G.R. No.

L-2189

November 3, 1906

THE UNITED STATES, plaintiff-appellee,

vs.
FRANCISCO BAUTISTA, ET AL., defendants-appellants.
Aguedo Velarde and Pineda and Escueta, for appellants.
Office of the Solicitor-General Araneta, for appellee.

CARSON, J.:
The appellants in this case was convicted in the Court of First Instance of Manila of the crime of
conspiracy to overthrow, put down, and destroy by force the Government of the United States in the
Philippine Islands and the Government of the Philippine Islands, as defined and penalized in section
4 of Act No. 292 of the Philippine Commission.
The appellant Francisco Bautista was sentenced to four years' imprisonment, with hard labor, and
$3,000 fine, and Aniceto de Guzman and Tomas Puzon, and each of them, to three years'
imprisonment, with hard labor, and a fine of $2,000, and all and each of the said appellants to pay
their proportionate share of the costs of the trial and to undergo subsidiary imprisonment in the event
of insolvency and failure to pay their respective fines.
The evidence of record conclusively establishes that during the latter part of the year 1903
a junta was organized and a conspiracy entered into by a number of Filipinos, resident in the city of
Hongkong, for the purpose of overthrowing the Government of the United States in the Philippine
Islands by force of arms and establishing in its stead a government to be known as the Republica
Universal Democratica Filipina; that one Prim Ruiz was recognized as the titular head of this
conspiracy and one Artemio Ricarte as chief of the military forces to the organized in the Philippines
in the furtherance of the plans of the conspirators; that toward the end of December, 1903 the said
Ricarte came to Manila from Hongkong in hidding on board the steamship Yuensang; that after his
arrival in the Philippines he held a number of meetings in the city of Manila and the adjoining
provinces whereat was perfected the above-mentioned conspiracy hatched in Hongkong that at
these meetings new members were taken into the conspiracy and plans made for the enlistment of
an army of revolution and the raising of money by national and private loans to carry on the
campaign; that to this end bonds were issued and commissions as officers in the revolutionary army
were granted to a number of conspirators, empowering the officers thus appointed to raise troops
and take command thereof; and that the conspirators did in fact take the field and offered armed
resistance to the constituted authorities in the Philippines, only failing in their design of overthrowing
the Government because of their failure to combat successfully with the officers of the law who were
sent against them and of the failure of the people to rise en masse in response to their propaganda.
It further appears from the evidence that the appellant Francisco Bautista, a resident of the city of
Manila, was an intimate friend of the said Ricarte; that Ricarte wrote and notified Bautista of his
coming to Manila and that, to aid him in his journey, Bautista forwarded to him secretly 200 pesos;
that after the arrival of Ricarte, Bautista was present, taking part in several of the above-mentioned
meetings whereat the plans of the conspirators were discussed and perfected, and that at one of

these meetings Bautista, in answer to a question of Ricarte, assured him that the necessary
preparations had been made and that he "held the people in readiness."
It further appears that the appellant, Tomas Puzon, united with the conspirators through the agency
of one Jose R. Muoz, who was proven to have been a prime leader of the movement, in the
intimate confidence of Ricarte, and by him authorized to distribute bonds and nominate and appoint
certain officials, including a brigadier-general of the signal corps of the proposed revolutionary
forces; that at the time when the conspiracy was being brought to a head in the city of Manila, Puzon
held several conferences with the said Muoz whereat plans were made for the coming insurrection;
that at one of these conferences Muoz offered Puzon a commission as brigadier-general of the
signal corps and undertook to do his part in organizing the troops; and that at a later conference he
assured the said Muoz that he had things in readiness, meaning thereby that he had duly
organized in accordance with the terms of his commission.
Puzon at the trial declared that he had never united himself with the conspirators; that he had
accepted the appointment as brigadier-general of the signal corps of the revolutionary forces with no
intention of ever taking any further action in the matter, and merely because he did not wish to vex
his friend Muoz by refusing to do so, and that when Muoz offered him the appointment as
brigadier-general he did so in "a joking tone," and that he, Puzon, did not know that Ricarte was in
Manila organizing the conspiracy at that time.
These statements, however (except in so far as they corroborate the testimony of Muoz as to the
fact that he had several interviews with Puzon at which plans were entered into for the advancement
of the cause of the conspirators), can not be accepted as true in the light of a written statement
signed by Puzon himself at the time when he was first arrested, part of which is as follows:
Q. What is your name and what is your age, residence, and occupation? A. My name is
Tomas Puzon; born in Binondo in the Province of Manila; 37 years of age; married; by
profession a teacher of primary and secondary schools, and residing in Calle Concepcion,
No. 195, district of Quiapo.
Q. Do you know Artemio Ricarte? A. Personally I do not know him, but by name, yes.

1wphil.net

Q. Did you have any information that Ricarte was in these Islands and with what object he
came here? And if you know it to be true, through whom did you get such information? A.
In the first place I had notice of his coming to the Islands as well as his object by reading the
newspapers of Manila, and secondly because J. R. Muoz told me the same on one
occasion when I was in his house to visit him.
Q. Did you acquire this information through any other person? A. No, sir; I have no more
information than that which I have mentioned.
Q. Are you a part of his new revolution presided over by Ricarte? A. Yes, sir.
Q. What is the employment (empleo) which you have in this organization, and who is it who
invited you to join it? A. J. R. Muoz, who is general of division of this new organization,
spoke to me with much instance, asking me to accept employment as brigadier-general,
chief of signal corps, to which I, on account of his request and in view of the fact that the said

Muoz is a friend of mine from my youth, acceded; nevertheless I have organized absolutely
nothing in respect to this matter.
Q. Did you accept the employment and did they give you any commission for it? A. Yes,
sir; I accepted said employment and although they gave me an order to organize in my
brigade I did not do it, because I had neither the confidence nor the will.
Q. If you didn't have faith in the said authorization nor the will to carry out what was intrusted
to you, why did you accept employment as general of the brigade? A. I accepted it on
account of friendship and not to vex a friend, but I never have the intention of fulfilling the
obligations.
Puzon, when on the stand in his own behalf, did not deny that he made this statement, but he
attempted to explain it away by saying that when he made it he was so exited that he did not know
just what he was saying. He does not allege that improper means were taken to procure the
confession, and it was proven at the trial that it was freely and voluntarily made and not the result of
violence, intimidation, threat, menace, or promise of reward or leniency. The accused appears to be
an intelligent man and was for eighteen years a school-teacher and later a telegraph operator under
the Spanish Government, and during the insurrection he held a commission as an officer in the
signal corps of the revolutionary army. His confession is clear and intelligible and in no way supports
his pretense that he was so excited as not to know what he was saying when he made it, and its
truth and accuracy in so far it inculpates him is sustained by other evidence of record in this case.
It is contended that the acceptance or possession of an appointment as an officer of the military
forces of the conspiracy should not be considered as evidence against him in the light of the
decisions of this court in the cases of the United States vs. Antonio de los Reyes 1 (2 Off. Gaz., 364),
United States vs. Silverio Nuez et al.2 (3 Off. Gaz., 408), the United States vs. Eusebio de la Serna
et al. 3 (3 Off. Gaz., 528), and United States vs. Bernardo Manalo et al. 4 (4 Off. Gaz., 570). But the
case at bar is to be distinguished from these and like cases by the fact that the record clearly
disclose that the accused actually and voluntarily accepted the apppointment in question and in
doing so assumed all the obligations implied by such acceptance, and that the charge in this case is
that of conspiracy, and the fact that the accused accepted the appointment is taken into
consideration merely as evidence of his criminal relations with the conspirators. In the first of these
cases the United States vs. De los Reyes the accused was charged with treason, and the
court found that the mere acceptance of a commission by the defendant, nothing else being done
either by himself or by his companions, was not an "overt act" of treason within the meaning of the
law, but the court further expressly held that
That state of affairs disclosed body of evidence, . . . the playing of the game of government
like children, the secretaries, colonels, and captains, the pictures of flags and seals and
commission, all on proper, for the purpose of duping and misleading the ignorant and the
visionary . . . should not be dignified by the name of treason.
In the second case the United States vs. Nuez et al. -- wherein the accused were charged with
brigandage, the court held that, aside from the possession of commissions in an insurgent band,
there was no evidence to show that it they had committed the crime and, "moreover, that it appeared
that they had never united with any party of brigands and never had been in any way connected with
such parties unless the physical possession of these appointments proved such relation," and that it

appeared that each one of the defendants "were separately approached at different times by armed
men while working in the field and were virtually compelled to accept the commissions."
In the case of the United States vs. de la Serna et al. it was contended that de la Serna had
confessed that "he was one of the members of the pulajanes, with a commission as colonel," but the
court was of opinion that the evidence did not sustain a finding that such confession had in fact been
made, hence the doctrine laid down in that decision, "that the mere possession of such an
appointment, when it is not shown that the possessor executed some external act by the virtue of the
same, does not constitute sufficient proof of the guilt of the defendant," applies only the case of
Enrique Camonas, against whom the only evidence of record was "the fact that a so-called
appointment of sergeant was found at his house."
In the case of the United States vs. Bernardo Manalo et al. there was testimony that four
appointments of officials in a revolutionary army were found in a trunk in the house of one Valentin
Colorado, and the court in said case reaffirmed the doctrine that "the mere possession of the
documents of this kind is not sufficient to convict," and held, furthermore, that there was "evidence in
the case that at the time these papers were received by the appellant, Valentin Colorado, he went to
one of the assistant councilmen of the barrio in which lived, a witness for the Government, showed
him the envelope, and stated to him he had received these papers; that he didn't know what they
were and requested this councilman to open them. The coucilman did not wish to do that but took
the envelope and sent it to the councilman Jose Millora. We are satisfied that this envelope
contained the appointments in question and that the appellant did not act under the appointment but
immediately reported the receipt of them to the authorities."
It is quite conceivable that a group of conspirators might appoint a person in no wise connected with
them to some high office in the conspiracy, in the hope that such person would afterwards accept the
commission and thus unite himself with them, and it is even possible that such an appointment might
be forwarded in the mail or otherwise, and thus come into the possession of the person thus
nominated, and that such appointment might be found in his possession, and, notwithstanding all
this, the person in whose possession the appointment was found might be entirely innocent of all
intention to join the conspiracy, never having authorized the conspirators to use his name in this
manner nor to send such a commission to him. Indeed, cases are not unknown in the annals of
criminal prosecutions wherein it has been proven that such appointments have been concealed in
the baggage or among the papers of the accused persons, so that when later discovered by the
officers of the law they might be used as evidence against the accused. But where a genuine
conspiracy is shown to have existed as in this case, and it is proven that the accused voluntarily
accepted an appointment as an officer in that conspiracy, we think that this fact may properly be
taken into consideration as evidence of his relations with the conspirators.
Counsel for appellants contend that the constitutional provision requiring the testimony of at least
two witnesses to the same overt act, or confession in open court, to support a conviction for the
crime of treason should be applied in this case, but this court has always held, in conformance with
the decisions of the Federal courts of the United States, that the crime of conspiring to commit
treason is a separate and distinct offense from the crime of treason, and that this constitutional
provision is not applicable in such cases. (In re Bollman, 4 Cranch, 74; U. S.vs. Mitchell, 2 Dall.,
348.)
The evidence of record does not sustain the conviction of Aniceto de Guzman. The finding of his
guilt rest substantially upon his acceptance of a number of bonds from one of the conspirators, such

bonds having been prepared by the conspirators for the purpose of raising funds for carrying out the
plans of the conspiracy, but it does not affirmatively appear that he knew anything of the existence of
the conspiracy or that, when he received the bonds wrapped in a bundle, he knew what the contents
of the bundle was, nor that ever, on any occasion, assumed any obligation with respect to these
bonds. He, himself, states that when he opened the bundle and discovered the nature of the
contents he destroyed them with fire, and that he never had any dealings with the conspirators in
relation to the conspiracy or the object for which it was organized.
We are of opinion, therefore, that the judgment and sentence before us, in so far as it affects the
said Aniceto de Guzman, should be reversed, with his proportionate share of the costs of both
instances de oficio, and that the said Anecito de Guzman should be acquitted of the crime with which
he is charged and set a liberty forthwith, and that the judgment and sentence of the trial court, in so
far as it applies to Francisco Bautista and Tomas Puzon, should be, and is hereby, affirmed, except
so far as it imposes subsidiary imprisonment in the event of insolvency and failure to pay their
respective fines, and, there being no authority in law of such provision, so much of the sentence as
undertakes to impose subsidiary imprisonment is hereby reversed.
After ten days let judgment be entered in accordance herewith, when the record will be returned to
the trial court for execution. So ordered.
G.R. No. L-2128

May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,

vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY
OF MANILA,respondents.
Enrique Q. Jabile for petitioners.
Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Naawa and D. Guinto Lazaro for
respondents.
FERIA, J.:
Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of
robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2,
1948, and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948,
when the petition for habeas corpusfiled with this Court was heard, the petitioners were still detained
or under arrest, and the city fiscal had not yet released or filed against them an information with the
proper courts justice.
This case has not been decided before this time because there was not a sufficient number of
Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting in
division here in Baguio for deliberation and decision. We have not until now an official information as
to the action taken by the office of the city fiscal on the complaint filed by the Dumlao against the
petitioners. But whatever night have been the action taken by said office, if there was any, we have
to decide this case in order to lay down a ruling on the question involved herein for the information
and guidance in the future of the officers concerned.

The principal question to be determined in the present case in order to decide whether or not the
petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of manila
a judicial authority within the meaning of the provisions of article 125 of the Revised Penal Code?
Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding
article shall be imposed upon the public officer or employee who shall detain any person for some
legal ground and shall fail to deliver such person to the proper judicial authorities within the period of
six hours."
Taking into consideration the history of the provisions of the above quoted article, the precept of our
Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest
and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article,
mean the courts of justices or judges of said courts vested with judicial power to order the temporary
detention or confinement of a person charged with having committed a public offense, that is, "the
Supreme Court and such inferior courts as may be established by law". (Section 1, Article VIII of the
Constitution.)
Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code
formerly in force of these Islands, which penalized a public officer other than a judicial officer who,
without warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to
the judicial authority within twenty four hours after his arrest." There was no doubt that a judicial
authority therein referred to was the judge of a court of justice empowered by law, after a proper
investigation, to order the temporary commitment or detention of the person arrested; and not the
city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which
complements said section 202, of the same Code provided that "the penalty of suspension in its
minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer
who, within the period prescribed by the provisions of the law of criminal procedure in force, shall fail
to release any prisoner under arrest or to commit such prisoner formally by written order containing a
statement of the grounds upon which the same is based."
Although the above quoted provision of article 204 of the old Penal Code has not been incorporated
in the Revised Penal Code the import of said words judicial authority or officer can not be construed
as having been modified by the mere omission of said provision in the Revised Penal Code.
Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be
secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of
arrest, detention or confinement] shall issue but upon probable cause, to be determined by
the judge after the examination under oath or affirmation of the complaint and the witness he may
produce." Under this constitutional precept no person may be deprived of his liberty, except by
warrant of arrest or commitment issued upon probable cause by a judge after examination of the
complainant and his witness. And the judicial authority to whom the person arrested by a public
officers must be surrendered can not be any other but court or judge who alone is authorized to
issue a warrant of commitment or provisional detention of the person arrested pending the trial of the
case against the latter. Without such warrant of commitment, the detention of the person arrested for
than six hours would be illegal and in violation of our Constitution.
Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the
duty of an officer after arrest without warrant, provides that "a person making arrest for legal ground
shall, without unnecessary delay, and within the time prescribed in the Revised Penal Code, take the

person arrested to the proper court orjudge for such action for they may deem proper to take;" and
by section 11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the
Court, he shall be informed of the complaint or information filed against him. He shall also informed
of the substance of the testimony and evidence presented against him, and, if he desires to testify or
to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the
witnesses need not be reduced to writing but that of the defendant shall be taken in writing and
subscribed by him.
And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court.
According to the provision of said section, "a writ of habeas corpus shall extend any person to all
cases of illegal confinement or detention by which any person is illegally deprived of his liberty"; and
"if it appears that the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge, or by virtue of a judgement or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render judgment, or make
the order, the writ shall not be allowed. "Which a contrario sensu means that, otherwise, the writ
shall be allowed and the person detained shall be released.
The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to
include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of
arrest or of commitment or temporary confinement of a person surrendered to legalize the detention
of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th
Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The
investigation which the city of fiscal of Manila makes is not the preliminary investigation proper
provided for in section 11, Rule 108, above quoted, to which all person charged with offenses
cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made
by the city fiscal for the purpose of filing the corresponding information against the defendant with
the proper municipal court or Court of First Instance of Manila if the result of the investigation so
warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is
provided by a law as a substitute, in a certain sense, of the preliminary investigation proper to avoid
or prevent a hasty or malicious prosecution, since defendant charged with offenses triable by the
courts in the City of Manila are not entitled to a proper preliminary investigation.
The only executive officers authorized by law to make a proper preliminary investigation in case of
temporary absence of both the justice of the peace and the auxiliary justice of the peace from the
municipality, town or place, are the municipal mayors who are empowered in such case to issue a
warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and
section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2,
Rule 108, is the investigation referred to in the proceeding paragraph.
Under the law, a complaint charging a person with the commission of an offense cognizable by the
courts of Manila is not filed with municipal court or the Court of First Instance of Manila, because as
above stated, the latter do not make or conduct a preliminary investigation proper. The complaint
must be made or filed with the city fiscal of Manila who, personally or through one of his assistants,
makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with
the proper court the necessary information against the accused if the result of the investigation so
warrants, and obtaining from the court a warrant of arrest or commitment of the accused.
When a person is arrested without warrant in cases permitted bylaw, the officer or person making the
arrest should, as abovestated, without unnecessary delay take or surrender the person arrested,

within the period of time prescribed in the Revised Penal Code, to the court or judge having
jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the
court or judge shall try and decide the case if the court has original jurisdiction over the offense
charged, or make the preliminary investigation if it is a justice of the peace court having no original
jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the
provisions of section 13, Rule 108.
In the City of Manila, where complaints are not filed directly with the municipal court or the Court of
First Instance, the officer or person making the arrest without warrant shall surrender or take the
person arrested to the city fiscal, and the latter shall make the investigation above mentioned and
file, if proper, the corresponding information within the time prescribed by section 125 of the Revised
Penal Code, so that the court may issue a warrant of commitment for the temporary detention of the
accused. And the city fiscal or his assistants shall make the investigation forthwith, unless it is
materially impossible for them to do so, because the testimony of the person or officer making the
arrest without warrant is in such cases ready and available, and shall, immediately after the
investigation, either release the person arrested or file the corresponding information. If the city fiscal
has any doubt as to the probability of the defendant having committed the offense charged, or is not
ready to file the information on the strength of the testimony or evidence presented, he should
release and not detain the person arrested for a longer period than that prescribed in the Penal
Code, without prejudice to making or continuing the investigation and filing afterwards the proper
information against him with the court, in order to obtain or secure a warrant of his arrest. Of course,
for the purpose of determining the criminal liability of an officer detaining a person for more than six
hours prescribed by the Revised Penal Code, the means of communication as well as the hour of
arrested and other circumstances, such as the time of surrender and the material possibility for the
fiscal to make the investigation and file in time the necessary information, must be taken into
consideration.
To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal
Code, would be to authorize the detention of a person arrested without warrant for a period longer
than that permitted by law without any process issued by a court of competent jurisdiction. The city
fiscal, may not, after due investigation, find sufficient ground for filing an information or prosecuting
the person arrested and release him, after the latter had been illegally detained for days or weeks
without any process issued by a court or judge.
A peace officer has no power or authority to arrest a person without a warrant upon complaint of the
offended party or any other person, except in those cases expressly authorized by law. What he or
the complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly
with the justice of the peace courts in municipalities and other political subdivisions. If the City Fiscal
has no authority, and he has not, to order the arrest even if he finds, after due investigation, that
there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a
police officer has no authority to arrest and detain a person charged with an offense upon complaint
of the offended party or other persons even though, after investigation, he becomes convinced that
the accused is guilty of the offense charged.
In view of all the foregoing, without making any pronouncement as to the responsibility of the officers
who intervened in the detention of the petitioners, for the policeman Dumlao may have acted in good
faith, in the absence of a clear cut ruling on the matter in believing that he had complied with the
mandate of article 125 by delivering the petitioners within six hours to the office of the city fiscal, and
the latter might have ignored the fact that the petitioners were being actually detained when the said

policeman filed a complaint against them with the city fiscal, we hold that the petitioners are being
illegally restrained of their liberty, and their release is hereby ordered unless they are now detained
by virtue of a process issued by a competent court of justice. So ordered.
Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.

[G.R. No. 144639. September 12, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENNY GO, appellant.

DECISION
CARPIO-MORALES, J.:

On direct appeal before this Court is the Decision of the Regional Trial
Court of Manila, Branch 41, in Criminal Case No. 99-174439 finding appellant
Benny Go guilty of violating Section 16, Article III in relation to Section 2 (e-2),
Article I of Republic Act No. 6425, as amended, and sentencing him to suffer
the penalty of reclusion perpetua and to pay a fine of P1,000,000.00.
[1]

The Information filed against appellant charged as follows:

That on or about June 14, 1999, in the City of Manila, Philippines, the said accused
without being authorized by law to possess or use any regulated drug, did then and
there willfully, unlawfully and knowingly have in his possession and under his
custody and control one (1) knot tied transparent plastic bag containing TWO
HUNDRED FOUR (204) grams of white crystalline substance known as Shabu
containing methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription thereof.
Contrary to law.

[2]

Upon arraignment, appellant, assisted by counsel, pleaded not guilty to

the offense charged. Subsequently, at the pre-trial conference on August 10,
1999, the parties stipulated that (1) the subject Search Warrant is valid; and
(2) the Forensic Chemist conducted only a qualitative examination on the
subject specimen.
[3]

[4]

The prosecution presented the following witnesses: (1) Police Inspector

Edwin Zata, Forensic Chemical Officer of the Philippine National Police (PNP)
Crime Laboratory; (2) PO2 Gerardo Abulencia (PO2 Abulencia); (3) SPO1

Edgardo G. Fernandez (SPO1 Fernandez); and (4) SPO1 Ver M. Serquea

(SPO1 Ver Serquea) whose testimonies sought to establish the following
facts:
On April 28, 1999, SPO1 Fernandez, SPO1 Serquea and a confidential
informant conducted a test buy operation at the residence of appellant at
1480 General Luna Street, Ermita, Manila during which they purchased from
him P1,500.00 worth of methamphetamine hydrochloride or shabu. The
police officers did not immediately arrest him, however. Instead, they applied
for a Search Warrant for appellants residence from the Regional Trial Court
(RTC) of Pasay City based on their firm belief that there was a large quantity
of illegal drugs in his house.
[5]

[6]

[7]

On June 14, 1999, a raiding team composed of SPO1 Fernandez and

SPO1 Serquea, together with PO2 Abulencia, PO3 Noel Adtu and PO2
Gerardo Jimenez, proceeded to appellants above-said residence armed with
Search Warrant No. 99-0038 issued by Br. 109 of the RTC of Pasay City
commanding them to make an immediate search anytime of the day or night
of appellants residence and to seize and take possession of
METAMPHETAMINE HYDROCHLORIDE (Shabu), weighing scale, other
drug paraphernalias and proceeds of the above crime.
[8]

[9]

Soon after the police officers arrived at appellants residence at around

6:00 in the evening, they, to enable them to gain entry to the two-storey
house, sideswept (sinagi) a little appellants Toyota Corolla GLI car which
was parked outside. Jack Go, appellants son and the only one present at the
house at the time, thereupon opened the door of the house and the policemen
at once introduced themselves, informed him that they had a warrant for the
search of the premises, and promptly handcuffed him to a chair. SPO1
Fernandez, SPO1 Serquea and PO2 Abulencia entered the house, while
PO3 Adtu and PO2 Jimenez remained outside.
[10]

[11]

[12]

On instruction of SPO1 Fernandez, SPO1 Serquea left to

summon barangay officials to witness the search. SPO1 Serquea returned
five minutes later with Barangay Kagawads Gaspar Lazaro (Kagawad Lazaro)
and Emmanuel Manalo (Kagawad Manalo) who were advised by SPO1
Fernandez to be witnesses to the search and to afterwards sign the inventory
receipt and affidavit of orderly search.
As instructed, the two barangay kagawads proceeded to the upper floor of
appellants house with SPO1 Serquea and PO2 Abulencia. While SPO1
Fernandez, who remained downstairs in the sala, instructed the handcuffed
Jack Go to witness the search, the latter refused since there will be no more
left in the sala of the house anyway there is a barangay official.
[13]

[14]

[15]

In the course of the search of the premises which took place from 6:00 to
11:00 in the evening, Kagawad Lazaro and PO2 Abulencia recovered one
knot tied transparent plastic bag containing white crystalline substance from
the drawer of a cabinet.
[16]

[17]

Also seized from the residence of appellant were the following: (a) one
plastic bag containing yellowish substance found by SPO1 Serquea; (b) a
weighing scale discovered by SPO1 Fernandez; (c) assorted documents; (d)
passports; (e) bank books; (f) checks; (g) a typewriter; (h) a check writer; (i)
several dry seals and (j) stamp pads; (k) Chinese and Philippine currency;
(l) and appellants Toyota Corolla GLI car (the car).
[18]

[19]

[20]

[21]

[22]

The plastic bag containing the white crystalline substance was marked by
SPO1 Fernandez as EGF-A-1, while the plastic bag with the yellowish
substance was marked as EGF-A-2.
[23]

With the exception of the car, all the seized items were brought to the
dining table on the ground floor of appellants house for inventory.
[24]

In the meantime, appellants wife Shi Xiu Ong and his friends Samson Go
and Peter Co arrived one after the other at the house. Appellant himself
arrived at 9:30 in the evening when the search was almost through.
[25]

[26]

After the inventory had been taken, SPO1 Fernandez prepared a

handwritten Inventory Receipt and a document captioned Affidavit of
Orderly Search, the contents of which he read to appellant. On instruction
of SPO1 Fernandez, Jack Go also explained the contents of the documents to
appellant who then signed them as did kagawads Manalo and Lazaro and
Jack Go as witnesses.
[27]

[28]

[29]

The police officers then brought appellant, his wife, son and friends, along
with the seized items, to Camp Bagong Diwa, Bicutan, Taguig, Metro Manila
for verification and investigation.
Appellant was detained while the others were eventually released. The
arresting officers jointly prepared an Affidavit of Arrest dated June 15,
1999 which, among other things, contained an enumeration of the seized
items identical to that in the handwritten Inventory Receipt. And SPO1
Fernandez prepared a Return of Search Warrant 99-0038 dated June 18,
1999 and a referral paper 1st Indorsement with the same enumeration
of seized items.
[30]

[31]

[32]

Also on June 15, 1999, SPO1 Serquea brought the plastic bag containing
the white crystalline substance (Exhibit A) and the plastic bag containing the
yellowish substance (Exhibit B) to the PNP Crime Laboratory together with
[33]

a request for laboratory examination. Upon examination, Exhibit A was

found to contain 204 grams of white crystalline substance containing
methamphetamine hydrochloride, a regulated drug. Exhibit B, on the other
hand, was found negative for any prohibited and/or regulated drug.
[34]

[35]

[36]

Meanwhile, the seized documents, passports, dry seals and stamp pads
were brought to the Bureau of Immigration and Deportation, while the bank
books were forwarded to the corresponding banks for verification.
[37]

[38]

The prosecution presented in evidence the Yamato weighing scale,

claimed to have been recovered by SPO1 Fernandez from the top of
appellants refrigerator, although it was not among those listed in the
handwritten Inventory Receipt, Affidavit of Arrest or Return of the Search
Warrant. Also presented by the prosecution, as a hostile witness, to
corroborate in part the foregoing facts was Kagawad Lazaro. He claimed,
however, that the first page of the handwritten Inventory Receipt submitted in
evidence had been substituted with another, asserting that he and the other
witnesses affixed their signatures on the left-hand margin of the first page of
the handwritten Inventory Receipt which they were asked to sign whereas that
submitted in court did not bear their signatures.
[39]

[40]

[41]

[42]

Kagawad Lazaro further claimed that the first entry on the first page of the
Inventory Receipt, whereon he and his co-witnesses affixed their signatures,
reading Chinese Medicine had been replaced with undetermined quantity of
white crystalline granules; that what was recovered from the room of Jack
Go by PO2 Abulencia was Exhibit B, the plastic bag containing the yellowish
powder, and not Exhibit A, the plastic bag containing the suspected shabu;
and that Exhibit A was not even among the items seized and inventoried.
[43]

[44]

The defense, which adopted the testimony of Kagawad Lazaro, presented

appellant, his son Jack Go, and Kagawad Manalo whose version of the facts
of the case follows:
In November 1998, while appellant was walking along Gen. Luna Street,
he was accosted by SPO1 Serquea and another police officer who accused
him of manufacturing shabu and divested him of money amounting to more
than P5,000.00. He was later released as the policemen could not charge
him with anything.
[45]

On July 14, 1999 at around 5:30 in the afternoon, Jack Go opened the
door of their house after hearing somebody shout that the car had been
bumped. Five armed policemen then entered the house, one of whom
handcuffed him while two went up to the upper floor of the house and
searched for about thirty (30) minutes.
[46]

At past 6:00 p.m., as the two kagawads entered the house which was
already in disarray, SPO1 Fernandez formed two groups to conduct the
search at the second floor: (1) that of PO2 Abulencia, with Kagawad Lazaro
to serve as witness, and (2) that of SPO1 Serquea, with Kagawad Manalo to
serve as witness.
[47]

PO2 Abulencia, together with Kagawad Lazaro, searched the room of Jack
Go. SPO1 Serquea, accompanied by Kagawad Manalo, searched the study
room where he seized documents, passports and assorted papers.
SPO1 Serquea and Kagawad Manalo then proceeded to the room of
appellant followed by PO2 Abulencia and Kagawad Lazaro. From the room of
appellant, the policemen seized documents, passports, bankbooks and
money.
[48]

After the search, the policemen and barangay kagawads went down with
three boxes containing passports, money and assorted Chinese medicine.
[49]

When appellants wife arrived at around 7:30 p.m., SPO1 Fernandez

ordered her to open the safe (kaha de yero) inside appellants room where
the police officers seized money, passports, bankbooks, Chinese currency
and pieces of jewelry.
[50]

[51]

The seized items were placed on appellants table on the first floor of the
house where they were inventoried by SPO1 Fernandez during which
the barangay kagawads did not see either Exhibit A, the plastic bag
containing the suspected shabu, or the weighing scale.
[52]

[53]

After SPO1 Fernandez prepared a two-page Inventory Receipt and

Affidavit of Orderly Search, he asked Jack Go to sign the receipt. While Jack
Go initially refused, he eventually did sign both documents without having
read them completely after he was hit by the policemen. The twobarangay
kagawads also signed both pages of the Inventory Receipt as witnesses.
[54]

When appellant arrived at around 8:30 p.m., he was handcuffed and

likewise made to sign the Inventory Receipt without having been able to read
its contents. Jack Go was prevented from explaining its contents to him.
[55]

[56]

The first page of the handwritten Inventory Receipt presented in court,

which includes an undetermined quantity of white crystalline granules placed
inside a transparent plastic envelope as among those seized from the
residence of appellant, does not bear the signatures of appellant,
thekagawads and Jack Go, hence, it is not the same first page of the
handwritten Inventory Report on which they affixed their signatures. In fact
[57]

the policemen did not leave a copy of this Inventory Receipt with either
appellant or the barangay kagawads.
[58]

The policemen continued to search appellants residence until around

11:00 p.m. when they brought appellant, Jack Go, Shi Xiu Ong, Samson Go
and Peter Co, together with the seized items, to Bicutan.
[59]

On the way to Bicutan, PO2 Abulencia, who boarded the same vehicle as
appellant, told the latter that the policemen wanted P10,000,000.00 from him
or he would be charged with possession of illegal drugs. The amount
demanded was later reduced to P5,000,000.00, then toP2,000,000.00, and
finally to P500,000.00. Appellant refused, however, to heed the
policemens demands since he did not commit any crime.
[60]

Finding for the prosecution, the trial court rendered the appealed Decision
on June 7, 2000, the dispositive portion of which reads:
WHEREFORE, judgment is hereby ordered rendered finding the accused Benny Go
guilty of the offense charged in the information and sentencing him to suffer the
penalty of reclusion perpetua and a fine of One Million Pesos (P1,000,000.00).
The subject shabu is hereby ordered forfeited in favor of the government and the
Clerk of Court is hereby directed to deliver and/or cause the delivery of the said shabu
to the Dangerous Drugs Board for proper disposition, upon the finality of this
Decision.
SO ORDERED.

[61]

His Motion for Reconsideration of the decision having been denied by

Order of July 24, 2000, appellant lodged the present appeal. In his Brief,
he assigns the following errors:
[62]

[63]

[64]

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ACCORDING THE POLICE OFFICERS THE
PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY IN
IMPLEMENTING THE SEARCH WARRANT BASED ON THEIR TESTIMONIES,
THERE BEING CONVINCING PROOFS TO THE CONTRARY.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN HOLDING THAT 204 GRAMS OF SHABU
WAS RECOVERED FROM THE HOUSE OF ACCUSED-APPELLANT ON
JUNE 14, 1999 BASED ON THE TESTIMONY OF PO1 GERARDO ABULENCIA

AND THE SUPPORTING INVENTORY RECEIPT, BOTH OF WHICH WERE

COMPLETELY CONTRADICTED BY THE PROSECUTION WITNESS
BARANGAY KAGAWAD GASPAR LAZARO AS WELL AS BY DEFENSE
WITNESSES.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN RENDERING JUDGMENT FINDING
ACCUSED-APPELLANT GUILTY OF ILLEGAL POSSESSION OF TWO
HUNDRED FOUR (204) GRAMS OF SHABU AS CHARGED IN THE
INFORMATION AND SENTENCING HIM TO SUFFER THE (sic) PENALTY OF
RECLUSION PERPETUA AND A FINE OF ONE MILLION PESOS
(P1,000,000.00), INSTEAD OF ACQUITTING ACCUSED-APPELLANT FOR
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT. (Emphasis supplied)
[65]

During the pendency of the appeal, appellant filed a verified Motion for
Return of Personal Documents, Vehicle and Paraphernalia dated September
10, 2001 praying for the release of the following seized properties:
[66]

a.

several pcs. transparent plastic envelopes

b.

one (1) unit Toyota Corolla GLI with PN UTT 658

c.

Cash amounting to Fifty Two Thousand Seven Hundred Sixty Pesos

(P52,760.00) in different denominations

d.

Twenty-Five Thousand Chinese Yuan (CY25,000.00)

e.

Sixty-Seven (67) pieces of Chinese passports

f.

Twenty-Eight (28) pieces of assorted bankbooks

g.

Two Hundred Eighty Five (285) pieces of assorted checks

h.

Fifty-Three (53) pcs. rubber stamp and related paraphernalia

i.

One (1) piece Underwood typewriter with SN 9861952

j.

One (1) piece check writer

k.

Two (2) pieces of dry seal

m.

Five (5) boxes of assorted documents

n.

Three (3) bags of assorted documents

[67]

This Court is thus called upon to determine (1) whether appellants guilt
has been proven beyond reasonable doubt; and (2) whether the items
enumerated in appellants Motion for Return of Personal Documents, Vehicle
and Paraphernalia, which items are allegedly not among those particularly
described in Search Warrant No. 99-0038, should be returned to him. These
issues shall be resolved in seriatim.
Illegal Possession of 204 Grams of Shabu
As appellant questions the legality of the search of his residence, the
actions of the police officers, as agents of the State, must be carefully
considered in light of appellants right against unreasonable searches and
seizures guaranteed by Sections 2 and 3, Article III of the Constitution.
[68]

What constitutes a reasonable or unreasonable search or seizure is a

purely judicial question determinable from a consideration of the attendant
circumstances including the purpose of the search, the presence or absence
of probable cause, the manner in which the search and seizure was made, the
place or thing searched, and the character of the articles procured.
[69]

Since no presumption of regularity may be invoked by an officer to justify

an encroachment of rights secured by the Constitution, courts must
cautiously weigh the evidence before them. As early as in the 1937 case
of People v. Veloso, this Court held:
[70]

[71]

A search warrant must conform strictly to the requirements of the constitutional

and statutory provisions under which it is issued. Otherwise, it is void. The
proceedings upon search warrants, it has rightly been held, must be absolutely legal,
for there is not a description of process known to law, the execution of which is more
distressing to the citizen. Perhaps there is none which excites such intense feeling in
consequence of its humiliating and degrading effect. The warrant will always be
construed strictly without, however, going the full length of requiring technical
accuracy. No presumptions of regularity are to be invoked in aid of the process
when an officer undertakes to justify under it. (Emphasis supplied; citations
omitted)
[72]

Indeed, a strict interpretation of the constitutional, statutory and procedural

rules authorizing search and seizure is required, and strict compliance
therewith is demanded because:

x x x Of all the rights of a citizen, few are of greater importance or more essential to
his peace and happiness than the right of personal security, and that involves the
exemption of his private affairs, books, and papers from the inspection and scrutiny of
others. While the power to search and seize is necessary to the public welfare, still it
must be exercised and the law enforced without transgressing the constitutional rights
of citizens, for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government.
[73]

In arriving at the appealed decision, the trial court placed greater weight
on the testimony of the police officers to whom it accorded the presumption of
regularity in the performance of duty, viz:
Coming to the first issue raised, the Court gives credence to the testimonies of the
police officers and accords them the presumption of regularity in the
performance of their duty. The Court has observed the demeanor of the
witnesses and finds the prosecution witnesses more credible than the defense
witnesses. x x x
On the other hand, there is no showing that the police officers had ill motive when
they applied for and secured the Search Warrant, raided the house of the accused
and arrested him. Accused is a Chinese national who appeared to have no quarrel
with the arresting police officers and thus the police officers had no reason to fabricate
or trump up charges against him. Hence, there appears to be no reason the police
officers should not be accorded the presumption of regularity in the performance
of their duty. As held by the Supreme Court, (L)aw enforcers are presumed to have
regularly performed their official duty, in the absence of the evidence to the contrary.
x x x We see no valid obstacle to the application of the ruling in People vs. Capulong,
(160 SCRA 533 {1988}) that credence is accorded to the testimonies of the
prosecution witnesses who are law enforcers for it is presumed that they have
regularly performed their duty in the absence of convincing proof to the
contrary. The appellant has not shown that the prosecution witnesses were motivated
by any improper motive other than that of accomplishing their mission. (People of
the Philippines, Plaintiff-appellee, vs. Said Sariol Y Muhamading, accused-appellant,
174 SCRA 238). (Emphasis supplied)
[74]

At the same time, the trial court based its finding that the search of
appellants residence was proper and valid on the so-called Affidavit of
Orderly Search.
On the second issue raised, the validity of the Search Warrant is clearly shown by
the Affidavit of Orderly Search signed by the accused and his son Jack Go and
his witnesses Salvador Manalo and Gaspar Lazaro. Such Affidavit of Orderly

Search coupled with the testimonies of the police officers have clearly established
the propriety and validity of the search. (Emphasis supplied)
[75]

The rule that a trial courts findings are accorded the highest degree of
respect, it being in a position to observe the demeanor and manner of
testifying of the witnesses, is not absolute and does not apply when a careful
review of the records and a meticulous evaluation of the evidence reveal vital
facts and circumstances which the trial court overlooked or misapprehended
and which if taken into account would alter the result of the case.
[76]

[77]

In the case at bar, an examination of the testimonies of the police officers

brings to light several irregularities in the manner by which the search of
appellants residence was conducted.
By PO2 Abulencias own account, in order to enter the premises to be
searched, the police officers deliberately side-swiped appellants car which
was parked alongside the road, instead of following the regular knock and
announce procedure as outlined in Section 7 (formerly Section 6), Rule 126
of the Rules of Court.
[78]

Mr. Witness, how did you enter the house of Benny Go?

Its really heard (sic) to enter the house. Before the door, there was a still
(sic) supporting the door and they will not allow us to enter because they dont
know us. Then, in order that we could enter the house, we side swept
(sinagi) a little the vehicle that was parked in front of their house. And their
neighbor knocked at the house of the subject and thats the time that we
were able to enter.[79] (Emphasis supplied)

Since the police officers had not yet notified the occupant of the residence
of their intention and authority to conduct a search and absent a showing that
they had any reasonable cause to believe that prior notice of service of the
warrant would endanger its successful implementation, the deliberate
sideswiping of appellants car was unreasonable and unjustified.
Also by PO2 Abulencias own account, upon entry to appellants
residence, he immediately handcuffed Jack Go to a chair. Justifying his
action, PO2 Abulencia explained that not only was he unfamiliar with Jack Go
and unsure of how the latter would react, but it was a standard operating
procedure:
Pros. Rebagay:
Now, what happened on June 14, 1999 at 6:00 p.m. when you were armed with
the Search Warrant issued by Judge Lilia Lopez?
A

We entered inside the house of the subject and we were able to see (nadatnan
naming) Jack Go, the son of Benny Go, sir.

xxx
Q

And what was the reaction of Jack Go, if any?

We introduced ourselves as police officers and we have a Search Warrant to

conduct a search to the above subject place and also we handcuffed Jack Go to
the chair, sir.

Why did you do that, Mr. witness?

Hindi naming kakilala iyong mga tao, sir kaya ganoon ang ginawa namin
para hindi kami maano, eh hindi naming kabisado iyong ugali, sir.

Pros. Rebagay:
And is that an (sic) standard operating procedure Mr. witness, when you are
serving a search warrant?
A

Yes, sir.[80] (Emphasis supplied)

There is no showing, however, of any action or provocation by Jack Go

when the policemen entered appellants residence. Considering the degree of
intimidation, alarm and fear produced in one suddenly confronted under
similar circumstances, the forcible restraint of Jack Go all the more was
unjustified as was his continued restraint even after Barangay
Kagawads Lazaro and Manalo had arrived to justify his forcible restraint.
While Search Warrant No. 99-99-0038 authorized the immediate search of
appellants residence to seize METAMPHETAMINE HYDROCHLORIDE
(Shabu), weighing scale, other drug paraphernalias and proceeds of the
above crime, the policemen, by SPO1 Fernandezs admission, seized
numerous other items, which are clearly unrelated to illegal drugs or illegal
drug paraphernalia:
Q

In the presence of the barangay officials, what are those items which you seized or
your raiding team seized, if any?

With the permission of the Honorable Court, Your Honor, can I take a look at my
notes.

Court
Proceed.
Witness
Thank you very much.
A

Seized or confiscated form the said residence are: (1) undetermined quantity of
white crystalline granules placed inside the transparent plastic envelope, (2)
undetermined quantity of yellowish powder placed inside the transparent plastic
envelope; (3) several pieces of transparent plastic envelopes; (4) one unit Toyota
Corolla GLI with Plate No. UPT-658; (5) P52,760.00 in different denominations; (6)
25,000.00 Chinese Yuan; (7) 67 pieces of Chinese passports; (8) 28 pieces of
assorted bank book; (9) 285 pieces of assorted checks; (10) 53 pieces rubber

stamps and related paraphernalia; (11) one piece Underwood typewriter with
Serial No. 9861952; (12) one piece checkwriter; (13) two pieces dry seals; (14) 5
boxes of assorted documents; (15) 3 bags of assorted documents; and I will add
another one Your Honor, a weighing scale.[81]

While an inventory of the seized items was prepared, also by SPO1

Fernandezs admission, it did not contain a detailed list of all the items seized,
particularly the voluminous documents:
Q

Why is it that you did not make a detailed inventory or receipt of the
passports? Why did you not give any detailed receipt or inventory on the
passports.

There were lots of documents during the time on the table, voluminous
documents that I was not able to make a listing of the said passports.

And it was only this October 8, 1999 or four months after that you made a
detailed receipt of those seized items, am I right?

Yes, sir.

xxx
Q

Is it your standard operating procedure that when there are voluminous

seized items you will not (sic) longer made (sic) an inventory report, am I
right?

Its not an SOP.

Why did you not make a detailed inventory or receipt?

As Ive said earlier, its voluminous. [82] (Emphasis supplied)

In Asian Surety And Insurance Co., Inc. v. Herrera, this Court stressed
the necessity for adetailed receipt of the items seized in order to adequately
safeguard the constitutional rights of the person searched:
[83]

Moreover, as contended by petitioner, respondents in like manner transgressed

Section 10 of Rule 126 of the Rules for failure to give a detailed receipt of the
things seized. Going over the receipts (Annexes B B-1, B-2, B-3 and B4 of the Petition) issued, We found the following: one bordereau of reinsurance, 8
fire registers, 1 marine register, four annual statements, folders described only as
Bundle gm-1 red folders; bundle 17-22 big carton folders; folders of various
sizes, etc., without stating therein the nature and kind of documents contained in
the folders of which there were about a thousand of them that were seized. In the
seizure of two carloads of documents and other papers, the possibility that the
respondents took away private papers of the petitioner, in violation of his
constitutional rights, is not remote, for the NBI agents virtually had a field day with
the broad and unlimited search warrant issued by respondent Judge as their passport.
(Emphasis and underscoring supplied)
[84]

After the inventory had been prepared, PO2 Abulencia presented it to

appellant for his signature without any showing that appellant was informed
of his right not to sign such receipt and to the assistance of counsel. Neither
was he warned that the same could be used as evidence against him. Faced
with similar circumstances, this Court in People v. Gesmundo stated:
[85]

[86]

It is true that the police were able to get an admission from the accused-appellant that
marijuana was found in her possession but said admission embodied in a document
entitled PAGPATUNAY previously prepared by the police, is inadmissible in
evidence against the accused-appellant for having been obtained in violation of
her rights as a person under custodial investigation for the commission of an
offense. The records show that the accused-appellant was not informed of her
right not to sign the document; neither was she informed of her right to the
assistance of counsel and the fact that the document may be used as evidence
against her. (Emphasis and underscoring supplied, citations omitted)
[87]

In People v. Policarpio, this Court held that such practice of inducing

suspects to sign receipts for property allegedly confiscated from their
possession is unusual and violative of the constitutional right to remain
silent, viz:
[88]

What the records show is that appellant was informed of his constitutional right to be
silent and that he may refuse to give a statement which may be used against him, that
is why he refused to give a written statement unless it is made in the presence of his
lawyer as shown by the paper he signed to this effect. However, he was made to
acknowledge that the six (6) small plastic bags of dried marijuana leaves were
confiscated from him by signing a receipt and to sign a receipt for the P20.00 bill as
purchase price of the dried marijuana leaves he sold to Pat. Mangila.
Obviously the appellant was the victim of a clever ruse to make him sign these alleged
receipts which in effect are extra-judicial confessions of the commission of the
offense. Indeed it is unusual for appellant to be made to sign receipts for what
were taken from him. It is the police officers who confiscated the same who
should have signed such receipts. No doubt this is a violation of the
constitutional right of appellant to remain silent whereby he was made to admit
the commission of the offense without informing him of his right. Such a
confession obtained in violation of the Constitution is inadmissible in evidence.
(Emphasis supplied)
[89]

The Inventory Receipt signed by appellant is thus not only inadmissible for
being violative of appellants custodial right to remain silent; it is also an

indicium of the irregularity in the manner by which the raiding team conducted
the search of appellants residence.
At the same time, it is unclear whether appellant was furnished a copy of
the Inventory Receipt as mandated by Sec. 11, Rule 126 of the Rules of
Court.
[90]

Now, while you were making an inventory of that, am I right, that you did not give a
copy to Benny Go, am I right?

I gave them a xerox copy. I remember I gave them a xerox copy.

Is there any proof that they received an inventory report?

Nothing, sir.[91]

Moreover, an examination of Exhibit Z, the Return of Search Warrant No.

99-0038 submitted by SPO1 Fernandez to Br. 109 of the RTC of Pasay City
was not verified under oath, as required by Section 12 (a) (formerly Section
12), Rule 126 of the Rules of Court.
[92]

[93]

The delivery of the items seized to the court which issued the warrant
together with a true and accurate inventory thereof, duly verified under oath,
is mandatory in order to preclude the substitution of said items by interested
parties. Under Section 12 of Rule 126, the judge which issued the search
warrant is mandated to ensure compliance with the requirements for (1) the
issuance of a detailed receipt for the property received, (2) delivery of the
seized property to the court, together with (3) a verified true inventory of the
items seized. Any violation of the foregoing constitutes contempt of court.
[94]

[95]

Given the foregoing deviations from the normal and prescribed manner of
conducting a search, as disclosed by the members of the raiding team
themselves, the reliance by the trial court on the disputable presumption that
the police officers regularly performed their official duty was evidently
misplaced.
The Affidavit of Orderly Search is not of any help in indicating the
regularity of the search. Not having been executed under oath, it is not
actually an affidavit, but a pre-prepared form which the raiding team brought
with them. It was filled up after the search by team leader SPO1 Fernandez
who then instructed appellant to sign it as he did instruct Jack
Go, Kagawad Manalo and KagawadLazaro to sign as witnesses.
More importantly, since the Affidavit of Orderly Search purports to have
been executed by appellant, the same cannot establish the propriety and
validity of the search of his residence for he was admittedly not present when
the search took place, he having arrived only when it was almost through.

And while your officers and the barangay kagawad were searching the house Mr.
Benny Go is not yet present in that house, am I right?

Yes, sir.

And you made to sign Benny Go in the inventory receipt when the search was
already over, am I right?

He was already present when I was making the inventory. He arrived at around
9:30.

Yes, and the search was already finished, am I right?

Almost through.[96]

In fine, since appellant did not witness the search of his residence, his
alleged Affidavit of Orderly Search, prepared without the aid of counsel and
by the very police officers who searched his residence and eventually arrested
him, provides no proof of the regularity and propriety of the search in question.
On the contrary, from the account of the police officers, their search of
appellants residence failed to comply with the mandatory provisions of
Section 8 (formerly Section 7), Rule 126 of the Rules of Court, viz:
SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses.
No search of a house, room, or any other premise shall be made except in
the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, two witnesses of sufficient age and discretion residing in the
same locality. (Underscoring supplied)
As pointed out earlier, the members of the raiding team categorically
admitted that the search of the upper floor, which allegedly resulted in the
recovery of the plastic bag containing the shabu, did not take place in the
presence of either the lawful occupant of the premises, i.e. appellant (who
was out), or his son Jack Go (who was handcuffed to a chair on the ground
floor). Such a procedure, whereby the witnesses prescribed by law are
prevented from actually observing and monitoring the search of the premises,
violates both the spirit and letter of the law:
Furthermore, the claim of the accused-appellant that the marijuana was planted is
strengthened by the manner in which the search was conducted by the police
authorities. The accused-appellant was seated at the sala together with Sgt. Yte
when they heard someone in the kitchen uttered ito na. Apparently, the search
of the accused-appellants house was conducted in violation of Section 7, Rule 126 of
the Rules of Court which specifically provides that no search of a house, room or
any other premise shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, in the

presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. This requirement is mandatory to ensure regularity in the execution of
the search warrant. Violation of said rule is in fact punishable under Article 130 of
the Revised Penal Code.
As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et
al. a procedure, wherein members of a raiding party can roam around the raided
premises unaccompanied by any witness, as the only witnesses available as
prescribed by law are made to witness a search conducted by the other members
of the raiding party in another part of the house, is violative of both the spirit
and letter of the law. (Emphasis and underscoring supplied)
[97]

That the raiding party summoned two barangay kagawads to witness the
search at the second floor is of no moment. The Rules of Court clearly and
explicitly establishes a hierarchy among the witnesses in whose presence the
search of the premises must be conducted. Thus, Section 8, Rule 126
provides that the search should be witnessed by two witnesses of sufficient
age and discretion residing in the same locality only in the absence of either
the lawful occupant of the premises or any member of his family. Thus, the
search of appellants residence clearly should have been witnessed by his son
Jack Go who was present at the time. The police officers were without
discretion to substitute their choice of witnesses for those prescribed by the
law.
The claim of SPO1 Fernandez and PO2 Abulencia that Jack Go voluntarily
waived his right to witness the search, allegedly because there would be no
one left in the sala and anyway barangayofficials were present, cannot be
accepted. To be valid, a waiver must be made voluntarily, knowingly and
intelligently. Furthermore, the presumption is always against the waiver of a
constitutionally protected right.
[98]

[99]

While Jack Go was present from the time the raiding team entered the
premises until after the search was completed, he was, however, handcuffed
to a chair in the sala. All alone and confronted by five police officers who
had deprived him of his liberty, he cannot thus be considered to have
voluntarily, knowingly and intelligently waived his right to witness the search
of the house. Consent given under such intimidating, coercive circumstances
is no consent within the purview of the constitutional guaranty.
[100]

[101]

The search conducted by the police officers of appellants residence is

essentially no different from that in People v. Del Rosario where this Court
observed:
[102]

We thus entertain serious doubts that the shabu contained in a small canister was
actually seized or confiscated at the residence of accused-appellant. In
consequence, the manner the police officers conducted the subsequent and muchdelayed search is highly irregular. Upon barging into the residence of accusedappellant, the police officers found him lying down and they immediately
arrested and detained him in the living room while they searched the other parts
of the house. Although they fetched two persons to witness the search, the
witnesses were called in only after the policemen had already entered accusedappellants residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the
policemen had more than ample time to plant the shabu. Corollary to the
Constitutional precept that, in all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved (Sec. 14 (2), Article III, Constitution of the
Republic of the Philippines) is the rule that in order to convict an accused the
circumstances of the case must exclude all and each and every hypothesis consistent
with his innocence (People vs. Tanchoco, 76 Phil. 463 [1946]; People vs. Constante,
12 SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case
do not rule out the hypothesis that accused-appellant is innocent. (Emphasis
supplied)
[103]

The raiding teams departure from the procedure mandated by Section 8,

Rule 126 of the Rules of Court, taken together with the numerous other
irregularities attending the search of appellants residence, tainted the search
with the vice of unreasonableness, thus compelling this Court to apply the
exclusionary rule and declare the seized articles inadmissible in
evidence. This must necessarily be so since it is this Courts solemn duty to
be ever watchful for the constitutional rights of the people, and against any
stealthy encroachments thereon. In the oft-quoted language of Judge
Learned Hand:
[104]

As we understand it, the reason for the exclusion of evidence competent as such,
which has been unlawfully acquired, is that exclusion is the only practical way of
enforcing the constitutional privilege. In earlier times the action of trespass against
the offending official may have been protection enough; but that is true no
longer. Only in case the prosecution which itself controls the seizing officials,
knows that it cannot profit by their wrong, will that wrong be repressed.
(Emphasis supplied)
[105]

In all prosecutions for violation of The Dangerous Drugs Act, the existence
of the dangerous drug is a condition sine qua non for conviction since the
dangerous drug is the very corpus delicti of the crime. With the exclusion of
Exhibit A, the plastic bag containing the shabu allegedly recovered from
[106]

appellants residence by the raiding team, the decision of the trial court must
necessarily be reversed and appellant acquitted.
What is more, a thorough evaluation of the testimonies and evidence
given before the trial court fails to provide the moral certainty necessary to
sustain the conviction of appellant.
In particular, Barangay Kagawads Lazaro and Manalo, the two witnesses
to the search chosen by the police officers in substitution of Jack Go, both
categorically testified under oath that no shabuwas recovered from appellants
residence by the police. Thus, Kagawad Lazaro testified that the plastic bag
containing white crystalline granules, later found positive for shabu, was not
recovered from the room of Jack Go:
Atty. Reyes:
You were shown a while ago by the prosecution of (sic) an Inventory Receipt
allegedly prepared by Officer Fernandez which includes the list of the items seized
from the premises of Benny Go, now, you said that theres no white crystalline
granules included in that list which you signed during the inventory?
A

Yes, sir.

Can you recall what was the first item included in that list which you signed in the
first page?

Chinese medicine, sir.

Now, you also testified that you were with Officer Abulencia when you conducted
the search inside the room of Jack Go, now, did you recover anything from the
room of Jack Go?

PO2 Abulencia recovered one small plastic in the drawer of Jack Go and
Naphthalene balls, sir.

xxx
Atty. Reyes:
If that small plastic will be shown to you, will you be able to identify it?
A

Yes, sir.

Atty. Reyes:
I have here a plastic which contained yellowish powder. Could you go over this
and tell us if this was the one recovered from the room of Jack Go?
A

This is the one, sir.

I have here another plastic containing white crystalline substance marked by

the prosecution as Exh. A. Will you tell us if this is also recovered from
the room of Jack Go?

No, this was not recovered from the room of Jack Go, sir.

During the preparation of the inventory of the seized items, was this also
included?

I did not see that, sir.[107] (Emphasis supplied)

Similarly, Kagawad Manalo testified that neither the plastic bag

of shabu nor the weighing scale was among the seized items inventoried by
the raiding team:
Q

You said that you were present during the time when SPO1 Fernandez was
preparing the inventory of all the items taken from the premises of Benny Go, can
you recall what are these items?

Yes sir, assorted Chinese medicines, assorted documents, papers, passports,

stamp pad, bankbooks and checks and it was placed in five (5) boxes and three
(3) ladies bag.

What about a weighing scale? Is there a weighing scale, Mr. Witness?

I did not see any weighing scale, sir.

How about drugs or shabu contained in a plastic pack?

I did not see any also.[108] (Emphasis supplied)

On rebuttal, SPO1 Fernandez alleged that the two barangay

kagawads were lying when they claimed that no shabu was recovered from
appellants residence, and implied that they had been asked to falsify their
testimonies in court:
Pros. Rebagay:
Mr. witness, when Salvador Manalo testified before this Honorable Court when he
was confronted with Exh. B which is the inventory receipt the said witness denied
that the first page of Exh. B" was genuine on the fact that his signature and
likewise [that of] his co-colleague did not appear on the first page of the said
inventory receipt, what can you say to that statement made by Salvador Manalo?
A

Well, it has not been our practice to let the witness sign on the first page of the 2page inventory receipt and with regards to the said inventory receipt that he signed
on June 4, it is the same inventory receipt that I prepared, sir.

xxx
Q

Likewise, Mr. witness, the said witness Salvador Manalo also denied that the
shabu which is the subject of this case has never been recovered by them,
what can you say to that?

Well, its a lie, sir.

Why do you say that?

Because when the illegal drug was found by PO2 Abulencia, he was
accompanied by Gaspar Lazaro at that time. Then he called my attention
and he also called the attention of SPO2 Serquea as well as the attention of

Mr. Salvador Manalo. When I went upstairs, they were already inside the
said room so the five of us saw the illegal drugs, sir.

xxx
Pros. Rebagay:
Mr. witness, when Salvador Manalo testified here on cross-examination, he mentioned
that after the search of the house of Benny Go, a certain investigator, a policeman
pretended that he is making a follow-up with respect to the search made by you
and your team, will you please tell us if immediately after the incident or after the
investigation conducted by the City Prosecutors Office when you had an occasion
to meet Salvador Manalo after that?
A

Yes, sir.

And what happened to that meeting with Salvador Manalo after the
preliminary investigation?

Witness:
Because during the preliminary investigation, we were surprised why our
witness has taken side, it is on the side of the accused Benny Go so I
decided to pay him a visit that day after that confrontation on June 23 and I
asked him what happened, tinanong ko siya kung ano ang nangyari bakit
mukhang nakampi na siya roon sa kabila. Ang sagot niya sa akin ang sabi
sa amin ni Atty. Galing kakausapin ka rin niya. That is the exact words.
Atty. Reyes:
We will object to that for being hearsay. May we move that the latter portion be
stricken off the record.
Court:
Let it remain
Pros. Rebagay:
And will you please tell us exactly when this incident occur (sic), Mr. witness?
A

That was after June 23, sir.

Where?

At his store in A. Linao Street, Paco, sir.

And what was your response after you heard that answer from Salvador
Manalo, if any, Mr. witness?

Witness:
Siyempre nagtaka ako, bakit ganoon ibig sabihin implied baka nagkaaregluhan na, iyan ang iniisip ko, sir.[109] (Emphasis supplied)

Regrettably, no further evidence, aside from the foregoing allegations and

suspicions of SPO1 Fernandez, was ever presented to substantiate the claim
that the two kagawads had deliberately falsified their testimonies. On the

contrary, it appears that the police officers did not actively pursue their
complaint for obstruction of justice against the two kagawads with the
Department of Justice. Moreover, to completely discount the testimonies
of kagawads Lazaro and Manalo would be tantamount to having no witnesses
to the search of appellants residence at all except the police officers
themselves, a situation clearly contrary to the tenor and spirit of Section 8 of
Rule 126.
The prosecutions attempt to introduce the weighing scale, supposedly
seized during the search, only casts more doubt on its case. Said weighing
scale was conspicuously absent from the enumeration of seized items in the
handwritten Inventory Receipt, the Return of the Search Warrant and the
Affidavit of Arrest prepared by the police officers. SPO1 Fernandezs claim
that the omission was an honest mistake, to wit:
Pros. Rebagay
Q

Mr. Witness, a while ago you added another item which was not included in the
inventory list and this was the weighing scale. Please tell us, why is it only now
that you are adding it to the list of those items that you seized?

Well, with all honesty Your Honor, I cannot offer any alibi except to say that I
committed an honest mistake when I did not include that weighing scale in the
inventory receipts.[110]

does not inspire credence. Neither does SPO1 Serqueas explanation:

Q

What was the search warrant all about? It commands you to search and seize
what items?

Regarding drugs, drug paraphernalias and proceeds of the crime, sir.

Atty. Reyes:
What else?
A

Weighing scale, sir.

Weighing scale is included in the search warrant. So the warrant specifically

commands you to seize drugs, drug paraphernalias and weighing scale?

Yes, sir.

And you read this Affidavit of Arrest before you signed this. Did you notice that the
weighing scale is not included here?

Yes, sir. Now I noticed.

No, during the time that you signed this?

No, sir.

You did not notice that?

No, sir.

As well as the time when Officer Fernandez was preparing this Inventory, you did
not call his attention that there are some items missing in that Inventory?

I did not call his attention. Honestly speaking (unfinished)

xxx
A

Honestly speaking, we confiscated so many evidence including papers, boxes,

voluminous quantity of evidence recovered and only one officer is conducting the
Inventory. We cannot conduct Inventory two at a time or three at a time, only
one. Because maybe, you see, hes only one. Maybe he did not list it because of
that so many evidence confiscated.

Atty. Reyes:
But the weighing scale is not a small item, is that correct? Its a big item?
A

Yes, sir.

Do you want to tell us that you missed that item?

I was not the one who missed it, sir.

How about your Affidavit of Arrest?

Officer Fernandez prepared that Affidavit, sir.

So you are not the one who prepared this? You merely signed it?

I signed it in their presence, sir.[111]

The foregoing explanations are improbable and far from

persuasive. Considering that a weighing scale was among the items
particularly described in Search Warrant No. 99-0038, it would be expected
that the police officers would be actively searching for it and, if found, they
would take care to include it in the inventory and the return of the search
warrant. But while numerous seals, stamps, checks and documents not
described in the search warrant were seized and carefully inventoried by the
raiding team, none of the five police officers bothered to point out that the
weighing scale had not been included in the inventory.
The implausibility of the story put forward by the police officers leads to no
other conclusion than that the weighing scale was introduced as an
afterthought in order to bolster the case against appellant.
With the persistence of nagging doubts surrounding the alleged discovery
and seizure of theshabu, it is evident that the prosecution has failed to
discharge its burden of proof and overcome the constitutional presumption of
innocence. It is thus not only the accuseds right to be freed; it is, even more,
this Courts constitutional duty to acquit him. Apropos is the ruling in People
v. Aminnudin, viz:
[112]

[113]

The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of the
Bill of Rights for the protection of liberty of every individual in the realm, including
the basest of criminals. The Constitution covers with the mantle of its protection the
innocent and the guilty alike against any manner of high-handedness from the
authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right
of the individual in the name of order. Order is too high a price for the loss of
liberty. As Justice Holmes, again, said I think it is less evil that some criminals
should escape than that the government should play an ignoble part. It is simply not
allowed in the free society to violate a law to enforce another, especially if the law
violated is the Constitution itself.
[114]

Return of Seized Property Not Described in the Search Warrant

Turning now to the Motion for Return of Personal Documents, Vehicle and
Paraphernalia, the general rule is that only the personal properties particularly
described in the search warrant may be seized by the authorities. Thus,
in Tambasen v. People, this Court held:
[115]

Moreover, by their seizure of articles not described in the search warrant, the police
acted beyond the parameters of their authority under the search warrant. Section 2,
Article III of the 1987 Constitution requires that a search warrant should particularly
describe the things to be seized. The evident purpose and intent of the
requirement is to limit the things to be seized to those, and only those,
particularly described in the search warrant to leave the officers of the law
with no discretion regarding what articles they should seize, to the end that
unreasonable searches and seizures may not be made and that abuses may not be
committed (Corro v. Lising, 137 SCRA 541, 547 [1985]; Bache & Co. [Phil.], Inc. v.
Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]).
(Emphasis supplied)
[116]

There are, however, several well-recognized exceptions to the foregoing

rule. Thus, evidence obtained through a warrantless search and seizure may
be admissible under the following circumstances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of
customs laws; (4) seizure of evidence in plain view; and (5) when the accused
himself waives his right against unreasonable searches and seizures.
[117]

To be valid, therefore, the seizure of the items enumerated in appellants

Motion for Return of Personal Documents, Vehicle and Paraphernalia must fall
within the ambit of Search Warrant No. 99-0038 or under any of the foregoing
recognized exceptions to the search warrant requirement.
In this regard, the raiding team sought to justify the seizure of the car, the
Fifty Two Thousand Seven Hundred Sixty Pesos (P52,760.00) in different
denominations, and the Twenty Five Thousand Chinese Yuan (CY25,000.00)
as either proceeds of the offense or means of committing an offense within
the purview of the warrant. Thus PO2 Abulencia testified:
Q

And how about the money, Mr. witness? Why did you confiscate the money?

Its considered as proceed of the crime, sir.

How about the vehicle, Mr. witness? Why did you took (sic) custody of the vehicle
when it was not listed in the search warrant?

This is part and parcel of the evidence, sir. Because its being used in transporting
drugs, sir.[118]

Similarly, with respect to the car, SPO1 Fernandez stated:

Q

This vehicle, Toyota Corolla GLI with Plate No. PNU-TT-658, where was it during
the time that you. . . (unfinished)

It was parked in front of the house of Benny Go.

And you seized it?

Yes, sir.

Why?

Because during the surveillance operation we saw some known pusher riding in
that car?

Who are these drug pushers?

One of those guys is Mr. Peter Co, also a subject of our investigation.

Which (sic) you released after the arrest, after he was invited for investigation in
your office on June 14, 1999?

Yes, sir.[119]

The foregoing rationalizations are unacceptable. Admittedly, neither the

money nor the car was particularly described in the search warrant. In seizing
the said items then, the police officers were exercising their own discretion
and determining for themselves which items in appellants residence they
believed were proceeds of the crime or means of committing the
offense. This is absolutely impermissible. It bears reiterating that the purpose
of the constitutional requirement that the articles to be seized be particularly
described in the warrant is to limit the things to be seized to those, and only

those, particularly described in the search warrant to leave the officers of the
law with no discretion regarding what articles they should seize. A search
warrant is not a sweeping authority empowering a raiding party to undertake a
fishing expedition to seize and confiscate any and all kinds of evidence or
articles relating to a crime.
[120]

At the same time, the raiding team characterized the seizure of the
assorted documents, passports, bankbooks, checks, check writer, typewriter,
dry seals and stamp pads as seizure of evidence in plain view.
[121]

Under the plain view doctrine, objects falling in the plain view of an officer
who has a right to be in the position to have that view are subject to seizure
and may be presented as evidence. This Court had the opportunity to
summarize the rules governing plain view searches in the recent case
of People v. Doria, supra, to wit:
[122]

The plain view doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion
or is in a position from which he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that
the item he observes may be evidence of a crime, contraband or otherwise subject to
seizure. The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area. In the course
of such lawful intrusion, he came inadvertently across a piece of evidence
incriminating the accused. The object must be open to eye and hand and its discovery
inadvertent. (Underscoring supplied; citations omitted)
[123]

Measured against the foregoing standards, it is readily apparent that the

seizure of the passports, bankbooks, checks, typewriter, check writer, dry
seals and stamp pads and other assorted documents does not fall within the
plain view exception. The assertions of the police officers that said objects
were inadvertently seized within their plain view are mere legal conclusions
which are not supported by any clear narration of the factual circumstances
leading to their discovery. PO2 Abulencia could not even accurately describe
how the raiding team came across these items:
Q

This Box A marked as Exhibit G, in what part of the room did you recover this?

We recovered all the evidence within our plain view, sir. The evidence were
scattered in his house. I cannot remember whether Box A or Box B, but all the
evidence were within our plain view thats why we confiscated them, sir.

What do you mean by plain view?

Nakikita namin, sir. Yung kitang-kita namin.

Where in the premises of Benny Go did you see all these documents?

Ground floor and upstairs but mostly in the ground floor, on the table and on the
floor, sir.

Atty. Reyes:
This Box A marked as Exh. G contains what documents again?
A

Can I see my notes, sir?

Atty. Reyes:
Go ahead.
A

Box A contains different bundle of pieces of document, NBI and BI clearances,

Application of Chinese National, different papers, sir.

Can you remember where in particular did you recover these documents?

I cannot remember, sir.

All of these documents were recovered primarily on the ground floor and on the
second floor?

Yes, sir.

Where in particular at the second floor, there are three to four rooms there?

Sir, nandoon sa mesa lahat iyan eh don sa taas rin may mesa din doon at saka
doon naming nakuha ang ibang mga dokumento.

Is (sic) that room belongs (sic) to Jack Go?

I dont know, sir, but all these (sic) evidence were recovered from the house of
Benny Go.[124]

SPO1 Fernandezs account of how he came across the dry seals, rubber
stamps and papers is just as opaque:
Q

For how long have you been inside the house of Benny Go when you noticed
these dry seals?

I think more than an hour, I dont exactly remember the time.

But during the time you have not yet noticed the documents which you brought to
this Court, what call (sic) your attention was these dry seals first?

Well, actually the dry seals and the rubber stamps were all placed atop the table
and as well as the documents because the box where the documents were placed
are half opened. They are opened actually thats why I saw them.

So, you first saw the rubber stamps and the dry seals, is that correct? Because
they are atop the table?

Yes, sir.

And then later on you also saw the documents?

Yes, sir its beside the table.

Contained in a box half opened?

Yes, sir.

Which did you touch first, the rubber stamps, the dry seals or the documents?

I did not touch anything, I only inventoried that when the searching team were
through with what they are doing. Now, all the evidence were placed atop the
dining table, located also at the sala of the house or at the dining area. Then,
thats when I asked some of my co-members to place all those document and the
other confiscated items atop the table also.[125]

The foregoing testimonies are clearly evasive and do not establish how
the police officers became aware of the seized items which were allegedly
within their plain view.
Finally, it appears from the testimony of SPO1 Fernandez that the
supposed illegal character of the items claimed to have been seized within the
plain view of the policemen was not readily and immediately
apparent. Rather, the suspicions of the policemen appear to have been
aroused by the presence of the numerous passports and immigration
documents which they discovered in the course of their search. After they
confirmed that appellant was not operating a travel agency, they concluded
that his possession of said documents and passports was illegal even though
they could not identify the alleged law supposedly violated.
[126]

To be sure, the policemen also filed a complaint against appellant for

alleged possession of instruments or implements intended for the commission
of falsification under paragraph 2 of Article 176 of the Revised Penal Code on
the basis of dry seals and rubber stamps also found in appellants residence.

[127]

However, the illegal character of said dry seals and stamp pads cannot be
said to have been immediately apparent. For SPO1 Fernandez had to first
make an impression of the dry seal on paper before he could determine that it
purported to be the seal of the Bureau of Immigration and Deportation. The
counterfeit nature of the seals and stamps was in fact not established until
after they had been turned over to the Chinese embassy and Bureau of
Immigration and Deportation for verification. It is, therefore, incredible that
SPO1 Fernandez could make such determination from a plain view of the
items from his vantage point in the sala.
[128]

In sum, the circumstances attendant to the case at bar do not warrant the
application of the plain view doctrine to justify the seizure and retention of
the questioned seized items. The things belonging to appellant not
specifically mentioned in the warrants, like those not particularly described,
must thus be ordered returned to him.
[129]

Be that as it may, considering that the two (2) dry seals and eight (8) of the
rubber stamps have been certified to be counterfeit by the Bureau of
Immigration and Deportation, they may not be returned and are hereby
declared confiscated in favor of the State to be disposed of according to law.
Moreover, the various bankbooks and passports not belonging to appellant
may not be ordered returned in the instant proceedings. The legality of a
seizure can be contested only by the party whose rights have been impaired
thereby, and the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties.
[130]

[131]

[132]

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch

41, convicting appellant Benny Go of violation of Section 16, Article III in
relation to Section 2 (e-2) Article I of Republic Act No. 6425, as amended, is
REVERSED and SET ASIDE.
Appellant Benny Go is ACQUITTED of the crime charged and is hereby
ordered immediately RELEASED from confinement, unless he is lawfully held
in custody for another cause.
The Director of the Bureau of Corrections is ORDERED to forthwith
IMPLEMENT this Decision and to INFORM this Court, within ten (10) days
from receipt hereof, of the date appellant was actually released from
confinement.
Appellants Motion For Return of Personal Documents, Vehicle and
Paraphernalia is GRANTED IN PART, and the trial court is hereby ordered to
return to him those items seized from the subject premises which belong to
him as listed in said Motion.
The subject shabu is ORDERED forfeited in favor of the State and the trial
court is hereby directed to deliver and/or cause its delivery to the Dangerous
Drugs Board for proper disposition.
The two (2) dry seals and eight (8) of the rubber stamps certified to be
counterfeit by the Bureau of Immigration and Deportation are likewise
ORDERED forfeited in favor of the State for proper disposition.
SO ORDERED.
EN BANC
G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.

EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848

April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS,Respondents.
x---------------------------------x
G.R. No. 169881

April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further

assert that on October 5, 2005, a group they participated in marched to Malacaang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them. 4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.
(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.
Sec. 4. Permit when required and when not required. A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.
Sec. 5. Application requirements. All applications for a permit shall comply with the following
guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twentyfour hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;

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(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the
permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision

of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,
bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by
the use of a motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by
imprisonment of one day to thirty days.
Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.
Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.
Sec. 18. Effectivity. This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.
The Presidents call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and
therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming
that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the
Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too
comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events
require instant public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the

Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity;Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assemblys time, place and manner of conduct. It entails traffic rerouting to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rallys program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place
and manner of holding public assemblies and the law passes the test for such regulation,
namely, these regulations need only a substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test." 10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it
a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to
deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)
and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response
(CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing
developments.
Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already
upheld the right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the peoples exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost

discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to
assembly and petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of wellordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to nonpeaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of
man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is
not the only purpose that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the proposed march and rally starting from a public park that is the
Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee, was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in
the excesses of unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of
what mayprobably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public place is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."
xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If
it were a private place, only the consent of the owner or the one entitled to its legal
possession is required. Such application should be filed well ahead in time to enable the
public official concerned to appraise whether there may be valid objections to the grant of the
permit or to its grant but at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if
so minded, they can have recourse to the proper judicial authority. Free speech and
peaceable assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -even more so than on the other departments rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitiously termed by
Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights, enjoying as
they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing

B.P. No. 880

(G.R. No. L-65366, November 9, 1983,

Sec. 4. Permit when required and when not

required.-- A written permit shall be required
for any person or persons to organize and
hold a public assembly in a public place.
However, no permit shall be required if the
public assembly shall be done or made in a
freedom park duly established by law or
ordinance or in private property, in which
case only the consent of the owner or the
one entitled to its legal possession is
required, or in the campus of a
government-owned and operated
educational institution which shall be
subject to the rules and regulations of said
educational institution. Political meetings or
rallies held during any election campaign
period as provided for by law are not
covered by this Act.

125 SCRA 553, 569)

8. By way of a summary. The applicants for
a permit to hold an assembly should inform
the licensing authority of the date, the
public placewhere and the time when it will
take place. If it were a private place, only
the consent of the owner or the one entitled
to its legal possession is required. Such
application should be filed well ahead in
time to enable the public official concerned
to appraise whether there may be valid
objections to the grant of the permit or to its
grant but at another public place. It is an
indispensable condition to such refusal or
modification that the clear and present
danger test be the standard for the decision
reached. If he is of the view that there is
such an imminent and grave danger of a
substantive evil, the applicants must be

Sec. 5. Application requirements.-- All

applications for a permit shall comply with

heard on the matter. Thereafter, his

decision, whether favorable or adverse,
must be transmitted to them at the earliest
opportunity. Thus if so minded, they can
have recourse to the proper judicial
authority.

the following guidelines:

(a) The applications shall be in
writing and shall include the names
of the leaders or organizers; the
purpose of such public assembly;
the date, time and duration thereof,
and place or streets to be used for
the intended activity; and the
probable number of persons
participating, the transport and the
public address systems to be used.
(b) The application shall incorporate
the duty and responsibility of
applicant under Section 8 hereof.
(c) The application shall be filed
with the office of the mayor of the
city or municipality in whose
jurisdiction the intended activity is to
be held, at least five (5) working
days before the scheduled public
assembly.
(d) Upon receipt of the application,
which must be duly acknowledged
in writing, the office of the city or
municipal mayor shall cause the
same to immediately be posted at a
conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the
application.
(a) It shall be the duty of the mayor
or any official acting in his behalf to
issue or grant a permit unless there
is clear and convincing evidence
that the public assembly will create
a clear and present danger to public
order, public safety, public
convenience, public morals or
public health.
(b) The mayor or any official acting
in his behalf shall act on the

application within two (2) working

days from the date the application
was filed, failing which, the permit
shall be deemed granted. Should
for any reason the mayor or any
official acting in his behalf refuse to
accept the application for a permit,
said application shall be posted by
the applicant on the premises of the
office of the mayor and shall be
deemed to have been filed.
(c) If the mayor is of the view that
there is imminent and grave danger
of a substantive evil warranting the
denial or modification of the permit,
he shall immediately inform the
applicant who must be heard on the
matter.
(d) The action on the permit shall be
in writing and served on the
applica[nt] within twenty-four hours.
(e) If the mayor or any official acting
in his behalf denies the application
or modifies the terms thereof in his
permit, the applicant may contest
the decision in an appropriate court
of law.
(f) In case suit is brought before the
Metropolitan Trial Court, the
Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional
Trial Court, or the Intermediate
Appellate Court, its decisions may
be appealed to the appropriate
court within forty-eight (48) hours
after receipt of the same. No appeal
bond and record on appeal shall be
required. A decision granting such
permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this
section shall be decided within
twenty-four (24) hours from date of

filing. Cases filed hereunder shall

be immediately endorsed to the
executive judge for disposition or, in
his absence, to the next in rank.
(h) In all cases, any decision may
be appealed to the Supreme Court.
(i) Telegraphic appeals to be
followed by formal appeals are
hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to
in Osmea v. Comelec,20where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22that would use public places. The reference to "lawful cause" does not make it contentbased because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and

respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it,
thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common
interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the
creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any
time:
Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park Fuente Osmea.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the laws system of
regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the
legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the

dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:
Sec. 3. Definition of terms. For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:
1avvphil.net

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
toheightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayors office to allow
proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.
No costs.

SO ORDERED.

G.R. No. 40512, People v. Tayag and Morales, 59

Phil. 606
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 3, 1934
G.R. No. 40512
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
PERFECTO TAYAG and ATANASIO MORALES, defendantsappellants.
Cirilo Lim for appellants.
Acting Solicitor-General Pea for appellee.
DIAZ, J.:
The defendants and appellants Perfecto Tayag and Atanasio Morales
were convicted of attempted robbery in an inhabited house, located
at No. 325-A San Marcelino Street, Manila, having, on the night of
September 12, 1933, attempted to enter the said house with intent
to rob, according to the allegations of the information, by means of
force and by using a bolo and a screw driver to force one of the
doors thereof, which were then closed and barred.
The court, which tried the case against the said two appellants,
imposed upon Perfecto Tayag, the penalty of four years and two
months of prision correccional plus the additional penalty of six
years and two months of prision correccional plus also an additional
penalty of ten years, he being likewise a habitual delinquent with a

greater number of former convictions. From this sentence, the

defendants appealed.
The facts disclosed by the evidence of the prosecution, which are
certainly overwhelming and leave no room for doubt, are: that a
little after two o'clock on the morning of September 12, 1933, the
said two appellants, armed with a bolo and a screw driver, went to
Juan Nicasio Go Cuay's store, which also served as his dwelling,
located, as aforestated, at No. 325-A San Marcelino Street, of the
City of Manila. Believing that they were unnoticed, they proceeded
to open one of the doors of the said store with the tools bolo and
screw driver which they then carried and which, of course, were
not the proper means for that purpose. After they had succeeded in
loosening one of the bars of the door and upon becoming aware that
the inhabitants of the store had been awakened, they tried to
escape but policemen A. Santos, J. Rubic and G. Malap, who up to
that time had been watching them, detained and placed them under
arrest. The said policemen found the bolo, Exhibit A, in the
possession of the appellant Perfecto Tayag, and the screw driver,
Exhibit B, in the possession of the other appellant Atanasio Morales.
In the store of said Juan Nicasio Go Cuay there were, at that time, a
little more than P40 in cash, which represented the proceeds of his
sales the day before, and merchandise valued at around P1,000.
However, there is absolutely nothing of record to show that the said
appellants' intention on that occasion was to commit robbery, or
that they somehow knew that they would find money amounting to
P40 therein. In every criminal proceeding, the guilt of the accused
must be proven by means of competent and conclusive evidence
and should never be based on mere inferences, however reasonable
these may be, particularly when there still remains, as in this case, a
sufficient indication of the existence of an intention different from
that of committing robbery. It would be arbitrary, not to say absurd,
to suppose that had the appellants succeeded in entering the store

of said Juan Nicasio Go Cuay, they would have carried away all the
goods therein, because they would not have been able to do so by
themselves, not having any vehicle at their disposal.
The act committed by the appellants simply constitutes the crime of
attempted trespass to dwelling, as defined in article 280, paragraph
2, of the Revised Penal Code, that is, trespass committed by means
of violence. (Decision of the Supreme Court of Spain of February 8,
1899, Viada, Fourth Supplement, p. 399; Decision of the Supreme
Court of Spain of December 10, 1900, Id., p. 401; Decision of the
Supreme Court of Spain of April 5, 1890, Hidalgo, Penal Code, vol. 2,
p. 512.)
The documentary evidence presented by the prosecution, consisting
of Exhibits C, D and E, which are the records of criminal cases No.
38880, 38924 and 38923, does not show that the appellants are
habitual delinquents. The most that the said documents disclose is
that at about the same time, the appellants committed the crimes of
theft with which they were charged therein, and therefore the 10th
aggravating circumstance, that is, previous convictions, should be
taken into consideration against them. The aggravating
circumstance of nocturnity should likewise be considered against the
said appellants.
Wherefore, and taking into consideration that the penalty lower by
two degrees than that prescribed for trespass to dwelling by means
of violence in article 280, paragraph 2, of the Revised Penal
Code is arresto mayor in its minimum and medium periods (from
one month and one day to four months), the penalty imposed upon
the appellants is hereby modified by sentencing them, each to three
months and one day of arresto mayor, with the corresponding
accessory penalties, and to pay the proportionate part of the costs
of both instances, without prejudice to their being credited with onehalf of the time during which they have undergone preventive

imprisonment, in accordance with article 29 of the Revised Penal

Code. So ordered.

G.R. No. 13785, U.S. v. Adiao, 38 Phil.

754
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
October 8, 1918
G.R. No. 13785
THE UNITED STATES, plaintiff-appellee,
vs.
TOMAS ADIAO, defendant-appellant.
Victoriano Yamzon for appellant.
Attorney-General Paredes for appellee.
MALCOLM, J.:
The defendant was charged in the Municipal Court of the city of
Manila with the crime of theft. He was found guilty of the lesser
crime of frustrated theft. He appealed to the Court of First Instance
of the city of Manila and again he was found guilty of the crime of
frustrated theft, and was sentenced to pay a fine of P100, with
subsidiary imprisonment in case of insolvency, and to pay the costs.
The sole error assigned on appeal is that the lower court erred in
holding that the defendant was guilty of the crime of theft as dis

closed by the facts appearing of record. We have examined the

evidence carefully and from our study are unable to say that the
proof is contrary to the findings of the lower court. Stated in one
sentence, the defendant, Tomas Adiao, a customs inspector,
abstracted a leather belt valued at P0.80, from the baggage of a
Japanese named T. Murakami, and secreted the belt in his desk in
the Custom House, where it was found by other customs employees.
Based on these facts, the Court is of the opinion that the crime can
not properly be classified as frustrated, as this word is defined in
article 3 of the Penal Code, but that since the offender performed all
of the acts of execution necessary for the accomplishment crime of
theft. The fact that the defendant was under observation during the
entire transaction and that he was unable to get the merchandise
out of the Custom House, is not decisive; all the elements of the
completed crime of theft are present. The following decisions of the
supreme court of Spain are in point:
The defendant was charged with the theft of some fruit from
the land of another. As he was in the act of taking the fruit he
was seen by a policeman, yet it did not appear that he was at
that moment caught by the policeman but sometime later. The
court said: ". . . The trial court did not err . . . in considering the
crime as that of consummated theft instead of frustrated theft
inasmuch as nothing appears in the record showing that the
policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him
from taking full possession of the thing stolen and even its
utilization by him for an interval of time. (Decision of the
supreme court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter
was hearing mass in a church. The latter on account of the
solemnity of the act, although noticing the theft, did not do anything

to prevent it. Subsequently, however, while the defendant was still

inside the church, the offended party got back the money from the
defendant. The court said that the defendant had performed all the
acts of execution and considered the theft as consummated.
(Decision of the supreme court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by
means of a key opened up a case, and from the case took a small
box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then placed the
money over the cover of the case; just at this moment he was
caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: " . . .
The accused . . . having materially taken possession of the money
from the moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the same,
he executed all the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing having
been frustrated, which, however, does not go to make the elements
of the consummated crime. (Decision of the supreme court of Spain,
June 13, 1882.)
There exists the aggravating circumstance that advantage was
taken by the offender of his public position. Wherefore, in view of
the provisions of articles 517 and 518, No. 5, of the Penal Code, and
there being present one aggravating circumstance compensated by
no mitigating circumstances, the penalty must be imposed in the
maximum degree.
Judgment is reversed and the defendant and appellant is sentenced
to three months and one day of arresto mayor, with the costs of all
instances against him. The merchandise in question, attached to the
record as Exhibit A, shall be returned to the lawful owner, T.
Murakami. So ordered.

G.R. No. 135682

March 26, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANILO REYES y BATAC, accused-appellant.
YNARES-SANTIAGO, J.:
This is an appeal from the Decision1 of the Regional Trial Court of Malabon, Metro Manila, Branch
72, in Criminal Case No. 18548-MN finding accused-appellant Danilo Reyes guilty beyond
reasonable doubt of the crime of Robbery with Homicide, and sentencing him to suffer the penalty
of Reclusion Perpetua with all the accessory penalties and to pay the father of the victim the amount
of P50,000.00 as death indemnity, P50,000.00 as moral damages and P47,000.00 as actual
damages.
The amended information charged accused-appellant and accused Arnel Cergantes y Hadegero
with Robbery with Homicide committed as follows:
That on or about the 12th day of October 1997, in the Municipality of Navotas, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with intent to gain and by means
of force, violence and intimidation employed upon the person of one DONALDO SALMORIN,
JR. Y SOLIS did then and there willfully, unlawfully and feloniously take, rob and carry away
one (1) gold necklace, one (1) gold ring, one wristwatch, all of an undetermined value, and a
wallet containing unspecified amount of cash owned by and belonging to DONALDO
SALMORIN, JR. Y SOLIS to the damage and prejudice of the latter, and that on the occasion
of or by reason of the said robbery the said accused, conspiring with one another, did then
and there willfully, unlawfully and feloniously, attack, assault, stab with a bladed weapon, the
said DONALDO SALMORIN, JR. inflicting upon him serious physical injuries which directly
caused his death.
CONTRARY TO LAW.2
Accused-appellant was the only one arrested and, when arraigned, he entered a plea of not guilty.
Thereafter, trial ensued.
The evidence for the prosecution established the following facts:
On October 12, 1997, at 2:00 a.m., PO1 Eduardo C. Molato of Station 4, Western Police District,
Sampaloc, Manila was on his way home on board a passenger jeepney. When he alighted at the
corner of Lapu-lapu Street and Northbay Boulevard South he saw the victim being held up by two
persons. The one in front of the victim forcibly took his wristwatch while the other one stabbed him at
the back. He fired one warning shot which caused the three to run towards Phase I, Lapu-lapu
Avenue. He chased them but when he saw the victim, he hailed a tricycle and asked the driver to
bring the victim to the nearest hospital. He continued chasing the suspects up to Phase II until he
reached Agora, but the suspects were gone. The incident happened swiftly but PO1 Molato had a

good look at the face of the one who stabbed the victim as he was about 8 to 10 meters away from
them.
Accused-appellant denies the charge against him and insists that he was merely mistaken for
accused Arnel Cergontes who had the same protruding lips as he had and with whom he shares a
common alias as "Buboy Nguso." He recalled that on October 12, 1997, he was sleeping in his
house. He left only at 7:30 in the morning and went to the house of his uncle Dabong to ask for
money. On October 16, 1997 at around 7:30 in the morning, police authorities came to Antorium St.
looking for "Buboy Nguso." To his surprise, the policemen, without saying anything, handcuffed him
and brought him to the Lapu-lapu detachment. Thereafter he was brought to Navotas Police station
for further investigation. He claims that he was arrested for possession of a deadly weapon in
violation of B.P. Blg. 6 and not in connection with the robbery-homicide case.
After trial, the lower court rendered a judgment of conviction which reads:
WHEREFORE, premises considered, judgment is hereby rendered finding accused Danilo
Reyes y Batac guilty beyond reasonable doubt of the crime of Robbery with Homicide
defined and penalized under Article 294, Paragraph 1, of the Revised Penal Code, as
amended by RA 7659. Considering that no mitigating nor aggravating circumstance attended
the commission of the crime nor alleged in the amended information, said accused is hereby
sentenced to the prison term of reclusion perpetua, together with all the accessory penalties
thereof.
Accused Reyes is also condemned to pay the father of the victim the total amount of
P147,000.00 broken as follows: 1) P50,000.00 for the loss of the victims life, 2) P50,000.00
by way of moral damages for the pain and sorrow suffered by the victims family, and 3)
P47,000.00 by way of actual expenses incurred in connection with the death and burial of
the victim. No pronouncement on the claim for lost valuables and income can be made in
view of the failure to substantiate the same.
Let a copy of this Decision be furnished the PNP Director General and the Director of the
WPD so that the superiors of PO1 Eduardo Molato will know that in connection with this
case, said policeman while already off-duty responded to the commission of a crime,
extended assistance to the victim thereof, tried to arrest the malefactors and cooperated with
the authorities concerned in the prosecution of this case in a manner that can only be
described as a laudable display of civic duty brought about by his orientation as a policeman
and for which PO1 Molato is hereby commended.
SO ORDERED.3
Hence, this appeal based on the following assigned errors:
I
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED NOTWITHSTANDING THE FACT
THAT HIS GUILT HAD NOT BEEN ESTABLISHED BEYOND REASONABLE DOUBT.
II

THE COURT A QUO ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONY AND
IDENTIFICATION MADE BY PO1 EDUARDO C. MOLATO.
Accused-appellant argued that his guilt was not established beyond reasonable doubt for failure of
the prosecution to prove the essential requisites of the crime charged. According to him, the vital
element of animus lucrandi was not sufficiently established as the taking of the watch could have
been a mere afterthought and the real intent of the malefactors was to inflict injuries upon the victim.
Moreover, there was no evidence of ownership of the wristwatch, as it may have belonged to the two
persons who attacked the victim. Lastly, there was no evidence of conspiracy.
The arguments fail to persuade us.
A conviction for robbery with homicide requires proof of the following elements: (a) the taking of
personal property with violence or intimidation against persons or with force upon things; (b) the
property taken belongs to another; (c) the taking be done with animus lucrandi (intent to gain); and
(d) on the occasion of the robbery or by reason thereof, homicide in its generic sense was
committed. The offense becomes a special complex crime of robbery with homicide under Article
294 (1) of Revised Penal Code if the victim is killed on the occasion or by reason of the robbery.4
After reviewing the evidence on record of this case, we find that the facts established a clear-cut
case of robbery with homicide. Great respect is accorded to the factual findings of the trial court. The
trial judge had the best opportunity to observe the behavior and demeanor of the witnesses. It
formed first-hand judgment as to whether particular witnesses were telling the truth or not. Thus,
absent misapprehension or misinterpretation of facts of weight and substance, and absent any
arbitrariness or irregularity, we will not overturn its findings.5
Accused-appellants contention that the animus lucrandi was not sufficiently established by the
prosecution is devoid of merit. Animus lucrandi or intent to gain is an internal act which can be
established through the overt acts of the offender. Although proof of motive for the crime is essential
when the evidence of the robbery is circumstantial, intent to gain or animus lucrandi may be
presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. The intent to gain may be
presumed from the proven unlawful taking.6 In the case at bar, the act of taking the victims
wristwatch by one of the accused Cergontes while accused-appellant Reyes poked a knife behind
him sufficiently gave rise to the presumption.
Accused-appellant also contends that the ownership of the wristwatch was not proved by the
prosecution. He argues that the attackers probably owned the wristwatch and the reason they
attacked the victim was to retrieve it.
Accused-appellants contention deserves no merit. The detailed narration of how the victim was
forcibly divested of the wristwatch by accused Cergontes and stabbed at the back by accusedappellant cannot be taken lightly on the argument that the attackers owned the wristwatch and they
attacked the victim solely on their desire to retrieve it. Clearly, this contention is a mere conjecture
and has no basis on record. In any event, in robbery by the taking of property through intimidation or
violence, it is not necessary that the person unlawfully divested of the personal property be the
owner thereof. Article 293 of the Revised Penal Code employs the phrase "belonging to another"
and this has been interpreted to merely require that the property taken does not belong to the
offender. Actual possession of the property by the person dispossessed thereof suffices. In fact, it

has been held that robbery may be committed against a bailee or a person who himself has stolen it.
So long as there is apoderamiento of personal property from another against the latters will through
violence or intimidation, with animo de lucro, robbery is the offense imputable to the offender. If the
victim is killed on the occasion or by reason of the robbery, the offense is converted into the
composite crime of robbery with homicide.7
Likewise unavailing is the contention of accused-appellant that the prosecution failed to prove
conspiracy. In conspiracy, proof of an actual planning of the perpetration of the crime is not a
condition precedent. It may be deduced from the mode and manner in which the offense was
committed or inferred from the acts of the accused evincing a joint or common purpose and design,
concerted action and community of interest.8
In the case at bar, conspiracy was clearly manifested in the concerted efforts of the accusedappellant and his cohort. They were seen together by PO1 Molato at the unholy hour of 2:50 a.m.
forcibly taking the wristwatch of the victim and thereafter stabbing him at the back. Their
simultaneous acts indicate a joint purpose, concerted action and concurrence of sentiments. Where
the acts of the accused collectively and individually demonstrate the existence of a common design
towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the
perpetrators will be liable as principals.9
Accused-appellant faults the trial court for relying on the improbable testimony of PO1 Molato who
testified that the victim upon seeing him ran away towards the direction where the two assailants
also ran. It is well-settled that different people react differently to a given situation or type of situation,
and there is no standard form of human behavioral response where one is confronted with a strange
or startling or frightful experience.10 The firing of the warning shot may have frightened the victim and
made him act the way he did, especially since PO1 Molato did not identify himself as a police officer
before he fired the warning shot.
In a last ditch effort to obtain his acquittal, accused-appellant contends that PO1 Molatos testimony
was inconsistent because while he initially testified that he boarded the victim on a tricycle and
proceeded to chase the two assailants, he later said that upon reaching Agora he saw the victim
lying down and sought help from the people around and that no one aided him so he decided to wait
for the police. Moreover, despite the presence of bystanders no one was investigated and eventually
presented in court in order to corroborate his testimony.
We find the inconsistencies to be too trivial as to affect the credibility of PO1 Molato. Slight
contradictions such as these even serve to strengthen the credibility of the witnesses and prove that
their testimonies are not rehearsed nor perjured. What is important is the fact that there is a
sustained consistency in relating the principal elements of the crime and the positive and categorical
identification of accused-appellants as the perpetrators of the crime. 11
Furthermore, the non-presentation of other witnesses to corroborate the testimony of PO1 Molato is
of no consequence. The matter of deciding whom to present as witness for the prosecution is not for
the accused or for the trial court to decide, as it is the prerogative of the prosecutor. More
importantly, the testimony of PO1 Molato is sufficient to convict accused-appellant. Courts are not
precluded from rendering judgment based on the testimony even of a single witness. The weight and
sufficiency of evidence is determined not by the number of the witnesses presented but by the
credibility, nature, and quality of the testimony.12

As correctly held by the trial court, accused-appellants defense of alibi and denial cannot prevail
over the clear, positive and convincing testimony of PO1 Molato. In the light of the positive
identification of accused-appellant as one of the assailants, his denial and alibi cannot be sustained.
The positive identification of the accused, when categorical and consistent and without any ill motive
on the part of the eyewitness testifying on the matter, prevails over alibi and denial. Unless
substantiated by clear and convincing proof, such defenses are negative, self-serving, and
undeserving of any weight in law.13
As regards accused-appellants civil liability, the trial courts award of P50,000.00 as death indemnity
to the father of the victim Donaldo Salmoren, Jr. and P50,000.00 as moral damages are in accord
with current jurisprudence. 14The award of actual damages in the amount of P47,000.00 should
likewise be upheld, in view of the defenses admission as to the claim for actual damages. 15
WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Malabon, Metro
Manila, Branch 72, in Criminal Case No. 18548-MN, finding Danilo Reyes y Batac guilty beyond
reasonable doubt of the crime of Robbery with Homicide and sentencing him to suffer the penalty
of Reclusion perpetua with all the accessory penalties and to pay the heirs of the victim the amount
of P50,000.00 as death indemnity, P50,000.00 as moral damages and P47,000.00 as actual
damages, is AFFIRMED in toto.
SO ORDERED.

[G.R. No. 137567. June 20, 2000]

MEYNARDO L. BELTRAN, petitioner, vs. PEOPLE OF THE PHILIPPINES,
and HON. JUDGE FLORENTINO TUAZON, JR., being the Judge of the
RTC, Branch 139, Makati City, respondents.
DECISION
BUENA, J.:
This petition for review, filed under Rule 45 of the 1997 Rules of Civil
Procedure, seeks to review and set aside the Order dated January 28, 1999
issued by Judge Florentino A. Tuazon, Jr. of the Regional Trial Court of Makati
City, Branch 139 in Special Civil Case No. 98-3056, entitled "Meynardo
Beltran vs. People of the Philippines and Hon. Judge Alden Cervantes of the
Metropolitan Trial Court of Makati city, Branch 61." The said Order denied
petitioners prayer for the issuance of a writ of preliminary injunction to enjoin
Judge Cervantes from proceeding with the trial of Criminal Case No. 236176,
a concubinage case against petitioner on the ground that the pending petition
for declaration of nullity of marriage filed by petitioner against his wife
constitutes a prejudicial question.

The antecedent facts of the case are undisputed:

Petitioner Meynardo Beltran and wife Charmaine E. Felix were married on
June 16, 1973 at the Immaculate Concepcion Parish Church in Cubao,
Quezon City.
[1]

On February 7, 1997, after twenty-four years of marriage and four children,

petitioner filed a petition for nullity of marriage on the ground of
psychological incapacity under Article 36 of the Family Code before Branch 87
of the Regional Trial Court of Quezon City. The case was docketed as Civil
Case No. Q-97-30192.
[2]

[3]

In her Answer to the said petition, petitioner's wife Charmaine Felix alleged
that it was petitioner whoabandoned the conjugal home and lived with a
certain woman named Milagros Salting. Charmaine subsequently filed a
criminal complaint for concubinage under Article 334 of the Revised Penal
Code against petitioner and his paramour before the City Prosecutor's Office
of Makati who, in a Resolution dated September 16, 1997, found probable
cause and ordered the filing of an Information against them. The case,
docketed as Criminal Case No. 236176, was filed before the Metropolitan Trial
Court of Makati City, Branch 61.
[4]

[5]

[6]

On March 20, 1998, petitioner, in order to forestall the issuance of a warrant

for his arrest, filed a Motion to Defer Proceedings Including the Issuance of
the Warrant of Arrest in the criminal case. Petitioner argued that the pendency
of the civil case for declaration of nullity of his marriage posed a prejudicial
question to the determination of the criminal case. Judge Alden Vasquez
Cervantes denied the foregoing motion in the Order dated August 31, 1998.
Petitioner's motion for reconsideration of the said Order of denial was likewise
denied in an Order dated December 9, 1998.
[7]

In view of the denial of his motion to defer the proceedings in the concubinage
case, petitioner went to the Regional Trial Court of Makati City, Branch 139
on certiorari, questioning the Orders dated August 31, 1998 and December 9,
1998 issued by Judge Cervantes and praying for the issuance of a writ of
preliminary injunction. In an Order dated January 28, 1999, the Regional
Trial Court of Makati denied the petition for certiorari. Said Court subsequently
issued another Order dated February 23, 1999, denying his motion for
reconsideration of the dismissal of his petition.
[8]

[10]

[9]

Undaunted, petitioner filed the instant petition for review.

Petitioner contends that the pendency of the petition for declaration of nullity
of his marriage based on psychological incapacity under Article 36 of the
Family Code is a prejudicial question that should merit the suspension of the
criminal case for concubinage filed against him by his wife.
Petitioner also contends that there is a possibility that two conflicting decisions
might result from the civil case for annulment of marriage and the criminal
case for concubinage. In the civil case, the trial court might declare the
marriage as valid by dismissing petitioner's complaint but in the criminal case,
the trial court might acquit petitioner because the evidence shows that his
marriage is void on ground of psychological incapacity. Petitioner submits that
the possible conflict of the courts' ruling regarding petitioner's marriage can be
avoided, if the criminal case will be suspended, until the court rules on the
validity of marriage; that if petitioner's marriage is declared void by reason of
psychological incapacity then by reason of the arguments submitted in the
subject petition, his marriage has never existed; and that, accordingly,
petitioner could not be convicted in the criminal case because he was never
before a married man.
Petitioner's contentions are untenable.
The rationale behind the principle of prejudicial question is to avoid two
conflicting decisions. It has two essential elements: (a) the civil action involves
an issue similar or intimately related to the issue raised in the criminal action;
and (b) the resolution of such issue determines whether or not the criminal
action may proceed.
[11]

The pendency of the case for declaration of nullity of petitioner's marriage is

not a prejudicial question to the concubinage case. For a civil case to be
considered prejudicial to a criminal action as to cause the suspension of the
latter pending the final determination of the civil case, it must appear not only
that the said civil case involves the same facts upon which the criminal
prosecution would be based, but also that in the resolution of the issue or
issues raised in the aforesaid civil action, the guilt or innocence of the
accused would necessarily be determined.
Article 40 of the Family Code provides:

"The absolute nullity of a previous marriage may be invoked for

purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void."
In Domingo vs. Court of Appeals, this Court ruled that the import of said
provision is that for purposes of remarriage, the only legally acceptable basis
for declaring a previous marriage an absolute nullity is a final judgment
declaring such previous marriage void, whereas, for purposes of other than
remarriage, other evidence is acceptable. The pertinent portions of said
Decision read:
[12]

"xxx Undoubtedly, one can conceive of other instances where a

party might well invoke the absolute nullity of a previous marriage
for purposes other than remarriage, such as in case of an action
for liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the
custody and support of their common children and the delivery of
the latters' presumptive legitimes. In such cases, evidence needs
must be adduced, testimonial or documentary, to prove the
existence of grounds rendering such a previous marriage an
absolute nullity. These needs not be limited solely to an earlier
final judgment of a court declaring such previous marriage void."
So that in a case for concubinage, the accused, like the herein petitioner need
not present a final judgment declaring his marriage void for he can adduce
evidence in the criminal case of the nullity of his marriage other than proof of a
final judgment declaring his marriage void.
With regard to petitioner's argument that he could be acquitted of the charge
of concubinage should his marriage be declared null and void, suffice it to
state that even a subsequent pronouncement that his marriage is void from
the beginning is not a defense.
Analogous to this case is that of Landicho vs. Reloval cited in Donato vs.
Luna where this Court held that:
[13]

[14]

"xxx Assuming that the first marriage was null and void on the
ground alleged by petitioner, that fact would not be material to the
outcome of the criminal case. Parties to the marriage should not
be permitted to judge for themselves its nullity, for the same must

be submitted to the judgment of the competent courts and only

when the nullity of the marriage is so declared can it be held as
void, and so long as there is no such declaration the presumption
is that the marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for bigamy."
Thus, in the case at bar it must also be held that parties to the marriage
should not be permitted to judge for themselves its nullity, for the same must
be submitted to judgment of the competent courts and only when the nullity of
the marriage is so declared can it be held as void, and so long as there is no
such declaration the presumption is that the marriage exists for all intents and
purposes. Therefore, he who cohabits with a woman not his wife before the
judicial declaration of nullity of the marriage assumes the risk of being
prosecuted for concubinage. The lower court therefore, has not erred in
affirming the Orders of the judge of the Metropolitan Trial Court ruling that
pendency of a civil action for nullity of marriage does not pose a prejudicial
question in a criminal case for concubinage.
WHEREFORE, for lack of merit, the instant petition is DISMISSED.
SO ORDERED.
G.R. No. 106671

March 30, 2000

HARRY TANZO, petitioner,

vs.
HON. FRANKLIN M. DRILON, in his capacity as Secretary of Justice, MANUEL J. SALAZAR
and MARIO J. SALAZAR, respondents.
DE LEON, JR., J.:
Before us is a special civil action for certiorari under Rule 65 of the Rules of Court seeking to annul
and set aside the April 10, 1992 Resolution of public respondent Secretary of Justice, as well as the
latter's August 6, 1992 Resolution denying the petitioner's motion for reconsideration. The assailed
Resolutions upheld the Quezon City Prosecutor's dismissal of the criminal complaint for estafa filed
by petitioner Harry Tanzo against private respondents Manuel and Mario Salazar.
The facts are:
Private respondents are brothers who were engaged in the business of forwarding and transporting
"balikbayan" boxes from California, U.S.A to Metro Manila, Philippines. Manuel J. Salazar
(hereinafter "Manuel") managed the Philippine side via MANSAL Forwarders, a business registered
in his name with principal office at No. 48 Scout Tobias Street, Quezon City. On the other hand,

Mario J. Salazar (hereinafter "Mario") handled the U.S. side of the forwarding business as General
Manager of M.J.S. International, Inc., a corporation with principal office at No. 3400 Fletcher Drive,
Los Angeles, California, U.S.A.
According to the petitioner, sometime in February of 1989, while he was in Los Angeles, California,
U.S.A. Mario tried to convince him to invest some money in the said business. Mario had allegedly
represented that petitioner's money will be held in trust and administered by both him and his brother
for the exclusive use of their forwarding and transporting business. Petitioner further alleged that
Mario promised him a return on his investment equivalent to ten per centum (10%) for one month, at
the end of which, his money plus interest earned shall be returned to him.
When petitioner returned to the Philippines, it was Manuel's turn to persuade him to part with his
money under the said investment scheme. Eventually convinced by the private respondents'
representations and assurances, petitioner agreed to invest the total amount of US $34,000.00
which he entrusted to his aunt, Liwayway Dee Tanzo, who was residing in the U.S.A. Thus, petitioner
issued several personal checks made out to Liwayway Dee Tanzo, 1 or to "Calfed"2, or payable to
cash3, to wit:
California Federal
Savings and Loan Asso.
Check Numbers Date of Check

Amount

319

August 04, 1989

US$5,000.00

320

August 09, 1989

9,000.00

321

August 09, 1989

9,000.00

322

August 08, 1989

2,000.00

323

August 10, 1989

4,000.00

324

August 14, 1989

5,000.00

Total

US$34,000.00

Except for California Federal Check No. 322 which was encashed by Mario himself, private
respondents received the proceeds of the above checks through Liwayway Dee Tanzo on several
occasions in August 1989.
Meanwhile, Mario encountered serious liquidity problems5 that prompted him to petition the U.S.
Bankruptcy Court for a release from his debts on September 27, 1990. He was ordered "released
from all dischargeable debts" by the said court on January 25, 1991.6
Upon the expiration of the thirty (30) day investment period, petitioner demanded from Mario in the
States and Manuel in Quezon City proper accounting of his financial investment and/or the return of
his capital plus interest earned. At the outset, private respondents avoided their obligation to
petitioner by making various excuses but after persistent demands by the latter, Manuel finally
admitted that their shipments had encountered some problems with the Bureau of Customs. Thus,
on January 29, 1990, Manuel executed a letter authorizing the petitioner to withdraw documents to
assist in the release of their shipments from the Bureau of Customs. However, when petitioner
attempted to secure the release of the "balikbayan'" boxes from the Bureau of Customs, he
discovered that the same had actually contained smuggled goods and were accordingly seized and
forfeited in favor of the government.

When private respondents continued to ignore petitioner's demand for the return of his money, the
latter filed, on June 31, 1991, a complaint-affidavit for estafa against private respondents before the
Office of the Quezon City Prosecutor (hereinafter "prosecutor"). In a resolution dated September 4,
1991 the prosecutor dismissed the said complaint on the ground that "[t]he Quezon City Prosecutor's
Office has no territorial jurisdiction over the offense charged as it was committed not in Quezon City,
Philippines."7 Petitioner's motion for reconsideration of the said resolution was denied by the
prosecutor on the same ground.8
Petitioner then filed a petition for review of the dismissal of his complaint for estafa against private
respondents with then Secretary of Justice, Franklin M. Drilon. On April 10, 1992, Acting Secretary of
Justice, Eduardo G. Montenegro dismissed the said petition for review in a resolution which reads:
xxx

xxx

xxx

An evaluation of the records of the case disclosed that the incident complained of took place
in the United States, and under Article 2 of the Revised Penal Code, our courts have no
jurisdiction over offenses committed outside the territory of the Philippines. While the rule
allows certain exceptions, the facts do not show that the case falls within any of said
exceptions. Hence, we are convinced, and hereby hold, that there is no cogent reason to
disturb the findings of the Quezon City Prosecutor's Office in the questioned resolution.
ACCORDINGLY, your petition is dismissed for lack of merit.3
Dissatisfied, petitioner sought a reconsideration of the above resolution. However, the Secretary of
Justice denied petitioner's motion for reconsideration and stated in a resolution dated August 6, 1992
that:
xxx

xxx

xxx

After a careful analysis of the issues raised in your motion and a re-evaluation of the
evidence on record, we find no valid reason to justify a reversal of our previous resolution.
Aside from your bare allegations that there was a trust agreement between you and the
respondents, and that deceit and misappropriation which are the important elements of
estafa were committed by them in the Philippines, you did not present any concrete or
convincing evidence to support the same. On the contrary, your own evidence shows that
you transacted with Mario Salazar through your aunt. Liwayway Dee Tanzo. This bolsters the
claim of Manuel Salazar that the sums of money received by Mario from Liwayway in Los
Angeles, California, U.S.A, were simple loans as shown by the loan contracts executed by
them in the said place.
WHEREFORE, your motion for reconsideration is hereby denied.

10

Hence, this petition.

Petitioner contends that the Secretary of Justice committed grave abuse of discretion in dismissing
the criminal case for estafa against the private respondents on the ground of lack of jurisdiction as
the crime charged was actually committed in the United States. 11
At the outset, we must point out that the Secretary of Justice dismissed the criminal charges against
the respondents not only for lack of jurisdiction but also, and more importantly, because it found

petitioner's evidence insufficient to support his charge of estafa against the private respondents.
Thus the immediate issue for the determination of this Court is whether prima facie evidence exists
that the private respondents had committed the crime of estafa and should be held for trial. After all,
a finding that petitioner's complaint for estafa is not supported by that quantum of evidence
necessary to justify the filing of a criminal case in court shall render irrelevant the question of
territorial jurisdiction over the offense charged.
A judicious scrutiny of the evidence on record leads us to agree with the Secretary of Justice that the
transactions between private respondents, particularly, Mario and the petitioner, were simple loans,
and did not constitute a trust agreement, the violation of which would hold the private respondents
liable for estafa.
Petitioner failed to present evidence other than his bare assertion that he had invested money in
private respondents' business on the basis of a trust agreement. The photocopies of the checks
allegedly subject of the trust agreement did more damage than good to petitioner's proposition. None
of these checks were issued to either Mario or Manuel and were in fact payable to "Liwayway Dee
Tanzo", "Calfed" or "Cash". Moreover, only one of these checks was actually encashed by Mario, the
rest by Liwaway Dee Tanzo. On the basis of the foregoing alone, private respondents could have
completely denied the existence of their liability to petitioner as neither proof in writing nor witnesses
exist to substantiate petitioner's claim of a trust agreement between himself and the private
respondents. On the contrary, Manuel does not deny that Mario had indeed received money from the
petitioner, albeit claiming that the latter's liability thereunder is purely civil in nature for being rooted
in a simple loan contract. Manuel offered in evidence copies of the contracts of loan entered into
between M.J.S. International and Liwayway Dee Tanzo. 12 We agree with the petitioner that these
loan contracts do not by themselves prove that his agreement with the private respondents was also
a loan. As correctly pointed out by the petitioner, he is not a party to these contracts that clearly
stipulate "Liwayway Dee Tanzo" as creditor and "M.J.S. International represented by its General
Manager, Mario J. Salazar" as debtor.
These loan contracts may, however, be given evidentiary value in support of Manuel's claim that the
agreement with petitioner was no different from the loan contracts with Liwayway Dee Tanzo. Under
the rule of res inter alios acta, evidence that one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same or similar thing at another time, but it may be
received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage, and the like. 13
Elaborating thus, we have held that:
[C]ollateral facts may be received as evidence under exceptional circumstances, as when
there is a rational similarity or resemblance between the conditions giving rise to the fact
offered and the circumstances surrounding the issue or fact to be proved. Evidence of
similar acts may frequently become relevant, especially in actions based on fraud and
deceit, because it sheds light on the state of mind or knowledge of a person, it provides
insight into such person's motive or intent; it uncovers a scheme, design or plan, or it reveals
a mistake. 14 (Emphasis supplied)
The series of transactions between MJS International and Liwayway Dee Tanzo were entered into
under similar circumstances as those surrounding the contract between petitioner and Mario. Just
like the alleged trust agreement between petitioner and Mario, the loan contracts between M.J.S
International and Liwayway Dee Tanzo provide that the creditor shall lend to the debtor a specific
amount for use by the latter in its business operations. 15 Petitioner also admits that he entrusted the
checks to Liwayway Dee Tanzo for investment in private respondents' business. This shows that

private respondents were transacting directly with Liwayway Dee Tanzo in the usual manner that
they conduct business, that is the loan of money for stipulated interest. Hence, private
respondents' modus operandi, if there ever was one, in raising additional capital for M.J.S.
International was to borrow money from willing investors. It is thus unlikely, considering the scheme
of things, that private respondents would all of a sudden deviate from an established business
practice to enter into a trust agreement with the petitioner.
In view of the foregoing and the unfortunate fact that petitioner has failed to present controverting
evidence, this Court is constrained to adopt private respondents' position that the agreement
between Mario and the petitioner was in the nature of a simple loan agreement.
Therefore, petitioner's contention that private respondents have committed the crime of estafa
1. With unfaithfulness or abuse of confidence, namely:
xxx

xxx

xxx

b) By misappropriating or converting, to the prejudice of another, money, goods or any other

personal property received by the offender in trust, or on commission, or for administration, or under
any other obligation involving the duty to make delivery of, or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property; 16
necessarily fails. This Court has ruled that when the relation is purely that of debtor and creditor, the
debtor cannot be held liable for the crime of estafa, under the above quoted provision, by merely
refusing to pay or by denying the indebtedness. 17 The reason behind this rule is simple. In order that
a person can be convicted of estafa under Article 315, par. 1(b) of the Revised Penal Code, it must
be proven that he has the obligation to deliver or return the same money, goods or personal property
that he has received. The obligation to deliver exactly the same money, that is, bills or coins, is nonexistent in a simple loan of money because in the latter; the borrower acquires ownership of the
money borrowed. 18 Being the owner, the borrower can dispose of the thing borrowed and his act
will not be considered misappropriation thereof. 19
In the alternative, petitioner accuses private respondents of committing the crime of estafa under
Article 315, par. 2(a) of the Revised Penal Code which provides 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.
(a) By using a fictitious name, or falsely pretending to possess power influence, qualifications,
property, credit, agency, business or imaginary transactions; or by means of other similar deceits.
Specifically, petitioner contends that he was deceived by private respondents to pay with his money
on their representation that the same would be held in trust for investment in their legitimate freight
business only to find out later on that private respondents used his money for the illicit activity of
smuggling prohibited goods into the Philippines. 20
This contention cannot be sustained for lack of evidence. Petitioner claims that private respondents
used his money for smuggling. The fact, however, that several shipments from M.J.S. International
Freight Services to Mansal Forwarders were seized and forfeited by the Bureau of Customs for
containing smuggled items does not prove that petitioner's money was indeed used by private
1wphi1

respondents in the said illegal activity. Petitioner himself admits that he and his relatives were
regular clients of private respondents since 1988. 21 It cannot, thus, be doubted that the private
respondents were likewise engaged in a legitimate forwarding business in which business
petitioner's money could have actually been invested.
The letter issued by Manuel authorizing petitioner to withdraw documents covering the containers
that were later seized by the Bureau of Customs bears little weight in view of the fact that the same
was not even presented before the prosecutor and the Secretary of Justice. Further, as correctly
pointed out by the private respondents, it is a mere blank form that does not even indicate
petitioner's name as authorized bearer. 22
As we have explained earlier, the true nature of the contract between petitioner and private
respondents was that of a simple loan. In such a contract, the debtor promises to pay to the creditor
an equal amount of money plus interest if stipulated. 23 It is true that private respondents failed to
fulfill their promise to petitioner to return his money plus interest at the end of one month. However,
mere non-compliance of a promise to perform a thing does not constitute deceit 24 because it is hard
to determine and infer a priori the criminal intent to the person promising. 25 In other words, deceit
should be proved and established by acts distinct from and independent of, the non-compliance of
the promise, 26 and this, petitioner failed to do.
WHEREFORE, the petition is hereby DISMISSED.

1wphi1.nt

SO ORDERED.

[G.R. No. 138509. July 31, 2000]

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D.
BOBIS, respondent.
DECISION
YNARES-SANTIAGO, J.:
On October 21, 1985, respondent contracted a first marriage with one Maria
Dulce B. Javier. Without said marriage having been annulled, nullified or
terminated, the same respondent contracted a second marriage with petitioner
Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage
with a certain Julia Sally Hernandez. Based on petitioners complaint-affidavit,
an information for bigamy was filed against respondent on February 25, 1998,
which was docketed as Criminal Case No. Q98-75611 of the Regional Trial
Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a
civil action for the judicial declaration of absolute nullity of his first marriage on
the ground that it was celebrated without a marriage license. Respondent then
filed a motion to suspend the proceedings in the criminal case for bigamy
invoking the pending civil case for nullity of the first marriage as a prejudicial

question to the criminal case. The trial judge granted the motion to suspend
the criminal case in an Order dated December 29, 1998. Petitioner filed a
motion for reconsideration, but the same was denied.
[1]

Hence, this petition for review on certiorari. Petitioner argues that respondent
should have first obtained a judicial declaration of nullity of his first marriage
before entering into the second marriage, inasmuch as the alleged prejudicial
question justifying suspension of the bigamy case is no longer a legal truism
pursuant to Article 40 of the Family Code.
[2]

The issue to be resolved in this petition is whether the subsequent filing of a

civil action for declaration of nullity of a previous marriage constitutes a
prejudicial question to a criminal case for bigamy.
A prejudicial question is one which arises in a case the resolution of which is a
logical antecedent of the issue involved therein. It is a question based on a
fact distinct and separate from the crime but so intimately connected with it
that it determines the guilt or innocence of the accused. It must appear not
only that the civil case involves facts upon which the criminal action is based,
but also that the resolution of the issues raised in the civil action would
necessarily be determinative of the criminal case. Consequently, the defense
must involve an issue similar or intimately related to the same issue raised in
the criminal action and its resolution determinative of whether or not the latter
action may proceed. Its two essential elements are:
[3]

[4]

[5]

[6]

[7]

(a) the civil action involves an issue similar or intimately related to

the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or not the
criminal action may proceed.
A prejudicial question does not conclusively resolve the guilt or innocence of
the accused but simply tests the sufficiency of the allegations in the
information in order to sustain the further prosecution of the criminal case. A
party who raises a prejudicial question is deemed to have hypothetically
admitted that all the essential elements of a crime have been adequately
alleged in the information, considering that the prosecution has not yet
presented a single evidence on the indictment or may not yet have rested its
case. A challenge of the allegations in the information on the ground of

prejudicial question is in effect a question on the merits of the criminal charge

through a non-criminal suit.
Article 40 of the Family Code, which was effective at the time of celebration of
the second marriage, requires a prior judicial declaration of nullity of a
previous marriage before a party may remarry. The clear implication of this is
that it is not for the parties, particularly the accused, to determine the validity
or invalidity of the marriage. Whether or not the first marriage was void for
lack of a license is a matter of defense because there is still no judicial
declaration of its nullity at the time the second marriage was contracted. It
should be remembered that bigamy can successfully be prosecuted provided
all its elements concur two of which are a previous marriage and a
subsequent marriage which would have been valid had it not been for the
existence at the material time of the first marriage.
[8]

[9]

In the case at bar, respondents clear intent is to obtain a judicial declaration

of nullity of his first marriage and thereafter to invoke that very same judgment
to prevent his prosecution for bigamy. He cannot have his cake and eat it too.
Otherwise, all that an adventurous bigamist has to do is to disregard Article 40
of the Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that the
subsequent marriage is equally void for lack of a prior judicial declaration of
nullity of the first. A party may even enter into a marriage aware of the
absence of a requisite - usually the marriage license - and thereafter contract
a subsequent marriage without obtaining a declaration of nullity of the first on
the assumption that the first marriage is void. Such scenario would render
nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:
[10]

(P)arties to a marriage should not be permitted to judge for

themselves its nullity, only competent courts having such
authority. Prior to such declaration of nullity, the validity of the first
marriage is beyond question. A party who contracts a second
marriage then assumes the risk of being prosecuted for bigamy.
Respondent alleges that the first marriage in the case before us was void for
lack of a marriage license. Petitioner, on the other hand, argues that her
marriage to respondent was exempt from the requirement of a marriage
license. More specifically, petitioner claims that prior to their marriage, they
had already attained the age of majority and had been living together as

husband and wife for at least five years. The issue in this case is limited to
the existence of a prejudicial question, and we are not called upon to resolve
the validity of the first marriage. Be that as it may, suffice it to state that the
Civil Code, under which the first marriage was celebrated, provides that "every
intendment of law or fact leans toward the validity of marriage, the
indissolubility of the marriage bonds." Hence, parties should not be permitted
to judge for themselves the nullity of their marriage, for the same must be
submitted to the determination of competent courts. Only when the nullity of
the marriage is so declared can it be held as void, and so long as there is no
such declaration the presumption is that the marriage exists. No matter how
obvious, manifest or patent the absence of an element is, the intervention of
the courts must always be resorted to. That is why Article 40 of the Family
Code requires a "final judgment," which only the courts can render. Thus, as
ruled inLandicho v. Relova, he who contracts a second marriage before the
judicial declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy, and in such a case the criminal case may not be
suspended on the ground of the pendency of a civil case for declaration of
nullity. In a recent case for concubinage, we held that the pendency of a civil
case for declaration of nullity of marriage is not a prejudicial question. This
ruling applies here by analogy since both crimes presuppose the subsistence
of a marriage.
[11]

[12]

[13]

[14]

[15]

Ignorance of the existence of Article 40 of the Family Code cannot even be

successfully invoked as an excuse. The contracting of a marriage knowing
that the requirements of the law have not been complied with or that the
marriage is in disregard of a legal impediment is an act penalized by the
Revised Penal Code. The legality of a marriage is a matter of law and every
person is presumed to know the law. As respondent did not obtain the judicial
declaration of nullity when he entered into the second marriage, why should
he be allowed to belatedly obtain that judicial declaration in order to delay his
criminal prosecution and subsequently defeat it by his own disobedience of
the law? If he wants to raise the nullity of the previous marriage, he can do it
as a matter of defense when he presents his evidence during the trial proper
in the criminal case.
[16]

[17]

The burden of proof to show the dissolution of the first marriage before the
second marriage was contracted rests upon the defense, but that is a matter
that can be raised in the trial of the bigamy case. In the meantime, it should be
stressed that not every defense raised in the civil action may be used as a
[18]

prejudicial question to obtain the suspension of the criminal action. The lower
court, therefore, erred in suspending the criminal case for bigamy. Moreover,
when respondent was indicted for bigamy, the fact that he entered into two
marriage ceremonies appeared indubitable. It was only after he was sued by
petitioner for bigamy that he thought of seeking a judicial declaration of nullity
of his first marriage. The obvious intent, therefore, is that respondent merely
resorted to the civil action as a potential prejudicial question for the purpose of
frustrating or delaying his criminal prosecution. As has been discussed above,
this cannot be done.
In the light of Article 40 of the Family Code, respondent, without first having
obtained the judicial declaration of nullity of the first marriage, can not be said
to have validly entered into the second marriage. Per current jurisprudence, a
marriage though void still needs a judicial declaration of such fact before any
party can marry again; otherwise the second marriage will also be void. The
reason is that, without a judicial declaration of its nullity, the first marriage is
presumed to be subsisting. In the case at bar, respondent was for all legal
intents and purposes regarded as a married man at the time he contracted his
second marriage with petitioner. Against this legal backdrop, any decision in
the civil action for nullity would not erase the fact that respondent entered into
a second marriage during the subsistence of a first marriage. Thus, a decision
in the civil case is not essential to the determination of the criminal charge. It
is, therefore, not a prejudicial question. As stated above, respondent cannot
be permitted to use his own malfeasance to defeat the criminal action against
him.
[19]

[20]

[21]

WHEREFORE, the petition is GRANTED. The order dated December 29,

1998 of the Regional Trial Court, Branch 226 of Quezon City is
REVERSED and SET ASIDE and the trial court is ordered to
IMMEDIATELY proceed with Criminal Case No. Q98-75611.
SO ORDERED.
[G.R. No. 135306. January 28, 2003]

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA

and AGUSTINO G. BINEGAS, JR., petitioners, vs. ISLAMIC
DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDUL-RAHMAN
R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE

GUZMAN, AL-FARED
JUNIO, respondents.

DA

SILVA

and

IBRAHIM

B.A.

DECISION

I may utterly detest what you write, but I shall fight

to the death to make it possible for you to
continue writing it. -

Voltaire

BELLOSILLO, J.:

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to

free speech and free press - liberties that belong as well, if not more, to those
who question, who do not conform, who differ. For the ultimate good which
we all strive to achieve for ourselves and our posterity can better be reached
by a free exchange of ideas, where the best test of truth is the power of the
thought to get itself accepted in the competition of the free market - not just
the ideas we desire, but including those thoughts we despise.
[1]

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local

federation of more than seventy (70) Muslim religious organizations, and
individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A.
JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in
their own behalf and as a class suit in behalf of the Muslim members
nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY,
MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., arising from an article
published in the 1 August 1992 issue of Bulgar, a daily tabloid. The article
reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng
mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang
kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain.

Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang
pangingilin lalung-lalo na sa araw na tinatawag nilang Ramadan."
The complaint alleged that the libelous statement was insulting and
damaging to the Muslims; that these words alluding to the pig as the God of
the Muslims was not only published out of sheer ignorance but with intent to
hurt the feelings, cast insult and disparage the Muslims and Islam, as a
religion in this country, in violation of law, public policy, good morals and
human relations; that on account of these libelous words Bulgar insulted not
only the Muslims in the Philippines but the entire Muslim world, especially
every Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their
defense, contended that the article did not mention respondents as the object
of the article and therefore were not entitled to damages; and, that the article
was merely an expression of belief or opinion and was published without
malice nor intention to cause damage, prejudice or injury to Muslims.
[2]

On 30 June 1995 the trial court dismissed the complaint holding that the
plaintiffs failed to establish their cause of action since the persons allegedly
defamed by the article were not specifically identified It must be noted that the persons allegedly defamed, the herein plaintiffs, were not
identified with specificity. The subject article was directed at the Muslims without
mentioning or identifying the herein plaintiffs x x x x It is thus apparent that the
alleged libelous article refers to the larger collectivity of Muslims for which the
readers of the libel could not readily identify the personalities of the persons
defamed. Hence, it is difficult for an individual Muslim member to prove that the
defamatory remarks apply to him. The evidence presented in this case failed to
convince this court that, indeed, the defamatory remarks really applied to the herein
plaintiffs.
[3]

On 27 August 1998 the Court of Appeals reversed the decision of the trial
court. It opined that it was "clear from the disputed article that the
defamation was directed to all adherents of the Islamic faith. It stated that
pigs were sacred and idolized as god by members of the Muslim religion. This
libelous imputation undeniably applied to the plaintiff-appellants who are
Muslims sharing the same religious beliefs." It added that the suit for
damages was a "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE

PHILIPPINES, INC.'s religious status as a Muslim umbrella organization gave

it the requisite personality to sue and protect the interests of all Muslims.
[4]

Hence, the instant petition for review assailing the findings of the appellate
court (a) on the existence of the elements of libel, (b) the right of respondents
to institute the class suit, and, (c) the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring
a person's character, fame or reputation through false and malicious
statements. It is that which tends to injure reputation or to diminish the
esteem, respect, good will or confidence in the plaintiff or to excite derogatory
feelings or opinions about the plaintiff. It is the publication of anything which
is injurious to the good name or reputation of another or tends to bring him
into disrepute. Defamation is an invasion of a relational interest since it
involves the opinion which others in the community may have, or tend to have,
of the plaintiff.
[5]

[6]

[7]

[8]

It must be stressed that words which are merely insulting are not
actionable as libel or slanderper se, and mere words of general abuse
however opprobrious, ill-natured, or vexatious, whether written or spoken, do
not constitute a basis for an action for defamation in the absence of an
allegation for special damages. The fact that the language is offensive to the
plaintiff does not make it actionable by itself.
[9]

[10]

Declarations made about a large class of people cannot be interpreted to

advert to an identified or identifiable individual. Absent circumstances
specifically pointing or alluding to a particular member of a class, no member
of such class has a right of action without at all impairing the equally
demanding right of free speech and expression, as well as of the press, under
the Bill of Rights. Thus, in Newsweek, Inc. v. Intermediate Appellate Court,
we dismissed a complaint for libel against Newsweek, Inc., on the ground
that private respondents failed to state a cause of action since they made no
allegation in the complaint that anything contained in the article complained of
specifically referred to any of them. Private respondents, incorporated
associations of sugarcane planters in Negros Occidental claiming to have
8,500 members and several individual members, filed a class action suit for
damages in behalf of all sugarcane planters in Negros Occidental. The
complaint filed in the Court of First Instance of Bacolod City alleged
[11]

[12]

[13]

that Newsweek, Inc., committed libel against them by the publication of the
article "Island of Fear" in its weekly newsmagazine allegedly depicting Negros
Province as a place dominated by wealthy landowners and sugar planters
who not only exploited the impoverished and underpaid sugarcane workers
but also brutalized and killed them with impunity. Private respondents alleged
that the article showed a deliberate and malicious use of falsehood, slanted
presentation and/or misrepresentation of facts intended to put the sugarcane
planters in a bad light, expose them to public ridicule, discredit and humiliation
in the Philippines and abroad, and make them the objects of hatred, contempt
and hostility of their agricultural workers and of the public in general. We
ratiocinated x x x where the defamation is alleged to have been directed at a group or class, it is
essential that the statement must be so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently specific so that each individual in the
class or group can prove that the defamatory statement specifically pointed to him, so
that he can bring the action separately, if need be x x x x The case at bar is not a
class suit. It is not a case where one or more may sue for the benefit of all, or where
the representation of class interest affected by the judgment or decree is indispensable
to make each member of the class an actual party. We have here a case where each of
the plaintiffs has a separate and distinct reputation in the community. They do not
have a common or general interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable person who was
allegedly injured by theBulgar article. Since the persons allegedly defamed
could not be identifiable, private respondents have no individual causes of
action; hence, they cannot sue for a class allegedly disparaged. Private
respondents must have a cause of action in common with the class to which
they belong to in order for the case to prosper.
An individual Muslim has a reputation that is personal, separate and
distinct in the community. Each Muslim, as part of the larger Muslim
community in the Philippines of over five (5) million people, belongs to a
different trade and profession; each has a varying interest and a divergent
political and religious view -some may be conservative, others liberal. A
Muslim may find the article dishonorable, even blasphemous; others may find
it as an opportunity to strengthen their faith and educate the non-believers and
the "infidels." There is no injury to the reputation of the individual Muslims
who constitute this community that can give rise to an action for group

libel. Each reputation is personal in character to every person. Together, the

Muslims do not have a single common reputation that will give them a
common or general interest in the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company, the United States
Court of Appeals held that one guiding principle of group libel is
that defamation of a large group does not give rise to a cause of action on the
part of an individual unless it can be shown that he is the target of the
defamatory matter.
[14]

The rule on libel has been restrictive. In an American case, a person had
allegedly committed libel against all persons of the Jewish religion. The Court
held that there could be no libel against an extensive community in common
law. In an English case, where libel consisted of allegations of immorality in a
Catholic nunnery, the Court considered that if the libel were on the whole
Roman Catholic Church generally, then the defendant must be absolved.
With regard to the largest sectors in society, including religious groups, it
may be generally concluded that no criminal action at the behest of the state,
or civil action on behalf of the individual, will lie.
[15]

[16]

In another case, the plaintiffs claimed that all Muslims, numbering more
than 600 million, were defamed by the airing of a national television broadcast
of a film depicting the public execution of a Saudi Arabian princess accused of
adultery, and alleging that such film was "insulting and defamatory" to the
Islamic religion. The United States District Court of the Northern District of
California concluded that the plaintiffs' prayer for $20 Billion in damages
arising from "an international conspiracy to insult, ridicule, discredit and abuse
followers of Islam throughout the world, Arabs and the Kingdom of Saudi
Arabia" bordered on the "frivolous," ruling that the plaintiffs had failed to
demonstrate an actionable claim for defamation. The California Court
stressed that the aim of the law on defamation was to protect individuals; a
group may be sufficiently large that a statement concerning it could not
defame individual group members.
[17]

[18]

Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of

Libel," discusses the inappropriateness of any action for tortious libel
involving large groups, and provides a succinct illustration:
[19]

There are groupings which may be finite enough so that a description of the body is a
description of the members. Here the problem is merely one of evaluation. Is the
description of the member implicit in the description of the body, or is there a
possibility that a description of the body may consist of a variety of persons, those
included within the charge, and those excluded from it?
A general charge that the lawyers in the city are shysters would obviously not be a
charge that all of the lawyers were shysters. A charge that the lawyers in a local
point in a great city, such as Times Square in New York City, were shysters would
obviously not include all of the lawyers who practiced in that district; but a statement
that all of the lawyers who practiced in a particular building in that district were
shysters would be a specific charge, so that any lawyer having an office within that
building could sue.
If the group is a very large one, then the alleged libelous statement is
considered to have no application to anyone in particular, since one might as
well defame all mankind. Not only does the group as such have no action;
the plaintiff does not establish any personal reference to himself. At present,
modern societal groups are both numerous and complex. The same principle
follows with these groups: as the size of these groups increases, the chances
for members of such groups to recover damages on tortious libel become
elusive. This principle is said to embrace two (2) important public
policies: first, where the group referred to is large, the courts presume that no
reasonable reader would take the statements as so literally applying to each
individual member; andsecond, the limitation on liability would satisfactorily
safeguard freedom of speech and expression, as well as of the press,
effecting a sound compromise between the conflicting fundamental interests
involved in libel cases.
[20]

[21]

In the instant case, the Muslim community is too vast as to readily

ascertain who among the Muslims were particularly defamed. The size of the
group renders the reference as indeterminate and generic as a similar attack
on Catholics, Protestants, Buddhists or Mormons would do. The
word "Muslim" is descriptive of those who are believers of Islam, a religion
divided into varying sects, such as the Sunnites, the Shiites, the Kharijites, the
Sufis and others based upon political and theological distinctions. "Muslim" is
a name which describes only a general segment of the Philippine population,
comprising a heterogeneous body whose construction is not so well defined
as to render it impossible for any representative identification.

The Christian religion in the Philippines is likewise divided into different

sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other
groups the essence of which may lie in an inspired charlatan, whose temple
may be a corner house in the fringes of the countryside. As with the Christian
religion, so it is with other religions that represent the nation's culturally
diverse people and minister to each one's spiritual needs. The Muslim
population may be divided into smaller groups with varying agenda, from the
prayerful conservative to the passionately radical. These divisions in the
Muslim population may still be too large and ambiguous to provide a
reasonable inference to any personality who can bring a case in an action for
libel.
The foregoing are in essence the same view scholarly expressed by Mr.
Justice Reynato S. Puno in the course of the deliberations in this case. We
extensively reproduce hereunder his comprehensive and penetrating
discussion on group libel Defamation is made up of the twin torts of libel and slander the one being, in
general, written, while the other in general is oral. In either form, defamation is an
invasion of the interest in reputation and good name. This is a relational interest
since it involves the opinion others in the community may have, or tend to have of the
plaintiff.
The law of defamation protects the interest in reputation the interest in acquiring,
retaining and enjoying ones reputation as good as ones character and conduct
warrant. The mere fact that the plaintiffs feelings and sensibilities have been
offended is not enough to create a cause of action for defamation. Defamation
requires that something be communicated to a third person that may affect the
opinion others may have of the plaintiff. The unprivileged communication must be
shown of a statement that would tend to hurt plaintiffs reputation, to impair
plaintiffs standing in the community.
Although the gist of an action for defamation is an injury to reputation, the focus of a
defamation action is upon the allegedly defamatory statement itself and its
predictable effect upon third persons. A statement is ordinarily considered defamatory
if it tend[s] to expose one to public hatred, shame, obloquy, contumely, odium,
contempt, ridicule, aversion, ostracism, degradation or disgrace The
Restatement of Torts defines a defamatory statement as one that tends to so harm

the reputation of another as to lower him in the estimation of the community or to

deter third persons from associating or dealing with him.
Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as
part of his prima facie case that the defendant (1) published a statement that was (2)
defamatory (3) of and concerning the plaintiff.
The rule in libel is that the action must be brought by the person against whom the
defamatory charge has been made. In the American jurisdiction, no action lies by a
third person for damages suffered by reason of defamation of another person, even
though the plaintiff suffers some injury therefrom. For recovery in defamation cases,
it is necessary that the publication be of and concerning the plaintiff. Even when a
publication may be clearly defamatory as to somebody, if the words have no personal
application to the plaintiff, they are not actionable by him. If no one is identified,
there can be no libel because no ones reputation has been injured x x x x
In fine, in order for one to maintain an action for an alleged defamatory statement, it
must appear that the plaintiff is the person with reference to whom the statement was
made. This principle is of vital importance in cases where a group or class is defamed
since, usually, the larger the collective, the more difficult it is for an individual
member to show that he was the person at whom the defamation was directed.
If the defamatory statements were directed at a small, restricted group of persons,
they applied to any member of the group, and an individual member could maintain
an action for defamation. When the defamatory language was used toward a small
group or class, including every member, it has been held that the defamatory
language referred to each member so that each could maintain an action. This small
group or class may be a jury, persons engaged in certain businesses, professions or
employments, a restricted subdivision of a particular class, a society, a football team,
a family, small groups of union officials, a board of public officers, or engineers of a
particular company.
In contrast, if defamatory words are used broadly in respect to a large class or group
of persons, and there is nothing that points, or by proper colloquium or innuendo can
be made to apply, to a particular member of the class or group, no member has a
right of action for libel or slander. Where the defamatory matter had no special,
personal application and was so general that no individual damages could be
presumed, and where the class referred to was so numerous that great vexation and
oppression might grow out of the multiplicity of suits, no private action could be

maintained. This rule has been applied to defamatory publications concerning groups
or classes of persons engaged in a particular business, profession or employment,
directed at associations or groups of association officials, and to those directed at
miscellaneous groups or classes of persons.
Distinguishing a small group-which if defamed entitles all its members to sue from a
large group which if defamed entitles no one to sue is not always so simple. Some
authorities have noted that in cases permitting recovery, the group generally has
twenty five (25) or fewer members. However, there is usually no articulated limit on
size. Suits have been permitted by members of fairly large groups when some
distinguishing characteristic of the individual or group increases the likelihood that
the statement could be interpreted to apply individually. For example, a single player
on the 60 to 70 man Oklahoma University football team was permitted to sue when a
writer accused the entire team of taking amphetamines to hop up its performance;
the individual was a fullback, i.e., a significant position on the team and had played
in all but two of the teams games.
A prime consideration, therefore, is the public perception of the size of the group and
whether a statement will be interpreted to refer to every member. The more organized
and cohesive a group, the easier it is to tar all its members with the same brush and
the more likely a court will permit a suit from an individual even if the group includes
more than twenty five (25) members. At some point, however, increasing size may be
seen to dilute the harm to individuals and any resulting injury will fall beneath the
threshold for a viable lawsuit.
x x x x There are many other groupings of men than those that are contained within
the foregoing group classifications. There are all the religions of the world, there are
all the political and ideological beliefs; there are the many colors of the human race.
Group defamation has been a fertile and dangerous weapon of attack on various
racial, religious and political minorities. Some states, therefore, have passed statutes
to prevent concerted efforts to harass minority groups in the United States by making
it a crime to circulate insidious rumors against racial and religious groups. Thus far,
any civil remedy for such broadside defamation has been lacking.
There have been numerous attempts by individual members to seek redress in the
courts for libel on these groups, but very few have succeeded because it felt that the
groups are too large and poorly defined to support a finding that the plaintiff was
singled out for personal attack x x x x (citations omitted).

Our conclusion therefore is that the statements published by petitioners in

the instant case did not specifically identify nor refer to any particular
individuals who were purportedly the subject of the alleged libelous
publication. Respondents can scarcely claim to having been singled out for
social censure pointedly resulting in damages.
A contrary view is expressed that what is involved in the present case is
an intentional tortious act causing mental distress and not an action for
libel. That opinion invokes Chaplinsky v. New Hampshire where the U.S.
Supreme Court held that words heaping extreme profanity, intended merely to
incite hostility, hatred or violence, have no social value and do not enjoy
constitutional protection; and Beauharnais v. Illinois where it was also ruled
that hate speech which denigrates a group of persons identified by their
religion, race or ethnic origin defames that group and the law may validly
prohibit such speech on the same ground as defamation of an individual.
[22]

[23]

We do not agree to the contrary view articulated in the immediately

preceeding paragraph. Primarily, an "emotional distress" tort action is personal
in nature, i.e., it is a civil action filed by anindividual to assuage the injuries to
his emotional tranquility due to personal attacks on his character. It has no
application in the instant case since no particular individual was identified in
the disputed article of Bulgar. Also, the purported damage caused by the
article, assuming there was any, falls under the principle of relational harm which includes harm to social relationships in the community in the form of
defamation; as distinguished from the principle of reactive harm - which
includes injuries to individual emotional tranquility in the form of an infliction of
emotional distress. In their complaint, respondents clearly asserted an
alleged harm to the standing of Muslims in the community, especially to their
activities in propagating their faith in Metro Manila and in other non-Muslim
communities in the country. It is thus beyond cavil that the present case falls
within the application of the relational harm principle of tort actions for
defamation, rather than the reactive harm principle on which the concept
of emotional distress properly belongs.
[24]

[25]

Moreover, under the Second Restatement of the Law, to recover for the
intentional infliction of emotional distress the plaintiff must show that: (a) The
conduct of the defendant was intentional or in reckless disregard of the
plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal

connection between the defendant's conduct and the plaintiff's mental

distress; and, (d) The plaintiff's mental distress was extreme and severe.
[26]

"Extreme and outrageous conduct" means conduct that is so outrageous

in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in civilized
society. The defendant's actions must have been so terrifying as naturally to
humiliate, embarrass or frighten the plaintiff. Generally, conduct will be
found to be actionable where the recitation of the facts to an average member
of the community would arouse his resentment against the actor, and lead him
or her to exclaim, "Outrageous!" as his or her reaction.
[27]

[28]

"Emotional distress" means any highly unpleasant mental reaction such as

extreme grief, shame, humiliation, embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish, shock, fright, horror, and
chagrin. "Severe emotional distress," in some jurisdictions, refers to any
type of severe and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do so,
including posttraumatic stress disorder, neurosis, psychosis, chronic
depression, or phobia. The plaintiff is required to show, among other things,
that he or she has suffered emotional distress so severe that no reasonable
person could be expected to endure it; severity of the distress is an element
of the cause of action, not simply a matter of damages.
[29]

[30]

[31]

Any party seeking recovery for mental anguish must prove more than
mere worry, anxiety, vexation, embarrassment, or anger. Liability does not
arise from mere insults, indignities, threats, annoyances, petty expressions, or
other trivialities. In determining whether the tort of outrage had been
committed, a plaintiff is necessarily expected and required to be hardened to a
certain amount of criticism, rough language, and to occasional acts and words
that are definitely inconsiderate and unkind; the mere fact that the actor knows
that the other will regard the conduct as insulting, or will have his feelings hurt,
is not enough.
[32]

Hustler Magazine v. Falwell illustrates the test case of a civil action for
damages on intentional infliction of emotional distress. A parody appeared in
Hustler magazine featuring the American fundamentalist preacher and
evangelist Reverend Jerry Falwell depicting him in an inebriated state having
an incestuous sexual liaison with his mother in an outhouse. Falwell sued
[33]

Hustler and its publisher Larry Flynt for damages. The United States District
Court for the Western District of Virginia ruled that the parody was not
libelous, because no reasonable reader would have understood it as a factual
assertion that Falwell engaged in the act described. The jury, however,
awarded $200,000 in damages on a separate count of "intentional infliction of
emotional distress," a cause of action that did not require a false statement of
fact to be made. The United States Supreme Court in a unanimous decision
overturned the jury verdict of the Virginia Court and held that Reverend
Falwell may not recover for intentional infliction of emotional distress. It was
argued that the material might be deemed outrageous and may have been
intended to cause severe emotional distress, but these circumstances were
not sufficient to overcome the free speech rights guaranteed under the First
Amendment of the United States Constitution. Simply stated, an intentional
tort causing emotional distress must necessarily give way to the fundamental
right to free speech.
It must be observed that although Falwell was regarded by the U.S. High
Court as a "public figure," he was an individual particularly singled out or
identified in the parody appearing on Hustler magazine. Also, the emotional
distress allegedly suffered by Reverend Falwell involved a reactive interest an emotional response to the parody which supposedly injured his
psychological well-being.
Verily, our position is clear that the conduct of petitioners was not extreme
or outrageous. Neither was the emotional distress allegedly suffered by
respondents so severe that no reasonable person could be expected to
endure it. There is no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of
emotional distress in this manner [34]

There is virtually unanimous agreement that such ordinary defendants are not liable
for mere insult, indignity, annoyance, or even threats, where the case is lacking in
other circumstances of aggravation. The reasons are not far to seek. Our manners,
and with them our law, have not yet progressed to the point where we are able to
afford a remedy in the form of tort damages for all intended mental disturbance.
Liability of course cannot be extended to every trivial indignity x x x x The plaintiff
must necessarily be expected and required to be hardened to a certain amount of

rough language, and to acts that are definitely inconsiderate and unkind x x x The
plaintiff cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct
observation, viz:
[35]

There is no occasion for the law to intervene in every case where someones feelings
are hurt. There must still be freedom to express an unflattering opinion, and some
safety valve must be left through which irascible tempers may blow off relatively
harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule
of recovery for emotional harm that would "open up a wide vista of litigation in
the field of bad manners," an area in which a "toughening of the mental hide"
was thought to be a more appropriate remedy. Perhaps of greater concern
were the questions of causation, proof, and the ability to accurately assess
damages for emotional harm, each of which continues to concern courts
today.
[36]

[37]

In this connection, the doctrines in Chaplinsky and Beauharnais had

largely been superseded by subsequent First Amendment doctrines. Back in
simpler times in the history of free expression the Supreme Court appeared to
espouse a theory, known as the Two-Class Theory, that treated certain types
of expression as taboo forms of speech, beneath the dignity of the First
Amendment. The most celebrated statement of this view was expressed
in Chaplinsky:
There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or fighting words those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
Today, however, the theory is no longer viable; modern First Amendment
principles have passed it by. American courts no longer accept the view
that speech may be proscribed merely because it is "lewd," "profane,"
"insulting" or otherwise vulgar or offensive. Cohen v. California is
[38]

[39]

illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the
Draft" in a Los Angeles courthouse in April 1968, which caused his eventual
arrest. Cohen was convicted for violating a California statute prohibiting any
person from "disturb[ing] the peace x x x by offensive conduct." The U.S.
Supreme Court conceded that Cohen's expletive contained in his jacket was
"vulgar," but it concluded that his speech was nonetheless protected by the
right to free speech. It was neither considered an "incitement" to illegal action
nor "obscenity." It did not constitute insulting or "fighting" words for it had not
been directed at a person who was likely to retaliate or at someone who could
not avoid the message. In other words, no one was present in the Los
Angeles courthouse who would have regarded Cohen's speech as a direct
personal insult, nor was there any danger of reactive violence against him.
No specific individual was targeted in the allegedly defamatory words
printed on Cohen's jacket. The conviction could only be justified by Californias
desire to exercise the broad power in preserving the cleanliness of discourse
in the public sphere, which the U.S. Supreme Court refused to grant to the
State, holding that no objective distinctions can be made between vulgar and
nonvulgar speech, and that the emotive elements of speech are just as
essential in the exercise of this right as the purely cognitive. As Mr. Justice
Harlan so eloquently wrote: "[O]ne mans vulgarity is another mans lyric x x x
words are often chosen as much for their emotive as their cognitive
force." With Cohen, the U.S. Supreme Court finally laid the constitutional
foundation for judicial protection of provocative and potentially offensive
speech.
[40]

Similarly, libelous speech is no longer outside the First Amendment

protection. Only
one
small
piece
of
the Two-Class
Theory in Chaplinsky survives - U.S. courts continue to treat "obscene"
speech as not within the protection of the First Amendment at all. With
respect to the "fighting words" doctrine, while it remains alive it was
modified by the current rigorous clear and present danger test. Thus,
in Cohen the U.S. Supreme Court in applying the test held that there was no
showing that Cohen's jacket bearing the words "Fuck the Draft" had
threatened to provoke imminent violence; and that protecting the sensibilities
of onlookers was not sufficiently compelling interest to restrain Cohen's
speech.
[41]

Beauharnais, which closely followed the Chaplinsky doctrine, suffered the

same fate asChaplinsky. Indeed, when Beauharnais was decided in 1952,
the Two-Class Theory was still flourishing. While concededly the U.S. High
Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S.
constitutional jurisprudence substantially undercut Beauharnais and seriously
undermined what is left of its vitality as a precedent. Among the cases that
dealt a crushing impact on Beauharnais and rendered it almost certainly a
dead letter case law are Brandenburg v. Ohio, and, again, Cohen v.
California. These decisions recognize a much narrower set of permissible
grounds for restricting speech than did Beauharnais.
[42]

[43]

[44]

In Brandenburg, appellant who was a leader of the Ku Klux Klan was

convicted under the Ohio Criminal Syndicalism Statute for advocating the
necessity, duty and propriety of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political
reforms; and for voluntarily assembling with a group formed to teach or
advocate the doctrines of criminal syndicalism. Appellant challenged the
statute and was sustained by the U.S. Supreme Court, holding that the
advocacy of illegal action becomes punishable only if such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite
or produce such action. Except in unusual instances, Brandenburg protects
the advocacy of lawlessness as long as such speech is not translated into
action.
[45]

The
importance
of
the Brandenburg ruling
cannot
be
overemphasized. Prof. Smolla affirmed that "Brandenburg must be
understood as overruling Beauharnais and eliminating the possibility of
treating group libel under the same First Amendment standards as
individual libel." It may well be considered as one of the lynchpins of the
modern doctrine of free speech, which seeks to give special protection to
politically relevant speech.
[46]

In any case, respondents' lack of cause of action cannot be cured by the

filing of a class suit. As correctly pointed out by Mr. Justice Jose C. Vitug
during the deliberations, "an element of a class suit is the adequacy of
representation. In determining the question of fair and adequate
representation of members of a class, the court must consider (a) whether the
interest of the named party is coextensive with the interest of the other
members of the class; (b) the proportion of those made parties as it so bears

to the total membership of the class; and, (c) any other factor bearing on the
ability of the named party to speak for the rest of the class.
[47]

The rules require that courts must make sure that the persons intervening
should be sufficiently numerous to fully protect the interests of all
concerned. In the present controversy, Islamic Dawah Council of the
Philippines, Inc., seeks in effect to assert the interests not only of the Muslims
in the Philippines but of the whole Muslim world as well. Private respondents
obviously lack the sufficiency of numbers to represent such a global group;
neither have they been able to demonstrate the identity of their interests with
those they seek to represent. Unless it can be shown that there can be a safe
guaranty that those absent will be adequately represented by those present, a
class suit, given its magnitude in this instance, would be unavailing."
[48]

Likewise on the matter of damages, we agree that "moral damages may

be recovered only if the plaintiff is able to satisfactorily prove the existence of
the factual basis for the damages and its causal connection with the acts
complained of, and so it must be, as moral damages although incapable of
pecuniary estimation are designed not to impose a penalty but to compensate
for injury sustained and actual damages suffered. Exemplary damages, on
the other hand, may only be awarded if claimant is able to establish his right
to moral, temperate, liquidated or compensatory damages. Unfortunately,
neither of the requirements to sustain an award for either of these damages
would appear to have been adequately established by respondents."
[49]

[50]

[51]

In a pluralistic society like the Philippines where misinformation about

another individual's religion is as commonplace as self-appointed critics of
government, it would be more appropriate to respect the fair criticism of
religious principles, including those which may be outrageously appalling,
immensely erroneous, or those couched as fairly informative comments. The
greater danger in our society is the possibility that it may encourage the
frequency of suits among religious fundamentalists, whether Christian,
Muslim, Hindu, Buddhist, Jewish, or others. This would unnecessarily make
the civil courts a battleground to assert their spiritual ideas, and advance their
respective religious agenda.
It need not be stressed that this Court has no power to determine which is
proper religious conduct or belief; neither does it have the authority to rule on
the merits of one religion over another, nor declare which belief to uphold or

cast asunder, for the validity of religious beliefs or values are outside the
sphere of the judiciary. Such matters are better left for the religious authorities
to address what is rightfully within their doctrine and realm of
influence. Courts must be viewpoint-neutral when it comes to religious
matters if only to affirm the neutrality principle of free speech rights under
modern jurisprudence where "[a]ll ideas are treated equal in the eyes of the
First Amendment - even those ideas that are universally condemned and run
counter to constitutional principles." Under the right to free speech, "there is
no such thing as a false idea. However pernicious an opinion may seem, we
depend for its correction not on the conscience of judges and juries but on the
competition of other ideas." Denying certiorari and affirming the appellate
court decision would surely create a chilling effect on the constitutional
guarantees of freedom of speech, of expression, and of the press.
[52]

[53]

WHEREFORE, the petition is GRANTED. The assailed Decision of the

Court of Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and
the Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of
merit, is REINSTATED and AFFIRMED. No pronouncement as to costs.
SO ORDERED.
[G.R. Nos. 153524-25. January 31, 2005]

RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON. ANIANO

DESIERTO in his capacity as Head of the Office of the
Ombudsman, HON. ORLANDO C. CASIMIRO in his capacity as
Deputy Ombudsman for Military, P/INS. JEFFREY T. GOROSPE,
SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B. ALVIAR, JR.,
PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1
JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4
PEDRO PAREL, respondents.
DECISION
CHICO-NAZARIO, J.:

Yet again, we are tasked to substitute our judgment for that of the Office of
the Ombudsman in its finding of lack of probable cause made during
preliminary investigation. And, yet again, we reaffirm the time-honored
practice of non-interference in the conduct of preliminary investigations by our

prosecutory bodies absent a showing of grave abuse of discretion on their

part.
Petitioners, thru a special civil action for certiorari,[1] contend precisely that
the public respondents herein officers of the Office of the Ombudsman
gravely abused their discretion in dismissing the complaint for violation of
Article 125 of the Revised Penal Code (Delay in the delivery of detained
persons) against private respondents herein, members of the Philippine
National Police stationed at the Municipality of Santa, Ilocos Sur.
From the respective pleadings[2] of the parties, the following facts appear to
be indubitable:
1.
On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day
before the 14 May 2001 Elections[3]), petitioners were arrested without a warrant by
respondents police officers for alleged illegal possession of firearms and ammunition;
2.
Petitioner Soria was arrested for alleged illegal possession of .38 cal.
revolver (a crime which carries with it the penalty of prision correccional in its
maximum period) and for violation of Article 261 par. (f) of the Omnibus Election
Code in relation to the Commission on Election Resolution No. 3328 (which carries
the penalty of imprisonment of not less than one [1] year but not more than six [6]
years);
3.
Petitioner Bista was arrested for alleged illegal possession of sub-machine
pistol UZI, cal. 9mm and a .22 cal. revolver with ammunition;
4.
Immediately after their arrest, petitioners were detained at the Santa, Ilocos
Sur, Police Station. It was at the Santa Police Station that petitioner Bista was
identified by one of the police officers to have a standing warrant of arrest for
violation of Batas Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of
Vigan, Ilocos Sur, docketed as Criminal Case No. 12272;
5.
The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election
day), petitioners were brought to the residence of Provincial Prosecutor Jessica Viloria
in San Juan, Ilocos Sur, before whom a Joint-Affidavit against them was subscribed
and sworn to by the arresting officers. From there, the arresting officers brought the
petitioners to the Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at
about 6:00 p.m. the Joint-Affidavit was filed and docketed;

6.
At about 6:30 in the evening of the same day, 14 May 2001, petitioner
Soria was releasedupon the order of Prosecutor Viloria to undergo the requisite
preliminary investigation, while petitioner Bista was brought back and continued to be
detained at the Santa Police Station. From the time of petitioner Sorias detention up
to the time of his release, twenty-two (22) hours had already elapsed;
7.
On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was
brought before the MTC of Vigan, Ilocos Sur, where the case for violation of Batas
Pambansa Blg. 6 was pending. Petitioner Bista posted bail and an Order of
Temporary Release was issued thereafter;
8.
At this point in time, no order of release was issued in connection with
petitioner Bistas arrest for alleged illegal possession of firearms. At 4:30 in the
afternoon of the same day (15 May 2001), an information for Illegal Possession of
Firearms and Ammunition, docketed as Criminal Case No. 4413-S, was filed against
petitioner Bista with the 4th Municipal Circuit Trial Court of Narvacan, Ilocos Sur. At
5:00 in the afternoon, informations for Illegal Possession of Firearms and Ammunition
and violation of Article 261 par. (f) of the Omnibus Election Code in relation to
COMELEC Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No.
2268-N, respectively, were filed in the Regional Trial Court at Narvacan, Ilocos Sur;
9.
On 08 June 2001, petitioner Bista was released upon filing of bail bonds in
Criminal Cases No. 2268-N and No. 4413-S. He was detained for 26 days.
10.
On 15 August 2001, petitioners filed with the Office of the Ombudsman for
Military Affairs a complaint-affidavit for violation of Art. 125 of the Revised Penal
Code against herein private respondents.
11.
After considering the parties respective submissions, the Office of the
Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002
dismissing the complaint for violation of Art. 125 of the Revised Penal Code for lack
of merit; and
12.
On 04 March 2002, petitioners then filed their motion for reconsideration
which was denied for lack of merit in the second assailed Resolution dated 25 March
2002.
Article 125 of the Revised Penal Code states:

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. The penalties provided in the next preceding article shall be imposed upon the public
officer or employee who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the period of: twelve
(12) hours, for crimes or offenses punishable by light penalties, or their equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by
afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.
It is not under dispute that the alleged crimes for which petitioner Soria
was arrested without warrant are punishable by correctional penalties or their
equivalent, thus, criminal complaints or information should be filed with the
proper judicial authorities within 18 hours of his arrest. Neither is it in dispute
that the alleged crimes for which petitioner Bista was arrested are punishable
by afflictive or capital penalties, or their equivalent, thus, he could only be
detained for 36 hours without criminal complaints or information having been
filed with the proper judicial authorities.
The sole bone of contention revolves around the proper application of the
12-18-36 periods. With respect specifically to the detention of petitioner Soria
which lasted for 22 hours, it is alleged that public respondents gravely erred in
construing Article 125[4] as excluding Sundays, holidays and election days in
the computation of the periods prescribed within which public officers should
deliver arrested persons to the proper judicial authorities as the law never
makes such exception. Statutory construction has it that if a statute is clear
and unequivocal, it must be given its literal meaning and applied without any
attempts at interpretation.[5] Public respondents, on the other hand, relied on
the cases of Medina v. Orozco, Jr.,[6] and Sayo v. Chief of Police of
Manila[7] and on commentaries[8] of jurists to bolster their position that
Sundays, holidays and election days are excluded in the computation of the
periods provided in Article 125, [9] hence, the arresting officers delivered
petitioners well within the allowable time.
In addition to the foregoing arguments and with respect specifically to
petitioner Bista, petitioners maintain that the filing of the information in court

against petitioner Bista did not justify his continuous detention. The
information was filed at 4:30 p.m. of 15 May 2001 but the orders for his
release were issued by the Regional Trial Court and Municipal Trial Court of
Narvacan, Ilocos Sur, only on 08 June 2001. They argued that based on law
and jurisprudence, if no charge is filed by the prosecutor within the period
fixed by law, the arresting officer must release the detainee lest he be charged
with violation of Article 125.[10] Public respondents countered that the duty of
the arresting officers ended upon the filing of the informations with the proper
judicial authorities following the rulings in Agbay v. Deputy Ombudsman for
the Military,[11] and People v. Acosta.[12]
From a study of the opposing views advanced by the parties, it is evident
that public respondents did not abuse their discretion in dismissing for lack of
probable cause the complaint against private respondents.
Grave abuse of discretion is such capricious and whimsical exercise of
judgment on the part of the public officer concerned which is equivalent to an
excess or lack of jurisdiction. The abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by reason
of passion or hostility.[13]
No grave abuse of discretion, as defined, can be attributed to herein public
respondents. Their disposition of petitioners complaint for violation of Article
125 of the Revised Penal Code cannot be said to have been conjured out of
thin air as it was properly backed up by law and jurisprudence. Public
respondents ratiocinated thus:
As aptly pointed out by the respondents insofar as the complaint of Rodolfo Soria is
concerned, based on applicable laws and jurisprudence, an election day or a special
holiday, should not be included in the computation of the period prescribed by law for
the filing of complaint/information in courts in cases of warrantless arrests, it being a
no-office day. (Medina vs. Orosco, 125 Phil. 313.) In the instant case, while it
appears that the complaints against Soria for Illegal Possession of Firearm and
Violation of COMELEC Resolution No. 3328 were filed with the Regional Trial
Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at
4:30 p.m., he had already been released the day before or on May 14, 2001 at about
6:30 p.m. by the respondents, as directed by Prov. Prosecutor Jessica [Viloria].

Hence, there could be no arbitrary detention or violation of Article 125 of the Revised
Penal Code to speak of.[14]
Indeed, we did hold in Medina v. Orozco, Jr.,[15] that
. . . The arresting officers duty under the law was either to deliver him to the proper
judicial authorities within 18 hours, or thereafter release him. The fact however is that
he was not released. From the time of petitioners arrest at 12:00 oclock p.m. on
November 7 to 3:40 p.m. on November 10 when the information against him for
murder actually was in court, over 75 hours have elapsed.
But, stock should be taken of the fact that November 7 was a Sunday; November 8
was declared an official holiday; and November 9 (election day) was also an official
holiday. In these three no-office days, it was not an easy matter for a fiscal to look for
his clerk and stenographer, draft the information and search for the Judge to have him
act thereon, and get the clerk of court to open the courthouse, docket the case and
have the order of commitment prepared. And then, where to locate and the
uncertainty of locating those officers and employees could very well compound the
fiscals difficulties. These are considerations sufficient enough to deter us from
declaring that Arthur Medina was arbitrarily detained. For, he was brought to court on
the very first office day following arrest.
And, in Sayo v. Chief of Police of Manila[16] -. . . Of course, for the purpose of determining the criminal liability of an officer
detaining a person for more than six hours prescribed by the Revised Penal Code, the
means of communication as well as the hour of arrest and other circumstances, such
as the time of surrender and the material possibility for the fiscal to make the
investigation and file in time the necessary information, must be taken into
consideration.
As to the issue concerning the duty of the arresting officer after the
information has already been filed in Court, public respondents acted well
within their discretion in ruling thus:
In the same vein, the complaint of Edimar Bista against the respondents for Violation
of Article 125, will not prosper because the running of the thirty-six (36)-hour period
prescribed by law for the filing of the complaint against him from the time of his
arrest was tolled by one day (election day). Moreover, he has a standing warrant of
arrest for Violation of B.P. Blg. 6 and it was only on May 15, 2001, at about 2:00 p.m.

that he was able to post bail and secure an Order of Release. Obviously, however, he
could only be released if he has no other pending criminal case requiring his
continuous detention.
The criminal Informations against Bista for Violations of Article 125, RPC and
COMELEC Resolution No. 3328 were filed with the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes G and
I, Complaint-Affidavit of Edimar Bista) but he was released from detention only on
June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes J
and K, Complaint-Affidavit). Was there a delay in the delivery of detained person
to the proper judicial authorities under the circumstances? The answer is in the
negative. The complaints against him was (sic) seasonably filed in the court of justice
within the thirty-six (36)-hour period prescribed by law as discussed above. The duty
of the detaining officers is deemed complied with upon the filing of the complaints.
Further action, like issuance of a Release Order, then rests upon the judicial authority
(People v. Acosta [CA] 54 O.G. 4739).[17]
The above disposition is in keeping with Agbay v. Deputy Ombudsman for
the Military,[18] wherein we ordained that
. . . Furthermore, upon the filing of the complaint with the Municipal Trial Court, the
intent behind Art. 125 is satisfied considering that by such act, the detained person is
informed of the crime imputed against him and, upon his application with the court,
he may be released on bail. Petitioner himself acknowledged this power of the MCTC
to order his release when he applied for and was granted his release upon posting
bail. Thus, the very purpose underlying Article 125 has been duly served with the
filing of the complaint with the MCTC. We agree with the position of the
Ombudsman that such filing of the complaint with the MCTC interrupted the period
prescribed in said Article.
All things considered, there being no grave abuse of discretion, we have
no choice but to defer to the Office of the Ombudsmans determination that
the facts on hand do not make out a case for violation of Article 125 of the
Revised Penal Code.
As we have underscored in numerous decisions -We have consistently refrained from interfering with the investigatory and
prosecutorial powers of the Ombudsman absent any compelling reason. This policy is
based on constitutional, statutory and practical considerations. We are mindful that

the Constitution and RA 6770 endowed the Office of the Ombudsman with a wide
latitude of investigatory and prosecutorial powers, virtually free from legislative,
executive or judicial intervention, in order to insulate it from outside pressure and
improper influence. Moreover, a preliminary investigation is in effect a realistic
judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused
must be adduced so that when the case is tried, the trial court may not be bound, as a
matter of law, to order an acquittal. Hence, if the Ombudsman, using professional
judgment, finds the case dismissible, the Court shall respect such findings, unless
clothed with grave abuse of discretion. Otherwise, the functions of the courts will
be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it. In much the same way, the courts will be swamped with
cases if they will have to review the exercise of discretion on the part of fiscals or
prosecuting attorneys each time the latter decide to file an information in court or
dismiss a complaint by a private complainant. [19] (Emphasis supplied)
WHEREFORE, premises considered, the petition dated 27 May 2002 is
hereby DISMISSED for lack of merit. The Joint Resolution dated 31 January
2002 and the Order dated 25 March 2002 of the Office of the Ombudsman are
hereby AFFIRMED. No costs.
SO ORDERED.
G.R. No. L-14752

April 30, 1963

FRANCISCO R. CARIO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and THE HON. COURT OF APPEALS, (1st
Division), respondents.
Teehankee and Carreon for petitioner.
Office of the Solicitor General for respondents.
LABRADOR, J.:
This is an appeal by way of certiorari from the decision of the Court of Appeals dated October 18,
1958 in the above entitled case, affirming the judgment of the Court of First Instance of Manila
finding the accused Francisco Cario guilty as accomplice in the crime of rebellion, and sentencing
him to suffer two (2) years, four (4) months and one (1) day of prison correccional and to pay a fine
in the sum of P2,000 with subsidiary imprisonment in case of insolvency.
In an information dated April 28, 1952, filed in the Court of First Instance of Manila, the accused was
charged with the crime of rebellion with murders, arsons, robberies and kidnappings, for having, as a

high ranking officer and/or member of the Communist Party of the Philippines and of the Hukbong
Mapagpalaya Ng Bayan otherwise known as the Hukbalahaps (Huks), agreed in conspiracy with 31
others who were charged with the same crime in other criminal cases then pending in the Court of
First Instance of Manila, for the purpose of overthrowing the Government and disrupting its activities.
The specific acts of rebellion which the accused is alleged to have committed in conspiracy with
other members of the Communist Party, between the period from May 6, 1946 to September 12,
1950, are:
1. The ambush on May 6, 1946 of the 10th MPC Company in Barrio Sta. Monica, Aliaga,
Nueva Ecija; resulting in the death of 10 enlisted men;
2. The raid on August 6, 1946 of the Municipal Building of Majayjay, Laguna;
3. The ambush on April 10, 1947 of 14 enlisted men in Barrio San Miguel na Munti, Talavera,
Nueva Ecija, during which Lt. Pablo Cruz and Pvt. Santiago Mercado were killed;
4. The raid on the poblacion of Laur, Nueva Ecija, of May 9, 1947;
5. The ambush on August 19, 1947 of a detachment of the 155th Co., in San Miguel,
Bulacan, killing two officers thereof;
6. The raid on Pantabangan, Nueva Ecija, of June 1946;
7. The ambush on April 25, 1947 of Mrs. Aurora Aragon Quezon and party at Barrio
Salubsub, Bongabon, Nueva Ecija, resulting in the death of said Mrs. Quezon and other
members of her party;
8. The raid on Camp Macabulos, Tarlac, Tarlac, of August 25, 1950;
9. The raid on Sta. Cruz, Laguna, of August 26, 1950;
10. The raid on Arayat, Pampanga, of August 25, 1950;
11. The seizure on September 12, 1950 of an army scout car in Barrio Mapalad, Arayat,
Pampanga and the murder of two TPs on the said occasion;
12. The attack on the headquarters of a PC detachment of March 28, 1950, at Montalban,
Rizal; and
13. The raid on San Pablo, Laguna, of March 29, 1950, resulting in the death of Major
Alikbusan of the government armed forces.
Although the defendant-appellant expressly admitted the truth of the allegations of the commission
of robberies, murders, arsons, kidnappings, etc., in the manner and from alleged and on the dates
stated in the information, he vigorously denied any participation therein.

It appears from the evidence, as found by the Court of Appeals, that the accused is a close friend of
Dr. Jesus Lava (a top leader of the Communists and a wanted man with a price on his head) who
was his classmate in the high school, and who later on became the godfather of the first child of the
accused. Appellant's wife and children were treated successfully by Dr. Lava in 1939 and 1943 for
various illnesses free of charge, and appellant believed that his wife and children owe their lives to
Dr. Lava. One night in the year 1946, Dr. Lava arrived in the house of the accused asking for shelter,
stating that he was being persecuted by certain politicians from Bulacan, on suspicion that he had
something to do with the killing of Mayor Roxas of Bulacan, Bulacan. Appellant gave Lava
accommodation for the night, and early the following morning Lava left. The next time that the
appellant heard from Lava was in May, 1949, when he received a note from the latter asking for
some cigarettes, powdered milk and canned goods. The note was brought by a boy of 12 or 15
years, named Totoy, and through him the accused sent the needed supplies. Thereafter, every now
and then, the same boy brought to appellant similar notes from Dr. Lava, requesting for food and
supplies, which the accused furnished in as small amounts as he could send.
In the first note of Dr. Lava, appellant was instructed to sign "Turko" all notes to be sent by him to the
former and to address them to "Pinang" in order to conceal their respective identities. This exchange
of notes between them and the furnishing of supplies and foodstuffs by appellant to Dr. Lava lasted
from 1949 until April, 1952, when the accused was arrested and detained.
The Court of Appeals also found that appellant, as a ranking employee of the National City Bank of
New York, was approached by a prominent member of a special unit of the Communist Party,
entrusted with the carrying out of raids, hold-ups, etc. for the purpose of raising funds, and through
his assistance the amount of $6,000, part of the proceeds or loot of said special unit, was changed
into pesos and then delivered to the treasurer of the communists; that appellant also assisted on or
about October 12, 1950, two top-level communists in opening current accounts in the National City
Bank of New York although their initial deposit was below P2,000, the minimum required by the
bank. (However it was not shown that the persons helped were known by appellant to be
communists and the funds intended to carry out the rebellion.)
Sometime in 1949, appellant was present at a banquet given by the Communists in honor of Amado
V. Hernandez, one of the supposed top-level members of the organization, on which occasion he
was introduced as a communist to Florentino Diolata, who posed as a communist but who, in reality,
was a person secretly planted by the Constabulary as a spy; that while being introduced the accused
stated that he was at the command of his comrades for any assistance for the advancement and
promotion of their common purpose.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove
their case not covered by this stipulation of facts.
1wph1.t

Article 18 of the Revised Penal Code defines accomplices, thus:

ART. 18. Accomplices. Accomplices are those persons who, not being included in article
17, cooperate in the execution of the offense by previous or simultaneous acts.
In the case of People vs. Tamayo, 44 Phil. 38, 49, we held as an essential condition to the existence
of complicity that there be not only a relation between the acts done by the principal and these
attributed to the person charged as an accomplice, but that the latter, with knowledge of the criminal

intent, cooperated with the intention of supplying material or moral aid in the execution of the
crime in an efficacious way.
So that there are two elements required, in accordance with the definition of the term accomplice
given in the Penal Code, in order that a person may be considered an accomplice to a criminal act,
namely, that he take part in the execution of the crime by previous and simultaneous acts and that
he intend by said acts to commit or take part in the execution of the crime.
The crime of rebellion or insurrection has been defined as follows:
ART. 134. Rebellion or insurrection How committed. The crime of rebellion or insurrection is
committed by rising publicly and taking arms against the Government for the purpose of removing
from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, or of depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers, or prerogatives. (Revised Penal Code)
In the case at bar the appellant did not take up arms against the Government. Neither was he a
member of the Hukbalahap organization. The Court of Appeals also found that he did not openly
take part in the commission of the crime above defined by any other act without which said crime
would not have been committed. (Decision, p. 7) Said the Court of Appeals:
There is no clear and conclusive evidence that the accused is a member of the Communist
Party or of its sister organization, the 'Hukbong Mapagpalaya Ng Bayan', but there can be no
doubt that he is a sympathizer of the communists and helped them by giving supplies to Dr.
Jesus Lava, and by sending notes to him, knowing that he is a top-level communist with a
high price on his head. And not only that. The accused also helped a top-level communist in
changing six thousand dollars ($6,000) into pesos in the National City Bank of New York, of
which he was a ranking official with the designation of Pro Manager. He also introduced to
the bank two top-level communists and helped them in opening checking accounts in the
bank where they deposited money used in the activities of the Communist Party.
By extending such help to well-known members of the Communist Party and knowing that
the avowed purpose of said party is to overthrow the government, the accused, by means of
overt acts gave them aid, comfort, and assistance, and indirectly helped them in their fight
against the Government. Of course the accused did not take direct participation in the acts
alleged in the information, nor did he directly force or induce the communists to commit such
acts; neither did he openly take part in the commission of the acts of rebellion by another act
without which the act of rebellion would not have been accomplished. However, the acts
done by him as above stated constitute acts of cooperation with the communists in their
primordial purpose of overthrowing the government, and such acts naturally have contributed
to some extent in the advancement and promotion of their purpose. By such cooperation
knowingly extended by him, he is liable as an accomplice in the crime of rebellion as found
by the trial court.
We cannot agree to the above conclusion of the Court of Appeals that the above-mentioned acts of
appellant constitute acts of cooperation in the execution of the act of overthrowing the government. If
appellant's acts may be considered an indirect help or aid in the rebellion, which we positively doubt,
the same cannot constitute previous or simultaneous acts of uprising or rebellion. In the crime of
treason any act of giving comfort or moral aid may be criminal, but such is not the case with rebellion

or insurrection where the Code expressly declares that there must be a public uprising and the
taking up of arms in rebellion or insurrection. The act of sending or furnishing cigarettes and food
supplies to a famous Huk does not prove intention to help him in committing rebellion or insurrection.
Neither is the act of having $6,000 changed to Philippine money or in helping Huks to open
accounts, by themselves show an intent or desire to participate or help in an uprising or rebellion.
Appellant's work was as a public relations officer of the bank of which he was an employee, and the
work above indicated performed by him was a part of his functions as an employee of the bank.
These acts by themselves do not and cannot carry or prove any criminal intent of helping the Huks in
committing the crime of insurrection or rebellion. The law is to the effect that good faith is to be
presumed. No presumption of the existence of a criminal intent can arise from the above acts which
are in themselves legitimate and legal. Said acts are by law presumed to be innocent acts while the
opposite has not been proved.
But granting, for the sake of argument, that appellant had the criminal intent of aiding the
communists in their unlawful designs to overthrow the Government, the assistance thus extended by
him may not be considered efficacious enough to help in the successful prosecution of the crime of
insurrection or rebellion so as to make him an accomplice therein. (People vs. Tamayo, supra.) We,
therefore, find that the supposed acts found by the Court of Appeals to have been committed by the
appellant do not necessarily and legitimately lead to the conclusion that he performed said acts
precisely with the criminal intent of helping in the execution or the carrying out of the rebellion or
insurrection.
For the foregoing considerations, we declare that the guilt of appellant as an accomplice in the crime
of rebellion or insurrection as charged in the information has not been proved beyond reasonable
doubt, his supposed acts not having been shown to be acts of direct cooperation in the execution of
the crime, nor have they been introduced by a criminal intent, nor were they shown to be sufficiently
efficacious to make appellant guilty as accomplice in the crime charged.
WHEREFORE, the judgment appealed from is hereby reversed and the appellant absolved from the
charge contained in the information. With costs de officio.
G.R. No. L-31839 June 30, 1980
EDMUNDO S. ALBERTO, Provincial Fiscal and BONIFACIO C. INTIA 1st Asst. Provincial
Fiscal, both of Camarines Sur, petitioners,
vs.
HON. RAFAEL DE LA CRUZ, in his capacity as Judge of the CFI of Camarines Sur and ELIGIO
ORBITA,respondents.

CONCEPCION, J.:
Petition for certiorari, with a prayer for the issuance of a writ of preliminay injunction, to annul and set
aside the order of the respondent Judge, dated January 26, 1970, directing the petitioners,
Provincial Fiscal and Assitant Provincial Fiscal of Camarines Sur, to amend the information filed in
Criminal Case No. 9414 of the Court of First Instance of CamarinesSur, entitled: "The People of the
Philippines, plaintiff, versus Eligio Orbita, accused," so as to include, as defendants, Governor

Armando Cledera and Jose Esmeralda, assistant provincial warden of Camarines Sur; as well as the
order dated February 18, 1970, denying the motion for the reconsideration of the said order.
In Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, Eligio Orbita, a Provincial
guard, is prosecuted for the crime of Infedelity in the Custody of Prisoner, defined and punished
under Article 224 of the Revised Penal Code, committed, as follows:
That on or about the 12th day of September. 1968, in the barrio of Taculod, municipality of
Canaman, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, being then a member of the Provincial Guard of Camarines Sur and
specially charged with the duty of keeping under custody and vigilance detention prisoner Pablo
Denaque, did then and there with great carelessness and unjustifiable negligence leave the latter
unguarded while in said barrio, thereby giving him the opportunity to run away and escape, as in fact
said detention prisoner Pablo Denaque did run away and escape from the custody of the said
accused. 1
In the course of the trial thereof, or more particularly during the cross-examination of prosecution
witness Jose Esmeralda, assistant provincial warden of Camarines Sur, the defense brought forht
and confronted the witness with a note, marked as exhibit, purportedly written by Gov. Armando
Cledera, asking Jose Esmeralda to send five men to work in the construction of a fence at his house
at Taculod, Canaman, Camarines Sur, then leased by the province and used as an official guest
house. Jose Esmeralda, declared, however, that he could not remember who ahnded the note for
him; that he was not sure as to genuineness of the signature appearing therein and that he was not
preszent when the note was made and signed by Gov. Cledera. 2 Beleiving that the escape of Pablo
Denaque was made possible by the note of Gov. Cledera to Jose Esmeralda and that Cledera and
Esmeralda are equally guilty of the offense for which tha accused Eligio Orbita had been charged, the
defense cousel filed a motion in court seeking the amendment of the information so as to include Gov.
cledera and Jose Esmeralda as defendants therein. 3
Acting upon said motion, as well as the opposition of the prosecution officers 4 and finding that "the
court cannot grant the motion or order the inclusion of Gov. Cledera and Lt. Esmeralda at this stage
unless an investigation is made," the respondent Judge directed the Fiscals office, within 15 days from
date, to cause the further investigation of the case, taking into consideration the provisions of Article 156
in relation to Articles 223 and 224 of the Revised Penal Code in order to determine once and for all
whether the Governor as jailer of the Province and his assistant have any criminatory participation in the
circumstances of Pablo Denaque's escape from judicial custody. 5
In compliance with said order, the Fiscal set the reinvestigation of the case for December 19, 1969.
Summonses were issued to Gov. Cledera Jose Esmeralda, Lorenzo Padua, the provincial warden,
and the accused Eligio Orbita to be present thereat. 6 Dr. went thereat But, on the date set for the
reinvestigation of the case, only Gov. Cledera Jose Esmeralda and Lorenzo Padua appeared. The
accused Eligio Orbita did not appear. Neither was the note (Exhibit 2) produced. Since no additional
evidence was presented, the Fiscal manifested in Court on January 2, 1970 that "after conducting a
reinvestigation of the case and after a thorough and intelligent analysis of the facts and law involved, no
prima facie case against Governor Cledera and Jose Esmeralda exist, hence, they cannot be charged. 7
On January 19, 1970, the accused Eligio Orbita filed a "Motion for Reconsideration" praying "that the
Order of this Honorable Court dated December 11, 1969 be, in that instead of ordering the Fiscal to
reinvestigate this case, on the basis of the evidence already adduce during the trial of this case, he

be ordered to amend the information on to include Cledera and Esmeralda it appearing the on
record that their inclusion is warranted. 8
On January 26, 1970, the respondent Court issued the order complained of, the dispositive portion
of which reads, as follows:
WHEREFORE, premises considered, in the light of the facts brought about by the prosecuting fiscal
let the charges be so amended by including in the information the author or writer of Exhibit 2 and
the person or persons who carried out the said orders considering the provisions of Article 156 in
relation to Articles 223 and 224 of the Penal Code. 9
The Fiscal filed a motion for the reconsideration of said order, 10 but the motion was denied on
February 18, 1970.11 Hence, the instant recourse.
From the facts of the case, We are convinced that the respondent Judge committed an error in
ordering the fiscal to amend the information so as to include Armando Cledera and Jose Esmeralda
as defendants in Criminal Case No. 9414 of the Court of First Instance of Camarines Sur. It is the
rule that a fiscal by the nature of his office, is under no compulsion to file a particular criminal
information where he is not convinced that he has evidence to support the allegations
thereof. 12 Although this power and prerogative of the Fiscal, to determine whether or not the evidence at
hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and
subject to judicial review, 13 it would be embarrassing for the prosecuting attorney to be compelled to
prosecute a case when he is in no position to do so because in his opinion, he does not have the
necessary evidence to secure a conviction, or he is not convinced of the merits of the case. The better
procedure would be to appeal the Fiscal's decision to the Ministry of Justice and/or ask for a special
prosecutor.
Besides, it cannot be said that the Fiscal had capriciously and whimsically refused to prosecute
Cledera and Esmeralda.
In his order directing the Fiscal's office to conduct a further reinvestigation of the case, the
respondent Judge candidly ad. muted that without a reinvestigation of the case, he cannot determine
once and for all whether or not to include Gov. Cledera and Jose Esmeralda in the information.
Pursuant thereto, a reinvestigation was conducted by the fiscals office. Summonses were issued.
But, no additional fact was elicited since Eligio Orbita did not appear thereat. Neither was the note
(Exh. 2) presented and produced. Gov. Cledera could not admit nor deny the genuineness of the
signature appearing in the note since it was not on hand. Such being the case, the prosecuting
officers had reason to refuse to amend the information filed by them after a previous pre examination
and investigation.
Moreover, there is no sufficient evidence in the record to show a prima facie case against Gov.
Cledera and Jose Esmeralda. The order to amend the information is based upon the following facts:
1. Pablo Denaque, a detention prisoner for homicide, while working at the Guest
House of Governor Cledera on September 12, 1968;
2. The Governor's evidence at that time is being rented by the province and its
maintenance and upkeep is shouldered by the province of Camarines Sur,

3. That neither Governor Cledera nor Lt. Jose Esmeralda was charged or entrusted
with the duty of conveying and the detainee from the jail to the residence of the
governor.
4. That the de worked at the Governor Is by virtue of an order of the Governor
(Exhibit 2) which was tsn by Lt. Esmeralda; and
5. That it was the accused Orbita who himself who handpicked the group of
Prisoners to work at the Governor's on 12, 1968. 14
Article 156 of the Revised Penal Code provides:
Art. 156. Delivering prisoners from jails. The city Of arrests mayor in its maximum
period to prison correccional in its minimum Period shall be imposed upon any
person who shall remove from any jail or penal establishment t any person confined
therein or shall help the escape of such person, by means of violence, intimidation,
or bribery.
If other means are used the penalty of arresto mayor shall be imposed. If the escape
of the prisoner shall take place outside of said establishments by taking the guards
by surprise, the same penalties shall be imposed in their minimum period.
The offenders may be committed in two ways: (1) by removing a person confined in any jail or penal
establishment; and (2) by helping such a person to escape. To remove means to take away a person
from the place of his confinement, with or without the active compensation of the person released To
help in the escape of a Person confined in any jail or penal institution means to furnished that person
with the material means such as a file, ladder, rope, etc. which greatly facilitate his escape. 15 The
offenders under this article is usually committed by an outsider who removes from jail any person therein
confined or helps him escape. If the offender is a public officer who has custody or charge of the prisoner,
he is liable for infidelity in the custody of prisoner defined and penalty under Article 223 of the Revised
Penal Code. Since Gov. Cledera as governor, is the jailer of the province, 16 and Jose Esmeralda is the
assistant provincial warden, they cannot be prosecuted for the escape Of Pablo Denaque under Article
156 of the Revised Penal Code. There is likewise no sufficient evidence to warrant their prosecution
under Article 223 of the Revised Penal Code, which reads, as follows:
ART. 223. Conniving with or consenting to evasion. Any Public officer who shall
consent to the escape of a prisoner in his custody or charge, shall be punished
1. By prision correccional in its medium and maximum periods and temporary
disqualification in its minimum period to perpetual special disqualification, if the
fugitive shall have been sentenced by final judgment to any penalty.
2. By prision correccional in its minimum period and temporary special
disqualification, in case the fugitive shall not have been finally convicted but only held
as a detention prisoner for any crime or violation of law or municipal ordinance.
In order to be guilty under the aforequoted provisions of the Penal Code, it is necessary that the
public officer had consented to, or connived in, the escape of the prisoner under his custody or
charge. Connivance in the escape of a prisoner on the part of the person in charge is an essential

condition in the commission of the crime of faithlessness in the custody of the prisoner. If the public
officer charged with the duty of guarding him does not connive with the fugitive, then he has not
violated the law and is not guilty of the crime. 17 For sure no connivance in the escape of Pablo
Denaque from the custody of the accused Eligio Orbita can be deduced from the note of Gov. Cledera to
Jose Esmeralda asking for five men to work in the guest house, it appearing that the notes does not
mention the names of the prisoners to be brought to the guest house; and that it was the accused Eligio
Orbita who picked the men to compose the work party.
Neither is there evidence to warrant the prosecution of Cledera and Esmeralda under Article 224 of
the Revised Penal Code. This article punishes the public officer in whose custody or charge a
prisoner has escaped by reason of his negligence resulting in evasion is definite amounting to
deliberate non- performance of duty. 18 In the constant case, the respondent Judge said:
We cannot, for the present be reconciled with the Idea that the escape. of Denaque
was facilitated by the Governor's or . his assistants negligence. According to law, if
there is any negligence committed it must be the officer who is charged with the
custody and guarding of the ... 19
We find no reason to set aside such findings.
WHEREFORE, the orders issued on January 26, and February 18, 1970 in Criminal Case No. 9414
of the Court of First Instance of Camarines Sur, entitled: "The People of the Philippines, plaintiff,
versus Eligio Orbita, accused are hereby annulled and set aside. The respondent Judge or any other
judge acting in his stead is directed to proceed with the trial of the case. Without costs.
SO ORDERED.