and that Danilo Roque told Antonio Cedro that "pare doon mo na upakan yan." Nilo then testified that he was brought back to a room upstairs where he suddenly heard a very loud scream from Leticia Macam, after which, he was suddenly stabbed by Antonio Cedro. Salvacion Enrera testified that she was brought to another room by Antonio Cedro where she saw Benito Macam and Nilo Alcantara bloodied from stab wounds and that she heard a loud scream from Mrs. Leticia Macam prior to her being stabbed by Danilo Roque (Rollo, pp. 36-37). III The version of the defense, as summarized by the trial court, is as follows: In exculpation, the defense in Criminal Case Q-53781 presented its sole witness accused Danilo Roque, who testified that in the morning of August 18, 1987, while he was driving his tricycle, he was stopped by three persons who, he came to know only during the trial of this case, were Eduardo Macam, Eugenio Cawilan, Jr. and Antonio Cedro. According to Danilo Roque, the said persons stopped him and asked that he bring them to Fema Road for which they were willing to pay P50.00 and that he agreed to bring them to Fema Road after Eduardo Macam gave him a calling card. Danilo Roque testified that they stopped at the residence of Benito Macam where Eduardo Macam alighted from his tricycle and entered the compound, and that after a while, he, together with Antonio Cedro and Eugenio Cawilan, Jr., was called by the maid of Benito Macam to go in the house and eat. After eating, Danilo stated that he washed the dishes and swept the floor, when suddenly, Eugenio Cawilan, Jr. pulled out a gun and announced a hold-up and told Danilo to keep silent and just follow what was asked of him to do. After the said persons tied the occupants of the house of Benito Macam, they told Danilo to help them gather some of the things therein, which order, Danilo obeyed for fear of his life. Danilo Roque then testified that after placing the things in a car parked inside the house, Eduardo Macam said, "Kailangan patayin ang mga taong yan dahil kilala ako ng mga yan," and that upon hearing this, he went out of the house and went home using his tricycle. He likewise testified that his brother, Ernesto Roque, was not at the said location. Danilo testified that his brother Ernesto had just arrived from the province on August 19, 1987 and that he asked Ernesto to go with him to the factory of Zesto Juice and that while they were at the said factory, where he was told by Eduardo Macam to get his payment, he and his brother Ernesto were suddenly apprehended by the security guards. He and Ernesto were then brought to the Quezon City Headquarters where Danilo alleged (sic) they (Ernesto Roque, Eduardo Macam, Eugenio Cawilan, Jr., and Antonio Cedro) were forced to admit certain acts (Rollo, pp. 34-35). The issues raised by appellants can be summarized into whether or not (a) their arrest was valid; and (b) their guilt have been proved beyond reasonable doubt. Appellants contend that their arrest without a warrant and their uncounseled identification by the prosecution witnesses during the police line-up at the hospital are violative of their constitutional rights under Section 12, Article 3 of the Constitution (Rollo, p. 119). Appellants gave the following version of the circumstances surrounding their arrests: . . . , Accused-Appellant Danilo Roque stated that between 4:00 o'clock (sic) and 5:00 o'clock (sic) in the afternoon of August 19, 1987, he and his brother, Accused-Appellant Ernesto Roque, went to the factory of Accused Eduardo Macam's father in Kaloocan City to collect the fare of P50.00 from Accused Eduardo Macam; they were suddenly approached by the security guards of the factory and brought inside the factory where they were mauled by the security guards and factory workers and told they were involved in a robbery-killing; thereafter, Patrolman Lamsin and his policemen-companions brought them to the headquarters of the Quezon City Police Department for investigation and detention; the other Accused, Eduardo Macam, Antonio Cedro

and Eugenio Cawilan, Jr., were in the jail of the Station Investigation Division, the Accused including Accused-Appellants Danilo Roque and Ernesto Roque were forced to admit to the robbery killing, but Accused-Appellants Danilo Roque and Ernesto Roque refused to admit they had anything to do with it; then all the Accused were brought to the Quezon City General Hospital before each of the surviving victims of the crime charged in handcuffs and made to line up in handcuffs together with some policemen in civilian clothes for identification by the surviving victims who the policemen spoke to before all of the Accused were pointed to as the suspects in the crime charged (TSN, July 12, 1989, pp. 15-18; Rollo, pp. 145-148) (Rollo, pp. 121-122). It appears that the security guards at the factory of the father of accused Eduardo Macam detained appellants. They were later brought to the Quezon City Police Headquarters for investigation. Since they refused to admit their participation in the commission of the crime, appellants were then brought to the Quezon City General Hospital and were made to line-up together with several policemen in civilian clothes. Salvacion Enrera, Benito Macam and Nilo Alcantara, who were confined at the hospital for injuries sustained during the robbery, were asked to pinpoint the perpetrators. At that time, appellants were handcuffed and bore contusions on their faces caused by the blows inflicted on them by the police investigators (TSN, July 12, 1989, pp. 15-18). In Gamboa v. Cruz, 162 SCRA 642 (1988), we held that the right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information, confessions or admissions from the accused (See also People v. Dimaano, 209 SCRA 819 [1992]). Historically, the counsel guarantee was intended to assure the assistance of counsel at the trial, inasmuch as the accused was "confronted with both the intricacies of the law and the advocacy of the public prosecutor." However, as a result of the changes in patterns of police investigation, today's accused confronts both expert adversaries and the judicial system well before his trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct 2568 [1973]). It is therefore appropriate to extend the counsel guarantee to critical stages of prosecution even before the trial. The law enforcement machinery at present involves critical confrontations of the accused by the prosecution at pre-trial proceedings "where the result might well settle the accused's fate and reduce the trial itself to a mere formality." A police line-up is considered a "critical" stage of the proceedings (U.S. v. Wade, 388 U.S. 218, 18 L Ed 2d 1149, 87 S Ct 1926 [1967]). After the start of the custodial investigation, any identification of an uncounseled accused made in a police lineup is inadmissible. This is particularly true in the case at bench where the police officers first talked to the victims before the confrontation was held. The circumstances were such as to impart improper suggestions on the minds of the victims that may lead to a mistaken identification. Appellants were handcuffed and had contusions on their faces. However, the prosecution did not present evidence regarding appellant's identification at the police line-up. Hence, the exclusionary sanctions against the admission in evidence of custodial identification of an uncounseled accused can not be applied. On the other hand, appellants did not object to the in-court identification made by the prosecution witnesses. The prosecution witnesses, who made the identification of appellants at the police line-up at the hospital, again identified appellants in open court. Appellants did not object to the in-court identification as being tainted by the illegal line-up. In the absence of such objection, the prosecution need not show that said identifications were of independent origin (Gilbert v. California, 388 U.S. 263, 18 L Ed 2d 1178, 87 S Ct 1951 [1967]). The arrest of appellants was made without the benefit of a warrant of arrest. However, appellants are estopped from questioning the legality of their arrest. This issue is being raised for the first time by appellants before this Court. They have not moved for the quashing of the information before the trial court on this ground. Thus, any irregularity attendant to their arrest was cured when they voluntarily submitted themselves to the jurisdiction of the trial court by entering a plea of not guilty and by participating in the trial (People v. Rabang, 187 SCRA 682 [1990]). Appellants further contend that their guilt has not been proved beyond reasonable doubt, conspiracy not having been established by positive and conclusive evidence (Rollo, p. 131).

The presence of conspiracy between appellants and the other accused can be shown through their conduct before, during and after the commission of the crime (People v. Dagoma, 209 SCRA 819 [1992]). It is undeniable that appellant Danilo Roque was the tricycle driver, who brought the accused Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr. to the house of Benito Macam. He contends that he did not know the said accused. Yet, why did he agree to bring them to the Macam residence when the route going to that place is out of his regular route? Why did he agree to bring them to that place without being paid the P50.00 as agreed but was merely given a calling card? Upon arriving at the residence of Benito Macam, appellant Danilo Roque, together with his co-accused, went inside the house to eat. He even admitted that after eating, he washed the dishes, swept the floor and sat on the sofa in the sala instead of going out of the house. This conduct is not in keeping with his being merely the tricycle driver hired by the accused to transport them to their destination. Appellant Danilo Roque was the one who gathered the articles stolen from the house of the victim and who placed them inside the tricycle. While he claimed that he was merely intimidated by the accused to do so, his subsequent conduct belied this claim. According to him, he escaped after hearing accused Eduardo Macam tell his co-accused to kill all the possible witnesses who may be asked to identify them. Yet he continued to ply his route as if nothing unusual happened. How he was able to escape unnoticed by his co-accused is a puzzle by itself. Likewise, he did not mention the incident to anyone, not even to his brother, appellant Ernesto Roque, whom he saw the following day. He did not report the incident to the police. In People v. Logronio, 214 SCRA 519 (1992), we noted: "For criminals to make an innocent third party a passive and unnecessary witness to their crime of robbing and killing, and then to let such witness go free and unharmed, is obviously contrary to ordinary human experience." Appellant Danilo Roque's denial of his participation in the commission of the crime is not sufficient to overcome the testimony of the prosecution witnesses, who positively identified the former as one of the persons who entered the Macam's residence, robbed and stabbed the occupants therein. Salvacion Enrera testified that she was stabbed by appellant Danilo Roque. Nilo Alcantara, likewise, positively identified appellant Danilo Roque as one of those who brought Leticia Macam to the comfort room, where she was found dead. Appellant Ernesto Roque did not even testify in his defense at the trial. The Constitution does not create any presumption of guilt against an accused who opts not to take the witness stand (Griffin v. California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S Ct 1229 [1965]). That is his right. However, appellant Ernesto Roque cannot rely on the testimony of Danilo Roque because said testimony failed to rebut and impeach the evidence of the prosecution against both appellants (Cf. Desmond v. U.S. 345 F. 2d 225 [CA 1st 1965]). We agree with the finding of the trial court that appellant Ernesto Roque, while remaining outside the house of Macam, stood as a look-out, which makes him a direct co-conspirator in the crime (U.S. v. Santos, 4 Phil. 189 [1905]). Appellants contend that the crimes committed were robbery and homicide, and not the complex crime of robbery with homicide (Rollo, p. 143). We do not agree. The rule is whenever homicide has been committed as a consequence or on occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide (People v. Veloso, 112 SCRA 173 [1982]; People v. Bautista, 49 Phil. 389 [1926]; U.S. v. Macalalad, 9 Phil. 1 [1907]). Lastly, the award of civil damages made by the trial court is not in accordance with law and jurisprudence. In its judgment, the trial court disposed in pertinent part as follows: "In Crim. Case Q-53781, the court finds accused DANILO ROQUE and ERNESTO ROQUE guilty beyond reasonable doubt of the crime of Robbery with Homicide, . . . and hereby sentences each of them to suffer the penalty of RECLUSION PERPETUA and each to indemnify the heirs of the deceased the sum of P30,000.00, ." (Rollo, pp. 43-44; emphasis supplied). The trial court overlooked the rule in Article 110 of the Revised Penal Code that the principals shall be "severally ( in solidum)" liable among themselves (People v. Hasiron, 214 SCRA 586 [1992]).

WHEREFORE, the decision is AFFIRMED with the MODIFICATIONS: (1) that the civil damages awarded in favor of the heirs of Leticia Macam are increased to P50,000.00; and (2) that the word "each" before "to indemnify the heirs" in the dispositive portion of the decision is deleted. SO ORDERED.