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EN BANC

G.R. No. L-5371

March 26, 1953

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
AQUINO MINGOA, defendant-appellant.
REYES, J.:
Found short in his accounts as officer-in-charge of the office of the municipal treasurer of
Despujols, Romblon, and unable to produce the missing fund amounting to P3,938 upon demand
by the provincial auditor, the defendant Aquino Mingoa was prosecuted for the crime of
malversation of public funds in the Court of First Instance of Romblon, and having been found
guilty as charged and sentenced to the corresponding penalty, he appealed to the Court of
Appeals. But that court certified the case here on the ground that it involved a constitutional
question.
The evidence shows that it is not disputed that upon examination of his books and accounts on
September 1, 1949, defendants, as accountable officer, was found short in the sum above-named
and that, required to produce the missing fund, he was not able to do so. He explained to the
examining officer that some days before he had, by mistake, put the money in a large envelope
which he took with him to show and that he forgot it on his seat and it was not there anymore
when he returned. But he did not testify in court and presented no evidence in his favor.
We agree with the trial judge that defendant's explanation is inherently unbelievable and cannot
overcome the presumption of guilt arising from his inability to produce the fund which was
found missing. As His Honor observes, if the money was really lost without defendant's fault, the
most natural thing for him to do would be to so inform his superiors and apply for release from
liability. But this he did not do. Instead, he tried to borrow to cover the shortage. And on the
flimsy excuse that he preferred to do his own sleuthing, he even did not report the loss to the
police. Considering further as the prosecution points out in its brief, that defendant had at first
tried to avoid meeting the auditor who wanted to examine his accounts, and that for sometime
before the alleged loss many teachers and other employees of the town had not been paid their
salaries, there is good ground to believe that defendant had really malversed the fund in question
and that his story about its loss was pure invention.
It is now contended, however, that lacking direct evidence of actual misappropriation the trial
court convicted defendant on mere presumptions, that is, presumptions of criminal intent in
losing the money under the circumstances alleged and presumptions of guilt from the mere fact
that he failed, upon demand to produce the sum lacking. The criticism as to the first presumption
is irrelevant, for the fact is that trial court did not believe defendant's explanation that the money

was lost, considering it mere cloak to cover actual misappropriation. That is why the court said
that "whether or not he (defendant) is guilty of malversation for negligence is of no moment . . . "
And as to the other presumption, the same is authorized by article 217 of the Revised Penal
Code, which provides:
The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that
he has put such missing funds or property to personal use.
The contention that this legal provision violates the constitutional right of the accused to be
presumed innocent until the contrary is proved cannot be sustained. The question of the
constitutionality of the statute not having been raised in the court below, it may not be considered
for the first time on appeal. (Robb vs. People, 68 Phil., 320.)
In many event, the validity of statutes establishing presumptions in criminal cases is now settled
matter, Cooley, in his work on constitutional limitations, 8th ed., Vo. I, pp. 639-641says that
"there is no constitutional objection to the passage of law providing that the presumption of
innocence may be overcome by contrary presumption founded upon the experience of human
conduct, and enacting what evidence shall be sufficient to overcome such presumption of
innocence." In line with this view, it is generally held in the United States that the legislature
may enact that when certain facts have been proven they shall be prima facie evidence of the
existence of the guilt of the accused and shift the burden of proof provided there be rational
connection between that facts proved and the ultimate fact presumed so that the inference of the
one from proof of the others is not unreasonable and arbitrary because of lack of connection
between the two in common experience. (See annotation on constitutionality of statutes or
ordinances making one fact presumptive or prima facieevidence of another, 162 A.L.R. 495-535;
also, State vs. Brown, 182 S.E., 838, with reference to embezzlement.) The same view has been
adopted here as may be seen from the decisions of this court in the U.S. vs. Tria, 17 Phil., 303;
U.S.vs. Luling, 34 Phil., 725; and People vs. Merilo, G.R. No. L-3489, promulgated June 28,
1951.
The statute in the present case creates a presumption of guilt once certain facts are proved. It
makes the failure of public officer to have duly forthcoming, upon proper demaand, any public
funds or property with which he is chargeable prima facie evidence that he has put such missing
funds or property to personal use. The ultimate fact presumed is that officer has malversed the
funds or property entrusted to his custody, and the presumption is made to arise from proof that
he has received them and yet he has failed to have them forthcoming upon proper demand.
Clearly, the fact presumed is but a natural inference from the fact proved, so that it cannot be said
that there is no rational connection between the two. Furthermore, the statute establishes only
a prima facie presumption, thus giving the accused an opportunity to present evidence to rebut it.
The presumption is reasonable and will stand the test of validity laid down in the above citations.

CONSTI II (Sec. 14) | 1

There being no reversible error in the decision appealed from, the same is hereby affirmed, with
costs.

In our own little world, my husband and I planned the future of our children.
Ma. Shiela was to be a nurse while L. Ian, ... was to be a doctor according to his wish. We
planned and rejoiced in our little hopes even when life was difficult, until last July 25, 1977 at
about 0030 Hrs. when a gang of hoodlums pounced upon my husband and his companions while
they were on their way home and robbed him and brutally and mercilessly murdered him, and
with him, the beautiful dreams we had for our children.
Even a mad dog or an abominable criminal did not deserve his manner of death! He, who never
harmed anybody nor spanked his children out of love, lay there in a muddy street of the Marikit
Subdivision, gasping for breath and calling our ... son even as his assailants took turns in
stabbing him and pummeling him with a garden hoe that broke at the handle as it hit my helpless
husband as he lay on the ground.

EN BANC
G.R. No. L-53586 January 30, 1982

Our house that was once a happy home when he was around is no longer the same since he has
gone. Our little girl, Ma. Shiela, eats her breakfast silently with tears streaming down her face;
our son L. Ian keeps asking me when his father will wake up, and I, will never get used to the
emptiness and the void that he has left behind.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
PONCIANO LUMAGUE, JR., MARIO LUMAGUE, ROLANDO LUMAGUE and
JUANITO LUMAGUE, accused whose death sentences are under review.

The Marikina police could not solve the crime. At the request of Mrs. Regalado, General Espino
referred the case to the Constabulary criminal investigation service (CIS) at Camp Crame.

PER CURIAM:
This is a murder case. Early in the morning of July 25, 1977, Antonio A. Regalado, 39, a credit
investigator of the Social Security System, was maliciously killed in the Marikit Sub. division,
Marikina, Rizal.
The postmortem examination revealed that he had fourteen incised wounds, two lacerated
wounds, ten punctured wounds and ten stab wounds, or thirty-six wounds in all, eight of which
were fatal because they affected his vital organs like his lungs, liver, heart and intestines (Exh.
A). The wounds were located in different parts of his body: front and back, head, arms, legs,
abdomen, knees, chest and shoulders (Exh. B). Obviously, he had been assaulted by more than
one person.
The incised and stab wounds were caused by a bladed weapon such as a kitchen knife. The
lacerated wounds were caused by a blunt instrument such as a piece of wood or iron bar. The
punctured wounds were caused by a pointed instrument such as an icepick.
Elma Icater Regalado, a thirty-nine year-old businesswoman, the victim's widow, testified that
she spent P 25,000 for the funeral of her husband and for miscellaneous obligations (Exh. J to J8). Aside from his widow, the deceased was survived by his two children, Ian, 4 and Shiela, 6. In
her letter to General Romeo C. Espino, she said (Exh. K):

As a result of the investigation, the four Lumague brothers, Ponciano, Jr., 27, Rolando, 25,
Mario, 23, and Juanito 21, and their brother-in-law, Rodolfo de la Cruz, were charged with
murder for the killing of Regalado. Ponciano, Rolando and Mario were arrest on August 20,
1977. Juanito was arrested on October 10, 1977 when the prosecution had already finished the
presentation of its evidence against his three brothers. De la Cruz is at large.
The Lumague brothers came from a family of five boys and five girls. They grew up in the slum
area of Tondo, Manila. Their parents were natives of La Union. The father, a convict, was killed
by a member of the Oxo gang (p. 138, Record).
Even before the Lumague brothers were implicated in the killing of Regalado, Rolando had been
charged in the municipal court of San Fernando, La Union with frustrated murder and slight
physical injuries (Exh. L and M). In the same court, Ponciano was charged with frustrated
homicide (Exh. P). He was also charged in the provincial fiscal's office of La Union with direct
assault of an agent of a person in authority and robbery (Exh. R and S).
Ponciano is married with four children. He used to be a shoe repairman. He finished grade four.
Rolando is married with three children. He finished grave five. He used to be a tricycle driver.
Mario is married with three children. He finished grade three. He was jobless.

CONSTI II (Sec. 14) | 2

The probation officers found the Lumague brothers to have marked criminal tendencies and to
have a propensity for anti-social behavior (p. 139, Record).
Trial of Ponciano, Rolando and Mario Lumague. These three brothers were tried first because
the other two accused, Juanito Lumague and Rodolfo de la Cruz, were at large. According to the
prosecution, in July, 1977, the Lumague brothers, with their mother, Morales, and their sister and
brother-in-law, Rodolfo de la Cruz, were renting from Walter Romero Gutierrez a shack or
"barong-barong" in the Marikit Subdivision in Marikina near the residence of Virgilio
Pacunayen.
At about eleven o'clock in the evening of July 24, 1977, Regalado, with his friends, Roberto
Asuncion, Gerardo A. Ducha, Lorenzo Gravador and Rogelio Bautista, had a drinking spree at
the Havana Pub and Beerhouse located at Barrio Concepcion, Marikina, Metro Manila. Each of
the five drank three bottles of beer. They watched the floor show.
Shortly after midnight, the group left that place and, as it was curfew time, they decided to walk
to Bautista's house in the subdivision about a kilometer away and sleep there. (Regalado was a
resident of 5-C Annapolis Street, Cubao, Quezon City, a neighbor of Asuncion who resided at 5D Annapolis Street.)
What happened while the group was walking was testified to by two eyewitnesses, Asuncion, 30,
and Pacunayen, 21, a high school graduate, who, as noted above, was residing at a house near the
shack where the Lumague family was staying and who claimed to have been a victim of an
assault perpetrated by the members of the Lumague family in June, 1977.
Asuncion testified that he and Regalado were walking together. Gravador was ahead of them.
Bautista and Ducha followed Regalado and Asuncion. While walking on the street in front of the
shack occupied by the Lumague family and Pacunayen's house, Asuncion heard Ducha shouting
that Bautista had been stabbed. When Asuncion looked behind, he noticed that Ducha and
Bautista were running because they were being pursued by two persons.
Asuncion's impulse was to follow Bautista and Ducha but after taking a few steps, he turned
around and looked at the place where he had left Regalado. He saw Mario Lumague beating
Regalado on the back with a hoe (Exh. D). Asuncion was about two fathoms away. Regalado fell
on the ground face down. Asuncion got a stone and threw it at Mario.
Mario pulled Regalado to a dark grassy place near the lighted street. Four persons approached
Regalado. Asuncion Identified three of them as the brothers Ponciano, Mario and Rolando
Lumague. Ponciano hit Regalado many times with his fist and struck him on the back with an
adobe stone.

Rolando also threw an adobe stone at the head of Regalado and boxed him many times. Juanito
repeatedly stabbed Regalado. Rodolfo de la Cruz clobbered Regalado with a club ("pamalo")
about two feet long.
Then, Mario who was armed with a hoe turned his attention to Asuncion, Ducha and Bautista
who fled upon his approach. Mario pursued them. He did not overtake them. Shortly thereafter,
the five assailants left the place where they had assaulted Regalado.
Asuncion approached Regalado who was bloodied all over but was still breathing. Asuncion
directed Bautista to fetch a vehicle. Ducha went to the police station. "Then a taxicab passed by,
Asuncion hailed it and placed Regalado inside the taxicab. He was brought to the E, Rodriguez
Hospital but was already dead on arrival thereat.
Asuncion's testimony is a confirmation of his sworn statements dated August 8 and 22, 1977
before the Constabulary investigator of the CIS police intelligence section at Camp Crame (Exh.
C and C-2).
Pacunayen, the other prosecution witness, a neighbor of the Lumague family, who was
acquainted with the members thereof, testified that at past midnight on July 25, 1977 he was in
the balcony of his house overlooking the lighted street.
He witnessed the assault on Regalado which was perpetrated by the four Lumague brothers and
their brother-in-law Rodolfo de la Cruz. Pacunayen, who was at a distance of fifteen meters from
the scene of the assault, corroborated the particulars thereof as narrated by Asuncion.
Pacunayen's testimony is a confirmation of his sworn statement dated August 9, 1977 before the
Constabulary investigator of the CIS police intelligence section at Camp Crame (Exh. G).
Ducha, who, like Gravador and Bautista, did not testify, executed sworn statements dated August
1 1 and 22, 197 7 before the Constabulary CIS investigator (Exh. E and F). Ducha, 25, a high
school graduate, narrated how he and Bautista encountered a person who tried to stab Bautista.
Then, Ducha saw another person beating Regalado with a hoe. At a confrontation, Ducha
Identified Mario as the wielder of the hoe Ponciano as the one who assaulted Regalado with an
adobe stone and Rolando as the one who boxed Regalado (pp. 79-83, Record).
Another documentary evidence of the prosecution is the hardly legible sworn statement of Mario
Lumague taken by the same Constabulary investigator (Exh. H, pp. 87-90, Record).
The investigator, before interrogating Mario, warned him that anything that he would say
regarding the death of Regalado would be used against him in court and that he (Mario) had the
rights (1) to remain silent and not to answer any question that would be prejudicial to him, (2) to
have counsel, (3) to be investigated in the presence of his lawyer and (4) to have counsel de
oficio if he could not afford to hire his own lawyer.

CONSTI II (Sec. 14) | 3

Then, the investigator asked Mario whether after being apprised of his constitutional rights he
was willing to give a voluntary statement and to sign an acknowledgment that he understood his
constitutional rights. Mario answered in the affirmative. He then signed the following
certification, amounting to a waiver of his constitutional rights, which formed part of his
statement:
Ito ay nagpapatunay na nauunawaan kong lahat ang aking mga karapatan na napaliwanag sa akin
ng inbestigador gaya ng pagbibigay ng salaysay na kusang loob, at hindi na rin kukuha ng
abogado dahil katotohanan lamang ang aking sasabihin. (Exh. H-1 p. 87, Record.)
Mario's version in his statement is that he and Juanita were in the Havana Pub and Beer Garden
from seven to ten o'clock in the evening of July 25 (should be 24), 1977. At around eleven
o'clock, when Mario was already in his residence at the Marikit Subdivision (where he lived with
his brothers, mother and brother-in-law) he heard a shout coming from the street in front of the
house and the sound of an object hitting the roof ("kalabog") and he saw Juanito going out of the
house.
Then, later, Beth, the sister of his brother-in-law, informed Mario that some persons had ganged
up against Juanita. Mario came out of the house and allegedly saw Juanita prostrate on the street
in front of their house. Mario reentered the house, got a hoe and helped Juanita in resisting his
four assailants who were holding stones and assaulting Juanita. Mario clubbed on the head the
person holding Juanita. Juanito got a kitchen knife from the house and repeatedly stabbed the
person whom Mario had clubbed on the head and who was sitting on the ground. The assaulted
person fell on the ground. Mario and Juanito ran away.
Mario in his statement disclosed that the persons staying in the house at the Marikit Subdivision
were Rodolfo de la Cruz and his wife Hermenegilda (Mario's sister), Ildefonsa or Perlita
Lumague, Reynaldo Lumague, Beth de la Cruz, Lita Lumague (Mario's wife) and Juanito (No.
32, Exh. H).
Mario said that only he himself and Juanita assaulted Regalado but he (Mario) was not sure
whether he was the only one who killed Regalado (No. 40, Exh. H).
The version of the defense is that Juanita Lumague was the sole assaulted of Regalado.
Ponciano, Rolando and Mario presented as witnesses their mother Emerenciana Morales and
Angelita Ramos, Eleno Gomez and Winnie Camacho to prove their defense of alibi.
Emerenciana, a sixty-nine year-old widow, testified that in July, 1977 she resided with the
spouses Hermenegilda Lumague and Rodolfo de la Cruz in the house which they had been
renting for three months in the Marikit Subdivision. In the evening of July 24, 1977 she went to
bed at eleven o' clock. She was awakened because of the noise caused by some persons who
were passing near the house and who were challenging the Ilocanos to a fight. She came out of
the house and saw five men who were very noisy.

She advised them to go home because it was already very late. They allegedly answered that they
did not observe the curfew and they cursed the President for enforcing it. Emerenciana said that
the five men pushed her towards the door of her house and she fell on the ground. She was
allegedly stoned by the five noisy individuals. She was hit in the cheek, chest, left foot and front
part of her body. A woman named Marilou (Angelita) was also stoned and her foot was injured
("nipilay") (412).
Emerenciana admitted that when the incident happened she, her children and son-in-law were
staying in the house but when asked to clarify her answer she said that her daughter
Hermenegilda, son-in-law Rodolfo de la Cruz and her grandchildren were staying in the house
(398). She declared that she did not know who killed Regalado and that when Regalado was
killed her four sons "were not there" (399), meaning that Rolando, Ponciano and Juanito were in
the province, Mario was in Tondo and Rodolfo was in the house (400-3). When pressed by
counsel de oficio to clarify the whereabouts of Juanito, Emerenciana answered that Juanita
arrived in the house when Emerenciana was pushed by the five persons (4069).
Emerenciana categorically declared that Ponciano never resided with her in Marikina (410-11).
She testified that when Juanita was boxed by the men, a fight ensued between them and Juanita.
She admitted that Juanita had previously been confined in the Madrigal Rehabilitation Center for
having been involved in a homicide case with his brother-in-law, Maximino Dacanay.
Angelita Ramos, 20, a helper of Emerenciana, testified that Pacunayen used to go to
Emerenciana's house. In the afternoon of July 24, 1977, Ponciano was not in the house in
Marikina but was in Bauang, La Union, Mario was in Tondo and Rolando was in Barrio
Ambangonan, Pugo, La Union, but Juanita was in Emerenciana's house in the Marikit
Subdivision, Marikina.
Angelita corroborated Emerenciana's, testimony that at about midnight on July 24 five persons
passed by Emerenciana's house and challenged the Ilocanos to step out. Emerenciana came out
of the house and told the five persons to go home. She was pushed by the five persons and she
fell on the ground.
At that juncture, Juanita and Pacunayen arrived. Regalado allegedly boxed Juanita. The five
persons threw stones and the witness, Angelita, was hit in the ankle. Pacunayen assaulted
Regalado with a hoe Regalado fell on the ground face down. Pacunayen repeatedly stabbed
Regalado (461).
Because Angelita was not available for cross-examination, her testimony on direct examination
was stricken out of the record (506).
Eleno Gomez, 50, a farmer, a resident of Barrio Quinavite, Bauang, La Union, and a first cousin
of Julian Camacho, who in turn is a first cousin of the Lumague brothers, testified that in the
evening of July 24, 1977 he acted as guard at a dance held on the occasion of a wedding in
Barrio Quinavite and that Ponciano, Rolando and Mario were present at that dance (475). Juanita
CONSTI II (Sec. 14) | 4

and De la Cruz were not present at that dance. A few moments later, Gomez testified that
Rolando and Mario were not present at the wedding party (489).

of its evidence against his brothers Ponciano, Roland and Mario. When arraigned on October 19,
Juanito pleaded not guilty. He was given a separate trial.

Winnie Camacho, a twenty-three year-old housewife, whose husband is a first cousin of


Rolando, testified that on July 24 and 25,1977 Rolando was at her house in Barrio Ambangonan,
Pugo. He planted rice on July 24. The next day he went fishing in the river.

At the hearing on June 28, 1978, when the medico-legol officer was testify for the second time in
the separate trial for Juanito, Benjamin Santos, Juanito's counsel, interrupted the testimony of the
medico-legal and manifested that Juanito was withdrawing his plea of not guilty and changing it
to a plea of guilty. The doctor's testimony was suspended. Juanita was placed on the witness
stand. He took his oath and was interrogated as follows:

Decision in the case of Ponciano, Rolando and Mario Lumague.At the conclusion of Winnie's
testimony on January 31, 1978, defense counsel Galvan announced that he would present the
accused as witnesses at the next hearing scheduled on February 24. That hearing was not held.
The case was reset for March 14. No hearing was held on that date for reasons not shown in the
record.
On that date, the trial court issued an order requiring the prosecution to present its memorandum
within ten days and giving defense counsel Galvan five days within which to file a reply
memorandum. It scheduled on April 18 the promulgation of its sentence.
The prosecution in a motion dated March 20, 1978 offered its Exhibits L to S which were marked
during the cross-examination of the defense witnesses. Galvan objectived to Exhibits L, M and
N. He did not make not attached to the motion.
The prosecution filed its memorandum on April 5. Galvan was furnished with a copy thereof. He
did not submit his reply memorandum. As scheduled, the death sentence against Pnciano,
Rolando and Mario was "dictated and promulgated in open court" on April 18, 1978.
The trial court convicted Ponciano, Rolando and Mario Lumague of murder, sentenced each of
them to death and ordered them to pay solidarily to the heirs of Regalado an indemnity of thirtytwo thousand pesos. Treachery and abuse of superiority were considered qualiffying
circumstances. Cruelty was appreciated as a generic aggravating circumstances. Cruelty was
appreciated as a generic aggravating circumstances. The trial court did not give credence to the
alibis of the accused.
The trial court in its decision explained that the defense waived its right to present further
evidence after it failed to present such evidence in spite of numerious postponements and when
defense counsel failed to appear in court despite due notice (p. 286, Record).
Galvan filed on April 24 a motion for reconsideration. He complained that the accused were
denied due process of law because they were not given a chance to testify in their behalf. The
motion was denied. The trial court in its order of April 28, 1978 directed the clerk of court to
forward the record of the case to this Court.

Court to Juanito Lumague: Do you confirm and affirm that you are changing your plea of not
guilty to that plea of guilty? A. Yes, sir. I was not able to talk.
Q. by Court: You were not able to talk because you were arrested. ...A. No, your Honor. The
reason at that time I was asking but I was not able to reason out that I was the one who
committed the crime.
Court: Why did you not tell the lawyer of your brother that you (are) the only one to be presented
by the defense lawyer? A. I stated so, your Honor.
Court: Did anybody intimidate, coerce you or promise you of (any) leniency for changing that
plea of not guilty to that plea of guilty?- A.No. your Honor. (550-552)
The trial court then ordered the resumption of the presentation of evidence against Juanita. The
medico-legal officer was cross-examined by Juanito's counsel Asuncion and Elma 1. Regalado
testified again. The prosecution formally offered in evidence against Juanita the same Exhibits A
to K which it had already presented during the trial of Ponciano, Rolando and Mario Lumague.
Juanito's counsel did not present any evidence. On July 5, 1978, the trial court rendered in
Juanito's case a decision similar to its previous decision. It convicted him of murder, sentenced
him to death and ordered him to pay the same indemnity (p. 281, Record).
Ruling.In this automatic review of the fear death sentences, counsel de oficio contends that the
trial court erred in not giving the four accused a chance to present other witnesses and to testify
in their behalf, in admitting the extrajudicial confession of Mario Lumague, in giving credence to
the testimonies of the prosecution witnesses and in convicting the accused of murder.
With respect to Juanita Lumague, who withdrew his plea of not guilty, who was tried separately
and whose guilt was also established by means of the evidence presented against him, we find
that the counsel's contentions are devoid of merit. Juanito's guilt was proven beyond reasonable
doubt. His plea of guilty and the evidence introduced by the prosecution destroyed the
presumption of innocence in his favor.

Separate trial and decision in Juanito Lumague's case. As priorly noted, Juanito was arrested
in Barrio ambangonan, on October 10, 1977 when the prosecution had finished the presentation
CONSTI II (Sec. 14) | 5

There is conclusive evidence that he was the one who stabbed Regalado. In doing so, he
conspired with the other assailants of the victim particularly with the assailant who treacherously
struck Regalado on the back with a hoe Even Juanito's mother admitted that he took part in the
assault (408-9, 413-4). And, of course, the fact that Juanita was a fugitive from justice for several
months is an indication of his guilt.

SO ORDERED.

The trial court correctly held that the killing was murder qualified by treachery and abuse of
superiority and aggravated by cruelty. Hence, death is the proper penalty. Juanito's plea of guilty
is not mitigating because it was made after the prosecution had commenced the presentation of
its evidence.
With respect to the other three accused, Ponciano, Mario and Rolando Lumague, who pleaded
not guilty and who were tried ahead of Juanito, there is merit in their contention that they were
denied due process of law because they were not given a chance to testify in their behalf and to
present additional evidence.
An accused has the constitutional right "to be heard by himself and counsel" and the right "to
testify as a witness in his own behalf ". The denial of such rights is a denial of due process, as
held in People vs. Santiago, 46 Phil. 734. See People vs. Abuda, L-30009, February 27, 1971, 37
SCRA 789.
Due process of law in a criminal prosecution consists of a law creating or defining the offense,
an impartial tribunal of competent jurisdiction. accusation in due form. notice and opportunity to
defend, trial according to established procedure, and discharge unless found guilty (16A C.J.S.
617).
The constitutional right of the accused to be heard in his defense is inviolate. "No court of justice
under our system of government has the power to deprive him of that right." (Abriol vs.
Homeres, 84 Phil. 525, 534).
Fundamental fairness, which is the essence of due process, requires that the three accused should
be allowed to testify on their defenses and to present additional evidence to prove their
innocence.
WHEREFORE, we affirm the trial court's separate decision dated July 5, 1978, sentencing
Juanito Lumague to death.
Its prior decision of April 18, 1978, sentencing to death Ponciano, Mario and Rolando, all
surnamed Lumague, is set aside.It is directed to receive the additional evidence of the said
accused, subject to the right of the prosecution to present rebuttal evidence and the right of the
accused to present surrebuttal evidence. The evidence already presented subsists and should be
taken into account in the rendition of another decision. Costs de oficio.

FIRST DIVISION
G.R. No. L-35707 May 31, 1979
CRISPINO FLORES, petitioner,
vs.
HON. G. JESUS B. RUIZ, Presiding Judge, Court of First Instance of Cagayan,
PROVINCIAL WARDEN of Cagayan and LEONARDO MANDAC, represented by his
Heirs, thru the Widow DOLORES VDA. DE MANDAC, respondents.
DE CASTRO, J:
This is a Petition for certiorari and/or Habeas Corpus filed by petitioner Crispin Flores on
October 24, 1972 after he has been allegedly arrested and detained illegally by Order of the
CONSTI II (Sec. 14) | 6

respondent Judge, dated June 20, 1972, finding him guilty of indirect contempt. (Annex A,
Petition, p.11, Rollo).

Q. Who is going to represent you in this case?


A. I have a lawyer but he was not able to come.

From the records of this case, it appears that petitioner was actually arrested on August 28, 1972
and has since been detained in the Provincial Jail of Cagayan until his release by virtue of a bond
of P500.00 which he was allowed to file by this Court in its Resolution dated October 31, 1972
(p. 33, Rollo), which he must have filed as he had precisely asked to be bailed, pending his
appeal from the Order of the respondent judge dated August 10, 1972. (Annex E to Petition, p.
24, Rollo). The reason for the delayed arrest is that petitioner was given a period up to August 1,
1972 "to inform the court whether or not he relinquishes his possession over the land in
question."
The land in question was levied upon and sold on execution on November 28, 1978 to satisfy the
award of damages in favor of Leonardo Mandac, plaintiff in Civil Case No. 1616 of the Court of
First Instance of Cagayan against petitioner and his father, Doroteo Flores, as defendants and the
losing parties in said case. They failed to redeem the property sold to the heirs of Leonardo
Mandac in the auction sale. Hence, the respondent court ordered petitioner to place in possession
the heirs of Leonardo Mandac who had in the meantime died. For his refusal to vacate the land in
favor of the heirs of Mandac, contempt proceedings were instituted against petitioner on motion
of Atty. Antonio N. Laggui as counsel of the aforementioned heirs. As previously stated, these
contempt proceedings led to his arrest and detention.
Petitioner, however, questions the legality of the proceedings for not having been assisted by
counsel during the hearing of the motion for contempt, and for not having been duly informed of
the contempt charge by being furnished a copy of the motion, or properly "arraigned" before
trial. Thus, petitioner claims to have been deprived due process of law which voided the
proceedings against him as for lack of jurisdiction of the court to inflict the penalty imposed on
him, citing Santiago vs. Alikpala, L-25133, September 28, 1968, 25 SCRA 356.
Further, petitioner contends that his act of not surrendering possession of his levied property does
not constitute contempt, citing the case of Faustino Lagrimas vs- JP of Camiling, et al., L-14345,
July 20, 1961, 2 SCRA 793, and Chinese Commercial Property Co. vs. Martinez, et al., L-8565,
November 30, 1962, 6 SCRA 851.
1. On the issue of whether petitioner was denied due process as he claims, both respondent judge
and private respondents deny the claim of petitioner, of having been so denied, private
respondents even quoting from the transcript of the stenographic notes the following:
COURT: Is the defendant Crispin Flores in Court?
(Interpreter calls out the name of Crispin Flores, and answered that he is present).
( The Court addresses Crispin Flores).

Q. Did you notify him?


A. Yes, sir, but he was not able to come today.
Q. Are you willing to go into trial in this case even in the absence of your lawyer?
A. Yes, sir.
Q. Do you need the assistance of any lawyer?
A. No more, anyway I can answer.
(pp. 1 and 2, tsn Barias June 19, 1972).
The veracity of the alleged proceedings as indicated above is denied by petitioner, alleging that
no such proceedings took place, and that, in any event, the transcript was not signed by the
stenographer. What happened according to him, is that I when respondent judge had learned that
he was without counsel, he told him (petitioner) to deliver possession of the premises to the
private respondents, and for this purpose gave him ten (10) days to carry out that mandate. In
spite of the plan of petitioner that the hearing on that date be postponed so that his counsel of
record could appear for him or that a new counsel would be hired to appear in his behalf, the
respondent judge, however, demurred, and with the assistance of a certain Atty. Joshua Pastores,
petitioner was made to sign an understanding to deliver up the premises within the period
indicated by the judge on pain of being imprisoned." (Petitioner's Memorandum, pp. 79-80,
Rollo).
The right of the accused to counsel in criminal proceedings has never been considered subject to
waiver. The practice has always been for the trial court to provide the accused with a counsel de
officio, if he has no counsel of his own choice, or cannot afford one. This is because
The right to be heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no skill in the science of the law,
particularly in the rules of procedure, and, without counsel, he may be convicted not because he
is guilty but because he does not know how to establish his innocence and this can happen more
easily to persons who are ignorant or uneducated. It is for this reason that his right to be assisted
by counsel is deemed so important that it has become a constitutional right and it is so
implemented that under our rules of procedure it is not enough for the court to apprise an
accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of
an attorney, but it is essential that the court should assign one de oficio for him if he so desires
CONSTI II (Sec. 14) | 7

and he is poor or grant him a reasonable time to procure an attorney of his own. (People vs.
Holgado, 85 Phil. 752; See also Aguador vs. Enerio 37 SCRA 140).
On the basis of the aforequoted ruling, it cannot be disputed that the respondent court failed in its
duty designed to satisfy the constitutional right of an accused to counsel. Petitioner, as the
respondent in the contempt charge, a proceedings that partake of the nature of a criminal
prosecution, was thus denied due process. This is more so as petitioner does not appear to have
been duly notified of the contempt charge, nor was properly "arraigned," since he was not
assisted by counsel during the hearing (Santiago vs. Alikpala, supra). Admittedly with a counsel
of record, petitioner could not have willingly submitted to go to trial when his counsel failed to
appear. It is certainly much easier to believe, that, as petitioner alleges, he asked for
postponement, because of the absence of his counsel, but that the respondent judge denied the
plea, a fact not expressly traversed in the respondent judge's comment (p. 56, Rollo). Neither has
he denied the allegation in the petition that there was a denial of petitioner's right to due process
for not having been duly informed of the contempt charge, nor was his counsel furnished a copy
thereof, as he is entitled to one as a matter of right and as a matter-of duty of the court. All that
respondent judge said in his comment is that "defendant Flores has been granted his day in court
to defend himself from the charges presented by reason of his contumacious acts." (p. 56, Rollo).
We are, therefore, constrained to hold that the proceedings on the contempt charge has been
vitiated by lack of due process, entitling petitioner to the writ of habeas corpus he seeks.
Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy
to release a person whose liberty is illegally restrained such as when the accused's constitutional
rights are disregarded. Such defects results in the absence or loss of 'jurisdiction and therefore
invalidates the trial and the consequent conviction of the accused whose fundamental right was
violated. That void judgment of conviction may be challenged by collateral attack, which
precisely is the function of habeas corpus. This writ may issue even if another remedy which is
less effective may be availed of by the defendant. In Harden vs. The Director of
Prisons (81:741/1948/), Justice Tuason, speaking for the Court, explicitly announced that
"deprivation of any fundamental or constitutional rights" justify a proceeding for habeas corpus,
on the ground of lack of jurisdiction. Abriol vs. Homeres (84 Phil. 525) is even more categorical.
In that case, the action of a lower court, denying the accused the opportunity to present proof for
his defense, his motion for dismissal failing, was held by this Court as a deprivation of his right
to due process. As was made clear by the opinion of Justice Ozaeta: 'No court of justice under
our system of government has the power to deprive him of that right. If the accused does not
waive his right to be heard but on the contrary invokes the right, and the court denies it to him,
that court no longer has jurisdiction to proceed; it has no power to sentence the accused without
hearing him in his defense; and the sentence thus pronounced is void and may be conaterany
attacked in a habeas corpus proceeding. (Santiago vs. Alikpala, supra.)
2. We also find as not clearly established by the pleadings and annexes, the legal basis for the
pronouncement of guilt for contempt against petitioner. What would constitute contempt is the
re-entry of the defeated party into the premises after possession thereof has been delivered to the

prevailing party by the sheriff in enforcement of the writ of execution (Rom vs. Cobadora, L24764, July 17, 1969, 28 SCRA 758, 763; Chinese Commercial Property Co. vs. Martinez, et. al.,
L-18565, November 30, 1962, 6 SCRA 848; Faustino Lagrimas vs. JP of Camiling, et. al., L14345, July 20,1961, 2 SCRA 793). Thus, in the order of the respondent judge, dated September
28, 1972, (Annex G to Petition, pp. 30-31, Rollo), it was stated that:
By virtue of the writ of execution of the decision in this case the plaintiffs were placed in
possession over the parcel described in paragraph 3 of the complaint. Sometime in March, 1969,
defendants invaded the land and since then, they refused to vacate same. Plaintiffs, on July 2,
1969, filed the first motion for contempt against the defendants.
The other properties of defendants were levied, foreclosed and sold to defendants on November
28, 1968 in a public auction to satisfy the damages awarded in the same judgment. The
defendants failed to redeem the bidded properties within the one year from the registration of the
certificate of sale of the land, and yet defendants refused to vacate same land for which plaintiffs
filed the second motion for contempt on December 17, 1971.
The Court did not pass upon the first motion for contempt but gave due course to the second
motion for contempt.
It is altogether clear that with respect to the parcel described in paragraph 3 of the complaint, the
Mandacs were placed in possession thereof but subsequently, the petitioner herein invaded the
land and had since refused to leave it. With respect, however, to the land in question, petitioner
never vacated the same; there was, therefore, no re-entry to speak of. According to petitioner, the
sheriff who tried to enforce the writ of possession never succeeded in locating the specific land
to be delivered to the Mandacs to be able to claim having placed the latter in possession of the
land. (pp. 77- 78, Rollo). Where the defeated party asked to vacate the premises by the judgment
of the court, refuses to vacate the same on being ordered by the sheriff enforcing a writ of
execution or possession, no contempt is committed, as held in Goyena de Quizon vs. Philippine
National Bank, et al., G. R. No. L-2851, January 31, 1950, cited in Chinese Commercial
Property Co. vs. Martinez, et al., supra. In the case of Rom vs. Cobadora, L-24764, July 17,
1969, 28 SCRA 758, Justice Teehankee, speaking for the court said:
The order of execution issued by the lower court is address solely and exclusively to the sheriff,
who under the above-cited rules is called upon to oust the defeated party from the property and
make the delivery or restitution by placing the prevailing party in possession of the property, and
mere refusal or unwillingness on the part of the defeated party to relinquish the property, would
not constitute contempt.
3. There is, likewise, an allegation in the petition that the Motion for Contempt was filed by the
counsel of Leonardo Mandac after the latter's death, and therefore, the motion was unauthorized
and without legal standing. From what has been said above that petitioner is not guilty of
contempt, the challenge against the legality of the motion for contempt need not be inquired into.
In fairness, however, to private respondent from his allegation in his Answer that
CONSTI II (Sec. 14) | 8

7. Atty. Pedro N. Laggui had authority to file the motion for contempt against the Petitioner on
June 30, 1969; at that time, Leonardo Mandac was still alive. Atty. Antonio N. Laggui likewise
had authority to file the motion for contempt against the Petitioner on December 17, 1971 no
longer as counsel for the deceased Leonardo Mandac for at that time he was already dead
but as counsel for his wife and children in whose favor the corresponding deed of sale of the
parcels of land sold at auction on November 28, 1968, was executed by the Sheriff on February
12, 1970, pursuant to the Order dated January 21, 1970. (Answer, p. 69, Rollo).
We have no hesitation to say that the Motion for Contempt has been filed with proper authority.
For all the foregoing, the present petition should be, as it is, hereby granted, thereby setting aside
the order of the respondent judge finding petitioner guilty of indirect contempt. No
pronouncement as to costs.
SO ORDERED.

CONSTI II (Sec. 14) | 9

SECOND DIVISION
G.R. No. L-29015 April 29, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE MALUNSING, ET AL., defendants, MANUEL VILLEGAS, defendant-appellant.
FERNANDO, J.:
It was the failure of the lower court to respect the constitutional right to counsel, 1 so it is alleged,
that is the basis for seeking the reversal of a conviction for murder of appellant Manuel
Villegas. 2 There is more than ample support in the records for the charge thus hurled. As therein
shown, Attorney Geronimo Pajarito explicitly manifested in the opening of the trial that appellant
intimated to him that he had his own lawyer. 3 There was an admission that he did appear for him
in the preliminary investigation but only because there was no other counsel. 4 Parenthetically, it
may be observed that while in the original complaint there were two other accused with the same
surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such preliminary
investigation, no doubt due to the efforts of this particular lawyer, possibly a kinsman, they
"were both discharged for lack of probable cause." 5 To resume, the lower court at this stage then
asked whether the appellant notified Attorney Pajarito about his change of mind. When he
answered in the negative, the Court stated: "All right, you have a lawyer who is appearing for
you." 6 It is to the credit of such counsel that he had reservations about the matter, stating that as
the accused had manifested that he had dispensed with his services, his representation might later
on be questioned. 7 The court was not sufficiently impressed. Appellant was informed that "the
Court will give you a lawyer. Atty. Pajarito is appointed as counsel de oficio for you. We will
proceed with the trial." 8 After marking it of record that he was appointed as such counsel de
oficio, the attorney was asked whether he wanted to confer with appellant. This was the answer:
"I think I know the case." 9 The Court then immediately proceeded with the hearing, having the
first witness called. 10 In the decision itself, there is this meaningful admission by the court: "No
evidence was presented for and in behalf of Manuel Villegas." 11
This is how the matter was characterized in the brief of appellant: "The prosecution during the
trial presented its witnesses, and likewise all the defendants, ... except the appellant Manuel
Villegas, took the witness stand and testified for and in their defense. The appellant is a very old
man, ignorant and unlettered; during the entire proceedings in the case, the appellant while
present did not know what was going on; the trial court never apprised the appellant of his
fundamental right to be assisted by a lawyer; the trial court did not even bother inquiring why the
appellant Manuel Villegas did not take the witness stand, [something out of the ordinary as] all
defendants, except the appellant, had testified; and the trial court went on throughout the
CONSTI II (Sec. 14) | 10

proceedings of the case without knowing why the appellant did not testify, that if the appellant
testified what would his testimony be like, what would be his demeanor during his
testimony, ..." 12 Hence, his insistence that no deference was shown to the constitutional right to
counsel. We are inclined to agree and we reverse. Considering, however, the gravity of the
offense charged, instead of an acquittal, there should be a new trial with all the safeguards
thrown around an accused.
1. That would be to vindicate a fundamental safeguard which in this case, perhaps from a desire
of the lower court to proceed with the trial and thus ease what could be a congestion in its sala,
was inadvertently disregarded. It is not enough that a counsel de oficio was appointed, especially
so as here, where the accused had indicated that he wanted a lawyer of his choice, a decision
prompted moreover by the fact that he had lost confidence in the member of the bar thus
designated. Nor is it to manifest respect for this right if the counsel de oficio thus named, instead
of conferring with the accused, would just blithely inform the judge that he was already fully
prepared for his exacting responsibility. It was unintended, of course, but the result could not
rightly be distinguished from pure travesty. Appellant could then rightfully invoke this
constitutional guarantee. Inasmuch as it is intended to assure a just and fair proceeding, he is
entitled at the most to a new trial where he can be duly represented either by a counsel of his
choice or by one appointed de oficio, one who would discharge his task in a much more diligent
and conscientious manner and would not readily assume that he need not bother himself unduly
with familiarizing himself further with all aspects of the case. For only in such a way may there
be an intelligent defense. If the matter be viewed thus, there is no unfairness to the state either. It
can still see to it that a person against whom a probable cause had been found would have to
stand trial, but, to repeat, with all the constitutional safeguards.

connection with a crime, he is already entitled to counsel. 16 In a true sense, that is merely to
underscore the historical fact that even under the organic acts 17 prior to the 1935 Constitution,
there was an awareness of the importance of the right to counsel. 18 This is not of course to assert
that this Court in the past had invariably accorded it an interpretation favorable to the stand of an
accused. Thus in United States v. Labial, 19 a 1914 decision, it was held that the failure of the
record to disclose affirmatively that the trial judge advised the accused of their right to counsel is
not sufficient ground for the reversal of a conviction. When Labial was affirmed in United States
v. Escalante, 20 decided in 1917, Justice Malcolm was moved to file a vigorous dissent. It suffices
to recall his conformity to the view of Cooley that this is "perhaps the privilege most important
to the person accused of crime. 21 It is in that spirit, or something akin to it, that the framers of the
1935 Constitution approached the subject. Of even greater relevance is the fact that the present
fundamental law has, as above indicated, vitalized still further its worth and significance.
WHEREFORE, the lower court decision of December 4, 1967 insofar as it found Manuel
Villegas guilty of the crime of murder is reversed and a new trial ordered forthwith for such
accused. This decision is immediately executory. No costs.

2. It would not be amiss to refer to the opinion of Chief Justice Moran in People v.
Holgado, 13 where the importance of this right was stressed. Thus: "In criminal cases there can be
no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be
heard would be of little avail if it does not include the right to be heard by counsel. Even the
most intelligent or educated man may have no skill in the science of law, particularly in the rules
of procedure, and, without counsel, he may be convicted not because he is guilty but because he
does not know how to establish his innocence. And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed
so important that it has become a constitutional right and it is so implemented that under our
rules of procedure it is not enough for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential
that the court should assign one de oficio for him if he so desires and he is poor or grant him a
reasonable time to procure an attorney of his own." 14 There are a number of American Supreme
Court decisions to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly
summed up the matter thus: "[The accused] needs the aid of counsel lest he be the victim of
overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment." 15
What is more, it is one of the worthwhile innovations of the present Constitution that even at the
stage of custodial interrogation when the police agencies are investigating a man's possible
CONSTI II (Sec. 14) | 11

EN BANC
G.R. No. 137288

The Facts
December 11, 2001

Version of the Prosecution


The Office of the Solicitor General summarized the evidence for the prosecution in this wise: 6

PEOPLE OF THE PHILIPPINES, appellee,


vs.
DANILO ABINO y ADVINCULA, appellant.

"1. Fourteen-year old Daniela Abino lived with her father, appellant Danilo Abino, at Agua
Santa, an old resort located in Bambang, Los Baos, Laguna. Appellant was a member of the Los
Baos task force on market security, assigned to night shift duty at the market. Daniela's mother
no longer lived with them as she had another family.

PANGANIBAN, J.:
Rape, particularly incestuous rape, is reprehensible and abominable. However, to convict the
accused and to sentence him to death requires proof beyond reasonable doubt of the elements of
the crime and the qualifying circumstances specifically alleged in the information. Conviction
always rests on the strength of the evidence of the prosecution, never on the weakness or the
absence of that of the defense.

"2. On the evening of April 6, 1996, appellant came home drunk. He took a bath and told Daniela
to prepare his things for the market. Daniela obeyed him and went to the second floor of their
house to fix her father's things. Appellant followed Daniela clad only in his underwear with a
towel wrapped around his waist. He embraced Daniela and pressed his penis against her
buttocks. Daniela pulled herself away from appellant and went downstairs.

The Case
1

For automatic review by this Court is the Decision dated January 20, 1999, promulgated by the
Regional Trial Court (RTC) of Calamba, Laguna (Branch 34) in Criminal Case No. 5793-98-C,
finding Danilo Abino y Advincula guilty of rape beyond reasonable doubt. We quote the decretal
portion of the Decision:
"ACCORDINGLY, this Court finds accused Danilo Abino y Advincula GUILTY beyond
reasonable doubt of the crime of rape as defined and penalized under Article 335 of the Revised
Penal Code, as amended, and hereby sentences him to suffer the penalty of death.
"Accused is further directed to indemnify the offended party, Daniela Abino, the sum of FIFTY
THOUSAND (P50,000.00) PESOS as and for moral damages.
"With costs against the accused."2
The Information3 against appellant reads as follows:
"That on or about April 6, 1996, in the Municipality of Los Baos, Province of Laguna and
within the jurisdiction of this Honorable Court, the above-named accused did then and there have
carnal knowledge of his daughter, the minor DANIELA ABINO y MERCADO, who was then
asleep and unconscious, against her will and consent, to her damage and prejudice."

"3. When appellant went down, Daniela told him that she was no longer going with him to his
office. Appellant said nothing and left for work. Daniela stayed at the first floor of their house
until she decided to go to bed and went upstairs.
"4. Daniela was fast asleep in her bed when she felt somebody on top of her and kissing her. She
opened her eyes and saw appellant who was naked. Daniela found herself naked too as she no
longer had her panty and shorts on. When Daniela woke up and moved, appellant stood up,
dressed himself and then left. Daniela felt intense pain in her vagina and cried.
"5. Daniela put on her panty and tried to sleep, but sleep escaped her and she kept on crying. The
following morning, she prepared herself for school and cooked rice. Daniela, however, did not
go to school that day and stayed at home.
"6. Daniela did not immediately tell anybody about what appellant did to her. She stayed with
him for about seventeen months more or until September 1997. However, Daniela eventually
decided to run away from home because she was afraid that appellant might molest and hurt her
again.
"7. Daniela stayed in a canteen near 'Star City' in Manila. After her stint at the canteen, Daniela
worked for one Mando Parr in Pasay City. She, however, left his employ. In December of 1997,
Daniela found herself in Baguio City where she met a social worker who placed her in the
custody of the Department of Social Welfare and Development.

With the assistance of his counsel, 4 appellant pleaded not guilty when arraigned on July 10,
1998.5 In due course, the latter was tried and convicted of qualified rape.
CONSTI II (Sec. 14) | 12

"8. On December 17, 1997, Daniela was brought by one Aileen Edades of the Commission on
Human Rights to the City Health Office in San Pablo City. There she was examined by Dr.
Azucena I. Bandoy, the Assistant City Health Officer of San Pablo City.

The appeal is meritorious.

"9. Dr. Bandoy found that Daniela's sex organ bore a '3rd and 9 o'clock old healed laceration
scar' and that the scar was caused by the insertion of a foreign body, specifically, 'the penis or a
male organ,' into Daniela's vagina. According to Dr. Bandoy, the laceration might have been
inflicted 'a year ago'."

At the time of the alleged commission of the acts stated in the Information, the Revised Penal
Code, as amended by Section 11 of RA 7659, specifies how rape may be committed, as follows:

Version of the Defense


On the other hand, the Public Attorney's Office presents appellant's version of the incident
simply as follows:7
"Danilo Abio y Advincula testified that the allegation in the complaint is not true. The only
reason why the complainant filed the rape charge against him is that he is a very strict father,
that's the reason why the complainant is angry with him."
Ruling of the Trial Court
The court a quo found complainant's testimony "strong, credible and competent." It "could not
fathom any justifiable reason why she at so young an age would accuse her own father and
portray the latter as a beast who deflowered her if the same be not true." Finding carnal
knowledge to have taken place between them, it sentenced appellant to death.
Hence, this automatic review before us.8
Assignment of Errors
In his Brief, appellant faults the court a quo with the following alleged errors: 9
"The lower court erred in convicting the accused based on the incredible and inconsistent
testimony of Daniela Abio.

Main Issue: Sufficiency of Evidence

"Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
"The crime of rape shall be punished by reclusion perpetua.
"Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall
be death.
"When the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death.
"The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

"The lower court gravely erred in convicting the accused despite failure of the prosecution to
prove his guilt beyond reasonable doubt."

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law-spouse of the parent of the victim.

Basically, the assigned errors boil down to the sole issue of whether the prosecution evidence
proves appellant's guilt beyond reasonable doubt of the crime charged.

2. when the victim is under the custody of the police or military authorities.

The Court's Ruling

3. when the rape is committed in full view of the husband, parent, any of the children of other
relatives within the third degree of consanguinity.
CONSTI II (Sec. 14) | 13

4. when the victim is a religious or a child below seven (7) years old.

Tell us on the night of April 6, 1996 where were you then?

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.

I was in our house at Agua Santa.

Where is this Agua Santa where you said you were then?

In Bambang sir.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine
National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation."
Insofar as it is relevant to the present case, the law states that once the crime of rape is proven,
the circumstance of father-daughter relationship between the victim and the offender raises the
penalty to death. Such relationship, which must be both alleged in the information and proven by
the evidence, does not by itself operate to convert carnal knowledge to rape. It bears emphasizing
that the law requires that the elements of rape be proven first before the circumstance of
relationship can be appreciated to increase the penalty.
In the present case, the Information alleges that the crime of rape was committed under
paragraph number two of Article 335 of the Revised Penal Code. Hence, before appellant can be
convicted thereof, two elements must concur: (1) he had carnal knowledge of complainant,
Daniela; and (2) she was unconscious when it happened.
The prosecution sought to prove the element of unconsciousness through the testimony of
Daniela that on the night of April 6, 1996, she was asleep. As to the element of carnal
knowledge, it presented only the following circumstantial evidence:

FISCAL:
Q:

Los Baos, Laguna?

Yes, sir.

Were you alone in your house or did you have companions at that time?

None, sir.

What time did you go to sleep that night of April 6, 1996?

I do not know the time sir.

Q
When asked if you ha[d] any companions on that night of April 6, 1996 you said you
ha[d] no companions, tell us why were you alone on that night in your house?
A

Becaus[e] my father left.

1. On the night of April 6, 1996, Daniela woke up to find her father on top of her, but he
promptly got off when she "opened her eyes."

How about your mother, do you have any mother?

2. Thereafter she felt pain in her vagina.

Yes, sir.

3. After seventeen months, she left home and wandered from place to place for several more
months, until she met a social worker in Baguio.

Where was she on that night of April 6, 1996?

She already has another family.

What time did you wake up that night of April 6, 1996?

I do not know.

Were you able to continuously sleep the whole night of April 6, 1996?

4. She was then examined and found to have old healed hymenal lacerations at the 3 and the 9
o'clock positions and a yellowish white discharge, which indicated infection due to coitus several
times with an infected male.10
An examination of Daniela's entire testimony compels us to reverse the RTC's hasty conclusion
of rape based only on its circumstantial finding of carnal knowledge between appellant and
Daniela. Contrary to the court a quo's pronouncement, Daniela was not convincing on very
material points.

CONSTI II (Sec. 14) | 14

No, sir.

Near the market sir.

Why?

What is his work in the market?

Tax collector sir.

After you told your father that you will not go with him anymore what did he tell you?

Nothing, he just left.

On your part, what did you do after your father left?

A
Because that night, my father who was dr[u]nk took his bath and after that he told me to
fix his things in going to the office. So I went upstairs to fix his things and he followed me.
ATTY. PADERAYON:
Before the next question, we object to the answer, your honor, considering that is not responsive
to the question.
FISCAL:

A
I just stayed in the first floor of our house, up to . . . nigh[t] time and when . . . night time
came I went to sleep.

Where did he follow you?

To the second floor of our house.

FISCAL:
Q:
Q
any?

Did your father come back that night?

After your father followed you [o]n the second floor of your house, what did he do? if
A

Yes, sir.

He told me it was cold.

ATTY. PADERAYON:

After he embraced you, what happened?

Leading, your honor.

"Yong ari niya idinikit sa puwet ko."

FISCAL:

After he did that to you, what did he do next?

Q:

"Umalis
(Witness is crying)

ako

sa

harap

niya

at

bumaba

[ako]

ng

hagdan."

After you said you left and went down, what did your father do?

A
He dressed up and when he was already on the first floor, I told him that I will not go
with him anymore [to] the office.
Q

Why? Did he ask you to go with him [to] the office?

Yes, sir, we are always together in his office and I am sleeping in his office.

By the way, where [is] this office where you said your father is working?

Why did you know that your father went back that night?

I saw him that night.

At what time did you see him and what was he doing at the time you saw him?

A
When I saw him that night I don't know what time was that[.] I returned to sleep and I
was awakened and felt that someone was on my top.
Q

Were you able to recognize who was that somebody who was on your top?

Yes, sir.

Who?
CONSTI II (Sec. 14) | 15

My father sir.

Finally, what time did you wake up that morning?

What was your father doing at the time you said he was on top of you?

I was not able to sleep then.

When I opened my eyes he left me.

The following morning, what did you do?

Can you tell us what your father was wearing when you said he was on top of you?

I cooked rice and prepared myself [for] school.

Pants and white t-shirt and [he] was wearing a vest.

Did you go to school the following day?

And when your father you said left what did you notice on your self?

No, sir.

My private part was painful.

FISCAL:

FISCAL:

Q:

Q:

I felt lazy.

Aside from the pain that you felt what else did you [notice] from your private part?

Why?

"Mahapdi" whenever I am urinating.

What did you do that day of April 7 when you said you did not go to school?

When you said you felt pain after your father left, what were you wearing?

Nothing sir. I just stayed in the house.11

I was wearing my uniform.

Then, on redirect examination, she testified:

At the time your father left at the time you saw him, what were you wearing?

Q:
Now you said that you woke up, your father was on top of you, what was he doing at that
time when he was on your top?

I was wearing skirt and shorts.


A:

He was kissing me, sir.

Q
So when you said you felt pain after you said your father was on top of [you] and then
you left, what did you do?

Q:

And aside from kissing, what else x x x did [he do] to you?

I noticed my panty was yellowish and was hot "mainit ng konti".

A:

Nothing more, sir."12

And when you noticed these things, what did you do?

I just cried.

In attempting to clarify and consolidate its case against appellant, the prosecution succeeded only
in destroying the testimony of its star witness. In the process, it further strengthened the premise
that, other than lying on top of Daniela and kissing her, appellant did "nothing more" on April 6,
1996.

Where was your father at the time you said you were crying?

He returned to the market.

The circumstantial evidence in the present case admits of the possibility that appellant could
have had carnal knowledge of complainant. But we cannot affirm his death sentence on the basis
alone of a mere possibility. Settled jurisprudence 13requires proof beyond reasonable doubt, not
mere possibility of the presence of all the elements of the crime charged.
CONSTI II (Sec. 14) | 16

Here, the prosecution's contention that the element of carnal knowledge concurred with the
element of unconsciousness is neither believable nor supported by evidence. There is no
evidence to show that Daniela was knocked out, drugged, intoxicated, tired and worn out or in
any similar condition that would induce such a heavy sleep. There was therefore nothing that
would account for her insensitivity to appellant's supposed act of inserting his penis into her
vagina, if this really happened on April 6, 1996.
The prosecution claims that the painful vagina and the lacerated hymen are circumstantial
evidence of carnal knowledge that occurred while Daniela was asleep on the night of April 6,
1996. If this were so, it follows that the purported penile penetration must have been deep
enough to reach and lacerate her hymen at the 3 and the 9 o'clock positions. It is simply
incredible that the pain that can reasonably be expected from such insertion of a penis into her
young, virginal vaginal canal would fail to wake her up. How could she have slept through the
entry of her father's penis into her vagina and its exit therefrom from beginning to end and
awakened only after the alleged completion of the crime, as the prosecution would have us
believe? It may have been possible if she had been drugged, but a case must rest on evidence, not
on mere possibility.

Rape, particularly incestuous rape, is reprehensible and abominable. However, to convict the
accused and to sentence him to death requires that (1) the prosecution's evidence for the elements
of the crime and (2) the qualifying circumstances specifically alleged in the Information must
pass the test of moral certainty. Absent the satisfaction of this stringent requirement, we must
uphold appellant's constitutional right to be presumed innocent.
WHEREFORE, the appeal is GRANTED and the assailed Decision is hereby REVERSED and
SET ASIDE. Appellant Danilo Abino y Advincula is ACQUITTED on reasonable doubt. The
director of the Bureau of Corrections is ordered to cause the immediate release of appellant,
unless the latter is being lawfully held for another cause; and to inform the Court of the date of
appellant's release, or the reasons for his continued confinement, within ten days from notice. No
pronouncement as to costs.
SO ORDERED.

"It is a legal truism that evidence, to be believed, must not only proceed from the mouth of a
credible witness, but must be credible in itself." 14 "We have no test of the truth of human
testimony, except in conformity with our knowledge, observation, and experience and whatever
is repugnant to these belongs to the miraculous and is outside of judicial cognizance." 15 In the
present case, the circumstances surrounding the prosecution's allegations are not in accord with
human experience. "The proof against the accused must overcome not only "the test of reason
and logic, but above all, that of experience." 16 It is more reasonable to believe, that, as Daniela
herself testified, appellant kissed her on the night of April 6, 1996 but did nothing more; or, as
can reasonably be inferred from the records, he had carnal knowledge of her, but she
was conscious and willing.
THIRD DIVISION
Doctrinally, 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."17
It is claimed that appellant had carnal knowledge of his daughter on a day other than on April 6,
1996, and under some circumstance other than while she was asleep. Aside from speculation and
conjecture, this argument finds no factual support. And even if true, such circumstance cannot
convict him of the rape charged in the Information.
Neither can we, in these proceedings, convict appellant of rape committed through intimidation
as a result of his moral ascendancy, even if it were proven beyond reasonable doubt. He was
charged and tried on an Information alleging rape of a woman who was "asleep and
unconscious." Convicting him of rape done by intimidation would violate his constitutional right
"to be informed of the nature and cause of the accusation against him." 18

G.R. No. 116736 July 24, 1997


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused,
BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accusedappellants.
PANGANIBAN, J.:

CONSTI II (Sec. 14) | 17

A person who commits a felony is liable for the direct, natural and logical consequences of his
wrongful act even where the resulting crime is more serious than that intended. Hence, an
accused who originally intended to conceal and to bury what he thought was the lifeless body of
the victim can be held liable as a principal, not simply as an accessory, where it is proven that the
said victim was actually alive but subsequently died as a direct result of such concealment and
burial. Nonetheless, in the present case, Appellant Garcia cannot be held liable as a principal
because the prosecution failed to allege such death through drowning in the Information. Neither
may said appellant be held liable as an accessory due to his relationship with the principal killer,
Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and
Manuel Garcia from the Decision, 1 dated February 9, 1994 written by Judge Adriano R.
Osorio, 2 finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information 3 dated
October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, without any justifiable cause, with treachery and evident premeditation and
with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon
on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA, thereby
inflicting upon the latter serious physical injuries which directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio, 4 pleaded not
guilty to the charge. 5Accused "John Doe" was then at large. 6 After trial in due course, the
court a quo promulgated the questioned Decision. The dispositive portion reads: 7
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera
[g]uilty beyond reasonable doubt of the crime charged, the Court hereby sentenced (sic) them to
suffer the penalty ofRECLUSION PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral
expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria 8 who
took over from the Public Attorney's Office as counsel for the accused.
The Facts

Evidence for the Prosecution


The trial court summarized the testimonies of the prosecution witnesses as follows: 9
Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon,
he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were
having a drinking spree in the compound near the house of Benjamin Ortega, Jr. at Daangbakal,
Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused Benjamin
Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim
Andre Mar Masangkay answered the call of nature and went to the back portion of the house.
That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in
the drinking session] heard the victim Andre Mar shouted, "Don't, help me!" (Huwag, tulungan
ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw
accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal
with his face up and stabbing the latter with a long bladed weapon. That Ariel Caranto ran and
fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to
Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify
his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and together with
Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and
brought Andre Mar to the well and dropped the latter inside the well. That Romeo Ortega,
Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2
feet in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay inside the well.
That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw. That he answered
in the affirmative and he was allowed to go home. That his house is about 200 meters from
Romeo Ortega's house. That upon reaching home, his conscience bothered him and he told his
mother what he witnessed. That he went to the residence of Col. Leonardo Orig and reported the
matter. That Col. Orig accompanied him to the Valenzuela Police Station and some police
officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and Manuel
Garcia were apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was presented as
witness in this case. That he narrated the incident to his mother on the night he witnessed the
killing on October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he arrived,
victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a]
drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were
not yet in the place. That the stabbing happened between 12:00 midnight and 12:30 a.m. That
they drank gin with finger foods such as pork and shell fish. That he met the victim Andre Mar
Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined
them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel
Garcia in one hand and Andre Mar Masangkay, during the drinking session. That at about 12:30
a.m. Andre Mar Masangkay answered the call of nature and went to the back portion of the
house. That he cannot see Andre Mar Masangkay from the place they were having the drinking
session. That he did not see what happened to Andre Mar Masangkay. That he only heard
Masangkay asking for help. That accused Manuel Garcia was still in the drinking session when
CONSTI II (Sec. 14) | 18

he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his
friends and neighbors. That when he heard Andre Mar Masangkay was asking for help, he and
Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre
Mar Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his
back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That he did not see any
injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr.
That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows that
Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from
Andre Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that
occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor
for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was summoned by
Diosdado Quitlong and reported to him the stabbing incident that occurred at Daangbakal near
the subdivision he is living. That he relayed the information to the Valenzuela Police Station and
a police team under police officer Param accompanied them to the place. That he asked the
police officers to verify if there is a body of person inside the well. That the well was covered
with stones and he asked the police officers to seek the help of theneighbors ( sic) to remove the
stones inside the well. That after the stones were removed, the body of the victim was found
inside the well. That the lifeless body was pulled out from the well. That the body has several
stab wounds. That he came to know the victim as Andre Mar Masangkay. That two men were
arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well with several stab
wounds. That Diosdado Quitlong told him that he was drinking with the victim and the assailants
at the time of the incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was
answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an]
autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela
Memorial Homes located at Macarthur Highway. That he prepared the autopsy report and the
sketch of human head and body indicating the location of the stab wounds. That the cause of
death is multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were
13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there were
contused abrasions around the neck and on the left arm. There was stab wound at the left side of
the neck. That the contused abrasion could be produced by cord or wire or rope. That there is
(an) incised wound on the left forearm. That the stab wounds which were backward downward of
the body involved the lungs. That the victim was in front of the assailant. That the stab wound on
the upper left shoulder was caused when the assailant was in front of the victim. That the
assailant was in front of the victim when the stab wound near the upper left armpit was inflicted
as well as the stab wound on the left chest wall. That the stab wound on the back left side of the
body and the stab wound on the back right portion of the body may be produced when the
assailant was at the back of the victim. That the assailant was in front of the victim when the stab
wound[s] on the left elbow and left arm were inflicted. That the large airway is filled with muddy

particles indicating that the victim was alive when the victim inhaled the muddy particles. The
heart is filled with multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled
with water or muddy particles. The brain is pale due to loss of blood. The stomach is one half
filled with muddy particles which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he
cannot tell if the assailant or the victim were standing. That it is possible that the stab wounds
was (sic) inflicted when both [referring to participants] were standing or the victim was lying
down and the assailant was on top. That he cannot tell the number of the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife,
Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He
left the hospital at seven o'clock in the morning, went home, changed his clothes and went to
work. 10 After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of
work. After drinking beer, they left at eight o'clock in the evening and headed home. En route,
they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited
them to join their own drinking spree. Thereupon, Appellant Garcia's wife came and asked him
to go home because their daughter was still sick. To alleviate his daughter's illness, he fetched his
mother-in-law who performed a ritual called "tawas." After the ritual, he remained at home and
attended to his sick daughter. He then fell asleep but was awakened by police officers at six
o'clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her husband. She however added two
other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and
Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos. 11
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel
Garcia. 12 According to him, between eleven and twelve o'clock in the evening, Masangkay left
the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to
urinate. 13 He went behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating. 14 After he was through,
Masangkay approached him and asked where his sister was. He answered that he did not know.
Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced bleeding
and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and
stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his
neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help.
Quitlong came and, to avoid being stabbed, grabbed Masangkay's right hand which was holding
the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed
Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. 15 Quitlong
chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and
treated his injured left armpit and lips. Then, he slept.
CONSTI II (Sec. 14) | 19

When he woke up at six o'clock the following morning, he saw police officers in front of his
house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks where
he was asked to sit, he saw the police officers lift the body of a dead person from the well. He
came to know the identity of the dead person only after the body was taken to the police
headquarters. 16

IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide
alone.
On the basis of the records and the arguments raised by the appellants and the People, we believe
that the question to be resolved could be simplified thus: What are the criminal liabilities, if any,
of Appellants Ortega and Garcia?

The Trial Court's Discussion


The Court's Ruling
The trial court explained its basis for appellants' conviction as follows: 17
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia,
Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay
who was still alive and breathing inside the deep well filled with water, head first and threw big
stones/rocks inside the well to cover the victim is a clear indication of the community of design
to finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar
Masangkay was in no position to flee and/or defend himself against the three malefactors.
Conspiracy and the taking advantage of superior strength were in attendance. The crime
committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and manner in which
assistance is rendered to the person inflicting the fatal wound may determine complicity where it
would not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the
heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the
deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the following:

18

I. The trial court erred in holding that there is conspiracy on the basis of the prosecution's
evidence that at the time both accused and one Romeo Ortega lifted the body of Andrew
Masangkay from where he succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay was still alive at the time
his body was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime
charged; and

We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant
Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting narrations. The prosecution
witnesses described the commission of the crime and positively identified appellants as the
perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial and
alibi. As to which of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard, the trial court
held: 19
The Court has listened intently to the narration of the accused and their witnesses and the
prosecution witnesses and has keenly observed their behavior and demeanor on the witness stand
and is convinced that the story of the prosecution is the more believable version. Prosecution
eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by
the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong
who reported the stabbing incident to the police authorities. If Quitlong stabbed and killed the
victim Masangkay, he will keep away from the police authorities and will go in hiding. . . .
Because the trial court had the opportunity to observe the witnesses' demeanor and deportment
on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is
entitled to the highest respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case, his assessment of
credibility must be respected. 20
In the instant case, we have meticulously scoured the records and found no reason to reverse the
trial court's assessment of the credibility of the witnesses and their testimonies 21 insofar as
Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong appears to be
spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly
deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable.
Appellant Ortega claimed that after he was able to free himself from Masangkay's grip, he went
CONSTI II (Sec. 14) | 20

home, treated his injuries and slept. 22 This is not the ordinary reaction of a person assaulted. If
Ortega's version of the assault was true, he should have immediately reported the matter to the
police authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is
difficult to believe that a man would just sleep after someone was stabbed in his own backyard.
Further, we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times
successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay.
Also inconsistent with human experience is his narration that Masangkay persisted in choking
him instead of defending himself from the alleged successive stabbing of Quitlong. 23 The natural
tendency of a person under attack is to defend himself and not to persist in choking a defenseless
third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength were alleged in the
information, the trial court found the presence only of abuse of superior strength.

Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and
joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that "we"?

We disagree with the trial court's finding. Abuse of superior strength requires deliberate intent on
the part of the accused to take advantage of such superiority. It must be shown that the accused
purposely used excessive force that was manifestly out of proportion to the means available to
the victim's defense. 24 In this light, it is necessary to evaluate not only the physical condition and
weapon of the protagonists but also the various incidents of the event. 25

A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San
Andres, myself and Andrew Masangkay. Andrew Masangkay answer to a call of nature and went
to the back portion of the house, and Benjamin Ortega, Jr. followed him where he was.

In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortega's
availment of force excessively out of proportion to the means of defense available to the victim
to defend himself. Quitlong described the assault made by Appellant Ortega as follows: 26

A And afterwards we heard a shout and the shout said "Huwag, tulungan n'yo ako".

ATTY. ALTUNA:

A The shout came from Andrew Masangkay.

Q Will you please tell me the place and date wherein you have a drinking spree with Andrew
Masangkay and where you witnessed a stabbing incident?

Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after
you heard "huwag, tulungan n'yo ako" coming from the mouth of the late Andrew Masangkay,
what happened next?

A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of
Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the house of his son
Benjamin Ortega, Jr. are near each other.

Q What happened next?

Q From whom did you hear this utterance?

A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?

xxx xxx xxx


Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia,
you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San
Andres and Romeo Ortega.

A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing
Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done telling us the
particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr. proceeded with
the stabbing against the late victim, Andrew Masangkay?
CONSTI II (Sec. 14) | 21

INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was
"nakakabayo" and with his right hand with closed fist holding the weapon, he was thrusting this
weapon on the body of the victim, he was making downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.
It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was
only five feet and five inches tall. 27 There was no testimony as to how the attack was initiated.
The accused and the victim were already grappling when Quitlong arrived. Nothing in the
foregoing testimony and circumstances can be interpreted as abuse of superior strength. Hence,
Ortega is liable only for homicide, not murder.

True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy
conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and
that he died subsequently of drowning. 31 That drowning was the immediate cause of death was
medically demonstrated by the muddy particles found in the victim's airway, lungs and
stomach. 32 This is evident from the expert testimony given by the medico-legal officer, quoted
below: 33
ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of Exhibit N, beginning with
"tracheo-bronchial tree", that is sentence immediately after paragraph 10, 2.5 cms. Will you
please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular material?
A No, sir.
Q What do you mean by no?

Second Issue: Liability of Appellant Manuel Garcia


A A person should be alive so that the muddy particles could be inhaled.
Appellants argue that the finding of conspiracy by the trial court "is based on mere assumption
and conjecture . . ." 28Allegedly, the medico-legal finding that the large airway was "filled with
muddy particles indicating that the victim was alive when the victim inhaled the muddy
particles" did not necessarily mean that such muddy particles entered the body of the victim
while he was still alive. The Sinumpaang Salaysay of Quitlong stated, "Nilubayan lang nang
saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr." Thus, the prosecution evidence
shows Masangkay was already "dead" when he was lifted and dumped into the well. Hence,
Garcia could be held liable only as an accessory. 29
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states
that criminal liability shall be incurred by "any person committing a felony (delito) although the
wrongful act done be different from that which he intended." The essential requisites for the
application of this provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actor's
wrongful acts. In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well,
Appellant Garcia was committing a felony. The offense was that of concealing the body of the
crime to prevent its discovery, i.e. that of being an accessory in the crime of
homicide. 30 Although Appellant Garcia may have been unaware that the victim was still alive
when he assisted Ortega in throwing the body into the well, he is still liable for the direct and
natural consequence of his felonious act, even if the resulting offense is worse than that intended.

Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving
of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
CONSTI II (Sec. 14) | 22

A The lungs is also filled with multiple petechial hemorrhages.

Q Continuing with your report, particularly, the last two portions, will you please explain the
same?

Q What could have caused this injury of the lungs?


A The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.
A This is due to asphyxia or the loss of blood.
Q And what could have cause the same?
Q Are you saying that the lungs have been filled with water or muddy particles?
A [T]he stab wound of the abdomen.
A Yes, sir.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have
been damaged per your Report?

A The victim could have taken these when he was submerged in water.

A Yes, sir.

Q What is the take in?

Q Continuing this brain and other visceral organs, pale. What is this?

A Muddy particles.

A The paleness of the brain and other visceral organs is due to loss of blood.

Q And he was still alive at that time?

Q And, of course, loss of blood could be attributed to the stab wound which is number 13?

A Yes, sir. (Emphasis supplied)

A Yes, sir.

A Filipino authority on forensic medicine opines that any of the following medical findings may
show that drowning is the cause of death: 34

Q And the last one, under the particular point "hemothorax"?


A It indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic
cavity and this was admixed with granular materials?

1. The presence of materials or foreign bodies in the hands of the victim. The clenching of the
hands is a manifestation of cadaveric spasm in the effort of the victim to save himself from
drowning.

Q And what cause the admixing with granular materials on said particular portion of the body?

2. Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum).

A Could be muddy particles.

3. Presence of water and fluid in the stomach contents corresponding to the medium where the
body was recovered.

Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?


A It's due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in, in that
particular portion of the body and caused admixing of granular materials?
A Yes, sir.

4. Presence of froth, foam or foreign bodies in the air passage found in the medium where the
victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It was proven that
his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy particles which
were residues at the bottom of the well. Even his stomach was half-filled with such muddy
particles. The unrebutted testimony of the medico-legal officer that all these muddy particles
CONSTI II (Sec. 14) | 23

were ingested when the victim was still alive proved that the victim died of drowning inside the
well.
The drowning was the direct, natural and logical consequence of the felony that. Appellant
Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of
the Revised Penal Code. Under this paragraph, a person may be convicted of homicide although
he had no original intent to kill. 35
In spite of the evidence showing that Appellant Garcia could be held liable as principal in the
crime of homicide, there are, however, two legal obstacles barring his conviction, even as an
accessory as prayed for by appellants' counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of "attack[ing],
assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body
one ANDRE MAR MASANGKAY y ABLOLA." The prosecution's evidence itself shows that
Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega.
His responsibility relates only to the attempted concealment of the crime and the resulting
drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an accused
cannot be convicted of an offense, unless it is clearly charged in the complaint or information.
Constitutionally, he has a right to be informed of the nature and cause of the accusation against
him. To convict him of an offense other than that charged in the complaint or information would
be a violation of this constitutional right. 36 Section 14, par. 2, of the 1987 Constitution explicitly
guarantees the following:
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the attendance of witnesses and
the production of evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable. (Emphasis supplied)
In People vs. Pailano, 37 this Court ruled that there can be no conviction for rape on a woman
"deprived of reason or otherwise unconscious" where the information charged the accused of
sexual assault "by using force or intimidation," thus:
The criminal complaint in this case alleged the commission of the crime through the first method
although the prosecution sought to establish at the trial that the complainant was a mental
retardate. Its purpose in doing so is not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground that he violated
Anita while she was deprived of reason or unconscious, such conviction could not have been
possible under the criminal complaint as worded. This described the offense as having been
committed by "Antonio Pailano, being then provided with a scythe, by means of violence and

intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal
knowledge of the complainant, Anita Ibaez, 15 years of age, against her will'. No mention was
made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita while she was
unconscious or otherwise deprived of reason and not through force and intimidation, which
was the method alleged would have violated his right to be informed of the nature and cause
of the accusation against him. [Article IV, Sec. 19, Constitution of 1973; now Article III, Sec.
14(2)] This right is safeguarded by the Constitution to every accused so he can prepare an
adequate defense against the charge against him. Convicting him of a ground not alleged while
he is concentrating his defense against the ground alleged would plainly be unfair and
underhanded. This right was, of course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be
found guilty of qualified seduction, which had not been alleged in the criminal complaint against
him. In the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not permit the
conviction for homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of and acquitted was not homicide
but rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the
accused was charged with the misappropriation of funds held by him in trust with the obligation
to return the same under Article 315, paragraph l(b) of the Revised Penal Code, but was
convicted of swindling by means of false pretenses, under paragraph 2(b) of the said Article,
which was not alleged in the information. The Court said such conviction would violate the Bill
of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in
an information that charges murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia assisted in "concealing
. . . the body of the crime, . . . in order to prevent its discovery," he can neither be convicted as an
accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code. The records
show that Appellant Garcia is a brother-in-law of Appellant Ortega, 38 the latter's sister, Maritess,
being his wife. 39 Such relationship exempts Appellant Garcia from criminal liability as provided
by Article 20 of the Revised Penal Code:
Art. 20. Accessories who are exempt from criminal liability. The penalties prescribed for
accessories shall not be imposed upon those who are such with respect to their spouses,
ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees with the single exception of accessories falling within the
provisions of paragraph 1 of the next preceding article.
On the other hand, "the next preceding article" provides:

CONSTI II (Sec. 14) | 24

Art. 19. Accessories. Accessories are those who, having knowledge of the commission of the
crime, and without having participated therein, either as principals or accomplices, take part
subsequent to its commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in
order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the
accessory acts with abuse of his public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.
Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega,
Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal Code. This
Court is thus mandated by law to acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former
amount was proven both by documentary evidence and by the testimony of Melba Lozano, a
sister of the victim. 38 Of the expenses alleged to have been incurred, the Court can give credence
only to those that are supported by receipts and appear to have been genuinely incurred in
connection with the death of the victim. 39 However, in line with current
jurisprudence, 40 Appellant Ortega shall also indemnify the heirs of the deceased in the sum of
P50,000.00. Indemnity requires no proof other than the fact of death and appellant's
responsibility therefor. 43
The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code,
which is imposable in its medium period, absent any aggravating or mitigating circumstance, as
in the case of Appellant Ortega. Because he is entitled to the benefits of the Indeterminate
Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant
Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision
mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the
heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant
Manuel Garcia is ACQUITTED. His immediate release from confinement is ORDERED unless
he is detained for some other valid cause.
SO ORDERED.
CONSTI II (Sec. 14) | 25

EN BANC
G.R. No. L-21741

January 25, 1924

AURELIA CONDE, petitioner,


vs.
PABLO RIVERA, acting provincial fiscal of Tayabas, and
FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents.
MALCOLM, J.:
Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to
no less than five informations for various crimes and misdemeanors, has appeared with her
witnesses and counsel at hearings no less than on eight different occasions only to see the cause
postponed, has twice been required to come to the Supreme Court for protection, and now, after
the passage of more than one year from the time when the first information was filed, seems as
far away from a definite resolution of her troubles as she was when originally charged.
Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons,
has a right to a speedy trial in order that if innocent she may go free, and she has been deprived
of that right in defiance of law. Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily postponed without her consent,
is palpably and openly unjust to her and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the appropriate information, could have
attended to the formal preliminary examination, and could have prepared the case for a trial free
from vexatious, capricious, and oppressive delays.
Once before, as intimidated, the petitioner had to come to us for redress of her grievances. We
thought then we had pointed out the way for the parties. But it seems not. Once again therefore
and finally, we hope, we propose to do all in our power to assist this poor woman to obtain
justice. On the one hand has been the petitioner, of humble station, without resources, but
fortunately assisted by a persistent lawyer, while on the other hand has been the Government of
CONSTI II (Sec. 14) | 26

the Philippine Islands which should be the last to set an example of delay and oppression in the
administration of justice. The Court is thus under a moral and legal obligation to see that these
proceedings come to an end and that the accused is discharged from the custody of the law.
We lay down the legal proposition that, where a prosecuting officer, without good cause, secures
postponements of the trial of a defendant against his protest beyond a reasonable period of time,
as in this instance for more than a year, the accused is entitled to relief by a proceeding
in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by
habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal.,
334; U.S.vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge
of First Instance, Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No. 21236. 1
The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further
attempts to prosecute the accused pursuant to informations growing out of the facts set forth in
previous informations, and the charges now pending before the justice of the peace of Lucena,
Tayabas, are ordered dismissed, with cost against the respondent fiscal. We append to our order
the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of
record, will take such administrative action as to him seems proper to the end that incidents of
this character may not recur. So ordered.

EN BANC
G.R. No. L-62810 July 25, 1983
EULALIA MARTIN, petitioner,
vs.
GEN. FABIAN VER, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES and
GEN. HAMILTON DIMAYA, JUDGE ADVOCATE GENERAL, respondents.
PLANA, J.:
CONSTI II (Sec. 14) | 27

This is a petition for habeas corpus filed by Eulalia Martin on behalf of her husband, Pvt.
Francisco Martin.
Pvt. Martin was an enlisted man in the Philippine Army. On or about April 14, 1981, when he
was still in the service, he allegedly sold two grenades to one Rogelio Cruz at P50.00 each, one
of which exploded during a picnic in Laoag City on April 17, 1981 causing the death of three
persons, including Rogelio Cruz, and injuries to three others.
According to respondents, Pvt. Martin has admitted to Cpl. Lucio Tuppal, Philippine Army,
having sold the grenades to Rogelio Cruz in Laoag City, although this is denied by Pvt. Martin.
After an initial investigation conducted by the Laoag City PC and INP authorities, a report was
submitted to the Ministry of National Defense which referred the matter to the Chief of Staff,
AFP, who in turn directed the Inspector General to conduct another investigation.
On May 5, 1981, Pvt. Martin was arrested and confined (restricted to barracks) at Fort Bonifacio
pursuant to Article 70 of the Articles of War, infra. The following year, he was discharged from
the service effective as of May 5, 1982. On November 17, 1982 the instant petition was filed.
The following month, i.e., December 3, 1982, Pvt. Martin was charged for violation of the 85th
and 97th Articles of War, which read:

Specification: In that Private Francisco Martin, ... on or about the month of April 1981 at Laoag
City, unlawfully and without authority had in his possession two (2) hand grenades thus
committing an act prejudicial to good order and military discipline and of a nature that will bring
discredit to the military establishment.
The petitioner contends that having been discharged from the military service, he is no longer
subject to court-martial even if the offenses of which he is charged were committed while he was
still subject to military law. He therefore, concludes that his continued detention pursuant to
Article 70 of the Articles of War (which authorizes the arrest/confinement of any person subject
to military law who is charged with an offense under the Articles of War) is illegal and he,
accordingly, should be released. This posture has no merit.
Generally, court-martial jurisdiction over persons in the military service of the Philippines ceases
upon discharge or other separation from such service. This however, is but a general rule. The
Articles of War in terms prescribe some exceptions designed to enhance discipline and good
order within the military organization. Thus, court-martial jurisdiction as to certain cases of fraud
and misappropriation of military hardware and other government property is not extinguished by
discharge or dismissal pursuant to the 95th Article of War.
ART. 95. Frauds Against the Government.Any person subject to military law ...

ART. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers.Any soldier
who sells or wrongfully disposes of or willfully or through neglect injures or losses any horse,
arms, ammunition, accouterments, equipment, clothing, or other property issued for use in the
military service, shall be punished as a court-martial may direct.

Who steals, embezzles, knowingly and willingly misappropriates, applies to his own use or
benefit or wrongfully or knowingly sells or disposes of any ordnance, arms, equipment,
ammunition, clothing, subsistence, stores, money, or other property of the Government furnished
or intended for the military service thereof ...

ART. 97. General Article.Though not mentioned in these articles, all disorders and neglects to
the prejudice of good order and military discipline and all conduct of a nature to bring discredit
upon the military service shall be taken cognizance of by a general or special or summary courtmartial according to the nature and degree of the offense, and punished at the discretion of such
court.

Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment


as a court-martial may adjudge, or by any or all of said penalties. And if any person, being guilty
of any of the offenses aforesaid while in the service of the Armed Forces of the Philippines or of
the Philippine Constabularyreceives his discharge or is dismissed from the service, he shall
continue to be liable to be arrested and held for trial and sentence by a court-martial in the same
manner and to the same extent as if he had not received such discharge nor been dismissed.
(Emphasis supplied.)

The charge sheet stipulates the following charges:


CHARGE I: Violation of the 85th Article of War.
Specification: In that Private Martin assigned with the Headquarters and Headquarters Service
Battalion, First Infantry Division, Philippine Army on or about 14 April 1981 at Laoag City
wrongly disposed of by sale to Rogelio Cruz two (2) grenades.

It was on the basis of the foregoing legal provision, among others, that this Court sustained the
court-martial of the petitioner in De la Cruz vs. Alcaraz, et al. after his reversion to inactive
status, for misappropriation of public funds committed while he was still in the active military
service. The Court, thru Mr. Justice J. B. L. Reyes, said:

CHARGE II: Violation of the 97th Article of War.

CONSTI II (Sec. 14) | 28

There is no question that although appellant had been reverted to inactive (civilian) status in the
reserve force of the Philippine Army, he is still amenable to investigation and court-martial under
the Artitles of War by the Philippine Navy for alleged acts of misappropriation of government
funds committed while he was still in the active military service. As correctly held by the Court
below, appellant's case falls within the provisions of Article 95 of the Articles of War
(Commonwealth Act No. 408, as amended), which provides as follows: ...
The lower Court did not, therefore, err in refusing to enjoin appellant's investigation by the naval
authorities on charges that he had misappropriated public property while he was still in the
service of the Philippine Navy, specially since petitioner admits that he is still a member of the
Reserve Force." (99 Phil. 130 at 131-132.).
We conclude that despite his discharge from the military service, the petitioner is still subject to
military law for the purpose of prosecuting him for illegal disposal of military property, and his
preventive detention thereunder pending trial and punishment for the said offense committed
when he was in the military service is lawful.
Alternatively, petitioner maintains that even assuming that the jurisdiction of the military
authorities to try and punish him was not abated by his discharge from military service, the
denial to him of his constitutional right to speedy trial (he having been confined from the date of
his arrest on May 5, 1981 up to December 3, 1982 when he was formally charged a period of
I year and 7 months) entitles him to be released on habeas corpus.
The fundamental rights guaranteed in the Constitution apply to all persons, including those
subject to military law, (Aquino vs. Military Commission No. 2, 63 SCRA 546; Cayaga vs.
Tangonan, 66 SCRA 216; Go vs. Olivas, 74 SCRA 230; Romero vs. Ponce Enrile, 75 SCRA
429.) To quote Ex Parte Milligan, 4 Wall. 2:
The Constitution is a law for rulers and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and under all circumstances.
It would indeed be parodoxical if military men who are called upon in times of the gravest
national crises to lay down their lives in defense of peace and freedom would be the very people
to be singled out for denial of the fundamental rights for which they risk their lives.
For denial of a constitutional right to the accused, the hearing tribunal may lose its jurisdiction to
conduct further proceedings. In such a case, habeas corpus would lie to obtain the release of the
accused. (Gumabon vs. Director, 37 SCRA 420; Acevedo vs. Sarmiento, 36 SCRA 247; Aquino
vs. Ponce Enrile, 59 SCRA 183; Flores vs. People, 61 SCRA 331; Dacuyan vs. Ramos, 85 SCRA
487, Ventura vs. People, 86 SCRA 188; Romero vs. Ponce Enrile, 75 SCRA 429; Aquino vs.
Ponce Enrile, supra; Go vs. Olivas, supra.)

In the case at bar, the petitioner claims that he has been denied his constitutional right of speedy
trial because the charges against him were filed only about 1 year and 7 months after his arrest.
There was no such denial. As stated by this Court in a per curiam decision: "x... the test of
violation of the right to speedy trial has always been to begin counting the delay from the time
the information is filed, not before the filing. The delay in the filing of the information, which in
the instant case has not been without reasonable cause, is therefore not to be reckoned with in
determining whether there has been a denial of the right to speedy trial." (People vs. Orsal, 113
SCRA 226 at 236.)
At any rate, whether or not one has been denied speedy trial is not susceptible to precise
quantification. At best, the constitutional right of speedy trial is relative, consistent with
reasonable delays, taking into account the circumstances of each case. As expressed in Barker vs.
Wingo, 33 L. Ed 2d 101:
... the right to a speedy trial is a more vague and generically different concept than other
constitutional rights guaranteed to accused persons and cannot be quantified into a specified
number of days or months, and it is impossible to pinpoint a precise time in the judicial process
when the right must be asserted or considered waived ...
... a claim that a defendant has been denied his right to a speedy trial is subject to a balancing
test, in which the conduct of both the prosecution and the defendant are weighed, and courts
should consider such factors as length of the delay, reason for the delay, the defendant's assertion
or non-assertion of his right, and prejudice to the defendant resulting from the delay, in
determining whether defendant's right to a speedy trial has been denied ...
Returning to the case at hand, the criminal act imputed to the petitioner unfortunately resulted in
the death of three persons (including Rogelio Cruz who allegedly bought the handgrenades from
the petitioner) and very serious injuries to three others whose testimony is vital to the preferment
of charges and prosecution of the petitioner. It is therefore not unreasonable to heed the claim of
respondents that the delay complained of was occasioned by the unavailability of witnesses, a
claim which has not at all been challenged or denied by the petitioner.
WHEREFORE, the petition for habeas corpus is dismissed, without prejudice to the petitioner
seeking his provisional release on bail from the military authorities or the Ministry of National
Defense. No costs.
SO ORDERED.

CONSTI II (Sec. 14) | 29

Consequently, a criminal complaint was filed in the Municipal Trial Court (MTC) of Tarlac City
on March 23, 1994, charging petitioner Henry Uy with violation of Article 189 (Unfair
Competition) of the Revised Penal Code.6
On November 8, 1994, private respondent Piakamasarap Corporation moved to amend the
criminal charge by including Henry's spouse, petitioner Rosario Uy. 7 The court granted the
motion in its Order dated November 15, 1994 and admitted the amended criminal complaint
which reads:
The undersigned, LUIS E. GONZALES, Comptroller of PIAKAMASARAP CORPORATION
of 583 Sta. Veronica St., Novaliches, Quezon City, and by authority of the said corporation,
under oath accuses HENRY UY, ROSARIO GUTIERREZ UY and a certain JOHN DOE of
Violation of Article 189 of the Revised Penal Code, committed as follows:

FIRST DIVISION
G.R. No. 159098

October 27, 2006

SPS. HENRY and ROSARIO UY, petitioners,


vs.
HON. JUDGE ARSENIO P. ADRIANO, in his capacity as Pairing Judge of RTC, Br. 64,
Tarlac City, CITY PROSECUTOR ALIPIO C. YUMUL and PIAKAMASARAP
CORP., respondents.
DECISION
CALLEJO, SR., J.:
Challenged in this instant Petition for Review on Certiorari is the Decision1 of the Court of
Appeals (CA) in CA-G.R. SP No. 62103 which affirmed the Orders of the Regional Trial Court
(RTC) of Tarlac City2 denying the motion to quash the Information in Criminal Case Nos. 651294.
Based on a confidential information that petitioner Henry Uy had been engaged in
manufacturing, delivering, and selling "fake" Marca Pia soy sauce, 3 Orlando S. Bundoc,
Intelligence Officer II of the Economic Intelligence and Investigation Bureau (EIIB), applied for
a search warrant4 for unfair competition which was granted on February 14, 1994. When the
search warrant was implemented on even date, Atty. Francisco R. Estavillo, agent of the National
Bureau of Investigation (NBI) in Tarlac, seized fifty-five (55) bottles of label Marca Pia soy
sauce.5

That on or about February 14, 1994, and for sometimes (sic) prior thereto, in Municipality of
Tarlac, Tarlac, Philippines, the said Rosario G. Uy accused, being then the owner of a business
establishment with principal address at Phase I, Northern Hills Subdivision, San Vicente, Tarlac,
Tarlac, and her co-accused, husband, HENRY UY, and a certain John Doe, did then and there,
willfully, unlawfully and feloniously conspire and confederate together and help one another
engaged in unfair competition with the intention of deceiving and defrauding the public in
general and the consuming public in general and PIAKAMASARAP Corporation, the
manufacturer and bottler of soy sauce under the name "MARCA PIA," a [trademark] duly
registered with the Philippine Patent Office and sell or offer for sale soy sauce manufactured by
them with the brand name "Marca Pia" which is a bastard version of the trademark, and using
the bottles of Piakamasarap Corporation and substituted the contents thereof with those
manufactured by the accused and passing to the public that said products to be the products of
Piakamasarap Corporation which is not true, thereby inducing the public to believe that the
above-mentioned soy sauce sold or offered for sale by said accused are genuine "MARCA
PIA" soy sauce manufactured by PIAKAMASARAP CORPORATION, and of inferior
quality to the damage and prejudice of the Piakamasarap Corporation.
Contrary to law.
Tarlac, Tarlac, November 8, 1994.8
After preliminary examination of the prosecution witnesses, the court found probable cause to
indict petitioners.9 On January 30, 1995, the court issued a warrant of arrest against
petitioners.10 They were released after posting a cash bond on February 1, 1995. 11 On July 10,
1995, petitioners were arraigned, assisted by counsel, and pleaded not guilty to the
charge.12 Petitioners, through counsel, waived the pre-trial conference on October 25, 1995. The
initial trial was set on November 27, 1995.13
However, it was only on February 26, 1996 that the first witness of the prosecution, Atty.
Estavillo of the NBI, testified. In the meantime, in October 1996, this Court issued
Administrative Order (A.O.) No. 104-96 providing, inter alia, that the RTC shall have exclusive
jurisdiction over violations of Articles 188 and 189 of the Revised Penal Code and Republic Act
(R.A.) No. 166, as amended, thus:
CONSTI II (Sec. 14) | 30

VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS SUCH AS, BUT NOT LIMITED


TO, VIOLATIONS OF ART. 188 OF THE REVISED PENAL CODE (SUBSTITUTING AND
ALTERING TRADEMARKS, TRADE NAMES, OR SERVICE MARKS), ART. 189 OF THE
REVISED PENAL CODE (UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF
TRADEMARKS, TRADE NAMES, OR SERVICE MARKS, FRAUDULENT DESIGNATION
OF ORIGIN, AND FALSE DESCRIPTION), P.D. NO. 49 (PROTECTION OF
INTELLECTUAL PROPERTY RIGHTS), P.D. NO. 87 (AN ACT CREATING THE
VIDEOGRAM REGULATORY BOARD), R.A. NO. 165, AS AMENDED (THE PATENT
LAW), AND R.A. NO. 166, AS AMENDED (THE TRADEMARK LAW) SHALL BE TRIED
EXCLUSIVELY BY THE REGIONAL TRIAL COURTS IN ACCORDANCE WITH THE
ESTABLISHED RAFFLE SCHEME EXCEPT THOSE COVERED BY ADMINISTRATIVE
ORDER NO. 113-95 DATED 2 OCTOBER 1995, IN WHICH CASE, THE DESIGNATED
REGIONAL TRIAL COURTS SHALL CONTINUE TO OBSERVE THE PROVISIONS
THEREIN.
CONSIDERING THAT JURISDICTION FOR VIOLATIONS OF INTELLECTUAL
PROPERTY RIGHTS HEREINBEFORE MENTIONED IS NOW CONFINED EXCLUSIVELY
TO THE REGIONAL TRIAL COURTS, THE DESIGNATION OF METROPOLITAN TRIAL
COURTS AND MUNICIPAL TRIAL COURTS IN CITIES UNDER ADMINISTRATIVE
ORDER NO. 113-95 IS DELETED AND WITHDRAWN.
Despite the administrative order of the Court, the MTC continued with the trial. Gloria P.
Tomboc, Analyst of the Bureau of Food and Drugs Administration (BFAD), testified on August
25, 1997. In the meantime, Articles 188 and 189 of the Revised Penal Code were amended by
R.A. No. 8293, otherwise known as the Intellectual Property Code. Two years thereafter, Alfredo
Lomboy, supervisor of Piakamasarap Corporation, testified on August 30, 1999.
On December 12, 1999, the prosecution filed its formal offer of evidence. 14 In the meantime, on
October 22, 1999, Atty. Joselito L. Lim had moved to withdraw his appearance as counsel for
petitioners;15 the court had granted the motion on October 25, 1999; 16 and the new counsel of
petitioners, Balbastro and Associates, had entered its appearance on November 24, 1999. 17
On February 15, 2000, the court resolved to admit the documentary evidence of the prosecution
except Exhibit "E" which was rejected by the court, and Exhibits "I" and "J" which were
withdrawn.18 The prosecution rested its case.
On March 10, 2000, petitioners, through their new counsel, filed a Motion for Leave to File
Demurrer to Evidence.19 The court granted the motion. In their demurrer,20 petitioners argued that
a judgment of acquittal is proper since no sufficient evidence was presented to prove beyond
reasonable doubt that they are guilty of the offense charged. The prosecution was not able to
establish that they gave their goods the general appearance of another manufacturer or dealer and
that they had the intent to defraud the public or Piakamasarap Corporation. Moreover, under
both R.A. No. 166, as amended, and its repealing law, R.A. No. 8293, the RTC had jurisdiction
over the crime charged; hence, the amended complaint should be quashed.
The prosecution opposed the demurrer to evidence, contending that it had presented proof
beyond reasonable doubt of the guilt of petitioners for the crime charged. The prosecution
maintained that, under Batas Pambansa (B.P.) Blg. 129, the MTC had jurisdiction over the crime

charged in the light of the imposable penalty for unfair competition under Article 189 of the
Revised Penal Code.21
In its Resolution dated May 16, 2000, 22 the court held that there was prima facie evidence which,
if unrebutted or not contradicted, would be sufficient to warrant the conviction of petitioners.
However, the court ruled that the RTC was vested by law with the exclusive and original
jurisdiction to try and decide charges for violation of R.A. No. 166 as amended by R.A. No.
8293. Accordingly, the court denied the demurrer to evidence and ordered the records of the case
forwarded to the Office of the Provincial Prosecutor for appropriate action.
The City Prosecutor forwarded the case records to the Clerk of Court of RTC, Br. 63, Tarlac
City.23 On June 19, 2000, the RTC ordered the City Prosecutor to conduct the requisite
preliminary investigation and to file the necessary Information if he found probable cause against
petitioners.
The City Prosecutor found probable cause based on the findings of the MTC in its May 16, 2000
Resolution that there was a prima facie case against petitioners. 24 He filed an Information in the
RTC on July 18, 2000 for violation of Article 189 of the Revised Penal Code. 25 The Information
reads:
That on or about February 14, 1994 and sometime prior thereto, at Tarlac City, and within the
jurisdiction of this Honorable Court, the accused, being the owner of a business establishment
with principal address at Phase I, Northern Hills Subd., San Vicente, Tarlac City, the accused,
conspiring, confederating and helping one another did then and there willfully, unlawfully and
feloniously, in unfair competition with the intention of deceiving and defrauding the public in
general and the PIAKAMASARAP CORPORATION, the name "MARCA PIA," and sell or
offer for sale soy sauce manufactured by them with the brand name "Marca Pia," which is a
version of the trademark, and using the bottles of Piakamasarap Corporation and substituted the
contents thereof with those manufactured by the accused and passing to the public the products,
thereby inducing the public to believe that the soy sauce sold or offered for sale by the accused
are genuine "MARCA PIA" soy sauce, to the damage and prejudice of PIAKAMASARAP
CORPORATION.
CONTRARY TO LAW.26
Petitioners filed a Motion to Quash the Information, 27 alleging that their rights to due process and
speedy trial had been violated. Other than the notice of hearing sent by the court, they never
received a subpoena which required them to submit their evidence during a preliminary
investigation. Petitioners further averred that certain delays in the trial are permissible, especially
when such delays are due to uncontrollable circumstances or by accident. In this case, the
inordinate delay was obviously brought by the lackadaisical attitude taken by the prosecutor in
prosecuting the case. Petitioners pointed out that there was already a delay of six (6) long years
from the time the initial complaint was filed, and that they had already been prejudiced. Their
life, liberty and property, not to mention their reputation, have been at risk as there has been no
determination of the issue of whether or not to indict them. Thus, the case should be dismissed in
order to free them from further capricious and oppressive dilatory tactics of the prosecution.
Indeed, their right to a speedy trial is part of due process, both of which are guaranteed by no less
CONSTI II (Sec. 14) | 31

than the fundamental law itself. They insisted that they should not be made to unjustly await the
prosecution of the charges against them.
In opposition, the City Prosecutor clarified that subpoenas were sent to the parties during the
preliminary investigation. In fact, petitioner Henry Uy appeared and submitted the case for
resolution without submitting additional evidence. Also, the proceedings in the MTC were not
part of preliminary investigation but the trial on the merits. 28
On September 8, 2000, the court issued an Order denying the motion to quash. 29 The court ruled
that:
While there must have been a protracted trial since the case was originally filed before the
Municipal Trial Court, a period of about six (6) years, as the accused contends, nevertheless the
delay if any, is partly attributable to the accused. [They] allowed the prosecution to rest the
evidence in chief before raising the issue of lack of jurisdiction. Had the accused immediately
raised the issue of lack of jurisdiction, this case could have been filed anew before the RTC. The
accused allowed themselves to be arraigned without raising the issue of jurisdiction. In fact, the
prosecution [had] rested its evidence in chief.
The parties may[,] however[,] stipulate in the pre-trial that all the proceedings taken before the
Municipal Trial Court are automatically reproduced and are considered part of the prosecution's
evidence, so that the trial will now be with respect to the reception of defense evidence. 30
Petitioners filed a motion for reconsideration of the Order 31 which the trial court denied. 32 At the
same time, the court granted the oral motion of the prosecution to amend the Information to
reflect in its caption that the law violated by the accused is R.A. No. 8293 and not Article 189 of
the Revised Penal Code. On October 12, 2000, the City Prosecutor filed an amended
Information. The inculpatory portion reads:
That on or about February 14, 1994 and sometimes prior thereto, at Tarlac City, and within the
jurisdiction of this Honorable Court, the accused, being the owner of a business establishment
with principal address at Phase I, Northern Hills Subd., San Vicente, Tarlac City, the accused,
conspiring, confederating and helping one another did then and there willfully, unlawfully and
feloniously, in Violation of Sec. 168 of R.A. No. 8293 with the intention of deceiving and
defrauding the public in general and the PIAKAMASARAP CORPORATION, the name
"MARCA PIA," and sell or offer for sale soy sauce manufactured by them with the brand name
"Marca Pia," which is a version of the trademark, and using the bottles of Piakamasarap
Corporation and substituted the contents thereof with those manufactured by the accused and
passing to the public the products, thereby inducing the public to believe that the soy sauce sold
or offered for sale by the accused are genuine "MARCA PIA" soy sauce, to the damage and
prejudice of PIAKAMASARAP CORPORATION.
CONTRARY TO LAW.33
Petitioners then filed before the CA a petition for certiorari with prayer for temporary restraining
order and preliminary injunction, 34 on the sole ground that respondent judge committed grave
abuse of discretion in denying their motion to quash based on violation of their right to a speedy
trial. They claimed that there was no active effort on their part to delay the case as they merely
attended the scheduled hearings and participated in the preliminary investigation. On the

contrary, it is the prosecution that has the unmitigated obligation to immediately file the
Information with the proper court. The public prosecutor is supposedly knowledgeable of the
existing laws and jurisprudence since his office has the delicate task of prosecuting cases in
behalf of the State. Under the Rules on Criminal Procedure, he is the officer responsible for the
direction and control of criminal prosecutions. In the case at bar, the public prosecutor failed in
his bounden duty by neglecting to file the case in the court of competent jurisdiction. The
prosecution could not advance a single reason to justify the procedural error and instead pointed
its accusing finger to petitioners who are just ordinary citizens. Their failure to call the attention
of the prosecution is neither acquiescence nor consent on their part. While their former lawyer
was obviously lackluster in their defense, the act of the counsel should not deprive them of their
constitutional right to a speedy trial. For petitioners, the prosecution's blunder in procedure and
ignorance of existing laws and jurisprudence far outweigh whatever minimal participation, if
any, they had in the protracted proceedings.
On March 21, 2003, the CA dismissed the petition.35 The fallo of the decision reads:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of
merit. The Orders dated September 8, 2000 and October 9, 2000 of the public respondent are
hereby DISMISSED.36
In dismissing the petition, the appellate court ratiocinated that:
[T]he right to a speedy disposition of a case, like the right to speedy trial, is deemed violated
only when the proceeding is attended by vexatious, capricious and oppressive delays" (Castillo v.
Sandiganbayan, 328 SCRA 69, 76); "or when unjustified postponements of the trial are asked for
and secured, or when without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case tried." (Binay v. Sandiganbayan, 316 SCRA 65, 93)
In the instant case, aside from the fact that it took almost six years for the prosecution to
complete the presentation of its evidence, petitioners failed to show that the delay, if ever there is
any, was caused solely by the prosecution. Neither did the petitioners show that the proceedings
before the Municipal Trial Court was attended by vexatious, capricious and oppressive delays
attributable to the prosecution or that unjustified postponements of the trial were asked for and
secured by the prosecution to the prejudice of the petitioners. The fact alone that the prosecution
had consumed six (6) years to complete its presentation of evidence, without any allegation or
proof that the prosecution has caused unreasonable delays or that the proceeding was attended by
vexatious, capricious and oppressive delays, to Our minds is not sufficient for the application
upon the petitioners of their Constitutional right to speedy trial. "A mere mathematical reckoning
of the time involved, therefore, would not be sufficient. In the application of the Constitutional
guarantee of the right to speedy disposition of cases, particular regard must also be taken of the
facts and circumstances peculiar to each case." (Binay v. Sandiganbayan, supra, p. 93). In the
case at bar, petitioners failed to present, for Our perusal, the circumstances attending the trial of
their case before the Municipal Trial Court.
The only controversy of the instant case lies in the fact that the Municipal Trial Court which
heard the case has no jurisdiction over the said case. While it may be conceded that the
prosecution erred in not filing the information against the petitioners to a proper court, still,
petitioners are not blameless in this regard. Petitioners, through their counsel, had actively
CONSTI II (Sec. 14) | 32

participated in the proceedings before the Municipal Trial Court. Petitioners had to wait for
almost six (6) years to elapse before they brought to the attention of the Municipal Trial Court
that it had no jurisdiction to hear the case against the petitioners. Petitioners have, by reason of
their participation in the proceedings before the Municipal Trial Court and also by reason of their
silence and inaction, allowed the Municipal Trial Court to proceed with a case for six (6) years
despite absence of jurisdiction of such court to hear the case. We cannot allow the petitioners to
reap from their acts or omissions. "A litigation is not a game of technicalities in which one, more
deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the
other." (Fortune Corporation v. Court of Appeals, 229 SCRA 355, 364)
"The constitutional privilege was never intended as furnishing a technical means for escaping
trial." (Esguerra v. Court of First Instance of Manila, et al., 95 Phil. 609, 611-612) "The right of
an accused to a speedy trial is guaranteed to him by the Constitution, but the same shall not be
utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures
rights to an accused, but it does not preclude the rights of public justice. ( Domingo v.
Sandiganbayan, 322 SCRA 655, 667)37
Petitioners filed a motion for reconsideration, which the appellate court denied. 38
Petitioners sought relief from this Court on a petition for review, alleging that:
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
AFFIRMED THE COURT A QUO'S DENIAL OF PETITIONERS' MOTION TO QUASH,
BASED ON VIOLATION OF THEIR RIGHT TO SPEEDY TRIAL (SEC. 16, ART. 3, 1987
CONSTITUTION).39
Petitioners reiterate their arguments in the CA to support the present petition. They aver that:
In this case, the prosecution took six (6) long and grueling years before it filed an Information
with a competent court, despite the fact that jurisdiction of the Regional Trial Courts over
trademark cases remained unchanged since the birth of the Trademark Law. Surely, this
inordinate delay can be considered a "vexatious, capricious and oppressive delay" which is
constitutionally impermissible in this jurisdiction pursuant to the right of the accused to speedy
trial.
Indeed, petitioners have been prejudiced. Their lives, liberty and property, not to mention their
reputation have all been put at risk for so long.
The public prosecutor failed to explain the reason for the delay. Truth to tell, even at this last
stage, the public prosecutor chooses to remain silent why it had unjustifiably taken him too long
to file this case before a competent court. Unfortunately, the Court of Appeals deliberately
ignored this glaring flaw committed by the public prosecutor and instead focused on petitioners'
alleged negligence in not raising the issue of jurisdiction earlier. It further ruled that due to this
fact, petitioners are thus not entirely blameless for the delay of the trial.
Truth to tell, these findings of the Court of Appeals are palpably erroneous.

Firstly, it is elementary that jurisdiction over the subject matter may be raised at any stage of the
proceedings. This is because no amount of waiver can confer jurisdiction on a court over an
offense for which such jurisdiction has not been conferred by law in the first place.
Secondly, even assuming that petitioners failed to raise the issue of jurisdiction earlier, still, they
could not be estopped from invoking their right to speedy trial. The delay to be considered
"partly attributable" to the accused (which could work against him in invoking the right to
speedy trial) presupposes an active effort of the defendant to delay the case (Manabat v.
Timbang, 74 Phil. 295). There is no violation of the right to speedy trial where the delay is
imputable to the accused (Solis v. Agloro, 63 SCRA 370). Here, it was the prosecution that had
the unmitigated obligation to file the Information with the correct court, within a reasonable
time. It did not. Such blunder was fatal to its cause.
To emphasize, petitioners need not even call the attention of the prosecution that it had failed to
file the case with the proper court, contrary to the opinion of the Court of Appeals. x x x 40
xxxx
Although petitioners agree with the Court of Appeals that mere mathematical reckoning of time
would not be sufficient for the application of the right to speedy trial, still, the public prosecutor's
blunder should already be considered "vexatious, capricious and oppressive" warranting the
dismissal of the case.
Indeed, to condone the public prosecutor's manner of having directed this case, just like what the
Court of Appeals did, might give rise to a disturbing precedent where the constitutional right of
the accused could very well be set aside to justify the mishandling of the prosecution by officers
of the State.41
Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides that the accused is
entitled to a speedy, impartial and public trial. Section 2, Rule 119 of the said Rules provides that
trial, once commenced, shall be continuous until terminated:
Sec. 2. Continuous trial until terminated; postponements. Trial, once commenced, shall
continue from day to day as far as practicable until terminated. It may be postponed for a
reasonable period of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case for
continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as
to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180)
days from the first day of trial, except as otherwise authorized by the Supreme Court.
The time limitations provided under this section and the preceding section shall not apply where
special laws or circulars of the Supreme Court provide for a shorter period of trial.
However, any period of delay resulting from a continuance granted by the court motu proprio, or
on motion of either the accused or his counsel, or the prosecution, if the court granted the
continuance on the basis of its findings set forth in the order that the ends of justice is served by
taking such action outweigh the best interest of the public and the accused on a speedy trial, shall
be deducted.
CONSTI II (Sec. 14) | 33

The trial court may grant continuance, taking into account the following factors:
(a) Whether or not the failure to grant a continuance in the proceeding would likely make a
continuation of such proceeding impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the
number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate
preparation within the periods of time established therein.
In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion
of the court's calendar or lack of diligent preparation or failure to obtain available witnesses on
the part of the prosecutor.42
Under the Constitution and Section 1(7) of Rule 115 of the Revised Rules of Criminal Procedure,
the accused shall be entitled to have a speedy and impartial trial. "Speedy trial" is a relative term
and necessarily a flexible concept. 43 In determining whether the right of the accused to a speedy
trial was violated, the delay should be considered, in view of the entirety of the
proceedings.44 Indeed, mere mathematical reckoning of the time involved would not suffice 45 as
the realities of everyday life must be regarded in judicial proceedings which, after all, do not
exist in a vacuum.46
Apart from the constitutional provision and Section 115, Section 1(i) of the Rules of Criminal
Procedure, A.O. No. 113-95 of the Court provides that:
The trial of cases for violation of Intellectual Property Rights covered by this Administrative
Order shall be immediately commenced and shall continue from day to day to be terminated as
far as practicable within sixty (60) days from initial trial. Judgment thereon shall be rendered
within thirty (30) days from date of submission for decision.
More than a decade after the 1972 leading U.S. case of Barker v. Wingo47 was promulgated, this
Court, in Martin v. Ver,48began adopting the "balancing test" to determine whether a defendant's
right to a speedy trial has been violated. As this test necessarily compels the courts to approach
speedy trial cases on an ad hoc basis, the conduct of both the prosecution and defendant are
weighed apropos the four-fold factors, to wit: (1) length of the delay; (2) reason for the delay; (3)
defendant's assertion or non-assertion of his right; and (4) prejudice to defendant resulting from
the delay.49None of these elements, however, is either a necessary or sufficient condition; they
are related and must be considered together with other relevant circumstances. These factors
have no talismanic qualities as courts must still engage in a difficult and sensitive balancing
process.50
A. Length of the Delay
The length of delay is to some extent a "triggering mechanism." Until there is some delay, which
is presumptively prejudicial, there is no necessity to inquire into the other three factors.
Nevertheless, due to the imprecision of the right to a speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. 51
B. Reason for the Delay

Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the accused have the
burden to prove the factual basis of the motion to quash the Information on the ground of denial
of their right to a speedy trial. 52 They must demonstrate that the delay in the proceedings is
vexatious, capricious, and oppressive; or is caused by unjustified postponements that were asked
for and secured; or that without cause or justifiable motive, a long period of time is allowed to
elapse without the case being tried. 53 On the other hand, the prosecution is required to present
evidence establishing that the delay was reasonably attributed to the ordinary processes of
justice, and that petitioners suffered no serious prejudice beyond that which ensued after an
inevitable and ordinary delay.54
The records bear out the contention of petitioners that there had been a considerable delay in the
trial in the MTC. Upon motion/agreement of petitioners and the prosecution, or because of the
joint absences, the trial of the case was delayed for more than 11 months. 55 In its own instance,
the MTC also reset some of the trial dates in order to correct mistakes in scheduling or because
the witnesses were not duly notified,56 thus, delaying the trial of the case for an additional seven
months. Even petitioners contributed to the delay of more than five months they or their former
counsel were either absent or moved for postponements to attend another pending case or due to
health concerns.57 The delay of about 21 months, covering 15 re-settings, can be attributed to the
prosecution. However, except in five instances, when the trial was reset because the private
prosecutor had to attend to some professional 58 and personal matters, 59 the delays were brought
about because of the recent engagement of legal service, 60 absence of the public prosecutor,61 and
unavailability of documents62 and witnesses.63
Not only the petitioners but the State as well were prejudiced by the inordinate delay in the trial
of the case. It took the prosecution more than four years to rest its case after presenting only
three witnesses. Had the prosecution, petitioner and the trial court been assiduous in avoiding
any inordinate delay in the trial, the prosecution could have rested its case much earlier. The
court even failed to order the absent counsel/prosecutor/witnesses to explain/justify their
absences or cite them for contempt. The speedy trial mandated by the Constitution and the
Revised Rules of Criminal Procedure is as much the responsibility of the prosecution, the trial
court and petitioners to the extent that the trial is inordinately delayed, and to that extent the
interest of justice is prejudiced.
The case before the RTC should not be dismissed simply because the public prosecution did not
move for the dismissal of the case in the MTC based on A.O. No. 104-96 declaring that the RTC
has exclusive jurisdiction over cases under Articles 188 and 189 of the Revised Penal Code; or
for failure of the MTC to motu proprio dismiss the case on that ground. The City Prosecutor then
believed in good faith, albeit erroneously, that under R.A. No. 7691 which amended B.P. Blg.
129, the MTC had jurisdiction over the crime charged.
The mistake of the City Prosecutor and the failure of the MTC to dismiss the case motu proprio
should not prejudice the interest of the State to prosecute criminal offenses and, more
importantly, defeat the right of the offended party to redress for its grievance. Significantly,
petitioners do not attribute to the prosecution or to the MTC any malice aforethought or
conscious disregard of their right to a speedy trial; nor have substantially proven the same by
clear and convincing evidence. Hence, absent showing of bad faith or gross negligence, delay
caused by the lapse of the prosecution is not in itself violative of the right to a speedy trial.
CONSTI II (Sec. 14) | 34

Different weights should be assigned to various reasons by which the prosecution justifies the
delay. A deliberate attempt to delay the trial in order to hamper the defense should be weighed
heavily against the prosecution. A more neutral reason such as negligence or overcrowded courts
should be weighed less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than with defendant. 64

to sleep at the switch' while the defendant and his counsel rest in silence. These solicitous
provisions are not to be used as offensive weapons, but are for the benefit of defendants who
claim their protection. They are a shield, and they 'must not be left hanging on the wall of the
armory.' It is for the protection of personal rights, not to embarrass the administration of the
criminal law nor to defeat public justice.

In Corpuz v. Sandiganbayan,65 the Court had carefully balanced the societal interest in the case,
which involved the so-called "tax credit certificates scam," and the need to give substance to the
defendants' constitutional rights. In said suit, we upheld the decision of the Sandiganbayan
(Special Fourth Division) that the dismissal of the cases was too drastic, precipitate and
unwarranted. While the Court recognized that defendants were prejudiced by the delay in the
reinvestigation of the cases and the submission of a complete report by the Ombudsman/Special
Prosecutor to the Sandiganbayan, we underscored that the State should not be prejudiced and
deprived of its right to prosecute cases simply because of the ineptitude or nonchalance of the
Ombudsman/Special Prosecutor. "An overzealous or precipitate dismissal of a case may enable
defendant, who may be guilty, to go free without having been tried, thereby infringing the
societal interest in trying people accused of crimes by granting them immunization because of
legal error."66

Be that as it may, the conduct of the City Prosecutor and the MTC must not pass without
admonition. This Court must emphasize that the State, through the court and the public
prosecutor, has the absolute duty to insure that the criminal justice system is consistent with due
process and the constitutional rights of the accused. Society has a particular interest in bringing
swift prosecutions, and the society's representatives are the ones who should protect that interest.
The trial court and the prosecution are not without responsibility for the expeditious trial of
criminal cases. The burden for trial promptness is not solely upon the defense. The right to a
speedy trial is constitutionally guaranteed and, as such, is not to be honored only for the vigilant
and the knowledgeable.73

The same observation was made in Valencia v. Sandiganbayan.67 Here, the Court noted the
haphazard manner by which the prosecutor handled the litigation for the State when he rested the
case without adducing evidence for the prosecution and simply relying on the Joint Stipulation of
Facts, which the accused did not even sign before its submission to the Sandiganbayan. In
allowing the prosecution to present additional evidence and in dismissing the claim of the
accused that his constitutional right to a speedy trial had been violated, we ruled:
As significant as the right of an accused to a speedy trial is the right of the State to prosecute
people who violate its penal laws. The right to a speedy trial is deemed violated only when the
proceeding is attended by vexatious, capricious and oppressive delays x x x [T]o erroneously put
premium on the right to speedy trial in the instant case and deny the prosecution's prayer to
adduce additional evidence would logically result in the dismissal of the case for the State. There
is no difference between an order outrightly dismissing the case and an order allowing the
eventual dismissal thereof. Both would set a dangerous precedent which enables the accused,
who may be guilty, to go free without having been validly tried, thereby infringing the interest of
the society.68
Certainly, the right to speedy trial cannot be invoked where to sustain the same would result in a
clear denial of due process to the prosecution. It should not operate in depriving the State of its
inherent prerogative to prosecute criminal cases or generally in seeing to it that all those who
approach the bar of justice is afforded fair opportunity to present their side. 69 For it is not only
the State; more so, the offended party who is entitled to due process in criminal cases. 70 In
essence, the right to a speedy trial does not preclude the people's equally important right to
public justice.71 Thus, as succinctly decreed in State v. McTague:72
The constitutional and statutory provisions for a speedy trial are for the protection of the
defendant, but that does not mean that the state is the only one that may initiate action. There is
really no reason for the courts to free an accused simply because a dilatory prosecutor has 'gone

C. Petitioners' Assertion of the Right


The assertion of the right to a speedy trial is entitled to strong evidentiary weight in determining
whether defendant is being deprived thereof. Failure to claim the right will make it difficult to
prove that there was a denial of a speedy trial. 74
Except in only one instance in this case, 75 the records are bereft of any evidence that petitioners,
through counsel, have bothered to raise their objection to the several re-setting of the trial dates.
This is not unexpected since, as already shown, the reasons for the delay are not in themselves
totally inexcusable or unreasonable. Moreover, petitioners actively participated in the trial when
the prosecution presented its evidence, as they scrutinized the documentary evidence and crossexamined the witnesses. Until the filing of the motion to quash in the RTC, they never contested
the prosecutorial proceedings nor timely challenged the pendency of the case in the MTC.
While it is true that lack of jurisdiction may be assailed at any stage of the proceedings, such
defense must be seasonably raised at the earliest possible opportunity. Otherwise, active
participation in the trial would estop a party from later challenging such want of jurisdiction. 76
In the same vein, one's failure to timely question the delay in the trial of a case would be an
implied acceptance of such delay and a waiver of the right to question the same. Except when
otherwise expressly so provided, the speedy trial right, like any other right conferred by the
Constitution or statute, may be waived when not positively asserted. 77 A party's silence may
amount to laches.78 The right to a speedy trial is a privilege of the accused. If he does not claim
it, he should not complain. R.A. No. 8493 (Speedy Trial Act of 1998) is a means of enforcing
Section 14(2), Article III of the Constitution. 79The spirit of the law is that the accused must go on
record in the attitude of demanding a trial or resisting delay. If he does not do this, he must be
held, in law, to have waived the privilege.
This Court cannot subscribe to petitioners' untiring argument that, being "ordinary citizens," they
should not be made to suffer from the "lackluster" performance of their former counsel who
failed to recognize the MTC's want of jurisdiction. Too often we have held that a client is bound
by the acts, mistakes or negligence of his counsel. 80 This is, as it should be, since a counsel has
CONSTI II (Sec. 14) | 35

the implied authority to do all acts which are necessary or, at least, incidental to the prosecution
and management of the suit in behalf of his client. Any act performed within the scope of his
general and implied authority is, in the eyes of the law, regarded as the act of the client. 81 If the
rule were otherwise, there would be no end to litigation so long as a new counsel could be
employed who would allege and show that the prior counsel had not been sufficiently diligent,
experienced, or learned.82 It would enable every party to render inutile an adverse order or
decision through the simple expedient of alleging gross negligence on the part of the
counsel.83 Every shortcoming of a counsel could be the subject of challenge by his client through
another counsel who, if he is also found wanting, would likewise be disowned by the same client
through another counsel, and so on ad infinitum.84 Proceedings would then be indefinite, tentative
and at times, subject to reopening by the simple subterfuge of replacing counsel. 85
While the rule admits of certain exceptions, 86 we find none present in this case. Other than his
obvious failure to assert lack of jurisdiction, Atty. Lim undeniably represented the cause of his
clients in the MTC proceedings. Interestingly, their new counsel, wittingly or unwittingly, raised
the issue of jurisdiction only four months after it entered its appearance, 87 thus, adding to the
delay.
D. Prejudice to the Petitioners
In the Barker case,88 the different interests of a defendant which may be affected by the violation
of the right to a speedy trial were identified. It was held that prejudice should be assessed in the
light of the interests of a defendant which the speedy trial right was designed to protect, namely:
(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the
accused; and (3) to limit the possibility that the defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant to adequately prepare his case skews the
fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is
obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the
distant past. Loss of memory, however, is not always reflected in the record because what has
been forgotten can rarely be shown. Even if an accused is not incarcerated prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and
often hostility.89 After all, arrest is a public act that may seriously interfere with the defendant's
liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial
resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his
family and friends.90

indictment. While this is not to be brushed off lightly, it is not by itself sufficient to support a
claim of denial of the right to a speedy trial.
There is no factual basis for the claim of petitioners that we are not supplied with any specific
allegation in the record, nor witnesses or evidence may become unavailable because of the
delays in this case. To repeat, the claim of impairment of defense because of delay must be
specific and not by mere conjecture. Vague assertions of faded memory will not suffice. Failure
to claim that particular evidence had been lost or had disappeared defeats speedy trial claim.
As neither the specific types of prejudice mentioned in Barker nor any others have been brought
to the Court's attention, we are constrained to dismiss petitioners' claim. The passage of time
alone, without a significant deprivation of liberty or impairment of the ability to properly defend
oneself, is not absolute evidence of prejudice. The right to a speedy trial is not primarily intended
to prevent prejudice to the defense caused by the passage of time; that interest is protected
primarily by the due process clause and the statutes of limitations. 91
In several cases where it is manifest that due process of law or other rights guaranteed by the
Constitution or statutes has been denied, this Court has not faltered to accord the so-called
"radical relief" to keep accused from enduring the rigors and expense of a full-blown trial. 92 In
this case, however, there appears no persuasive, much less compelling, ground to allow the same
relief for absence of clear and convincing showing that the delay was unreasonable or arbitrary
and was seasonably objected to by petitioners.
IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED for lack of merit.
The March 21, 2003 Decision and July 17, 2003 Resolution of the Court of Appeals
are AFFIRMED. The Regional Trial Court, Branch 64, Tarlac City, is directed to proceed with
the trial on the merits of the criminal case with all reasonable and judicious dispatch consistent
with the right of petitioners to a speedy trial. No costs.
SO ORDERED.

Again, a perusal of the records failed to reveal that the delay in bringing petitioners to trial in a
court of competent jurisdiction caused them any prejudice tantamount to deprivation of their
right to a speedy trial. Petitioners in this case were not subjected to pretrial incarceration,
oppressive or otherwise, thus eliminating the first Barker consideration bearing on prejudice.
As to the minimization of anxiety and concern of the accused, there is no showing that
petitioners suffered undue pressures in this respect. Mere reference to a general asseveration that
their "life, liberty and property, not to mention reputation" have been prejudiced is not enough.
There must be conclusive factual basis, as this Court cannot rely on pure speculation or
guesswork. Surely, a pending criminal case may cause trepidation but, as stressed in Barker, the
standard here is minimization, not necessarily elimination of the natural consequences of an
CONSTI II (Sec. 14) | 36

FIRST DIVISION
G.R. No. 109271

March 14, 2000

RICARDO
CASTILLO,
DEMETRIO
CABISON
JR.,
and
RODOLFO
AGDEPPA, petitioners,
vs.
HONORABLE SANDIGANBAYAN (SECOND DIVISION), and PEOPLE OF THE
PHILIPPINES,
represented
by
HONORABLE
CONRADO
VASQUEZ,
OMBUDSMAN, respondents.
YNARES-SANTIAGO, J.:
Before this Court is a Petition for Certiorari assailing two Orders dated February 18, 1993 1 and
March 8, 19932 of the Sandiganbayan's Second Division denying petitioners' Motion to Dismiss
and Motion for Reconsideration.
On August 25, 1986, concerned employees of the Commission on Audit (COA) filed a
Complaint before the Tanodbayan,3against Ricardo Castillo, Rodolfo Agdeppa and Demetrio
Cabison Jr., COA Auditor VIII, COA Auditor II, and COA Auditor III, respectively, all assigned
at the National Housing Authority (NHA), for alleged "submittal of initial very derogatory
reports which became the basis for the filing of cases with the Tanodbayan and the reversals of
their initial recommendations for contractors." Petitioners were notified of the Complaint on
September 22, 1986 when they were directed by the Tanodbayan to file their counter-affidavits,
which they did on September 30, 1986.
In a resolution dated October 30, 1987, the Tanodbayan found prima facie case against
petitioners and accordingly recommended the filing of an Information against them for violation
of Section 3(e) of the Anti-Graft and Corrupt Practices Act (RA 3019). 4
On November 27, 1987, petitioners promptly filed a Motion for Reinvestigation. 5 On March 21,
1988, they filed a Motion to Resolve their Motion for Reinvestigation. 6
Without acting upon the Motion for Reinvestigation and Motion to Resolve Motion for
Reinvestigation, an Information was filed on November 5, 1990, before the Sandiganbayan,
which reads:

with evident bad faith and manifest partiality, conspiring, confederating and confabulating with
each other, did then and there willfully, unlawfully and fraudulently cause undue injury, damage
and prejudice to the Government of the Republic of the Philippines, to wit: that two contracts
were entered into by the NHA management with two private contractors relative to the complete
development of Phase V-A Packages 3 & 4 which is being constructed by Sarmiento
Construction Co., and likewise Phase IX Packages 7 & 7-A which is being constructed by the
Supra Construction Co., both constructions are located at the Tala Estate Sites & Services, by
causing to prepare, submit, issue and sign in the different inventory reports/recommendation on
various occasions that Sarmiento Construction had an overpayment in the amount of
P362,591.98 for Phase V-A Packages 3 & 4 but later on said accused changed their inventory
reports/recommendation and subsequently readjusted this as overpayment on physical work
thereby prejudicing the government on account of accused's constant changes/reversals in the
inventory reports prepared, signed and submitted by them; whereas in the second contract with
Supra Construction, accused issued an inventory report by stating thereon that said contractor
had a work deficiency in the amount of P788,806.94 but refraining from taking appropriate
action on account of P1,873,091.40 withheld on Tala to pay a refund order on a Tondo contract
issued by the COA main office. The said accused raised the deficiency in the amount of
P855,281.50. Later on, another inventory report was issued and prepared by a Tri-Partite Team
Committee composed of COA, NHA and the contractors stating a work deficiency in the amount
of P352,121.40 only. Despite previous inventory reports/recommendation by the accused citing
different amounts and another amount by the Tri-Partite Team Committee said accused later
stated that the final deficiencies of Supra Construction is no longer P855,281.58 but was reduced
only to P70,596.37, which reductions in the contractors' final deficiencies were not justified
thereby giving unwarranted benefits, preference and advantage to the above-mentioned
contractor to the damage and prejudice of the government in the amount of P231,523.00 and to
the Sarmiento Construction for inventoried accomplishment were not duly credited by the said
accused.7
Trial on the merits thereafter ensued. After the prosecution rested its case, petitioners filed a
Demurrer to Evidence but the same was denied by the Sandiganbayan in a Resolution dated
December 11, 1992.8 Petitioners' Motion for Reconsideration was likewise denied in a
Resolution dated January 20, 1993.9
Thereafter, petitioners filed a Motion to Dismiss 10 dated February 15, 1993 citing lack of
jurisdiction and violation of due process, but the same was denied by the Sandiganbayan.
Petitioners' Motion Reconsideration 11 was also denied.
Hence, this petition for certiorari and prohibition, raising the following grounds:

That on or about August 5, 1986 or prior and subsequent thereto, in Quezon City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, accused namely, Ricardo R.
Castillo, Rodolfo M. Agdeppa and Demetrio M. Cabison Jr., all public officers being then COA
Auditor VIII, COA Auditor II and COA Auditor III, respectively, taking advantage of their
official positions, while in the performance or discharge of their administrative official functions,

The Honorable Respondent Sandiganbayan committed grave abuse of discretion in not


dismissing the Information notwithstanding that there was a violation of petitioners'
constitutional rights of "due process" and "speedy disposition of cases" and there was use of the
strong arm of the law in an oppressive and vindictive manner against the petitioners.
CONSTI II (Sec. 14) | 37

1. Unexplained and unjustified delay of three (3) years before an Information is filed before the
Honorable Respondent Sandiganbayan counting from the date of the resolution of the
Ombudsman recommending the prosecution of the petitioners for violation of Rep. Act No. 3019
(or a total of four (4) years from initial investigation up to filing of information);
2. Motion for Reinvestigation and Motion to Resolve the Motion for Reinvestigation filed by the
petitioners before the Office of the Honorable Respondent Ombudsman were not acted upon;
3. No reason or explanation was made by the prosecution on the delay in the filing of
Information;
4. With no plausible explanation on hand, the petitioners are thus inclined to reason out, or even
suspect, that there is connection between such delay and their past and contemporaneous official
acts;
5. The lapse of three (3) years or a total of four (4) years from start of investigation up to filing of
Information may result in the destruction of affirmative evidence tending to establish the
innocence of the petitioners and that the passage of time may have produced an unfavorable
effect on their defense;
6. Violation of constitutional rights divests the court of jurisdiction;
7. Lack of jurisdiction of the court may be raised at any time;
8. Criminal prosecution may be enjoined in order to afford adequate protection to constitutional
rights and to prevent the use of the strong arm of the law in an oppressive and vindictive manner;
9. Subject of instant petition are the Orders of the Honorable of Respondent Sandiganbayan
denying the Motion to Dismiss of petitioners for violation of their constitutional rights and the
use against them of the strong arm of the law in an oppressive and vindictive manner.
Petitioners submit that the Ombudsman oppressed and discriminated against them by not issuing
any notice, reply or order denying their Motion or Reinvestigation as well as their Motion to
Resolve their Motion for Reconsideration. They argue that the Ombudsman should have granted
outright their Motion for Reinvestigation in view of the ruling in Zaldivar
v.Sandiganbayan 12 wherein this Court held, thus:
Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent
Tanodbayan) is charged with the duty to:
Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient." (emphasis omitted)

xxx

xxx

xxx

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent
Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to
retain the powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to
conduct preliminary investigations and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective
February 2, 1987. From that time, he has been divested of such authority.
Petitioners' contention is misleading. In the aforecited case, this Court clearly held that the
authority of the Tanodbayan to conduct preliminary investigations and to direct the filing of
criminal cases was lost effective February 2, 1987. The inference, therefore, of such holding is
that the Tanodbayan had such authority prior to February 2, 1987. In this case, the Tanodbayan
issued petitioners a subpoena on September 22, 1986 directing them to file their counteraffidavits, which the latter complied with on September 30, 1986. In short, the preliminary
investigation was conducted by the Tanodbayan before he lost his authority to do so.
Hence, there was no need for the Ombudsman to conduct another preliminary investigation as
the one conducted by the former Tanodbayan was valid and legal. Presumably, the new
Ombudsman recognized the results of the preliminary investigation conducted by the then
Tanodbayan and adopted the conclusions reached therein when he ordered the filing of an
Information against petitioners.
Consequently, there was no need for the Ombudsman to act on the petitioners' Motion for
Reinvestigation. As stated, there was no need for the Ombudsman to conduct another preliminary
investigation.
Petitioners also submit that they were deprived of their constitutional right to a speedy trial by
reason of the delay in the filing of the Information by the Ombudsman. They contend that the
Sandiganbayan abused its discretion in not dismissing the Information filed against them on the
ground that "there was unexplained and unjustified delay of more than three (3) years before an
information was filed against them from the filing of the complaint on August 25, 1986 up to the
filing of the Information on November 5, 1990." In fine, they point out that considering that the
preliminary investigation was concluded as early as October 30, 1987, the first Ombudsman
constituted under the 1987 Constitution should have filed the Information as soon as he was
appointed on June 6, 1988. Instead, it took more than two years and 3,386 cases before Criminal
Case No. 16240 was filed against them on November 5, 1990. In other words, petitioners argue
that since the Resolution of the Ombudsman recommending the filing of the Information was
issued on October 30, 1987, then the Information should have been filed immediately thereafter,
considering that even before the promulgation of the Zaldivar case on April 27, 1988, thousands
of Informations had been filed. 13
Petitioners' contention is without merit.
CONSTI II (Sec. 14) | 38

In Cojuangco Jr. v. Sandiganbayan, 14 this Court has held that the constitutional guarantee set
forth in Section 16, Article III of the 1987 Constitution, 15 of "(t)he right to a speedy disposition
of a case, like the right to speedy trial, is deemed violatedonly when the proceeding is attended
by vexatious, capricious, and oppressive delays." ". . . (T)he concept of speedy disposition of
cases is a relative term and must necessarily be a flexible concept. Hence, the doctrinal rule is
that in the determination of whether that right has been violated, the factors that may be
considered and balanced are the length of delay, the reason for such delay and the assertion or
failure to assert such right by the accused, and the prejudice caused by the delay." 16
As pointed out by petitioners, the complaint was filed before the Tanobayan on August 25, 1986.
On October 30, 1987, a Resolution was issued finding a prima facie case against petitioners and
recommending the filing of an Information with the Sandiganbayan. However, it was only on
November 5, 1990 when the Information was filed. Admittedly, it took three (3) years for the
Ombudsman to file the Information against petitioners from the date of the Resolution
recommending the filing thereof.
In explaining the delay in the filing of the Information, however, the Office of the Solicitor
General averred, as follows:
It will be noted that the normal operations of the Office of the Special Prosecutor was affected by
the Decision of this Honorable Court in Zaldivar v. Sandiganbayan and Zaldivar v. Gonzalez,
160 SCRA 843 dated April 27, 1988, where it was ruled that the incumbent Tanodbayan lost his
right to conduct preliminary investigation and to direct the filing of criminal cases with the
Sandiganbayan effective February 2, 1987. As a result, complaints (including that involved in the
present petition), resolutions and other legal papers awaiting action during that period remained
pending the appointment of an Ombudsman.
When the Ombudsman was appointed in 1988, it took some time still before his Office could
become fully constituted and operational. Because of the unavoidable delay caused by the
aforementioned circumstances, the corresponding Information in the criminal case involved was
filed and approved only in 1990.
Prescinding from the foregoing, this Court finds no violation of petitioners' right to a speedy
disposition of their case. The delay was not vexatious, capricious, nor oppressive, considering the
factual milieu of this case, namely the structural reorganizations and procedural changes brought
about by frequent amendments of procedural laws in the initial stages of this case. The complaint
was filed on August 25, 1986. On October 30, 1987, the Ombudsman issued a Resolution finding
a prima facie case and recommending the filing of an Information. Meanwhile, on April 27,
1988, the Zaldivar case was promulgated holding that the Tanodbayan lost his authority to
conduct preliminary investigations and to direct the filing of Informations with the
Sandiganbayan effective February 2, 1987. Then on November 5, 1990, the Information against
petitioners was filed.

In the case Binay v. Sandiganbayan and Magsaysay v. Sandiganbayan, 17 this Court has held
that:
A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the
application of the constitutional guarantee of the right to speedy disposition of cases, particular
regard must also be taken of the facts and circumstances peculiar to each case.
In Alvizo v. Sandiganbayan, 18 this Court has reiterated that it has taken judicial cognizance of
the frequent amendments of procedural laws by presidential decrees, the structural
reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat,
resulting in changes of personnel, preliminary jurisdiction, functions and powers of prosecuting
agencies.
In addition, it is clearly apparent from the figures cited by petitioners that the Sandiganbayan was
burdened with a heavy caseload.1wphi1 Parenthetically, this Court has taken judicial
cognizance of the fact that the ever increasing caseload of courts has affected the speedy
disposition of cases pending before the Sandiganbayan. 19
While petitioners certainly have the right to a speedy disposition of their case, the structural
reorganization of the prosecutorial agencies, the procedural changes brought about by
the Zaldivar case as well as the Sandiganbayan's heavy caseload certainly are valid reasons for
the delay in the disposition of petitioners' case. For those reasons, the delay certainly cannot be
considered as vexatious, capricious and oppressive. Neither is it unreasonable nor inordinate.
WHEREFORE, in view of the foregoing, the instant petition is DENIED and the two Orders
dated February 18, 1993 and March 8, 1993 of the Sandiganbayan's Second Division in Criminal
Case No. 16240 are AFFIRMED. The Sandiganbayan is DIRECTED to proceed with dispatch in
the disposition of this case.1wphi1.nt
No costs.
SO ORDERED.

CONSTI II (Sec. 14) | 39

EN BANC
G.R. No. L-30104 July 25, 1973
HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and FRANCISCO
LORENZANA, petitioners,
vs.
HON. FELIX DOMINGO, Judge of the Court of First Instance of Manila, EDGARDO
CALO and SIMEON CARBONNEL, respondents.
FERNANDO, J.:
The pivotal question in this petition for certiorari and prohibition, one which thus far has
remained unresolved, is the meaning to be accorded the constitutional right to public trial. 1 More
specifically, did respondent Judge commit a grave abuse of discretion in stigmatizing as violative
of such a guarantee the holding of the trial of the other respondents 2 inside the chambers of city
court Judge Gregorio Garcia named as the petitioner. 3 That was done in the order now impugned
in this suit, although such a procedure had been agreed to beforehand by the other respondents as
defendants, the hearings have been thus conducted on fourteen separate occasions without
objection on their part, and without an iota of evidence to substantiate any claim as to any other
person so minded being excluded from the premises. It is thus evident that what took place in the
chambers of the city court judge was devoid of haste or intentional secrecy. For reasons to be
more fully explained in the light of the facts ascertained the unique aspect of this case having
arisen from what turned out to be an unseemly altercation, force likewise being employed, due to
the mode in which the arrest of private petitioner for a traffic violation was sought to be effected
by the two respondent policemen thus resulting in charges and counter-charges with eight
criminal cases being tried jointly by city court Judge in the above manner we rule that there
was no transgression of the right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I the City Court of Manila presided over
by petitioner Judge, there were commenced, by appropriate informations all dated January 16,
1968, eight (8) criminal actions against respondent Edgardo Calo, and Simeon Carbonnel and
Petitioner Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of Francisco
Lorenzana) (1) Criminal Case No. F-109192, also for slight physical injuries; (2) Criminal Case
No. F-109192, alsofor slight physical injuries; and (3) Criminal Case No. F-109193, for
maltreatment; b. Against Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for
maltreatment; (2) Criminal Case No. F-109196, for slight physical injuries; and (3) Criminal
Case No. F-109198, for light threats; (c) Against Francisco Lorenzana (on complaint of Calo and
Carbonnel) (1) Criminal Case No. F-109201, for violation of Sec. 887 of the Revised Ordinances
of Manila (resisting an officer); and (2) Criminal Case No. F-109200, for slander." 4 The above
was followed by this recital: "The trial of the aforementioned cases was jointly held on March 4,
1968, March 18, 1968, March 23, 1968, March 30, 1968, April 17, 1968, April 20, 1968, May
4,1968, May 11, 1968, June 1, 1968, June 15, 1968, June 22, 1968, June 29, 1968, August 3,

1968 and August 10, 1968. All the fourteen (14) trial dates except March 4 and 18, and April
17, 1968 fell on a Saturday. This was arranged by the parties and the Court upon the
insistence of respondents Calo and Carbonnel who, as police officers under suspension because
of the cases, desired the same to be terminated as soon as possible and as there were many cases
scheduled for trial on the usual criminal trial days (Monday, Wednesday and Friday), Saturday
was agreed upon as the invariable trial day for said eight (8) criminal cases." 5 Also this: "The
trial of the cases in question was held, with the conformity of the accused and their counsel, in
the chambers of Judge Garcia." 6 Then came these allegations in the petition: "During all the
fourteen (14) days of trial, spanning a period of several months (from March to August, 1968),
the accused were at all times represented by their respective counsel, who acted not only in
defense of their clients, but as prosecutors of the accusations filed at their clients' instance. There
was only one (1) day when Atty. Consengco, representing respondent Calo and Carbonnel, was
absent. This was on April 20, 1968. But at the insistence of Pat. Carbonnel, the trial proceeded,
and said respondent cross-examined one of the witnesses presented by the adverse party. In any
case, no pretense has been made by the respondents that this constituted an irregularity
correctible on certiorari. At the conclusion of the hearings the accused, thru counsel, asked for
and were granted time to submit memoranda. Respondents Calo and Carbonnel, thru counsel,
Atty. Rafael Consengco, submitted a 14-page memorandum with not less than 35 citations of
relevant portions of the transcript of stenographic notes in support of their prayer for
exoneration, and conviction of petitioner Lorenzana in respect of their countercharges against the
latter. It is worthy of note that up to this late date, said respondents Calo and Carbonnel had not
objected to or pointed out any supposed irregularity in the proceedings thus far; the
memorandum submitted in their behalf is confined to a discussion of the evidence adduced in,
and the merits of the cases." 7 It was stated in the next petition:
"The promulgation of judgment was first scheduled on September 23, 1968. This was postponed
to September 28, 1968 at the instance of Atty. Rafael Consengco, as counsel respondents Calo
and Carbonnel, and again to October 1, 1968 at 11 o'clock in the morning, this time at the
instance of Atty. Consengco and Atty. Francisco Koh who had, in the meantime, also entered his
appearance as counsel for respondents Calo and Carbonnel. The applications for postponement
were not grounded upon any supposed defect or irregularity of the proceedings." 8
Mention was then made of when a petition for certiorari was filed with respondent Judge: "Early
in the morning of October 1, 1968, Edgardo Calo and Simeon Carbonnel, thru their counsel,
Atty. Rafael S. Consengco, filed with the Court of First Instance a petition for certiorari and
prohibition, with application for preliminary prohibitory and mandatory injunction ... [alleging
jurisdictional defects]." 9 Respondent Judge acting on such petition forthwith issued a restraining
order thus causing the deferment of the promulgation of the judgment. After proceedings duly
had, there was an order from him "declaring that 'the constitutional and statutory rights of the
accused' had been violated, adversely affecting their 'right to a free and impartial trial' [noting]
'that the trial of these cases lasting several weeks held exclusively in chambers and not in the
court room open the public';" and ordering the city court Judge, now petitioner, "to desist from
CONSTI II (Sec. 14) | 40

reading or causing to be read or promulgated the decisions he may have rendered already in the
criminal cases (in question) ... pending in his Court, until further orders of this Court.'" 10
A motion for reconsideration proving unavailing, petition on January 28, 1969, elevated the
matter to this Tribunal by means of the present suit for certiorari and prohibition. In its
resolution of February 3, 1969, respondents were required to answer, with a preliminary
injunction likewise being issued. As was to be expected the answer filed by respondent Judge on
March 11, 1969 and that by the other respondents on March 19, 1969 did attempt to justify the
validity of the finding that there was a failure to respect the right to a public trial of accused
persons. Neither in such pleadings nor in the memorandum filed, although the diligence
displayed by counsel was quite evident, was there any persuasive showing of a violation of
constitutional guarantee of a public trial, the basic issue to be resolved. Rather it was the mode of
approach followed by counsel Andres R. Narvasa for petitioners that did manifest a deeper
understanding of its implications and ramifications. Accordingly, as previously stated, it is for us
to grant the merits prayed for.
1. The 1935 Constitution which was in force at the time of the antecedents of this petition, as set
forth at the outset, explicitly enumerated the right to a public trial to which an accused was
entitled. So it is, as likewise made clear, under present dispensation. As a matter of fact, that was
one constitutional provision that needed only a single, terse summation from the Chairman of the
Committee on the Bill of Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As
was stressed by him: "Trial should also be public in order to offset any danger of conducting it in
an illegal and unjust manner." 11 It would have been surprising if its proposed inclusion in the Bill
of Rights had provoked any discussion, much less a debate. It was merely a reiteration what
appeared in the Philippine Autonomy Act of 1916, popularly known as the Jones Law. 12 Earlier,
such a right found expression in the Philippine Bill of 1902, likewise an organic act of the then
government of this country as an unincorporated territory of the United States. 13 Historically as
was pointed out by Justice Black, speaking for the United States Supreme Court in the leading
case of In re Oliver: 14 "This nation's accepted practice of guaranteeing a public trial to an
accused has its roots in [the] English common law heritage. 15 He then observed that the exact
date of its origin is obscure, "but it likely evolved long before the settlement of the [United
States] as an accompaniment of the ancient institution of jury trial." 16 It was then noted by him
that there, "the guarantee to an accused of the right to a public trial appeared in a state
constitution in 1776." 17 Later it was embodied in the Sixth Amendment of the Federal
Constitution ratified in 1791. 18 He could conclude his historical survey "Today almost without
exception every state by constitution, statute, or judicial decision, requires that all criminal trials
be open to the public." 19 Such is the venerable, historical lineage of the right to a public trial.
2. The crucial question of the meaning to be attached this provision remains. The Constitution
guarantees an accused the right to a public trial. What does it signify? Offhand it does seem
fairly obvious that here is an instance where language is to be given a literal application. There is
no ambiguity in the words employed. The trial must be public. It possesses that character when
anyone interested in observing the manner a judge conducts the proceedings in his courtroom
may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no

moment. No relationship to the parties need be shown. The thought that lies behind this
safeguard is the belief that thereby the accused is afforded further protection, that his trial is
likely to be conducted with regularity and not tainted with any impropriety. It is not amiss to
recall that Delegate Laurel in his terse summation the importance of this right singled out its
being a deterrence to arbitrariness. It is thus understandable why such a right is deemed
embraced in procedural due process. 20 Where a trial takes place, as is quite usual, in the
courtroom and a calendar of what cases are to be heard is posted, no problem arises. It the usual
course of events that individuals desirous of being present are free to do so. There is the well
recognized exception though that warrants the exclusion of the public where the evidence may be
characterized as "offensive to decency or public morals." 21
What did occasion difficulty in this suit was that for the convenience of the parties, and of the
city court Judge, it was in the latter's air-conditioned chambers that the trial was held. Did that
suffice to investigate the proceedings as violative of this right? The answer must be in the
negative. There is no showing that the public was thereby excluded. It is to be admitted that the
size of the room allotted the Judge would reduce the number of those who could be our present.
Such a fact though is not indicative of any transgression of this right. Courtrooms are not of
uniform dimensions. Some are smaller than others. Moreover, as admitted by Justice Black in his
masterly In re Oliver opinion, it suffices to satisfy the requirement of a trial being public if the
accused could "have his friends, relatives and counsel present, no matter with what offense he
may be charged." 22
Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been
held in chambers of the city court Judge, without objection on the part of respondent policemen.
What was said by former Chief Justice Moran should erase any doubt as to the weight to be
accorded, more appropriately the lack of weight, to any such objection raised. Thus: "In one
case, the trial of the accused was held in Bilibid prison. The accused, invoking his right to a
public trial, assigned the procedure thus taken as error. The Supreme Court held that as it
affirmatively appears on the record that the accused offered no objection to the trial of his case in
the place where it was held, his right is deemed waived." 23The decision referred to, United States
v. Mercado, 24 was handed down sixty-eight years ago in 1905.
It does seem that the challenged order of respondent is far from being invulnerable.
3. That is all that need be said as to the obvious merit of this petition. One other objection to the
conduct of the proceedings by the city court Judge may be briefly disposed of. Respondent Judge
would seek to lend support to an order at war with obvious meaning of a constitutional provision
by harping on the alleged abdication by an assistant fiscal of his control over the prosecution.
Again here there was a failure to abide by settled law. If any party could complain at all, it is the
People of the Philippines for whom the fiscal speaks and acts. The accused cannot in law be
termed an offended party for such an alleged failure to comply with official duty. Moreover, even
assuming that respondent policemen could be heard to raise such a grievance, respondent Judge
ought to have been aware that thereby no jurisdictional defect was incurred by the city court
Judge. As was so emphatically declared by Justice J.B.L. Reyes in Cariaga v. JustoCONSTI II (Sec. 14) | 41

Guerrero: 25 "The case below was commenced and prosecuted without the intervention,
mediation or participation of the fiscal or any of his deputies. This, notwithstanding, the
jurisdiction of the court was not affected ... but the court should have cited the public prosecutor
to intervene ... ." 26
4. There is much to be said of course for the concern displayed by respondent Judge to assure the
reality as against the mere possibility of a trial being truly public. If it were otherwise, such a
right could be reduced to a barren form of words. To the extent then that the conclusion reached
by him was motivated by an apprehension that there was an evasion of a constitutional
command, he certainly lived up to what is expected of a man of the robe. Further reflection ought
to have convinced him though that such a fear was unjustified. An objective appraisal of
conditions in municipal or city courts would have gone far in dispelling such misgivings. The
crowded daily calendar, the nature of the cases handled, civil as well as criminal, the relaxed
attitude on procedural rules not being strictly adhered to all make for a less tense atmosphere. As
a result the attendance of the general public is much more in evidence; nor is its presence
unwelcome. When it is remembered further that the occupants of such courts are not chosen
primarily for their legal acumen, but taken from that portion of the bar more considerably attuned
to the pulse of public life, it is not to be rationally expected that an accused would be denied
whatever solace and comfort may come from the knowledge that a judge, with the eyes of the
alert court alert to his demeanor and his rulings, would run the risk of being unjust, unfair, or
arbitrary. Nor does it change matters, just because, as did happen here, it was in the airconditioned chambers of a city court judge rather than in the usual place that the trial took place.
WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside, and
declaring bereft of any legal force or effect the order of respondent Judge Felix Domingo
November 29, 1968 for being issued with grave abuse of discretion. The writ of prohibition
sought by petitioner is likewise granted, commanding respondent Judge or any one acting in his
place to desist from any further action in Criminal Case No. 74830 of the Court of First Instance
of Manila other than that of dismissing the same. The preliminary writ of injunction issued by
this Court in its resolution of February 3, 1969 against the actuation of respondent Judge is made
permanent. With costs against respondent policemen Edgardo Calo and Simeon Carbonnel.

CONSTI II (Sec. 14) | 42

FIRST DIVISION
G.R. No. L-66469 July 29, 1986
PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners,
vs.
HON. BERNARDO SALAS (In his capacity as Presiding Judge of RTC, Cebu, Branch
VIII), MARIO ABONG, ALFREDO DE LEON, ERIWADWIN MONTEBON, ROMEO
DE GUZMAN, & EDUARDO MABUHAY, respondents.
CRUZ, J.:
Mario Abong was originally charged with homicide in the Court of First Instance of Cebu but
before he could be arraigned the case was reinvestigated on motion of the prosecution. 1 As a
result of the reinvestigation, an amended information was filed, with no bail recommended, to
which he pleaded not guilty. 2 Trial commenced, but while it was in progress, the prisoner, taking
advantage of the first information for homicide, succeeded in deceiving the city court of Cebu
into granting him bail and ordering his release; and so he escaped. 3 The respondent judge,
learning later of the trickery, cancelled the illegal bail bond and ordered Abong's re-arrest. 4 But
he was gone. Nonetheless, the prosecution moved that the hearing continue in accordance with
the constitutional provision authorizing trial in absentia under certain circumstances. 5 The
respondent judge denied the motion, however, and suspended all proceedings until the return of
the accused. 6 The order of the trial court is now before us on certiorari and mandamus. 7
The judge erred. He did not see the woods for the trees. He mistakenly allowed himself to be
tethered by the literal reading of the rule when he should have viewed it from the broader
perspective of its intendment.
The rule is found in the last sentence of Article IV, Section 19, of the 1973 Constitution, reading
in full as follows:
Section 19. In all criminal prosecution, the accused shall be presumed innocent until the contrary
is proved and shall enjoy the right to be heard by himself and counsel, to he informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified and
his failure to appear is unjustified.
The purpose of this rule is to speed up the disposition of criminal cases, trial of which could in
the past be indefinitely deferred, and many times completely abandoned, because of the
defendant's escape. The old case of People v. Avancea 8 required his presence at certain stages

of the trial which as a result, had to be discontinued as long as the defendant had not re-appeared
or remained at large. As his right to be present at these stages was then held not waivable even by
his escape, such escape thus operated to the fugitive's advantage, and in mockery of the
authorities, insofar as the trial could not proceed as long as he had not been recaptured.
The doctrine laid down in that case has been modified by Section 19, which now allows trial in
absentia, Now, the prisoner cannot by simply escaping thwart his continued prosecution and
possibly eventual conviction provided only that: a) he has been arraigned; b) he has been duly
notified of the trial; and c) his failure to appear is unjustified.
The respondent judge was probably still thinking of the old doctrine when he ruled that trial in
absentia of the escapee could not be held because he could not be duly notified under Section 19.
He forgets that the fugitive is now deemed to have waived such notice precisely because he has
escaped, and it is also this escape that makes his failure to appear at his trial unjustified. Escape
can never be a legal justification. In the past, his escape "rewarded" him by postponing all further
proceedings against him and in effect ultimately absolving him of the charge he was facing.
Under the present rule, his escape will, legally speaking, operate to Ms disadvantage by
preventing him from attending his trial, which will continue even in his absence and most likely
result in his conviction.
The right to be present at one's trial may now be waived except only at that stage where the
prosecution intends to present witnesses who will Identify the accused. 9 Under Section 19, the
defendant's escape will be considered a waiver of this right and the inability of the court to notify
him of the subsequent hearings will not prevent it from continuing with his trial. He will be
deemed to have received due notice. The same fact of his escape will make his failure to appear
unjustified because he has, by escaping, placed himself beyond the pale, and protection, of the
law.
Trial in absentia was not allowed in Borja v. Mendoza 10 because it was held notwithstanding that
the accused had not been previously arraigned. His subsequent conviction was properly set aside.
But in the instant case, since all the requisites are present, there is absolutely no reason why the
respondent judge should refuse to try the accused, who had already been arraigned at the time he
was released on the illegal bail bond. Abong should be prepared to bear the consequences of his
escape, including forfeiture of the right to be notified of the subsequent proceedings and of the
right to adduce evidence on his behalf and refute the evidence of the prosecution, not to mention
a possible or even probable conviction.
We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill
its purpose and defeat the intention of its authors. That intention is usually found not in "the letter
that killeth but in the spirit that vivifieth," which is not really that evanescent or elusive. As
judges, we must look beyond and not be bound by the language of the law, seeking to discover,
by our own lights, the reason and the rhyme for its enactment. That we may properly apply it
according to its ends, we need and must use not only learning but also vision.
CONSTI II (Sec. 14) | 43

The trial judge is directed to investigate the lawyer who assisted Mario Abong in securing bail
from the city court of Cebu on the basis of the withdrawn information for homicide and to report
to us the result of his investigation within sixty days.

Respect for the constitutional rights of an accused as authoritatively construed by this Court,
duly taken note of in the comment of the Solicitor General, thus calls for the grant of the writ of
certiorari prayed for.

WHEREFORE, the order of the trial court dated December 22, 1983, denying the motion for the
trial in absentia of the accused is set aside. The respondent judge is directed to continue hearing
the case against the respondent Mario Abong in absentia as long as he has not reappeared, until it
is terminated. No costs.

1. The plea of petitioner to nullify the proceedings had in the criminal case against him finds
support in the procedural due process mandate of the Constitution. It requires that the accused be
arraigned so that he may be informed as to why he was indicted and what penal offense he has to
face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full
opportunity to disprove the evidence against him. Moreover, the sentence to be imposed in such
a case is to be in accordance with a valid law. 6 This Court, in People v. Castillo, 7 speaking
through Justice De Joya and following the language of the American Supreme Court, Identified
due process with the accused having "been heard in a court of competent jurisdiction, and
proceeded against under the orderly processes of law, and only punished after inquiry and
investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded with
the authority of a constitutional law, ..." 8 An arraignment thus becomes indispensable as the
means "for bringing the accused into court and notifying him of the cause he is required to
meet ... " 9 Its importance was stressed by Justice Moreland as early as 1916 in the leading case
of United States v. Binayoh. 10 He pointed out that upon the accused being arraigned, "there is a
duty laid by the Code [now the Rules of Court] upon the court to inform [him] of certain rights
and to extend to him, on his demand, certain others. This duty is an affirmative one which the
court, on its own motion, must perform, unless waived." 11 To emphasize its importance, he
added: "No such duty, however, is laid on the court with regard to the rights of the accused which
he may be entitled to exercise during the trial. Those are rights which he must assert himself and
the benefits of which he himself must demand. In other words, in the arraignment the court must
act of its own volition, ..." 12 In the terse and apt language of the Solicitor General: "Arraignment
is an indispensable requirement in any criminal prosecution." 13 Procedural due process demands
no less.

SO ORDERED.

ECOND DIVISION
G.R. No. L-45667 June 20, 1977
MANUEL
BORJA, petitioner,
vs.
HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of Cebu (Branch VI)
and HON. ROMULO R. SENINING, Judge of the City Court of Cebu (Branch
I), respondents.
FERNANDO, J.:
The jurisdictional infirmity imputer to respondent Judge Romulo R. Senining of the City of Cebu
which was not remedied by respondent Judge Rafael T. Mendoza of the Court of First Instance of
Cebu in this certionrari proceeding was the absence of an arrainment of petitioner Manuel Borja,
who was accused of slight physical injuries. This notwithstanding respondent Judge Senining
proceeded with the trial in abssentia and thereafter, in a decision promulgated on August 18,
1976, found him guilty of such offense and sentenced him to suffer imprisonment for a period of
twenty days of arresto menor. 1Thereafter, an appeal was duly elevated to the Court of First
Instance of Cebu presided by respondent Judge Mendoza. 2 It was then alleged that without any
notice to petitioner and without requiring him to submit his memorandum, a decision on the
appealed case was rendered on November 16, 1976 petitioner that the failure to arraign him is
violative of his constitutional right to procedural due process, 3 more specifically of his right to
be informed of the nature and cause of the accusation against him and of his right to be heard by
himself and counsel. 4 Ther was thus, at the very least, a graveabuse of discretion. The Solicitor
General, 5 when asked to comment, agreed that the procedural defect was of such gravity as to
render void the decision of the City Court affirmed by the Court of First Instance. The comment
was considered as answer, with the case being submitted for decision.

2. Nor is it only the due process guarantee that calls for the accused being duly arraigned. As
noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the
first time, is granted the opportunity to know the precise charge that confronts him. It is
imperative that he is thus made fully aware of Possible loss of freedom, even of his life,
depending on the nature of the crime imputed to him. At the very least then, he must be fully
informed of why the prosecuting arm of the state is mobilized against him. An arraignment
serves that purpose. Thereafter he is no longer in the dark. It is true, the complaint or information
may not be worded with sufficient clarity. He would be in a much worse position though if he
does not even have such an opportunity to plead to the charge. With his counsel by his side, he is
thus in a position to enter his plea with full knowledge of the consequences. He is not even
required to do so immediately. He may move to quash. What is thus evident is that an
arraignment assures that he be fully acquainted with the nature of the crime imputed to him and
the circumstances under which it is allegedly committed. It is thus a vital aspect of the
constitutional rights guaranteed him. It is not useless formality, much less an Idle ceremony.

CONSTI II (Sec. 14) | 44

3. An equally fatal defect in the proceeding had before respondent Judge Senining was that
notwithstanding its being conducted in the absence of petitioner, he was convicted. It was shown
that after one postponement due to his failure to appear, the case was reset for hearing. When that
date came, December 14, 1973, without petitioner being present, although his bondsmen were
notified, respondent Judge, as set forth in the comment of the Solicitor General, "allowed the
prosecution to present its evidence invoking Letter of Instruction No. 40. Only one witness
testified, the offended party herself, and three documents were offered in evidence after which
the prosecution rested its case. Thereupon, respondent City Court set the promulgation of the
decision on December 28, 1973." 14 It could then conclude: :Verily the records clearly show that
petitioner was not arraigned at all and was not represented by counsel throughout the whole
proceedings in the respondent City Court." 15 It is indisputable then that there was a denial of
petitioner's constitutional right to be heard by himself and counsel. As categorically affirmed by
Justice Ozaeta for this Court in the leading case of Abriol v. Homeres: 16 "It is the constitutional
right of the accused to be heard in his defense before sentence is pronounced on him." 17 He
added further that such "constitutional right is inviolate." 18 There is no doubt that it could be
waived, but here there was no such waiver, whether express or implied. It suffices to refer to
another leading case, People v. Holgado, 19 where the then Chief Justice Moran emphatically
took note of the importance of the right to counsel: "In criminal cases there can be no fair
hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard
would be of little avail if it does not include the right to be heard by counsel. Even the most
intelligent or educated man may have no skill in the science of the law, particularly in the rules
of procedure, and, without counsel, he may be convicted not because he is guilty but because he
does not know how to establish his innocence." 20 With the violation of the constitutional right to
be heard by himself and counsel being thus manifest, it is easily understandable why the Solicitor
General agreed with petitioner that the sentence imposed on him should be set aside for being
null.

commentaries and the rules to bolster his position. Specifically, the absence of an arraignment
can be invoked at anytime in view of the requirements of due process to ensure a fair and
impartial trial." 22
WHEREFORE, the petition for certiorari is granted. The decision of respondent Judge Romulo
R. Senining dated December 28, 1973, finding the accused guilty of the crime of slight physical
injuries, is nullified and set aside. Likewise, the decision of respondent Judge Rafael T. Mendoza
dated November 16, 1976, affirming the aforesaid decision of Judge Senining, is nullified and set
aside. The case is remanded to the City Court of Cebu for the prosecution of the offense of slight
physical injuries, with due respect and observance of the provisions of the Rules of Court,
starting with the arraignment of petitioner.

4. The provision in the present Constitution allowing trial to be held in absentia is unavailing. It
cannot justify the actuation of respondent Judge Senining. Its language is clear and explicit.
What is more, it is mandatory. Thus: "However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and his
failure to appear is unjustified." 21 As pointed out then by the Solicitor General, the indispensable
requisite for trial in absentia is that it should come "after arraignment." The express mention in
the present Constitution of the need for such a step emphasizes its importance in the procedural
scheme to accord an accused due process. Without the accused having been arraigned, it
becomes academic to discuss the applicability of this exception to the basic constitutional right
that the accused should be heard by himself and counsel.
5. Nor did the appeal to the Court of First Instance presided by respondent Judge Mendoza
possess any curative aspect. To quote anew from the comment of the Solicitor General:
"Respondent Court of First Instance ... considered the appeal taken by the petitioner as waiver of
the defects in the proceedings in the respondent City Court. Precisely, the appeal itself is
tantamount to questioning those defects. In fact, the Memorandum in support of the appeal
unmistakably raised as error the absence of petitioner at the arraignment and cited jurisprudence,
CONSTI II (Sec. 14) | 45

FIRST DIVISION
G.R. No. L-48883 August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance, Branch II,
Sixteenth Judicial District, Zamboanga City and PILAR ANGELES DE
PIMENTEL, respondents.

Orario, thereby inflicting upon the latter mortal wound which directly caused his death; that the
above-named accused Moises Andaya y Julkanain although without having participated directly
in the commission of the offense above- described, took part prior to its commission by then and
there acting as the contact man in the execution of their plot to kill said Eduardo Pimentel y
Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved and was granted a
separate trial (p. 16, rec.).

MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for a writ of
preliminary injunction, spawned by the August 4, 1978 order of respondent judge in Criminal
Case No. 750 for parricide against therein accused Pilar Angeles de Pimentel, hereinafter
referred to as private respondent, is the admissibility in evidence of the testimony of a
prosecution witness in the said criminal case who dies before completion of his crossexamination. That issue is crucial to the fate of private respondent, considering that the deceased
prosecution witness "... is the most vital and the only eyewitness available to the prosecution
against respondent Pilar Angeles de Pimentel for the commission of the gruesome crime of
parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was then on official
detail with the office of the City Fiscal, Zamboanga City, filed with the Court of First Instance,
Sixteenth Judicial District, Zamboanga City, an amended information for parricide in Criminal
Case No. 1742, charging herein private respondent as principal by inducement, Mario Nemenio
y delos Santos and Salim Doe as principals by direct participation and Moises Andaya y
Julkanain, as accomplice, in the fatal stabbing on September 6, 1977 in Zamboanga City of
Eduardo Pimentel y Orario, the lawful husband of private respondent. The amended information
reads:
That on or about September 6, 1977, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Court, the above-named accused Pilar Angeles de Pimentel, with deliberate
intent to kill her husband, Eduardo Pimentel y Orario, with whom she was united in lawful
wedlock, did then and there, willfully, unlawfully and feloniously, induce and offer a sum of
money as consideration or prize to said accused Mario Nemenio y delos Santos and Salim Doe to
kill her said lawfully wedded husband Eduardo Pimentel y Orario, and because and on account
of said promised consideration or prize which was accepted, the said accused Mario Nemenio y
delos Santos and Salim Doe, did then and there, willfully and feloniously assault, attack and stab
with a knife with which they were conveniently provided, the person of said Eduardo Pimentel y

On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted by his counsel de
oficio, entered on arraignment a plea of guilty. Respondent judge thereafter rendered judgment
convicting accused Mario Nemenio y delos Santos of murder qualified by the circumstance of
prize and reward-and not of parricide as charged in the information; because he "... had no
relation whatsoever to the deceased Eduardo Pimentel ..." and appreciating the mitigating
circumstances of voluntary plea of guilty and lack of instruction and education, imposed on him
the indeterminate penalty of eight (8) years of prision mayor as the minimum, to fourteen (14)
years and eight (8) months of reclusion temporal as the maximum; to indemnify the heirs of the
deceased Eduardo Pimentel the amount of P12,000.00 and to pay one-fourth () of the costs of
the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y delos Santos offered to
testify against his co-accused, herein private respondent, in her separate trial earlier granted by
the respondent judge in the same criminal case, now numbered 750. Allowed, he testified as
prosecution witness on February 28, March 6, and March 22, 1978 and as summarized by the
petitioner, his testimony on direct examination contained in seventy-six (76) pages of transcripts
of stenographic notes (pp. 21-44, 57-64, rec.), is to the effect "...that he and Salim Doe were
hired by respondent Pilar Angeles de Pimentel, for the consideration of P3,000.00 to kill Eduardo
Pimentel, husband of respondent Pilar Angeles de Pimentel, in the evening of September 6, 1977,
in the latter's residence in Zamboanga City, and that it was respondent Pilar Angeles de Pimentel
herself who actually pointed out the victim Eduardo Pimentel to the witness, who then stabbed
the said victim to death...That he did not know the Identity of the victim Eduardo Pimentel at the
time of the stabbing in the evening of September 6, 1977. He was guided solely by respondent
Pilar Angeles de Pimentel, who pointed out her victim spouse to him ..." (allegation No. 4,
petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct examination of its witness
Mario Nemenio y delos Santos, counsel for private respondent moved for the holding in
abeyance of the cross-examination of the said prosecution witness until after he (counsel) shall
have been furnished with the transcripts of the stenographic notes of the direct examination of
said prosecution witness (p. 47, TSN, March 22, 1978, p. 64, rec.); allegation No. 5, petition, p.
CONSTI II (Sec. 14) | 46

5, rec.). The same was granted by the respondent judge who ordered the resumption of the
hearing on April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear because he was not served
with a subpoena (p. 108, rec.). Consequently, the hearing was reset for June 7, 1978 (ibid.)
On June 7, 1978, counsel for private respondent commenced his cross- examination of
prosecution witness Mario Nemenio y delos Santos, which cross-examination however was not
completed on that session for lack of material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon agreement of the parties today's
hearing is hereby adjourned and to be resumed on July 3, 1978 at 8:30 o'clock in the morning (p.
84, rec.).
According to the petition, the uncompleted cross-examination reduced in fifty-three (53) pages
of transcripts of stenographic notes (pp. 65-84, rec.) had already "... touched on the conspiracy
existing among Salim Doe, witness Mario Nemenio and respondent Pilar Angeles de Pimentel to
kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the evening of September 6,
1977, and also on the actual stabbing by witness Mario Nemenio of the victim Eduardo Pimentel
who was pointed out to the witness-killer by his wife, respondent Pilar Angeles de Pimentel ..."
(p. 7, rec.). This is not disputed by private respondent.
Continuation of the cross-examination was, as aforestated, set for July 3, 1978 at 8:30 o'clock in
the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead by the Integrated
National Police patrols on June 21, 1978 while allegedly escaping from the San Ramon Prison
and Penal Farm, Zamboanga City, where he was then serving his sentence. Consequently, the
completion of his cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense for the striking out of
the deceased witness's testimony, filed with the respondent court a motion praying for a ruling on
the admissibility of the testimony of deceased witness Mario Nemenio y delos Santos.

On August 4, 1978, respondent judge issued an order declaring as inadmissible the entire
testimony of the deceased witness Mario Nemenio y delos Santos on the principal ground "...
that the defense was not able to complete its cross-examination of said witness ...", relying on the
case of Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978, after considering private
respondent's comment as well as those of the Solicitor General and of the respondent judge who
was required to file one. On even date, WE likewise issued a temporary restraining order "...
effective immediately and until further orders from this Court enjoining respondent District
Judge from continuing with the trial of Criminal Case No. 750 (1742) entitled People of the
Philippines, plaintiff, versus Pilar Angeles de Pimentel, accused, in the Court of First Instance of
Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in ruling as inadmissible
the testimony of prosecution witness Mario Nemenio y delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused the right to crossexamine the witnesses for the prosecution, is one of the most basic rights of an accused person
under our system of justice. It is a fundamental right which is part of due process not only in
criminal proceedings but also in civil proceedings as well as in proceedings in administrative
tribunals with quasi-judicial powers (Savory Luncheonette vs. Lakas Manggagawang Pilipino, et
al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973 Constitutions secured it, thus: "In
all criminal prosecutions, the accused ... shall enjoy the right ... to meet the witnesses face to face
..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution; Section 17, Art. III, 1935
Constitution). Echoing the same guarantee, Section I (f) of Rule 115 of the Revised Rules of
Court provides that in all criminal proceedings the defendant shall have the right to be
confronted at the trial by, and to cross- examine the witnesses against him. Constitutional
confrontation requirements apply specifically to criminal proceedings and have been held to have
two purposes; first and primarily, to secure the opportunity of cross-examination, and
secondarily, to obtain the benefit of the moral impact of the courtroom atmosphere as it affects
the witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures that the witness will
give his testimony under oath, thus deterring lying by the threat of perjury charge; it forces the
witness to submit to cross-examination, a valuable instrument in exposing falsehood and
bringing out the truth; and it enables the court to observe the demeanor of the witness and assess
his credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental right, WE have
ruled that the same can be waived expressly or implied by conduct amounting to a renunciation
CONSTI II (Sec. 14) | 47

of the right of cross-examination (Savory Luncheonettee vs. Lakas ng Manggagawang Pilipino,


et al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56 SCRA
84, 91 [19741). The conduct of a party which may be construed as a implied waiver of the right
to cross-examine may take various forms. But the common basic principles underlying the
application of the rule on implied waiver is that the party was given the opportunity to confront
and cross-examination an opposing witness but failed to take advantage of it for reasons
attributable to himself alone. Thus, where a party has had the opportunity to cross-examine an
opposing witness but failed to avail himself of it, he necessarily forfeits the right to crossexamine and the testimony given on direct examination of the witness will be received or
allowed to remain in the record (Savory Luncheonette vs. Lakas ng Maggagawang Pilipino, et
al., supra, citing Francisco, Revised Rules of Court, Vol. on Evidence, p. 853, in turn citing
People vs. Cole, 43 N.Y. 508-512 and Bradley vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d
749).
On the other hand, when the cross-examination is not and cannot be done or completed due to
causes attributable to the party offering the witness, as was the situation in the Lufthansa German
Airlines case (64 SCRA 610 [1975]) relied upon by respondent judge, the uncompleted
testimony is thereby rendered incompetent and inadmissible in evidence. WE emphasized in the
said case that "[T]he right of a party to cross-examine the witness of his adversary is invaluable
as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The
express recognition of such right of the accused in the Constitution does not render the right of
parties in civil cases less constitutionally based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to
avoid unnecessary delays on account of its being unduly protracted and to needed injunctions
protective of the right of the witness against self-incrimination and oppressive and unwarranted
harassment and embarrassment, a party is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 ... Until such cross-examination has been finished, the
testimony of the witness cannot be considered as complete and may not, therefore be allowed to
form part of the evidence to be considered by the court in deciding the case" (p. 637). However,
WE likewise therein emphasized that where the right to cross examine is lost wholly or in part
through the fault of the cross-examiner, then the testimony on direct examination may be taken
into account; but when cross-examination is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted testimony is thereby rendered
incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on the admissibility in
evidence of his testimony on direct examination has been extensively discussed thus: "As a
general rule, the testimony of a witness, given on direct examination, should be stricken where
there is not an adequate opportunity for cross-examination, as where the witness by reason of his
death, illness, or absence cannot be subjected to cross-examination. Although the contrary has
been held (Scott v. McCann, 24 A. 536, 76 Md. 47), the testimony of a witness, given on direct
examination, should be stricken where there is not an adequate opportunity for crossexamination (Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party against
whom he testified is, through no fault of his own, deprived of the right to cross-examine him by

reason of his death (Henderson v. Twin Falls County 80 P. 2d 801, 59 Idaho 97; Twin Falls
County, State of Idaho v. Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed. 358), or as a result
of the illness of the witness or absence, or a mistrial ordered. The direct testimony of a witness
who dies before conclusion of the cross-examination can be stricken only insofar as not covered
by the cross-examination (Curtice v. West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121
N.Y. 696), andabsence of a witness is not enough to warrant striking his testimony for failure to
appear for further cross-examination where the witness has already been sufficiently crossexamined (Lew Choy v. Lim Sing 216 P. 888, 125 Wash 631), or the matter on which further
cross-examination is sought is not in controversy (supra). It has been held that a referee has no
power to strike the examination of a witness on his failure to appear for cross-examination where
a good excuse is given (In re Crooks, 23 Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination without fault upon his
part, as in the case of the illness or death of a witness after direct examination, it is generally held
that he is entitled to have the direct testimony stricken from the record. This doctrine rests on the
common law rule that no evidence should be admitted but what was or might be under the
examination of both parties, and that exparte statements are too uncertain and unreliable to be
considered in the investigation of controverted facts (Wray vs. State, 154 Ala 36, 45 So 697;
People vs. Manchetti, 29 Cal. 2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del
304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank & Trust Co.
vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held, however, that the trial court did
not abuse its discretion in refusing to discharge the jury where the state witness collapsed before
cross- examination was completed, it being shown that no motion to strike the testimony was
made, that it was not indicated what further information was sought to be produced by further
cross-examination, and that the witness' testimony was largely cumulative (Banks vs,
Commonwealth, 312 Ky 297, 227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
... where the death or illness prevents cross-examination under such circumstances that no
responsibility of any sort can be attributed to either the witness of his party, it seems harsh
measure to strike out all that has been obtained on the direct examination. Principle requires in
strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it
to the trial judge to admit the direct examination so far as the loss of cross-examination can be
shown to him to be not in that instance a material loss. Courts differ in their treatment of this
difficult situation; except that by general concession a cross-examination begun but unfinished
sufices if its purposes have been substantially accomplished
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
CONSTI II (Sec. 14) | 48

II
1. Respondent judge's full reliance on the Lufthansa German Airlines case cannot be sustained.
To be sure, while the cross-examination of the witness in the aforesaid Lufthansa case and that of
the witness in the present action were both uncompleted, the causes thereof were different in that
while in the present case it was the death of the witness, in the Lufthansa case, it was the
unjustified and unexplained failure of Lufthansa to present its witness on the scheduled date for
his cross-examination which had already been preceded by several postponements initiated by
Lufthansa itself, thus depriving the other party the opportunity to complete the cross-examination
of said witness. Consequently, this Court therein correctly ruled as inadmissible the testimony of
the said witness on the principle that "... when cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent ..." (supra, at p. 636). As clear as day, the Lufthansa
ruling therefore applies only if there is a finding that the cause for non-completion of the crossexamination of a witness was attributable to the very party offering the said witness.
Consequently, the same is inapplicable to the instant action as the cause for the non-completion
of the cross-examination of petitioner's witness was a fortuitous event as he was killed, as per the
pleadings submitted in this action, by the law enforcers (Integrated National Police Patrols) after
his escape from prison. As a matter of fact, respondent judge, in his questioned order, did not lay
any basis for the application of the Lufthansa ruling as he failed to make any finding that the
non-completion was due to petitioner, the party offering the witness, whose testimony he
declared as inadmissible in evidence. A reading of the questioned order reveals that respondent
judge ruled as inadmissible said questioned testimony mainly because private respondent can no
longer finish her cross-examination; hence incomplete. However, private respondent advanced in
this action the cavalier theory that the failure of her counsel to complete his cross-examination of
petitioner's witness was due to the fault of or was attributable to the petitioner, People of the
Philippines, because it was the very agents of State who killed its own witness; hence, making
the questioned testimony of petitioner's witness inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There was no finding nor any showing as
the same is farfetched or inconceivable that the killing of the witness of petitioner by its own
agents was ill-motivated. The prosecution did not order the shooting of the government witness.
He was shot while escaping from prison. It is petitioner's cause which will possibly suffer from
said death; not the cause of private respondent. It may be true that the escape of the said witness
and his consequent death may be attributable to the negligence of petitioner's agents; but such
negligence may not bind the petitioner as to pre-judicially affect its cause and interest the
prosecution of criminal offenses by reason of the generally accepted principle that the State is
not bound by the negligence or tortious acts of its agents. As the cause of non-completion was, as
aforesaid, beyond the control of the prosecution, respondent judge's questioned order cannot be
sustained on the basis of the Lufthansa ruling which, as aforestated, was principally anchored on
the finding that the cause of the non-completion of the cross-examination of the therein witness
was attributable to the very party offering him as a witness.

2. On the other hand, WE find no merit in petitioner's contention that the testimony of its
deceased witness is admissible on the ground that private respondent had waived her right to
cross-examine the witness and that the cause of non-completion was attributable to said private
respondent. As correctly pointed out by private respondent and sustained by respondent judge,
petitioner is not justified in attributing fault to her (private respondent) and in contending that she
is deemed to have partly lost already the right of cross-examination by not availing of the right to
cross-examine the witness Mario Nemenio on March 22, 1978 or right after his direct
examination was closed and delaying until the lapse of two and a half (2) months thereafter
before making such cross-examination; because while it is true that her counsel did not
immediately start with his cross-examination of the deceased witness on March 22, 1978, he did
avail, however, of such right on the same day by initially obtaining an opportunity to make
preparations for an effective exercise thereof considering the nature of the case a capital one
and the length of the direct examination; three sittings on three different dates or on February
28, 1978, March 6, 1978 and March 22, 1978. Hence, there was no waiver of her right of crossexamination. Moreover, the deferment of the cross-examination of the witness requested by
private respondent on March 22, 1978 was approved by respondent judge without any objection
on the part of petitioner (pp. 45, 46, 64, rec.). And on the date for the cross-examination of the
witness Mario Nemenio or on April 19, 1978, counsel for private respondent failed to crossexamine the said witness not of his own design but because said witness failed to appear on that
date for the reason that due to the oversight of the court's personnel the subpoena for said witness
was not served on him at the San Ramon Prison and Penal Farm (pp. 90, 108, rec.). And
respondent judge had to re-set the hearing for the cross-examination of the witness by the private
respondent only to June 7, 1978 because of the fact that respondent judge took, with the approval
of the Supreme Court, his summer vacation the whole month of May, 1978.
It is thus apparent that no fault can be imputed to the private respondent for the length of time
that elapsed before her counsel was able to commence his cross-examination of the witness. And
private respondent's counsel was not able to complete his cross-examination of the witness on
June 7, 1978 for lack of material time by reason of which and upon agreement of the parties the
hearing was adjourned and ordered resumed on July 3, 1978 (p. 84, rec.).
It appears, therefore, that the situation is one whereby the cause of non-completion of the crossexamination of the deceased witness was attributed neither to the fault of petitioner nor the
private respondent. Consequently, the admissibility or inadmissibility of the testimony of the said
witness cannot be resolved on the basis of the rule enunciated in the Lufthansa case.
III. There is merit in the contention of the petitioner that the questioned testimony of its deceased
witness is admissible in evidence because private respondent's counsel had already "... rigorously
and extensively cross-examined witness Mario Nemenio on all essential elements of the crime
charged (parricide), all of which have been testified upon by said witness in his direct
examination-in-chief, and consequently, the cross-examination-in- chief, has already been
concluded."

CONSTI II (Sec. 14) | 49

The cross-examination was completed insofar as the essential elements of the crime charged
parricide, fact of killing-is concerned. What remained was merely the cross-examination
regarding the price or reward, which is not an element of parricide, but only an aggravating
circumstance (par. 11, Art. 14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under Article 246 of the Revised Penal Code.
The elements of the crime of Parricide are that a person was killed; that the killing was
intentionally caused by the accused; and that the victim is a parent or child, whether legitimate or
illegitimate, or the lawful spouse, or legitimate ascendant or descendant of the accused. Once
these facts are established beyond reasonable doubt, conviction is warranted (See Aquino, The
Revised Penal Code, 1961 Ed., Vol. II, p. 1171).

Because the cross-examination made by the counsel of private respondent of the deceased
witness was extensive and already covered the subject matter of his direct testimony as state
witness relating to the essential elements of the crime of parricide, and what remained for further
cross-examination is the matter of price or reward allegedly paid by private respondent for the
commission of the crime, which is merely an aggravating circumstance and does not affect the
existence of the offense charged, the respondent judge gravely abused his discretion in declaring
as entirely inadmissible the testimony of the state witness who died through no fault of any of the
parties before his cross-examination could be finished.
Wherefore, the august 4,1978 order of the respondent judge is hereby set aside; the restraining
order of december 4, 1978 issued by this court is hereby lifted; and respondent judge or his
successor is accordingly ordered to proceed with the trial of criminal case no. 750 (1742) and to
admit and consider in deciding the case the testimony of the deceased witness mario nemenio y
delos santos excluding only the portion thereof concerning the aggravating circumstance of price
or reward which was not covered by the cross-examination. No costs.

The deceased Eduardo Pimentel has been sufficiently shown to be the lawful husband of private
respondent Pilar Pimentel by means of the marriage contract executed between them on May 18,
1971 ... marked as Exhibit 'R' for the prosecution ...
The cross-examination of witness Mario Nemenio by the counsel for private respondent on June
7, 1978 touched on the conspiracy, and agreement, existing among Salim Doe, witness Mario
Nemenio and private respondent Pilar Pimentel to kill Eduardo Pimentel, in the latter's residence
in Zamboanga City in the evening of September 6, 1977, and also on the actual stabbing by
witness Mario Nemenio of the victim Eduardo Pimentel who was pointed out to the witnesskiller by his wife, the private respondent Pilar Pimentel herself... The matter of consideration or
price of P3,000.00, which both the public and private respondents maintain was not touched in
the cross-examination of witness Mario Nemenio, is not an essential element of the crime of
parricide. Price or consideration is merely an aggravating circumstance of the crime charged, not
an essential element thereof. The failure to touch the same in the cross-examination would not at
all affect the existence of the crime of parricide. Furthermore, there is no showing or even the
slightest indication that the witness or his testimony would be discredited if he was crossexamined on the promised consideration. The probability is rather very great that the witness
would only have confirmed the existence of the promised consideration were he cross-examined
on the same.
From the foregoing discussion, it is submitted that the rigorous and searching cross-examination
of witness Mario Nemenio on June 7, 1978, practically concluded already the cross-examinationin-chief, or has already substantially accomplished the purpose of the cross-examination, and
therefore, the failure to pursue the privilege of further cross-examination, would not adversely
affect the admissibility of the direct testimony of said witness anymore (pp. 159162, rec.).
Private respondent did not dwell on the aforesaid points in her memorandum.

CONSTI II (Sec. 14) | 50

EN BANC
G.R. No. L-51513 May 15, 1984
THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.
ABAD SANTOS, J.:
In a verified complaint filed on October 8, 1974, with the Municipal Court of Pulilan, Bulacan,
ANASTACIA DE JESUS accused GERARDO FAJARDO, RUFINO BULANADI and
FELICIANO GOROSPE of the crime of forcible abduction with rape. (Expediente, p. 1.) The
crime was said to have been committed on September 30, 1974, starting in Plaridel, Bulacan,
thru Pulilan, and thence to Talavera, Nueva Ecija.
Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan received the complaint
and conducted a preliminary investigation, first stage.
On October 25, 1974, the Complaint was amended. Rufino Bulanadi and Feliciano Gorospe were
again named but Gerardo Fajardo was dropped and OSCAR ALVARAN was named instead. The
date when the crime was said to have been committed was changed from September 30, 1974, to
September 25, 1974. (Id, p. 41.)
Again Judge Granados conducted a preliminary investigation and on November 18, 1974, he
issued an order for the arrest of Bulanadi, Gorospe and Alvaran and fixed their bail at P15,000.00
each. (Id, p. 70.)
Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.
The second stage of the preliminary investigation was set on February 5, 1975, but on that day
neither Bulanadi or Gorospe appeared for which reason Judge Granados declared that they had
waived their right thereto and elevated the case to the Court of First Instance of Bulacan, (Id, p.
87.)
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI of Bulacan an
information for forcible abduction with rape against Gorospe and Bulanadi. It was docketed as
Criminal Case No. 1293-M. (Id., p. 88.) But on July 25, 1975, Fiscal Kliatchko filed an amended
information which reads:
That on or about the 25th day of September, 1974, in the municipality of Plaridel province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused

Feliciano Gorospe and Rufino Bulanadi, together with one Oscar Alvaran who is still at large,
conspiring and confederating together and helping one another, did then and there wilfully,
unlawfully, and feloniously, by means of force, violence and intimidation, and with lewd design
abduct the complaining witness Anastacia de Jesus, an unmarried woman, 14 years of age, by
then and there taking and carrying her to Talavera, Nueva Ecija, against her will and with-out her
consent, and upon arrival there, the said accused by means of violence, force and intimidation
have carnal knowledge of the said Anastacia de Jesus against her will and consent. (Id, p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15, 1975. The accused
and their counsel de partehad long been notified that the case was to be tried on that day but they
did not appear so the former were tried in absentia, After hearing part of the testimony of
Anastacia de Jesus, the complainant, Judge Valdellon was transferred to Metro Manila and she
was replaced by Judge Fidel P. Purisima who finished the trial. But Judge Purisima issued an
order on March 10, 1976, wherein he inhibited himself from deciding the case. He said,
"Considering that Judge Alfredo V. Granados is a first cousin by affinity of the undersigned
Presiding Judge and if only to make sure that the decision to be rendered in this case shall be
above suspicion and considering further the gravity of the offense charged, the undersigned
Presiding Judge hereby inhibits himself from deciding this case." (Id, pp. 386-387.) So it was
Judge Jesus R. de Vega who decided the case and rendered the following judgment:
PREMISES CONSIDERED, the Court finds both the herein accused Gorospe and Bulanadi
guilty beyond reasonable doubt of rape committed against Anastacia de Jesus as charged in the
information. Considering the legal principle that each of the herein accused is responsible not
only for the act of rape committed personally by him but also for the rape committed by his other
co-accused on account of the finding of conspiracy or cooperation in the commission of the said
crime charged against them, the Court accordingly sentences each of the herein accused Gorospe
and Bulanadi to suffer two (2) perpetual penalties ofreclusion perpetua to be served in
accordance with Art. 70 of the Revised Penal Code, with all the accessory penalty of the law.
Both accused are further ordered to indemnify Anastacia de Jesus in the amount of P40,000.00
for actual exemplary and moral damages; and to pay the costs. (Id, p. 419.)
The case is now before Us on appeal.
The People's version of the facts is as follows:
Complainant Anastacia de Jesus, a 14 year-old girl at the tune of the incident, single, student at
the Calumpit Institute, Bulacan, and resident of Pugo, Calumpit, Bulacan, was, at about 10:00
and of September 25, 1974, at Plaridel, Bulacan, in front of the Caltex Station, intending to cross
the street to buy a book. She was looking for a book, entitled "Diwang Guinto" (pp. 2-5, t.s.n.,
Dec. 15, 1975; pp. 17-18, t.s.n., March 10, 1976; p. 4, t.s.n., March 11, 1976). Two persons
passed by, one of whom was appellant Rufino Bulanadi who waived a handkerchief across her
CONSTI II (Sec. 14) | 51

face, which affected her consciousness and she felt dizzy but felt that she was being held and
boarded into a motor vehicle (pp. 5-11, t.s.n., Dec. 15, 1975; p. 18, t.s.n., March 10, 1976).

Mons pubis pubic hair scanty in amount.


Internal Examination:

Complainant regained her fun consciousness at about 8:00 o'clock in the evening of September
25, 1974, in a nipa hut near the irrigation pump, of Gerardo Fajardo, at Calipahan, Talavera,
Nueva Ecija, Inside she saw appellants, Feliciano Gorospe, Rufino Bulanadi, and Gerardo
Fajardo (pp. 11-14, 17, 21, t.s.n., Dec. 15, 1975). They were arguing why she (complainant) had
to be taken by appellants Rufino Bulanadi and Feliciano Gorospe (p. 16, t.s.n., Dec. 15, 1975).
That evening, at the said nipa hut, complainant was forced to drink a strange tasting royal soft
drink by appellant Feliciano Gorospe and appellant Rufino Bulanadi, who held her hands (pp.
21-23, t.s.n., Dec. 15, 1975). After drinking the soft drink complainant lost consciousness. She
woke up only the next morning with aches and pains all over her body especially her private part.
She found herself naked. Appellants, Rufino Bulanadi and Feliciano Gorospe, were there by her
side standing when she woke up (pp. 23-26, t.s.n., Dec. 15, 1975; p. 22, t.s.n., Jan. 12, 1976).
Gerardo Fajardo was also there. All the three of them were naked. Evidently, appellants and
Gerardo Fajardo sexually abused her (p. 27, t.s.n., Dec. 15, 1975; p. 15, t.s.n., March 10, 1976).
Appellants and Gerardo Fajardo forcibly kept Anastacia de Jesus for nine (9) days in the hut,
with appellants, and Gerardo Fajardo taking turns in sexually abusing her during the night.
During the day she was guarded by Oscar Alvaran.
After her nine-day ordeal, Gerardo Fajardo brought her to the house of Cirilo Balanagay at
Bancal Talavera, Nueva Ecija (pp. 20-23, t.s.n., March 12, 1976). When Gerardo Fajardo left the
house, Anastacia de Jesus related to Cirilo Balanagay what the appellants and Fajardo did to her.
Cirilo Balanagay, therefore, wired Anastacia's parents and then brought her to the Talavera
Municipal Building where she executed an affidavit about her ordeal. She also told the PC of her
harrowing experience (pp. 23-25, t.s.n., March 12, 1976).
When complainant was brought home, her friends readily noticed that she was not her usual self
anymore as "she cannot answer and she just kept on shouting and crying and trembling", saying
"keep away from me, have pity on me." (pp. 14-15, t.s.n., Oct. 14,1975).
Complainant Anastacia de Jesus was physically examined on October 6, 1974, by Dra. Norma V.
Gungon who issued a medical certificate on her findings, as follows:
Patient examined with the presence of a ward Nurse. She is conscious, coherent answers to
questions intelligently.
Physical Examination
Breast symetrical conical in shape, areola pigmented.

Hymen presence of healed lacerations, at 11, 5, 3 o'clock.


Vaginal introctus admits 2 fingers w/ difficulty.
Cervix small, closed
SMEAR FOR SPERMATOZOA NEGATIVE' (Exh. G-1, P. 6, rec.) (Brief, pp. 3-6.)
The appellants make the following assignment of errors:
I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME OF
RAPE WHICH THE PROSECUTION ALLEGES TO HAVE BEEN COMMITTED IN
TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT IN THE PROVINCE OF BULACAN.
II. THE HONORABLE JUDGE JESUS R. DE VEGA, PRESIDING JUDGE OF THE COURT
OF FIRST INSTANCE OF BULACAN, BRANCH II ERRED IN RENDERING THE
DECISION APPEALED FROM WHEN HE HAS NO AUTHORITY TO DO SO BECAUSE
THIS CASE WAS ENTIRELY TRIED IN THE COURT OF FIRST INSTANCE OF
BULACAN, BRANCH I, PRESIDED OVER BY HONORABLE JUDGE FIDEL P.
PURISIMA.
III. THE LOWER COURT ERRED IN ADMITTING THE TESTIMONY OF GERARDO
FAJARDO WHOSE CROSS-EXAMINATION WAS NOT FINISHED DUE TO HIS FAILURE
TO APPEAR INSPITE OF A WARRANT FOR HIS ARREST.
IV. THE LOWER COURT ERRED IN FINDING THE ACCUSED FELICIANO GOROSPE
AND RUFINO BULANADI GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
OF RAPE. (Brief, pp. 21-22.)
The first assignment of error raises the following questions: (1) Why was the complaint not filed
in Plaridel, Bulacan or Talavera, Nueva Ecija but in Pulilan, Bulacan? (2) Since the rape was
committed in Talavera, why was the case tried by the CFI of Bulacan and not by the CFI of
Nueva Ecija?
The above questions are easily answered. Abduction is a persistent and continuing offense. (U.S.
vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be "tried in the court of the municipality or
province wherein the offense was committed or any one of the essential ingredients thereof took
place." (Rules of Court, Rule 110, Sec. 14[a].) The Municipal Court of Pulilan had jurisdiction
because the abductors and their captive passed Pulilan on their way from Plaridel to Talavera.
CONSTI II (Sec. 14) | 52

And the CFI of Bulacan (as well as the CFI of Nueva Ecija) had jurisdiction because essential
elements of the offense took place in Bulacan (and also in Nueva Ecija).
The second assignment of error asserts that Judge de Vega had no authority to render the decision
in the case.

Fajardo's name was dropped and Oscar Alvaran was named instead. Nonetheless, when
Anastacia testified she said that she was brought to the house of Gerardo Fajardo in Talavera,
Nueva Ecija; that when she woke up after she was forced to drink something, Fajardo was there
with Gorospe and Bulanadi, and all three were naked; that Fajardo was one of those who raped
her; and that it was Fajardo who brought her to Cirilo Balanagay.

Judge Purisima in the order wherein he inhibited himself from deciding the case also "ordered to
have the same re-raffled off and assigned to another branch. " The case was presumably reraffled to Judge de Vega who issued an order on June 23, 1978, which states, inter alia:

Why was Fajardo dropped from the complaint? The record does not yield an answer but perhaps
he decided to cooperate with the complainant because soon after she finished her testimony the
prosecution presented Fajardo as its next witness.

Considering the foregoing, and in order to be properly guided in the further disposition of this
case, and to obviate possible objections and criticisms which may come from any or both parties
in the final disposition thereof, the Court resolves to require the parties to submit their respective
written comments within fifteen (15) days from receipt hereof on the propriety and advisability
of the decision in this case to be rendered by the Presiding Judge of this Court; and to call a
conference to hear further the views and arguments of the parties on this question, which is
hereby set on July 18, 1978, at 1:30 p.m. Let notices be sent accordingly, to all parties concerned.
(Expediente, p. 390.)

Fajardo testified, among other things, that he was given a lift from the monument in Caloocan
City to Nueva Ecija by Gorospe and Bulanadi; that in Plaridel, between the market and the
bridge, the two forced Anastacia to go with them; that Anastacia was brought to his house and
later transferred to a nipa hut near an irrigation pump; that in the nipa hut Anastacia was
undressed by Gorospe; that Gorospe, Bulanadi and Alvaran took turns in spending 20 to 30
minutes inside the hut with Anastacia; and that he did not have sex with her.

Neither the comments nor the memorial of the conference are in the expediente but on March 28,
1979, counsel for the accused filed a motion stating:
2. That the above promulgation was held in abeyance, and then the accused received the order
dated June 13, 1978 where the Court, called the parties to a conference on July 18, 1978;
3. That the parties appeared before this Court on July 18, 1978;
4. That up to the present a Decision in the above entitled case has not yet been promulgated.
WHEREFORE, it is respectfully prayed of this Honorable Court that the above entitled case be
resolved. (Id., p. 401.)

It can thus be seen that Fajardo was a key witness. His testimony corroborated that of Anastacia
in material matters.
His direct examination took place on June 23 and 24, 1976. His cross-examination commenced
on August 4, 1976 (whole day), and was continued on August 9, 1976. The cross-examination is
recorded on pages 112 to 230 of the transcript. But the defense did not indicate that it was
through with Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976. (Expediente, p.
204.) On the latter date, Fajardo failed to appear and the case was re-scheduled to be heard on
September 13, 1976. (Id. p. 208.) On September 13, 1976, Fajardo again failed to appear and the
case was re-set to September 29, 1976. (Id. p. 222.) Fajardo did not appear on September 29,
1976, so he was ordered arrested. (Id, p. 223-226.) Fajardo was not arrested but despite such fact
the prosecution rested its case.

And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)

In their third assignment of error the appellants bewail the fact that the trial court decided the
case even though they had not finished cross-examining Fajardo.

We hold that Judge de Vega had the power to decide the case. "Where a court of first instance is
divided into several branches each of the branches is not a court distinct and separate from the
others. Jurisdiction is vested in the court, not in the judges, so that when a complaint or
information is filed before one branch or judge, jurisdiction does not attach to said branch of
judge alone, to the exclusion of the others. Trial may be had or proceedings may continue by and
before another branch or judge." (Lumpay, et al. vs. Moscoso, 105 Phil. 968 [1959].)

The trial court committed no error in admitting the testimony of Fajardo although the defense
had not finished its cross-examination. An examination of the transcript of Fajardo's testimony
shows that he was subjected to detailed cross-examination on material points. In fact, the crossexamination was lengthier than the direct examination. We adopt with approval the statement of
the court a quo on this point:

It is to be recalled Chat in the original complaint filed by Anastacia de Jesus before the
Municipal Court of Pulilan, Gerardo Fajardo was one of the accused. In the amended complaint,

The records show that the counsel for the accused has extensively cross examined Fajardo. The
Court could not help but wonder what other matters not yet touched during the crossCONSTI II (Sec. 14) | 53

examination of Fajardo could still be elicited from him that would probably destroy or affect his
testimony in-chief. If the counsel for the accused expected Fajardo to testify further on material
matters favorable to the cause of the defense, he should have proffered such further testimony
and entered into the records how the absent witness would have testified if he were available for
further cross-examination. The failure of the said counsel to do so indicates that every material
point has been asked from Fajardo during the time he was under examination.
While cross-examination is a right available to the adverse party, it is not absolute in the sense
that a cross-examiner could determine for himself the length and scope of his cross-examination
of a witness. The court has always the discretion to limit the cross examination and to consider it
terminated donated if it would serve the ends of justice.
The Court, therefore, hereby resolves to admit the testimony of Fajardo. This resolution finds
support, though indirectly, from Section 6, Rule 133 of the Rules of Court, which empowers the
court to stop the introduction of further testimony upon a particular point when the evidence
upon it is already so full that more to the same point cannot reasonably be expected to be
additionally persuasive. The position herein taken by the Court in brushing aside technicalities is
in accordance with a fundamental rule that the provisions of the Rules of Court shall be liberally
construed in order to promote their object and assist the parties in obtaining a just, speedy and
inexpensive determination of every action or proceeding. (Section 2, Rule 1, Rules of Court)."
(Id, p. 418.)
Moreover, even if Fajardo's testimony be disregarded the accused may nonetheless be convicted
in the light of other evidence.
The fourth assignment of error raises the issue of credibility of witnesses those of the
prosecution versus those of the defense.
The prosecution's version has already been stated above. We now have to consider the version of
the appellants which is as follows:
On September 30, 1974 at 4: 00 O'clock in the afternoon, accused Feliciano Gorospe, Barangay
Captain of Andal Alinio district, Talavera, Nueva Ecija, since 1972 up to the present and at the
same time a member of the Sangguniang Bayan of Talavera, Nueva Ecija, representing tha
Barangay Group, went to the house of his friend, Reynaldo Matias at Calipahan, Talavera, Nueva
Ecija, to attend a birthday party (pp. 36 & 37, T.s.n., February 7, 1977, CFI). Accused Rufino
Bulanadi, who was a former councilman of Calipahan, Talavera, Nueva Ecija, also attended said
party as he was also invited (p. 12, T.s.n., February 28, 1977, CFI.). At about 7:00 o'clock in the
evening, several teenagers were shouting in front of the house of Gerardo Fajardo which is ONE
HUNDRED (100) METERS away from the house where the birthday party was being held (p.
38, T.s.n., February 7, 1977 CFI). The house of Fajardo being within his jurisdiction (pp. 39 &
40 Ibid ), accused Barangay Captain Gorospe proceeded to the place where the shouts were
coming from, followed by other guests in the birthday party, among whom was Councilman
Rufino Bulanadi (p. 39, Ibid). there were 2 groups of teenagers who were at odds with each

other. One was the group of Gil Nocum and the other, the group of Isagani Castro. Barrio
Captain Gorospe talked with the two (2) groups of teenagers and he was informed that Fajardo
who promised to give a woman to one group made the same commitment with respect to the
same woman to the other group (pp. 41 & 42, Ibid). That woman was complainant Anastacia de
Jesus, as there were previous occasions that Gerardo Fajardo brought women of Ill-repute to his
house, Gorospe called him and asked him why he brought again another woman of ill-repute to
that place. He even asked Gerardo's wife, Della Fajardo, why she tolerated Gerardo to bring that
kind of woman in their house when they are already married. She answered that she could not
stop him because he would cause her bodily harm. Gorospe also called Anastacia and askeed her
why she went with Grardo who is a married man (pp. 44 to 47, Ibid). Thereafter he told her to
leave the place. Gerardo pleaded that Anastacia be allowed to stay only for that night and he
would take her out of the place the next day.
The following morning, October 1,1974 while accused Rufino Bulanadi was tying the rope of his
carabao to graze in the subdivision at Calipahan, Talavera, Nueva Ecija, Gerardo approached him
and said, "Konsehal maaari bang itira ko and babaing dala-dala ko sa bahay sa balong-balong ng
kalabaw mo" ( Councilman, may I be allowed to let the girl who is with me in my house to live
or stay in the shade of you carabao). He pleaded with Bulanadi because according to him his
wife was quarrelling with him because of that woman (pp. 21-23, T.s.n., February 28, 1977,
CFI). Bulanadi vehemently refused and reminded Gerardo about the warning of Barrio Captain
Gorospe to get that woman out of the place. Gerardo left, angry and was murmuring (p. 23,Ibid).
Bulanadi left his carabao to graze and proceeded to his field to see the laborers who were pulling
grasses there, The farmers in Talavera are organized into groups of Twenty (20) for the
systematic distribution of irrigation water, each with a chairman. Bulanadi was the chairman of
his group. Because there was shortage of water he started the engine of his irrigation pump. lie
had his lunch in the field. At 3:00 o'clock in the afternoon, a son of an owner of a neighboring
field informed him that water was already being released from the Sapang Baca Dam. Upon
verifying that water was really coming, he stopped the motor of his litigation pump. (pp. 2226, Ibid), He cleaned the passage of water to his field for two (2) hours. At 5:00 o'clock in the
afternoon, he went home to eat because he was hungry. He left the pump house open because he
intended to go bad after supper. When he came back, he saw that there was light inside his pump
house. As he was approaching, Gerardo met him and pleaded that he and the woman be allowed
to sleep there. Bulanadi refused saying, I just bought this pump recently, "Sasalahulain mo ba
ito? Hindi pwede yon Gerardo, kamalasan yon." (Are you going to tarnish this? That cannot be
Gerardo, that will bring me bad luck) (26-29, Ibid). Bulanadi saw Anastacia playing with the
water. He told her not to make the water dirty as it is being used as drinking water and Anastacia
said, "suya naman kayo kay selan-selan mong matanda." (You are very touchy old man). When
Bulanadi told them that he would report them to the Barrio Captain, they pleaded to him not to
do so, but just the same, he went to the Barrio Captain to report.
When Bulanadi arrived in the house of Barrio Captain Feliciano Gorospe, the latter was
conversing with Oscar Alvaran (p. 31, Ibid & p. 49, t.s.n., February 7, 1977). Upon receiving the
report, the 3, Rufino Bulanadi, Feliciano Gorospe and Oscar Alvaran, went to the pump house.
Barrio Captain Gorospe talked to Gerardo Fajardo and Anastacia de Jesus saying. "Talaga palang
CONSTI II (Sec. 14) | 54

matitigas ang ulo ninyo, pinaalalahanan ko na kayo, ayaw pa ninyong lumayo dito!" (You are
really hard headed, I have already warned you but still you did not leave this place). Bulanadi
and Gorospe were very angry and Anastacia got angry too and said that it is none of their
business what she and Gerardo do. She rushed towards the two as if to strike them but Gerardo
stopped her and pleaded with the two to allow them to stay there just for that night because he
said, "aabutan na kami ng curfew" (we will be curfewed). Gorospe and Bulanadi relented and left
warning them that if they would still be there the next morning they will report the matter to the
P.C. (pp. 31-35, Ibid & pp. 2-6, February 24, 1977, CFI).
The next morning, October 2, 1977, Wednesday, Gerardo Fajardo and Anastacia de Jesus left the
pump house of Bulanadi. Gerardo brought Anastacia to the house of his cousin Floring at
Munoz, Nueva Ecija, where they stayed that night. The following morning, October 3, 1977 he
brought her to the house of his uncle Cirilo Balanagay at Bakal I, Talavera, Nueva Ecija (Exhibit
I). He told his uncle that Anastacia is a student, and he requested Balanagay to devise ways and
means to return her to her parents because he might be placed in trouble (p. 7, T.s.n., October 12,
1974, Municipal Court of Pulilan).
After Gerardo left, Balanagay went to the room where Anastacia was and volunteered to take her
to her parents, but she said she would think it over. That night, October 3, 1974, Balanagay
brought her to the house of Barrio Captain Andres Nazar of Bakal I, Talavera, Nueva Ecija, to
inform him of Anastacia's presence in that house, and also so that she could relate everything to
the Barrio Captain (p. 10, T.s.n., October 12, 1974, Municipal Court of Pulilan). There was a
regulation in Bakal I, Talavera, Nueva Ecija, that a stranger who arrives there should submit a
statement as to the reason of his presence in the barrio. Barrio Captain Andres Nazar took the
statement of Anastacia de Jesus (p. 4, T.s.n., February 7, 1977, CFI) which was in the form of
question and answer. This was reduced in writing by Councilman Aniceto Damian who was
summoned for that occasion, in the presence of the barrio captain himself, Cirilo Balanagay, and
his wife. The statement of Anastacia de Jesus marked as Exhibit "1" was signed by Councilman
Aniceto Damian and Cirilo Balanagay as witnesses (pp. 7 to 14, T.s.n., February 7, 1977 CFI).
To protect the interest of Anastacia, Barrio Captain Nazar asked Balanagay to notify her parents
(p. 13, Ibid).
On October 4, 1974, Cirilo Balanagay accompanied Anastacia to the Police Department of
Talavera, Nueva Ecija, where she made a report (Exhibit 13). Then he wired the family of
Anastacia at Pungo, Calumpit, Bulacan. On October 6, 1974 Anastacia's relatives arrived,
composed of her uncle, Enrique de Jesus, brother of Victoriano de Jesus, sister Lolita de Jesus
and brother-in-law Adriano Nicolas. They accompanied her to the Police Department of
Talavera, where she made a statement, Exhibit 5 which is also Exhibit C (p. 3, T.s.n., June 16,
1976, CFI). That same date, October 6, 1974 she was examined by Dr. Norma Gongon at the Dr.
Paulino J. Garcia Memorial Research and Medical Center upon request of the Police Department
of Talavera, Nueva Ecija and a Medical Certificate was issued to her (Exhs. "G", "G-1", "G-2",
"H" and "H-1").

In the meantime, on October 4, 1974, accused Barrio Captain Feliciano Gorospe and his wife,
with Mayor and Mrs. Bonifacio de Jesus of Talavera, Nueva Ecija, Engineer and Mrs. Bacani
and 3 other couples went to Baguio City to attend the convention of the Luzon Area Community
Christian Family Movement at St. Louise University. They rented a house and stayed there for
THREE (3) days, October 4, 1974 to October 6, 1974. At 5:00 o'clock in the afternoon on
October 6, 1974, when the convention ended, they went home to Talavera, Nueva Ecija (pp. 1012, T.s.n., February 24, 1977, CFI).
On October 6, 1974, at about 8:00 o'clock in the morning, accused Rufino Bulanadi on his way
to the field to cut grasses for his carabao, passed by a store to buy cigarette. To his surprise he
saw Gerardo there and he asked him where his "alaga" was (the girl he is taking care of) and
Gerardo answered, "Pinagpapahinga ko siya sa Bakal at pinakawalan ko na" (I let her rest in
Bakal and I have already let her go). Gerardo further said that the girl was intending to file a case
against him, and Bulanadi told him, "Mabuti nga sa iyo, ayaw mo kasing tumigil sa masamang
negosyo mo". (That's good for you because you don't want to stop your bad business). When
Bulanadi proceeded on his way to the field, a jeep suddenly stopped beside him. On the jeep
were PC Sgt. Jimenez, several policemen and Anastacia de Jesus. Sgt. Jimenez immediately got
off the jeep, tied Rufino's hand with his own rope that he brought with him to be used in tying
the grasses that he would cut, and brought him to the Municipal Building of Talavera, Nueva
Ecija, where he was locked in jail. When asked about Gerardo, he informed the P.C. that he saw
him in the store. Gerardo was likewise arrested. Bulanadi was asked about the case and he said
he did not know anything about it (pp. 37 to 40, T.s.n., February 28, 1977, CFI).
When accused Barrio Captain Gorospe arrived with his wife from Baguio in the evening of
October 6, 1974, his mother informed him that a policeman was looking for him. He told his
mother that he would just go to the Municipal Building the following day because he was tired.
The next day, October 7, 1974 at 8:30 o'clock in the morning, he went to the Municipal Building.
Upon his arrival, Gerardo met him, put his arms on his shoulders and said that the case can be
settled in the amount of P200.00. Gorospe said "tarantado ka pala" (You son of a bitch). "I will
not give even a single centavo because you are the one responsible for this. I have nothing to do
with this case." Gorospe proceeded to see Sgt. Jimenez who told him that the case was
transferred to Cabanatuan City. The 3 of them, Bulanadi, Gorospe and Fajardo were brought to
the PC headquarters where they were interviewed one after the other, after which Gorospe and
Bulanadi were sent home.
The complainant filed the case in the Municipal Court of Pulilan, Bulacan, on October 8, 1974,
two (2) days after she had gone home in Pungo, Calumpit, Bulacan (Exhibit 8). Gerardo Fajardo
who was in the custody of the Police Department of Talavera, Nueva Ecija was taken by the
Policemen of Pulilan, Bulacan.
On October 22, 1974 while the case was being investigated by Municipal Judge Alfredo
Granados where Anastacia had already testified on October 9, 1974, Anastacia again executed
another affidavit because that was what her lawyer, Atty. Santos wanted (p. 26, t.s.n., March 12,
1976, CFI). On the same date Gerardo Fajardo executed another statement in the Police
CONSTI II (Sec. 14) | 55

Department of Pulilan Bulacan. Thereafter, complainant filed an Amended Complaint wherein


Gerardo, against whom she was originally complaining against, was excluded as one of the
accused to be utilized as her witness, and Oscar Alvaran was included for the first time. The
alleged date of the incident was changed from September 30, 1974 to September 25, 1974.
Subsequently the case was elevated to the Court of First Instance of Bulacan, Branch I. (Brief,
pp. 12-21.)
The version of the appellants does net inspire belief because it appears to have been contrived.
The appellants portray Anastacia as wanton and unchaste woman a prostitute. But one's credulity
has to be unduly stretched in order to buy the line that a girl of 14 years who was still going to
school was a prostitute who went far away from her home in order to peddle her body. The
appellant's version is simply too crude to be convincing.
Opposed to the appellants' version is the affirmative narration of events made by Anastacia
which were corroborated by Gerardo Fajardo. The story winch she unfolded could have been
inspired only by her thirst for justice. In her quest she had to live her ordeal all over again for a
lengthy period because she was on the witness stand on December 15, 1975; January 12, March
10, March 11, May 3 and June 16, 1976. During all those days she had to bare in public her
shame and humiliation.
To be sure there were inconsistencies in the testimony of Anastacia but they were in details rather
than in the highlights of her terrible experience and could very well be attributed to her tender
age and confused state of mind caused by her private hell.
The Solicitor General states that Gerardo Fajardo, the discharged state witness, also committed
rape hence the appellants should each be found guilty of three (3) rapes because in a conspiracy
the act of one is the act of all. We cannot agree in respect of the participation of Fajardo. Since
Fajardo was dropped from the complaint his guilt had not been established. However, We agree
with the Solicitor General's observation "that a motor vehicle was used to bring her [Anastacia de
Jesus] from Plaridel, Bulacan, where she was first deceived and drugged, and then taken to an
isolated uninhabited place at a nipa hut, near an irrigation pump at Calipahan, Talavera, Nueva
Ecija, where she was abused, two (2) aggravating circumstances are present, namely use of
motor vehicle and uninhabited place (Art. 14, R.P.C.)," so that death is the proper penalty. (Brief,
pp. 14-15.) However, for lack of the necessary number of votes the death penalty cannot be
imposed.
WHEREFORE, the judgment of the court a quo is hereby affirmed in all respects. Costs against
the appellants.
SO ORDERED.

CONSTI II (Sec. 14) | 56

SECOND DIVISION

Upon arraignment, appellant pleaded not guilty to the charges and the cases were tried jointly in
Branch 145 of the Regional Trial Court of Makati.

G.R. Nos. 115338-39 September 16, 1997


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LANIE ORTIZ-MIYAKE, accused-appellant.
REGALADO, J.:
Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment in large scale in the
Regional Trial Court of Makati on a complaint initiated by Elenita Marasigan, Imelda Generillo
and Rosamar del Rosario. In addition, she was indicted for estafa by means of false pretenses in
the same court, the offended party being Elenita Marasigan alone.
The information in the charge of illegal recruitment in large scale in Criminal Case No. 92-6153
reads as follows:
That in or about the period comprised from June 1992 to August 1992, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, falsely representing herself to have the capacity and power to contract,
enlist and recruit workers for employment abroad did then and there willfully, unlawfully, and
feloniously collect for a fee, recruit and promise employment/job placement abroad to the
following persons, to wit: 1) Rosamar del Rosario; 2) Elenita Marasigan; 3) Imelda Generillo,
without first securing the required license or authority from the Department of Labor and
Employment, thus amounting to illegal recruitment in large scale, in violation of the aforecited
law. 1
The information in the charge for estafa in Criminal Case No. 92-6154 alleges:
That in or about or sometime in the month of August, 1992, in the Municipality of Paraaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, by means of false pretenses executed prior to or simultaneously with the commission of
the fraud, falsely pretending to have the capacity and power to send complainant Elenita
Marasigan to work abroad, succeeded in inducing the latter to give and deliver to her the total
sum of P23,000.00, the accused knowing fully well that the said manifestations and
representation are false and fraudulent and calculated only to deceive the said complainant to
part with her money, and, once in possession thereof, the said accused did then and there
willfully, unlawfully and feloniously appropriate, apply and convert the same to her own
personal use and benefit, to the damage and prejudice of the said Elenita Marasigan, in the
aforementioned amount of P23,000.00. 2

Of the three complainants in the case for illegal recruitment in large scale, Marasigan was the
only one who testified at the trial. The two other complainants, Generillo and Del Rosario, were
unable to testify as they were then abroad.
Marasigan testified that she was a 32 year-old unmarried sales representative in 1992 when she
was introduced to appellant by her co-complainants. 3 Appellant promised Marasigan a job as a
factory worker in Taiwan for a P5,000.00 fee. At that time, Marasigan had a pending application
for overseas employment pending in a recruitment agency. Realizing that the fee charged by
appellant was much lower than that of the agency, Marasigan withdrew her money from the
agency and gave it to appellant. 4
Marasigan paid appellant P5,000.00, but she was later required to make additional payments. By
the middle of the year, she had paid a total of P23,000.00 on installment basis. 5 Save for two
receipts, 6 Marasigan was not issued receipts for the foregoing payments despite her persistence
in requesting for the same.
Marasigan was assured by appellant that obtaining a Taiwanese visa would not be a
problem. 7 She was also shown a plane ticket to Taiwan, allegedly issued in her name. 8 Appellant
issued Marasigan a photocopy of her plane ticket, 9 the original of which was promised to be
given to her before her departure. 10
Marasigan was never issued a visa. 11 Neither was she given the promised plane ticket. Unable to
depart for Taiwan, she went to the travel agency which issued the ticket and was informed that
not only was she not booked by appellant for the alleged flight, but that the staff in the agency
did not even know appellant.
Later, Marasigan proceeded to the supposed residence of appellant and was informed that
appellant did not live there. 12Upon verification with the Philippine Overseas Employment
Administration (POEA), it was revealed that appellant was not authorized to recruit workers for
overseas employment. 13 Marasigan wanted to recover her money but, by then, appellant could no
longer be located.
The prosecution sought to prove that Generillo and Del Rosario, the two other complainants in
the illegal recruitment case, were also victimized by appellant. In lieu of their testimonies, the
prosecution presented as witnesses Lilia Generillo, the mother of Imelda Generillo, and Victoria
Amin, the sister of Del Rosario.
Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her application for
placement abroad which was made through appellant. 14 Twice, she accompanied her daughter to
CONSTI II (Sec. 14) | 57

the residence of appellant so that she could meet her; however, she was not involved in the
transactions between her daughter and appellant. 15 Neither was she around when payments were
made to appellant. Imelda Generillo was unable to leave for abroad and Lilia Generillo
concluded that she had become a victim of illegal recruitment.

Said previous decision was a conviction for estafa promulgated on July 26, 1993, 23 rendered in
Criminal Cases Nos. 74852-53, involving the same circumstances in the instant case, wherein
complainants Generillo and Del Rosario charged appellant with two counts of estafa. This
decision was not appealed and had become final and executory.

The prosecution presented Victoria Amin, the sister of Rosamar Del Rosario, to show that the
latter was also a victim of illegal recruitment. Victoria Amin testified that appellant was supposed
to provide her sister a job abroad. She claimed that she gave her sister a total of P10,000.00
which was intended to cover the latter's processing fee. 16

In thus convicting appellant in the illegal recruitment case, the decision therein of the Regional
Trial Court stated that the facts in the foregoing estafa cases were the same as those in the illegal
recruitment case before it. It, therefore, adopted the facts and conclusions established in the
earlier decision as its own findings of facts and as its retionale for the conviction in the case
before it. 24

Victoria Amin never met appellant and was not around when her sister made payments. She
assumed that the money was paid to appellant based on receipts, allegedly issued by appellant,
which her sister showed her. 17 Del Rosario was unable to leave for abroad despite the
representations of appellant. Victoria Amin claimed that her sister, like Marasigan and Generillo,
was a victim of illegal recruitment.
The final witness for the prosecution was Riza Balberte, 18 a representative of the POEA, who
testified that appellant was neither licensed nor authorized to recruit workers for overseas
employment, POEA certificate certification. 19
Upon the foregoing evidence, the prosecution sought to prove that although two of the three
complainants in the illegal recruitment case were unable to testify, appellant was guilty of
committing the offense against all three complainants and, therefore, should be convicted as
charged.
On the other hand, appellant, who was the sole witness for the defense, denied that she recruited
the complainants for overseas employment and claimed that the payments made to her were
solely for purchasing plane tickets at a discounted rate as she had connections with a travel
agency. 20
She denied that she was paid by Marasigan the amount of P23,000.00, claiming that she was paid
only P8,000.00, as shown by a receipt. She further insisted that, through the travel agency, 21 she
was able to purchase discounted plane tickets for the complainants upon partial payment of the
ticket prices, the balance of which she guaranteed. According to her, the complainants were
supposed to pay her the balance but because they failed to do so, she was obliged to pay the
entire cost of each ticket.
The evidence presented by the parties were thus contradictory but the trial court found the
prosecution's evidence more credible. On December 17, 1993, judgment was rendered by said
court convicting appellant of both crimes as charged. 22

In Criminal Case No. 92-6153, the Makati court sentenced appellant to serve the penalty of life
imprisonment for illegal recruitment in large scale, as well as to pay a fine of P100,000.00.
Appellant was also ordered to reimburse the complainants the following payments made to
her, viz.: (a) Marasigan, P23,000.00; (b) Generillo, P2,500.00; and (c) Del Rosario, P2,500.00.
In the same judgment and for the estafa charged in Criminal Case No. 92-6154, the Makati court
sentenced appellant to suffer imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum, and to pay the
costs.
In the instant petition, appellant seeks the reversal of the foregoing judgment of the Regional
Trial Court of Makati convicting her of illegal recruitment in large scale and estafa. Specifically,
she insists that the trial court erred in convicting her of illegal recruitment in large scale as the
evidence presented was insufficient.
Moreover, appellant claims that she is not guilty of acts constituting illegal recruitment, in large
scale or otherwise, because contrary to the findings of the trial court, she did not recruit the
complainants but merely purchased plane tickets for them. Finally, she contends that in
convicting her of estafa, the lower court erred as she did not misappropriate the money paid to
her by Marasigan, hence there was no damage to the complainants which would substantiate the
conviction.
We uphold the finding that appellant is guilty but we are, compelled to modify the judgment for
the offenses she should be convicted of and the corresponding penalties therefor.
Appellant maintains that her conviction for illegal recruitment in large scale is erroneous. It is
her view that in the prosecution of a case for such offense, at least three complainants are
required to appear as witnesses in the trial and, since Marasigan was the only complainant
presented as a witness, the conviction was groundless.

In convicting appellant of illegal recruitment in large scale, the lower court adopted a previous
decision of Branch 78 of the Metropolitan Trial Court of Paraaque as a basis for the judgment.
CONSTI II (Sec. 14) | 58

The Solicitor General also advocates the conviction of appellant for simple illegal recruitment
which provides a lower penalty. The Court finds the arguments of the Solicitor General
meritorious and adopts his position.
The Labor Code defines recruitment and placement as ". . . any act of canvassing, enlisting,
contracting transporting, utilizing, hiring or procuring workers and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for profit or
not . . . ." 25
Illegal recruitment is likewise defined and made punishable under the Labor Code, thus:
Art. 38. Illegal Recruitment.
(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of
this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal
and punishable under Article 39 of this Code. . . .
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage and shall be penalized in accordance with Article 39
hereof.
. . . Illegal recruitment is deemed committed in large scale if committed against three (3) or more
persons individually or as a group.
Art. 39. Penalties.
(a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000.00)
shall be imposed if Illegal Recruitment constitutes economic sabotage as defined herein;
xxx xxx xxx
(c) Any person who is neither a licensee nor a holder of authority under this Title found violating
any provision thereof or its implementing rules and regulations shall, upon conviction thereof,
suffer the penalty of imprisonment of not less than four (4) years nor more than eight (8) years or
a fine of not less than P20,000.00 nor more than P100,000.00, or both such imprisonment and
fine, at the discretion of the court. . . . 26
During the pendency of this case, Republic Act No. 8042, otherwise known as the "Migrant
Workers and Overseas Filipinos Act of 1995," was passed increasing the penalty for illegal
recruitment. This new law, however, does not apply to the instant case because the offense
charged herein was committed in 1992, before the effectivity of said Republic Act No. 8042.
Hence, what are applicable are the aforecited Labor Code provisions.

It is evident that in illegal recruitment cases, the number of persons victimized is determinative.
Where illegal recruitment is committed against a lone victim, the accused may be convicted of
simple illegal recruitment which is punishable with a lower penalty under Article 39(c) of the
Labor Code. Corollarily, where the offense is committed against three or more persons, it is
qualified to illegal recruitment in large scale which provides a higher penalty under Article 39(a)
of the same Code.
The position of the Solicitor General is that the conviction of appellant should be merely for the
lesser offense of simple illegal recruitment. He submits that the Regional Trial Court of Makati
erred in convicting appellant of illegal recruitment in large scale because the conviction was
based on an earlier decision of the Metropolitan Trial Court of Paraaque where appellant was
found guilty of estafa committed against Generillo and Del Rosario.
It is argued that the Makati court could not validly adopt the facts embodied in the decision of
the Paraaque court to show that illegal recruitment was committed against Generillo and Del
Rosario as well. Illegal recruitment was allegedly proven to have been committed against only
one person, particularly, Elenita Marasigan. Appellant, therefore, may only be held guilty of
simple illegal recruitment and not of such offense in large scale.
He further submits that the adoption by the Makati court of the facts in the decision of the
Paraaque court for estafa to constitute the basis of the subsequent conviction for illegal
recruitment is erroneous as it is a violation of the right of appellant to confront the witnesses, that
is, complainants Generillo and Del Rosario, during trial before it. He cites the pertinent provision
of Rule 115 of the Rules of Court, to wit:
Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled:
xxx xxx xxx
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize
as part of its evidence the testimony of a witness who is deceased, out of or cannot, with due
diligence be found in the Philippines, unavailable or otherwise unable testify, given in another
case or proceeding, judicial or administrative, involving the same parties and subject matter, the
adverse party having had the opportunity to cross-examine him.
xxx xxx xxx
It will be noted that the principle embodied in the foregoing rule is likewise found in the
following provision of Rule 130:
Sec. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a
witness deceased or unable to testify, given in a former case or proceeding, judicial or
CONSTI II (Sec. 14) | 59

administrative, involving the same parties and subject matter, may be given in evidence against
the adverse party who had the opportunity to cross-examine him.
Under the aforecited rules, the accused in a criminal case is guaranteed the right of confrontation.
Such right has two purposes: first, to secure the opportunity of cross-examination; and, second,
to allow the judge to observe the deportment and appearance of the witness while testifying. 27
This right, however, is not absolute as it is recognized that it is sometimes impossible to recall or
produce a witness who has already testified in a previous proceeding, in which event his previous
testimony is made admissible as a distinct piece of evidence, by way of exception to the hearsay
rule. 28 The previous testimony is made admissible because it makes the administration of justice
orderly and expeditious. 29
Under these rules, the adoption by the Makati trial court of the facts stated in the decision of the
Paraaque trial court does not fall under the exception to the right of confrontation as the
exception contemplated by law covers only the utilization oftestimonies of absent witnesses
made in previous proceedings, and does not include utilization of previous decisions or
judgments.
In the instant case, the prosecution did not offer the testimonies made by complainants Generillo
and Del Rosario in the previous estafa case. Instead, what was offered, admitted in evidence, and
utilized as a basis for the conviction in the case for illegal recruitment in large scale was the
previous decision in the estafa case.
A previous decision or judgment, while admissible in evidence, may only prove that an accused
was previously convicted of a crime. 30 It may not be used to prove that the accused is guilty of a
crime charged in a subsequent case, in lieu of the requisite evidence proving the commission of
the crime, as said previous decision is hearsay. To sanction its being used as a basis for
conviction in a subsequent case would constitute a violation of the right of the accused to
confront the witnesses against him.
As earlier stated, the Makati court's utilization of and reliance on the previous decision of the
Paraaque court must be rejected. Every conviction must be based on the findings of fact made
by a trial court according to its appreciation of the evidence before it. A conviction may not be
based merely on the findings of fact of another court, especially where what is presented is only
its decision sans the transcript of the testimony of the witnesses who testified therein and upon
which the decision is based.
Furthermore, this is not the only reason why appellant may not be held liable for illegal
recruitment in large scale. An evaluation of the evidence presented before the trial court shows us
that, apart from the adopted decision in the previous estafa case, there was no other basis for said
trial court's conclusion that illegal recruitment in large scale was committed against all three
complainants.

The distinction between simple illegal recruitment and illegal recruitment in large scale are
emphasized by jurisprudence. Simple illegal recruitment is committed where a person: (a)
undertakes any recruitment activity defined under Article 13(b) or any prohibited practice
enumerated under Articles 34 and 38 of the Labor Code; and (b) does not have a license or
authority to lawfully engage in the recruitment and placement of workers. 31 On the other hand,
illegal recruitment in large scale further requires a third element, that is, the offense is committed
against three or more persons, individually or as a group. 32
In illegal recruitment in large scale, while the law does not require that at least three victims
testify at the trial, it is necessary that there is sufficient evidence proving that the offense was
committed against three or more persons. This Court agrees with the trial court that the evidence
presented sufficiently proves that illegal recruitment was committed by appellant against
Marasigan, but the same conclusion cannot be made as regards Generillo and Del Rosario as
well.
The testimonies of Generillo's mother, Lilia Generillo, and Del Rosario's sister, Victoria Amin,
reveal that these witnesses had no personal knowledge of the actual circumstances surrounding
the charges filed by Generillo and Del Rosario for illegal recruitment in large scale. Neither of
these witnesses was privy to the transactions between appellant and each of the two
complainants. The witnesses claimed that appellant illegally recruited Generillo and Del Rosario.
Nonetheless, we find their averments to be unfounded as they were not even present when
Generillo and Del Rosario negotiated with and made payments to appellant.
For insufficiency of evidence and in the absence of the third element of illegal recruitment in
large scale, particularly, that "the offense is committed against three or more persons," we cannot
affirm the conviction for illegal recruitment in large scale. Nonetheless, we agree with the
finding of the trial court that appellant illegally recruited Marasigan, for which she must be held
liable for the lesser offense of simple illegal recruitment.
Appellant's defense that she did not recruit Marasigan but merely purchased a plane ticket for her
is belied by the evidence as it is undeniable that she represented to Marasigan that she had the
ability to send people to work as factory workers in Taiwan. Her pretext that the fees paid to her
were merely payments for a plane ticket is a desperate attempt to exonerate herself from the
charges and cannot be sustained.
Furthermore, no improper motive may be attributed to Marasigan in charging appellant. The fact
that Marasigan was poor does not make her so heartless as to contrive a criminal charge against
appellant. She was a simple woman with big dreams and it was appellant's duplicity which
reduced those dreams to naught. Marasigan had no motive to testify falsely against appellant
except to tell the truth. 33
Besides, if there was anyone whose testimony needed corroboration, it was appellant as there
was nothing in her testimony except the bare denial of the accusations. 34 If appellant really
intended to purchase a plane ticket and not to recruit Marasigan, she should have presented
CONSTI II (Sec. 14) | 60

evidence to support this claim. Also, in her testimony, appellant named an employee in the travel
agency who was allegedly her contact person for the purchase of the ticket. She could have
presented that person, or some other employee of the agency, to show that the transaction was
merely for buying a ticket. Her failure to do the foregoing acts belies her pretensions.

While we must be vigilant and should punish, to the fullest extent of the law, those who prey
upon the desperate with empty promises of better lives, only to feed on their aspirations, we must
not be heedless of the basic rule that a conviction may be sustained only where it is for the
correct offense and the burden of proof of the guilt of the accused has been met by the
prosecution.

The Court likewise affirms the conviction of appellant for estafa which was committed against
Marasigan. Conviction under the Labor Code for illegal recruitment does not preclude
punishment under the Revised Penal Code for the felony of estafa. 35 This Court is convinced that
the prosecution proved beyond reasonable doubt that appellant violated Article 315(2) (a) of the
Revised Penal Code which provides that estafa is committed:

WHEREFORE, the judgment of the court a quo finding accused-appellant Lanie Ortiz-Miyake
guilty beyond reasonable doubt of the crimes of illegal recruitment in large scale (Criminal Case
No. 92-6153) and estafa (Criminal Case No. 92-6154) is hereby MODIFIED, as follows.

2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:

1) Accused-appellant is declared guilty beyond reasonable doubt of simple illegal recruitment, as


defined in Article 38(a) of the Labor Code, as amended. She is hereby ordered to serve an
indeterminate sentence of four (4) years, as minimum, to eight (8) years, as maximum, and to
pay a fine of P100,000.00.

(a) By using fictitious name or falsely pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions, or by means of other similar deceits.
The evidence is clear that in falsely pretending to possess power to deploy persons for overseas
placement, appellant deceived the complainant into believing that she would provide her a job in
Taiwan. Her assurances made Marasigan exhaust whatever resources she had to pay the
placement fee required in exchange for the promised job. The elements of deceit and damage for
this form of estafa are indisputably present, hence the conviction for estafa in Criminal Case No.
92-6154 should be affirmed.

2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is ordered to serve an
indeterminate sentence of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, and to reimburse Elenita Marasigan
the sum of P23,000.00.
In all other respects, the aforestated judgment is AFFIRMED, with costs against accusedappellant in both instances.
SO ORDERED.

Under the Revised Penal Code, an accused found guilty of estafa shall be sentenced to:
. . . The penalty of prision correccional in its maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos. . . . 36
The amount involved in the estafa case is P23,000.00. Applying the Indeterminate Sentence Law,
the maximum penalty shall be taken from the maximum period of the foregoing basic penalty,
specifically, within the range of imprisonment from six (6) years, eight (8) months and twentyone (21) days to eight (8) years.
On the other hand, the minimum penalty of the indeterminate sentence shall be within the range
of the penalty next lower in degree to that provided by law, without considering the incremental
penalty for the amount in excess of P22,000.00. 37That penalty immediately lower in degree
is prison correccional in its minimum and medium periods, with a duration of six (6) months and
one (1) day to four (4) years and two (2) months. On these considerations, the trial court
correctly fixed the minimum and maximum terms of the indeterminate sentence in the estafa
case.
CONSTI II (Sec. 14) | 61

THIRD DIVISION

IT IS SO ORDERED. 9

G.R. No. 108488 July 21, 1997

The facts given credence by the trial court are as follows: 10

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
RODENCIO NARCA Y GAGARIN, BENJAMIN NARCA Y GAGARIN, RODELIO
NARCA Y GAGARIN, and JAIME BALDELAMAR Y SELMO, defendants-appellants.

. . . (O)n March 10, 1990, between 7:00 to 8:00 o'clock in the evening, after spouses Mauro
Reglos, Jr. and Elizabeth Reglos have just come from the house of the father of Mauro Reglos,
Jr. at Barangay Cavite Plum, Guimba, Nueva Ecija, who was then sick, and on their way home to
Sta. Ana, Guimba, Nueva Ecija, accused Benjamin Narca suddenly hacked Mauro Reglos, Jr. at
the back portion of his head with a long bolo known as "panabas". When Mauro was about to fall
at his back, Jaime Baldelamar, Rogelio Narca and Rodencio "Rudy" Narca suddenly appeared,
and they took turns in hacking Mauro with bolos. When Mauro was being hacked, his wife
Elizabeth screamed for help, and Arturo Reglos and Dante Reglos responded and arrived at the
scene of the incident. They saw Benjamin, Rodencio "Rudy" and Rogelio, all surnamed Narca,
and Jaime Baldelamar, all armed with bolos, guarding their brother Mauro Reglos, Jr. who was
lying face downward, soaked with blood, but still alive. Arturo Reglos and Dante Reglos and
Elizabeth Reglos cannot approach Mauro Reglos, Jr. because they were threatened by the Narca
brothers and Jaime Baldelamar. Two minutes after Arturo and Dante Reglos arrived, all the
accused left, but accused Rogelio Narca returned and hacked Mauro Reglos once more at his
back.

FRANCISCO, J.:
For the death of Mauro Reglos, Jr. (hereinafter victim), defendants-appellants Rodencio @
"Rudy", Benjamin, Rogelio all surnamed Narca and their brother-in-law Jaime @ Benjamin
Baldelamar were charged 1 with the following information for murder:
That on or about the 10th day of March, 1990, between 7:00 and 8:00 in the evening, at barangay
Cavite, municipality of Guimba, province of Nueva Ecija, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill,
with treachery and evident premeditation, by conspiring, confederating and helping one another,
and taking advantage of the darkness of the night, did then and there, willfully, unlawfully and
feloniously attack, assault and hack with bolos one MAURO REGLOS, JR., inflicting upon said
victim fatal hack wounds that caused his instantaneous death. 2
When appellants' failed in their motion to quash the above information, they filed a motion for
bail. 3 During the bail hearings on September 19, 1990, the victim's wife Elizabeth Reglos, who
was with him on that fateful night, testified on direct examination. Defense counsel requested the
court that his cross-examination of Elizabeth be conducted on the next hearing, October 4,
1990. 4 Such cross-examination on said date never took place because Elizabeth and her son were
bludgeoned to death on September 28, 1990. 5 After hearing, the lower court denied bail. 6 During
arraignment, appellants pleaded "not guilty". 7 Trial ensued and the lower court thereafter
rendered judgment 8 convicting appellants, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered, finding the accused
Benjamin Narca y Gagarin, Rodencio "Rudy" Narca y Gagarin, Rogelio Narca y Gagarin and
Jaime "Benjamin" Baldelamar y Selmo, guilty beyond reasonable doubt of the crime of Murder,
defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences EACH
of them to suffer the penalty of LIFE IMPRISONMENT.
The said accused are likewise ordered to pay, jointly and severally, the heirs of the deceased
Mauro Reglos, Jr., the sum of P50,000.00 as indemnification fee, the sum of P29,000.00 as
actual damages and expenses, without subsidiary imprisonment in case of insolvency, and to pay
the costs.

On appeal to this court, appellants by way of defense (1) assail the validity of the preliminary
investigation because they were not represented therein by counsel and was therefore deprived of
due process, (2) argue that the testimony of Elizabeth Reglos in the bail hearings should not be
given credence since she was not cross-examined, and (3) claim that pending this appeal,
appellant Benjamin executed an affidavit assuming full and sole responsibility for the victim's
death but nonetheless invokes self-defense while the other appellants in their respective
affidavits state that they were not in the scene of the crime. 11
All these defenses must fail.
On the first defense, there is nothing in the Rules which renders invalid a preliminary
investigation held without defendant's counsel. Not being a part of the due process clause 12 but a
right merely created by law, preliminary investigation if held within the statutory limitations
cannot be voided. Appellant's argument, if sustained, would make a mockery of criminal
procedure, since all that a party has to do to thwart the validity of the preliminary investigation is
for their counsel not to attend the investigation. It must be emphasized that the preliminary
investigation is not the venue for the full exercise of the rights of the parties. This is why
preliminary investigation is not considered as a part of trial but merely preparatory thereto 13 and
that the records therein shall not form part of the records of the case in court. 14 Parties may
submit affidavits but have no right to examine witnesses though they can propound questions
through the investigating officer. 15 In fact, a preliminary investigation may even be
conducted ex-parte in certain cases. 16 Moreover, in Section 1 of Rule 112, the purpose of a
preliminary investigation is only to determine a well grounded belief if a crime was "probably"
CONSTI II (Sec. 14) | 62

committed by an accused. 17 In any case, the invalidity or absence of a preliminary investigation


does not affect the jurisdiction of the court which may have taken cognizance of the information
nor impair the validity of the information or otherwise render it defective. 18
On their second defense, it is to be noted that the defense's failure to cross-examine Elizabeth
Reglos was occasioned by her supervening death. Lack of cross-examination due to the death of
the witness does not necessarily render the deceased's previous testimony expungible. Thus, this
Court in Republic v. Sandiganbayan, 19 citing Fulgado v. CA. 20 said that:
The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse
because it prejudiced the party whose only fault was to die before he could be cross-examined.
The prudent alternative should have been to admit the direct examination so far as the loss of
cross-examination could have been shown to be not in that instance a material loss. And more
compelling so in the instant case where it has become evident that the adverse party was afforded
a reasonable chance for cross-examination but through his own fault failed to cross-examine the
witness.
Where death prevents cross-examination under such circumstances that no responsibility of any
sort can be ascribed to the plaintiff or the witness, it seems a harsh measure to strike out all that
has obtained in the direct examination. (Emphasis supplied)
Besides, mere opportunity and not actual cross-examination is the essence of the right to crossexamine. 21Appellants lost such opportunity when they sought the deferment of their crossexamination of Elizabeth, and they only have themselves to blame in forever losing that right by
reason of Elizabeth's demise. This Court hold that the right to cross-examination
is a personal one which may be waived expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination. Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to crossexamine and the testimony given on direct examination of the witness will be received or
allowed to remain in the record. . . . (W)aiver of the right to cross-examine may take various
forms. But the common basic principle underlying the application of the rule on implied waiver
is that the party was given the opportunity to confront and cross-examine an opposing witness
but failed to fake advantage of if for reasons attributable to himself alone. 22 (Emphasis supplied)
We also find unmeritorious appellants' argument that Elizabeth's testimony, having been taken
during the bail hearings, cannot be used against them. Section 1(f) of Rule 115 provides that
"either party may utilize as part of its evidence the testimony of a witness who is deceased . . .
given in another case or proceeding", and under Section 8 Rule 114 23 as amended by Circular
12-94 24, "evidence presented during the bail hearings," like the testimony of deceased witness
Elizabeth, are "considered automatically reproduced at the trial" subject only to the possible
recall of the "witness for additional examination unless the witness is dead outside the
Philippines or otherwise unable to testify."

On their third defense, appellant Benjamin admits that he killed the victim but only in selfdefense and that his co-appellants, who are invoking alibi, had nothing to do with the crime.
One who claims self-defense must prove: (a) unlawful aggression, (b) reasonable necessity of the
means employed to prevent or repel it and (c) lack of sufficient provocation on the part of the
person defending himself. 25 In the case at bench, the foremost element of unlawful aggression is
absent. Unlawful aggression presupposes an actual or imminent danger on the life or limb of a
person. Mere shouting, intimidating or threatening attitude of the victim, assuming that to be
true, does not constitute unlawful aggression. 26 If there be any such aggression, it obviously
came from appellants. Evidence on record shows that the victim was only walking with his wife,
when he was suddenly and without warning attacked by appellants with "panabas" and bolos. He
was hit at the back of his head chopping off a part of his skull exposing his brain. 27 Where the
attack is perpetrated suddenly and without warning, there is treachery. 28 Due to appellants'
treacherous acts, the outnumbered victim was caught by surprise and had no whimper of a
chance to defend himself. 29 This satisfies the two conditions of treachery:
(a) employment of means of execution that gives the person attacked no opportunity to defend
himself or to retaliate, and
(b) that said means of execution be deliberately and consciously adopted. 30
Once the fact of alevosia was established and proven, any claim of self defense cannot prosper
for being inconsistent with treachery.
In addition, the location and severity of the fatal wounds on the head exposing the brain 31 and
the numerous other wounds suffered by the victim belie the claim of self-defense but is
indicative of a determined effort to kill. 32 Absent unlawful aggression, there would be no
occasion for the second and third elements to be present. Thus, appellant Benjamin failed to
discharge his burden of proving by clear and convincing evidence the exculpatory cause he
invokes.33 He must rely on the strength of his own evidence and not on the weakness of that for
the prosecution, for even if the latter's evidence is weak, it could not be disbelieved after he
himself admitted the killing. 34 Accordingly, his conviction will follow from his admission as
author of the crime as well as his failure to prove self defense by the required quantum of
evidence. 35
With respect to the defense of alibi by the other appellants such defense, aside from being
inherently weak and easy to fabricate, crumbles in the face of their positive identification 36 by
prosecution witnesses as being present in the scene of the crime as well as the victim's dying
declaration pointing to appellants as his assailants.
Appellants Rogelio and Rodencio's contention that they were irrigating their farm up to the late
hour of 9:00 P.M. on that fatal night is unbelievable since farm workers do not usually work up
to that late hours. They had not strictly complied with the requirements of time and place in their
alibi by failing to show that they were somewhere else when the crime occurred and that it was
CONSTI II (Sec. 14) | 63

physically impossible for them to be at the scene at the covered time. 37Worth noting is that the
distance of the houses of all appellants to the crime scene ranges from as near as 3 meters to as
far as 1,500 meters, and their field is about 800 meters away or a mere 15 minute walk
therefrom. 38 Although none among the prosecution witnesses presented in the trial proper saw
the actual assault by appellants on the victim, yet one witness (Arturo Reglos) testified that
appellant Rogelio after leaving the scene returned thereto and hacked the victim on his back one
more time. 39 Appellant Jaime's denial of his participation in the killing cannot stand against his
positive identification in the scene holding a "panabas" together with other appellants. The denial
like alibi is weakened by the overwhelming evidence on record supporting a judgment of
conviction.
The circumstantial evidence on record also points to appellants' guilt. Pursuant to Section 3 of
Rule 133 conviction may be had on circumstantial evidence considering that the requisites
thereof were satisfied herein, to wit:

(c) the declarant would have been competent to testify had he survived;
(d) the declaration is offered in any case in which the decedent is the victim.

43

All these elements are present in this case. The victim's declaration pertains to the hacking
incident particularly the identity of his assailants. Such declaration was made when the declarant
is certain that his death is at hand, considering the degree or the wounds in his opened skull and
that death supervened shortly afterwards. The rules does not require that the declarant must first
state explicitly his perception of the inevitability of his death so long as the circumstances would
justify a conclusion that the is conscious of his condition. 44 Further, the declarant was not
incompetent to testify since he possess personal knowledge of the facts and could make known
such knowledge to others just what he did. Competency to testify means ability to perceive, to
retain what has been perceived and to express what has been retained. Thus, the statement of the
victim has the vestiges of a dying declaration and even if not, there can be no doubt about its
admissibility as part of the res gestae. 45

there is more than one circumstance


the facts from which the inference are derived are proven; and
the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. 40
The following undisputed facts when combined produce a logical conclusion pointing to
appellants' culpability: (a) their presence in the scene of the crime at about 6:30 to 7:00 PM, (b)
they were holding sharp instruments like bolos or "panabas", (c) they were talking to each other
after the hacking of the victim with appellant Benjamin telling his co-appellants that he will be
the only one who will admit responsibility, (d) they prevented and threatened the rescuing wife
and brothers of the victim to come near the latter's prostrate body. 41 (e) they all left together, (f)
they were positively identified by prosecution witnesses, (g) the medical examination showed
that the victim's wounds were caused by sharp or sharpened instruments 42 like the bloodstained "panabas" appellants were seen holding.
Further damaging appellants avowed innocence is the testimony of Arturo Reglos that when he
approached the victim who was already lying on the ground soaked in his own blood, the latter
told the former that he was hacked and attacked by appellants. The victim even told witness
Arturo why the appellants did this to him when he had no fault. This is a clear case of a dying
declaration the elements for its admissibility are as follows:
(a) the declaration must concern the crime and surrounding circumstances of the declarant's
death;
(b) it was made at a time when the declarant was under a consciousness of an impending death;

With respect to the qualifying circumstances of evident premeditation and nighttime, the same
were not proven and are not supported by evidence on record. To appreciate evident
premeditation three elements must be established:
(1) the time when the offender determined to commit the crime;
(2) an act manifestly indicating that the offender had clung to his determination; and
(3) a sufficient lapse of time between the determination to commit the crime and the execution
thereof, to allow the offender to reflect upon the consequences of his act. 46
The records are bereft of direct evidence that appellants concocted and deliberately executed any
plan or preparation to kill the victim. 47 The prosecution failed to prove evident premeditation by
evidence as clear as the crime itself. 48 With respect to the circumstance of nighttime, the mere
fact that the crime was committed at about 6:30-7:00 p.m. does not prove that appellants used the
darkness of the night to facilitate their evil design. 49 Again the record is silent whether appellants
took advantage of or purposely sought 50 nocturnity or that it facilitated the perpetration of their
felonious acts. 51 Be that as it may, nighttime is absorbed in treachery. 52
As to the allegation of conspiracy, this is sustained by evidence on record. The victim was first
hacked on the back by appellant Benjamin and then almost simultaneously by the other
appellants. After the victim fell to the ground with blood oozing from his wounds, appellants
were seen talking with each other and even left the crime scene together. Although, conspiracy
like the crime must be proven beyond doubt, 53 it need not be established by direct proof. 54 So
long as the acts of the conspirators are characterize by unity of purpose, intent and
design 55 in order to effect a common unlawful objective 56 conspiracy exists as such fact may
be inferred from the coordinated acts and movements of the co-conspirators. 57 Appellants' action
CONSTI II (Sec. 14) | 64

implicitly showed unity of purpose among them a concerted effort to bring about the death of
the victim. 58 Having established conspiracy, all the appellants are answerable as co-principals
regardless of their degree of participation. 59 Thus, it becomes secondary 60 and unnecessary to
determine who inflicted the fatal wounds 61 the act of one is the act of all and that all must
suffer for their acts. 62

WHEREFORE, subject to the modification that each appellant shall suffer the penalty
of reclusion perpetua and not life imprisonment, the appealed decision of the Regional Trial
Court of Guimba, Nueva Ecija convicting appellants Rodencio, Benjamin, Rogelio all surnamed
Narca and Jaime Baldelamar of murder and the imposition of the monetary awards are
AFFIRMED.

At any rate, the appeal assails the factual findings of the trial court which are generally accorded
great weight and respect on appeal, especially since in this case, such findings are supported by
substantial evidence on record. 63 Likewise, the evaluation and assessment of credibility of
witness is best left to the trial court judge because of his unique position of having observed that
elusive and incommunicable evidence of the witnesses deportment on the stand, which
opportunity is denied to the reviewing court. 64 As aptly observed by the trial court:

SO ORDERED.

[T]he testimonies of the accused and their witnesses, aside from being self-serving, improbable,
hard to believe, and (sic) not in accordance with common knowledge and experience of mankind.
On the other hand, the testimonies of prosecution witness Elizabeth Reglos and the other
witnesses Arturo Reglos and Dante Reglos are very revealing, straight to the point, probable and
consistent. 65
No cogent reasons or material circumstances were shown to have been overlooked,
misunderstood or disregarded by the trial court, which if considered will vary the outcome of the
case. 66
Before we conclude, it is erroneous for the trial court to impose on appellants "life
imprisonment" as it is nowhere in the scheme of penalties in the Revised Penal Code 67 nor is it a
penalty similar to "reclusion perpetua". 68 The appealed judgment is dated September 1992. As
early as 1948, the Court had made it clear that reclusion perpetua is not the same as life
imprisonment, and that "no trial judge should mistake one for the other". 69 This ruling was
reiterated in the case of People v. Baguio promulgated on April 30, 1991. 70 It is for this reason
that Supreme Court Administrative Circular 6-A-92 (dated June 21, 1993) which amended
Circular 6-92 (dated October 12, 1992) enjoins trial judges to strictly observe the distinction
between life imprisonment and reclusion perpetua in order to curb the erroneous practice of
using them interchangeably in the imposition of penalty in serious offenses like murder.
Prior to the Heinous Crimes Law (R.A. 7659) the penalty for murder was "reclusion temporal
maximum to death". 71 In accordance with the graduation of penalties in Article 63, when there is
neither mitigating nor aggravating circumstance, as in this case, the penalty is the medium period
which is reclusion perpetua.

CONSTI II (Sec. 14) | 65

EN BANC
G.R. No. L-29271 August 29, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADELINO BARDAJE, defendant-appellant.
MELENCIO-HERRERA, J.:
The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible
Abduction with Rape, and sentenced to death. The case is before us on automatic review.
On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of
First Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro
Odal, Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS):
The undersigned complainant, after having been duly sworn to according to
law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel
Ansuas of the crime of Rape, committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Lopig, Sta.
Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court the
above-named accused, conspiring, confederating together and helping one another, with lewd
design, by means of force and intimidation, and at nighttime, did then and there wilfully,
unlawfully and feloniously drag one Marcelina Cuizon from the house of one Norma Fernandez
and brought her to a far away place and once there, accused Adelino Bardaje, by means of force
and intimidation forcibly had sexual intercourse with her several times while his co-accused
were on guard.
Contrary to law. (Emphasis supplied).
ADELINO was arrested on December 17th, and it was on December 20th, when he signed the
alleged confession, Exhibit "C", admitting having kidnapped and molested
MARCELINA, 1 which was probably the basis for MARCELINA's complaint, presumably
prepared with the help of the Fiscal. What has been noticed is that, in Exhibit "C", ADELINO
had mentioned that, besides the FIVE OTHERS, a sixth, Domingo Odal, was with the group
when MARCELINA was "kidnapped". There is no indication in the record as to why Domingo
Odal was not included in MARCELINA's complaint as one of the accused.
The following day, December 21st, the Fiscal's office filed the following Information with the
Court:

The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate, Pedro Odal,
Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with Illegal
Detention committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing,
Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this
Honorable court the above-named accused, conspiring, confederating together and helping one
another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd
design, by means of force and intimidation, armed with bolos and at nighttime, did then and
there wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old,
from the house of one Norma Fernandez and brought her to a far away place and once there,
accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse
with her for several times while his co-accused were on guard.
That the commission of the crime the aggravating circumstances that it was committed in an
uninhabited place and with the aid of armed men, were present. (Emphasis supplied).
It will be noted that the complaint filed directly by MARCELINA with the Court was amended
by the Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the
Fiscal charged him with "Rape with Illegal Detention". MARCELINA merely alleged that she
was dragged from the house of Norma Fernandez by means of force and intimidation and at
nighttime. On the other hand, the Information added that the accused were "armed with bolos".
The name of the barrio was also changed from Lopig to Crossing. Lastly, the Information
included the allegation that the crime of Rape with Illegal Detention was committed with the
"aggravating circumstances that it was committed in an uninhabited place and with the aid of
armed men".
Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO
stood trial. The period of the offense was from December 14th to 17th, with the complaint
having been filed on December 20th, or barely three (3) days thereafter. With that time frame in
mind, an analysis of the Information will show the assumption that only ADELINO was
the principal culprit while the FIVE OTHERS were either principals by cooperation or
accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and
Fidel Ansuas" indicates that it was ADELINO who had dragged MARCELINA "with" the help
of the FIVE OTHERS. Both the complaint and Information also indicated that ADELINO was
the only one who committed the rape, while the FIVE OTHERS were merely accomplices.
On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include
the allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3)
days, which allegation could be taken into account in connection with Illegal Detention 2 but not
in connection with Forcible Abduction. 3 Since according to Exhibit "C", MARCELINA was
"kidnapped" at midnight of December 14th, and ADELINO was arrested in the morning of
CONSTI II (Sec. 14) | 66

December 17th, or an interval of less than 72 Hours, it could not be correctly pleaded that
MARCELINA was deprived of liberty for three (3) days. 4
After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967,
in which he specifically argued that "the prosecution did not establish the elements of Rape and
Illegal Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only
in the Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the
crime which should be imputed to ADELINO is Rape with Forcible Abduction. The
prosecution's Memorandum stated:
Although the information is for Rape with Illegal Detention instead of Rape with Forcible
Abduction, yet from the body of the information it could be clearly gleaned that the elements of
abduction are sufficiently alleged therein and hence the accused can be convicted thereunder
(People vs. Emiliano Javete, CA 01956-57-CR April 7, 1964 (82-1965).
The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction
with Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced
him to death.
The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965,
she and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta.
Rita, Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14,
1965 while she was then eating supper, ADELINO, whom she knew when they were "still
small", and who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS,
entered the house and began drinking "sho hoc tong" which they brought along. After the liquor
had been fully consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She
then ran to the room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano
Odal, followed her, tried to extricate her from her mother's embrace and dragged the two of them
to the sala. Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and
the four males, two of whom were armed with bolos, forced her downstairs and by holding and
dragging her, brought her to the mountain about two kilometers from Barrio Crossing. That was
about 12 midnight. On the way, ADELINO slapped her rendering her unconscious. She regained
consciousness in a hut, with ADELINO holding her hands, and removing her panty. She bit and
kicked him. Despite her struggle, ADELINO succeeded in having sexual intercourse with her
while his other companions stayed outside on guard.
Under cross-examination, MARCELINA declared that she did not know who owned the hut and
that it was just a one-room affair where a woman and two small children lived; that she and
Appellant slept in that same room as the woman, while the FIVE OTHERS slept near the
kitchen. 5
At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS
brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at
the house of one called Ceferino (also called Cipriano) who lived there with his family. She was

kept in one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still
armed with bolos, drinking and guarding her. In the evening, ADELINO had another sexual
intercourse with her even though she bit and kicked him and shouted for help which was to no
avail as all present were relatives of ADELINO, with the latter Ceferino "Tatay" She curled the
hair of Narita (daughter of Ceferino) the next day, because ADELINO threatened to kill her if
she did not. Her curling paraphernalia was taken by Adriano Odal, upon ADELINO's
instructions, from Norma Fernandez (her cousin) who gave the equipment as she (Norma) was
also threatened. MARCELINA and her "captors" stayed in Ceferino's house for two days. In the
morning of December 17, two soldiers with her father, Alejo Cuizon, arrived. The soldiers
apprehended ADELINO while the FIVE OTHERS jumped down the window and fled. Upon her
father, she embraced him and cried. They all returned to Barrio Crossing. She and her mother,
Maria Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on
December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital.
When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were
living in the same hut where she was taken the second time, which hut was about waist high
from the ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen.
Between the room and the sala was a wall of split bamboos so that noise inside the room could
be heard clearly from the other side. 6
Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he
examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the
following findings:
1. No evidence of external injuries around the vulva or any part of the body.
2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.
3. Vagina easily admits two fingers.
4. Vaginal smear negative for spermatozoa 7
Explaining the "old healed laceration", the doctor stated that laceration may have been caused by
possible sexual intercourse or other factors, and if it were intercourse, he estimated that it could
have occured " say, two weeks or one month" or possibly more. 8
For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but
denied having raped her. He claims that they eloped on December 14 to 17, 1965 as previously
planned, they having been sweethearts since November 12, 1964. As such, they used to date in
Tacloban and "anything goes". MARCELINA's family used to have a house in Barrio Crossing
but now MARCELINA just stays in the house of her aunt, Sofia, which is about five houses
away from theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's mother
and others were eating, MARCELINA handed him a bag and beauty culture equipment through
CONSTI II (Sec. 14) | 67

the window, went downstairs, after which the two of them walked to the mountains, to Ceferino
Armada's house. Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in
the bedroom with 18-year old Narita, Ceferino's daughter. While in that hut, food was brought to
them by his sister, Nenita. MARCELINA curled Narita's hair the next day.
In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by
MARCELINA's father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA.
The latter ran to him and embraced him and said she was to blame. notwithstanding, he was
boxed by the soldiers as instructed by MARCELINA's father and taken to Maulong PC
Headquarters for questioning. During the investigation, he was boxed and kicked and was forced
to sign a statement implicating the FIVE OTHERS as his companions even if untrue. He did not
know who attested to his statement as one Sgt. Gacelos took the document elsewhere.
Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly
forcibly brought the second time, corroborated that portion of ADELINO's testimony regarding
their stay in his house adding that MARCELINA and ADELINO had told him that they had
eloped; that MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's),
and helped in house chores and in the threshing of palay, while ADELINO helped in carrying
palay because it was rainy.
The trial Court found the prosecutors version of the incident more worthy of credence stating
that Complainant had no improper motive to implicate ADELINO in such a detestable crime as
Rape.
On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO
has not been established beyond reasonable doubt.
In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on
the credibility of a complainant's testimony since by the intrinsic nature of those crimes they
usually involve only two persons the complainant and the accused. The offended party's
testimony, therefore, must be subjected to thorough scrutiny for a determination of its veracity
beyond reasonable doubt.
In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards
raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently
improbable.
To start with, according to the medical findings, "no evidence of external injuries was found
around the vulva or any part of the body" of Complainant, a fact which is strange, indeed,
considering that Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled"
with, and criminally abused. Physical evidence is of the highest order and speaks more
eloquently than an witnesses put together. We are also faced with the medical finding of "old
healed lacerations" in the hymen which, according to the testimony of the examining physician
would have occurred two weeks or even one month before if said lacerations had been caused by

sexual intercourse. This expert opinion bolsters the defense that MARCELINA and ADELINO
had previous amorous relations at the same time that it casts serious doubts on the charge of
intercourse by force and intimidation.
Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room
affair occupied by a woman and two small children. Her charge, therefore, that she was ravished
in that same room is highly improbable and contrary to human experience.
Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that
of Ceferino Armada, consisted of a small room separated from the sala by a wall of split
bamboos. Further, that Ceferino with his wife and seven children all lived therein. It challenges
human credulity that she could have been sexually abused with so many within hearing and
distance. It is unbelievable, too, that under those circumstances the FIVE OTHERS could have
stood guard outside, armed with bolos and drinking, while ADELINO allegedly took advantage
of her. If rape were, indeed, their malevolent intent, they would, in all probability, have taken
turns in abusing her. That they did not, indicates that there was, indeed, some special relationship
between MARCELINA and ADELINO. Furthermore, with people around, and the hut
constructed as it was, it would have been an easy matter for MARCELINA to have shouted and
cried for help. Surely, the old man Ceferino, his wife and/or his children could not have been
insensible to her outcries notwithstanding their relationship to ADELINO. The aphorism still
rings true that evidence to be believed must not only come from the mouth of a credible witness
but must be credible in itself.
Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's
daughters, a fact inconsistent with her allegation of "captivity". That she was threatened with
death if she did not accede to such an inconsequential request defies credulity. The livelihood is
that, as the defense maintains, MARCELINA was not forcibly abducted but that she and
ADELINO had, in fact, eloped and that she had brought her beauty culture paraphernalia with
her, or, that she herself had sent for them from her cousin Norma Fernandez voluntarily and not
under threat from ADELINO.
The totality of the foregoing circumstances count with such great weight and significance that
they lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had
been "kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual
intercourse, it was because of force or intimidation exercised upon her. They are circumstances
that were overlooked by the trial Court and justify a reversal of its finding of guilt as an
exception to the established rule that the findings of fact of a trial Judge based on the relative
credibility of witnesses are entitled to great respect and will not be disturbed by appellate Courts.
This case also constitutes an exception to the general belief that a young girl would not expose
herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit
who had ravished and shamed her placed behind bars. As we view it, MARCELINA was
confronted with a paradoxical situation as a daughter of relative tender age who could not
shamefacedly admit to her parents that she had eloped and voluntarily submitted to sexual
CONSTI II (Sec. 14) | 68

intercourse, since that elopement must have met with righteous indignation on the part of her
parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO with
rape or incur the ire of her parents and social disrepute from a small community.
In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial
confession made by an accused shag not be sufficient ground for conviction unless corroborated
by evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that
the crime prosecuted had been committed. That proof has not been met in the case at bar, the
evidence establishing more of an elopement rather than kidnapping or illegal detention or
forcible abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when
being investigated by soldiers, 10 without benefit of counsel nor of anyone to advise him of his
rights. Aside from his declaration that Ws confession was obtained through maltreatment and
violence, 11 it was also vitiated by a procedural irregularity testified to by no less than
prosecution witness Sgt. Pedro Gacelos to the effect that he and room after he presented the
statement to the Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so
called confession was attested without ADELINO's presence so that the latter cannot be said to
have duly subscribed and sworn to it.
It should also be noted that throughout the hearings before the trial Court, it was assumed that
ADELINO was being held responsible for the complex crime of Rape with Illegal Detention.
While it is true that an accused can be punished for a crime described by the facts alleged in tile
Information despite a wrong designation of the crime in the preamble of the Information, 13 yet,
in capital cases, it should be desirable that, whenever a discrepancy is noted between the
designation of the crime made by the Fiscal and the crime described by the facts pleaded in his
Information. The lower Court should call attention of the accused to the discrepancy, so that the
accused may be fully apprised of the nature and cause of the accusation against him. This was
not done in regards to ADELINO who all the time was under the impression that he was being
tried for Rape with Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO
had known that he was being tried for Forcible Abduction with Rape, he may have changed the
strategy or tactics of his defense. Not that it could be said he would have done so; but he should
have been advised he had the right, and given the opportunity, to do so.
Again, one of the rights of an accused is "to have compulsory process issued to secure the
attendance of witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in
the house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well
as the hair of other girls in the vicinity.
ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her.
But instead of taking effective steps to have Narita brought to Court, the lower court gave
responsibility for Narita's attendance to the defense, expressly stating that, if the defense was not
able to bring her to the Court, her testimony will be dispensed with. The record shows:
ATTY. BOHOL

I appear as counsel for the accused. Up to now, Your Honor, the witnesses we have been
expecting have not yet arrived. This representation, with the consent of the Clerk of Court have
wired the Chief of Police of Sta. Rita, Samar to bring Ceferino Armada and Narita Armada
tomorrow for the hearing, continuation of this case for those persons mentioned to testify, your
Honor, for the accused. We pray, Your Honor, that we be given time to hear from the Chief of
Police to bring those persons tomorrow, Your Honor.
COURT
What will be the nature of the testimonies of those witnesses.
xxx xxx xxx
COURT
How about the other girl?
ATTY. BOHOL
Narita Armada will substantially be corroborative, Your Honor.
COURT
Suppose the two witnesses do not arrive tomorrow, for which this case is set also?
ATTY. BOHOL
If we receive information and find that those witnesses could really not come for this case, Your
Honor, I will be constrained to submit the case for decision based on the testimony of the
accused. However, Your Honor, if it will be all right with the Honorable Court and we find that
there is hope that within this week Ceferino Armada could come here, in view of the distance, I
pray before the Honorable Court that we be given time within this week to present Ceferino
Armada, and upon his failure, submit the case for decision
COURT
The Court will not allow that anymore, anyway this case is set for tomorrow. The Court wail
grant the postponement today on condition that any witness not presented tomorrow will be
considered waived Afterall as you have manifest, 4 their testimonies will be corroborative.
xxx xxx xxx

CONSTI II (Sec. 14) | 69

COURT
What I mean is that you should have taken the necessary precaution for the attendance of your
witness today considering that there is a subpoena for the witnesses.ORDER - for the reason that accused have no more witnesses to present today, the trial of this
case is hereby Postponed for tomorrow, July 26, 1967 at 8:30 A.M., with the warning that
witnesses not presented during that day shall be considered waived. 15
Considering that this case involved a prosecution for a capital offense, the lower Court acted
precipitously in not having Narita brought to Court, by ordering her arrest if necessary
ADELINO was deprived of his right "to have compulsory process issued to secure the
attendance of witnesses on his behalf."
Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA
testified before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC
Sgt. who investigated the complaint against ADELINO, testified:
Q. Was that investigation of M Cuizon reduced to writing?
A. Yes, Sir. 16
It would have been advisable if the lower Court had right then and there asked for the production
of the written statement of MARCELINA.
The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse
previous to December 14th. On the other hand, ADELINO had testified that he and
MARCELINA used to go together to Tacloban, and while there several times, "we had sexual
intercourse because she likes it." 17 Considering the possible infliction of the death penalty on
ADELINO, the lower Court could have asked MARCELINA if she had had sexual intercourse
prior to December 14th and, if so, if it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really been sweethearts.
The lower Court could have asked MARCELINA if she realized that, charging ADELINO with
Rape with Illegal Detention, the latter could be sentenced to death. If that had been explained to
her clearly by the lower Court, she might then have admitted that she was neither raped nor
"kidnapped" nor illegally detained.
MARCELINA could had been examined on the two matters mentioned above, with the Court
excluding the public from the hearing under the provisions of Rule 119, Section 14.
MARCELINA might have testified without feeling the pressure of her relatives or other persons,
if such pressure had in fact existed.
It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged
trial Judges have been enjoined to refrain from accepting them with alacrity but to be extra
solicitous in seeing to it that an accused fully understands the import of his plea, so also, in
prosecutions for capital offenses, it behooves the trial Courts to exercise greater care in
safeguarding the rights of an accused. The trial Judge should also take a more active role by
means of searching questions in the examination of witnesses for the ascertaintment of the truth
and credibility of their testimonies so that any judgment of conviction imposing the supreme
penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand
no less.
WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty,
is reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged.
His immediate release is ordered unless lie is held on other charges.
Costs de oficio.
SO ORDERED.

CONSTI II (Sec. 14) | 70

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