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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 122485 February 1, 1999


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LARRY MAHINAY Y AMPARADO, accused-appellant.

PER CURIAM:
A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to
the ways of worldly pleasures is a harrowing experience that destroys not only her future but
of the youth population as well, who in the teachings of our national hero, are considered the
hope of the fatherland. Once again, the Court is confronted by another tragic desecration of
human dignity, committed no less upon a child, who at the salad age of a few days past 12
years, has yet to knock on the portals of womanhood, and met her untimely death as a result
of the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor
does there exist any other rational justification other than lust. But those who lust ought not
to last.
The Court quotes with approval from the People's Brief, the facts narrating the horrible
experience and the tragic demise of a young and innocent child in the bloody hands of
appellant, as such facts are ably supported by evidence on record: 1*
Appellant Larry Mahinay started working as houseboy with Maria Isip on
November 20, 1953. His task was to take care of Isip's house which was
under construction adjacent to her old residence situated inside a compound
at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila. But he
stayed and slept in an apartment also owned by Isip, located 10 meters away
from the unfinished house (TSN, September 6, 1995, pp. 5-10).
The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian
Street. She used to pass by Isip's house on her way to school and play inside
the compound yard, catching maya birds together with other children. While
they were playing, appellant was always around washing his clothes. Inside
the compound yard was a septic tank (TSN, August 22, 1995, pp. 29-31;
September 6, 1995, pp.17; 20-22).

On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a


drinking spree. Around 10 o'clock in the morning, appellant, who was already
drunk, left Gregorio Rivera and asked permission from Isip to go out with his
friends (TSN, September 6, 1995; pp. 9-11).
Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store
fronting the compound, saw Ma.Victoria on that same day three to four times
catching birds inside Isip's unfinished house around 4 o'clock in the
afternoon. The unfinished house was about 8 meters away from Rivera's
store (TSN, September 18, 1995, pp. 9-11).
On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to
his in-law's house between 6 to 7 o'clock p.m. to call his office regarding
changes on the trip of President Fidel V. Ramos. The house of his in-laws
was near the house of Isip. On his way to his in-law's house, Sgt. Suni met
appellant along Dian Street. That same evening, between 8 to 9 o'clock p.m.,
he saw Ma. Victoria standing in front of the gate of the unfinished house
(TSN, September 27, 1995, pp. 3-7; 14-17).
Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's
store to buy lugaw. Norgina Rivera informed appellant that there was none
left of it. She notice that appellant appeared to be uneasy and in deep
thought. His hair was disarrayed; he was drunk and was walking in a dazed
manner. She asked why he looked so worried but he did not answer. Then he
left and walked back to the compound (TSN, September 18, 1995, pp. 4-8;
12-14).
Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing.
She last saw her daughter wearing a pair of white shorts, brown belt, a yellow
hair ribbon, printed blue blouse, dirty white panty, white lady sando and blue
rubber slippers (TSN, August 23, 1995, pp. 22, 33).
Isip testified that appellant failed to show up for supper that night. On the
following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a
passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant
alighted at the top of the bridge of the North Expressway and had thereafter
disappeared (TSN, September 20, 1995, pp. 4-9; September 27, l995; pp.
14-17).
That same morning, around 7:30, a certain Boy found the dead body of Ma.
Victoria inside the septic tank. Boy immediately reported what he saw to the
victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).
With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was
retrieved from the septic tank. She was wearing a printed blouse without
underwear. Her face bore bruises. Results of the autopsy revealed the
following findings:
Cyanosis, lips and nailbeds,

Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,


Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye,
lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral
aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm.
intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right
4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0
cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm elbows, right, 4.0
x 3.0 cm. and left 6.0 x 5.0 cm, forearms, left, posterior aspect, lower rd, 5.2 x
4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral
aspect, upper 33rd , 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0
cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 X
1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0
cm.
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial,
subpleural petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.
Tracheo-bronchial tree, congested.
Other visceral organs, congested.
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head
Injury, Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00
o'clock position corresponding to the face of a watch edges congested with
blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126).
Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro
were informed by Isip that her houseboy, appellant Larry Mahinay, was
missing. According to her, it was unlikely for appellant to just disappear from
the apartment since whenever he would go out, he would normally return on
the same day or early morning of the following day (TSN, September 6,
1995, pp. 6-11-27).
SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of
appellant was working in apancit factory at Barangay Reparo, Caloocan City.
They proceeded to said place. The owner of the factory confirmed to them
that appellant used to work at the factory but she did not know his present

whereabouts. Appellant's townmate, on the other hand, informed them that


appellant could possibly be found on 8th Street, Grace Park, Caloocan City
(TSN, August 14, 1995, pp. 8-9).
The policemen returned to the scene of the crime. At the second floor of the
house under construction, they retrieved from one of the rooms a pair of dirty
white short pants, a brown belt and a yellow hair ribbon which was identified
by Elvira Chan to belong to her daughter, Ma. Victoria. They also found inside
another room a pair of blue slippers which Isip identified as that of appellant.
Also found in the yard, three armslength away from the septic tank were an
underwear, a leather wallet, a pair of dirty long pants and a pliers positively
identified by Isip as appellant's belongings. These items were brought to the
police station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8;
August 23, 1995, pp. 21-25).
A police report was subsequently prepared including a referral slip addressed
to the office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano
retrieved the victim's underwear from the septic tank (TSN, August 23, 1995,
pp. 3-8; 14-17).
After a series of follow-up operations, appellant was finally arrested in
Barangay Obario Matala, Ibaan, Batangas. He was brought to the Valenzuela
Police Station. On July 7, 1995, with the assistance of Atty. Restituto Viernes,
appellant executed an extra-judicial confession wherein he narrated in detail
how he raped and killed the victim. Also, when appellant came face to face
with the victim's mother and aunt, he confided to them that he was not alone
in raping and killing the victim. He pointed to Zaldy and Boyet as his coconspirators (TSN, August 14,1995, pp. 13-21).
Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information
which reads: 2
That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court the above-named accused, by
means of force and intimidation employed upon the person of MARIA
VICTORIA CHAN y CABALLERO, age 12 years old, did then and there
wilfully, unlawfully and feloniously lie with and have sexual intercourse with
said MARIA VICTORIA CHAN Y CABALLERO against her will and without
her consent; that on the occasion of said sexual assault, the above-named
accused, choke and strangle said MARIA VICTORIA CHAN Y CABALLERO
as a result of which, said victim died.
Contrary to law. 3
to which he pleaded not guilty. After trial, the lower court rendered a decision
convicting appellant of the crime charged, sentenced him to suffer the penalty of
death and to pay a total of P73,000.00 to the victim's heirs. The dispositive portion of
the trial court's decision states:

WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond


reasonable doubt of the crime charged, he is hereby sentenced to death by
electricution (sic). He is likewise condemned to indemnify the heirs of the
victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further
sum of P23,000.00 for the funeral, burial and wake of the victim.
Let the complete records of the case be immediately forwarded to the
Honorable Supreme Court for the automatic review in accordance to Article
47 of the Revised Penal Code as amended by Section 22 of Republic Act No.
7659.
SO ORDERED. 4
Upon automatic review by the Court en banc pursuant to Article 47 of the Revised Penal
Code. (RPC), as amended, 5 appellant insists that the circumstantial evidence presented by the
prosecution against him is insufficient to prove his guilt beyond reasonable doubt. In his testimony
summarized by the trial court, appellant offered his version of what transpired as follows:
(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a
drinking spree. Gregorio Rivera is the brother of Maria Isip, appellant's
employer. After consuming three cases of red horse beer, he was summoned
by Isip to clean the jeepney. He finished cleaning the jeepney at 12 o'clock
noon. Then he had lunch and took a bath. Later, he asked permission from
Isip to go out with his friends to see a movie. He also asked for a cash
advance of P300.00 (TSN, October 16, 1995, pp. 4-5-5).
At 2 o'clock in the afternoon, appellant, instead of going out with his friend,
opted to rejoin Gregorio Rivera and Totoy for another drinking session. They
consumed one case of red horse beer. Around 6 o'clock p.m., Zaldy, a coworker, fetched him at Gregorio Rivera's house. They went to Zaldy's house
and bought a bottle of gin. They finished drinking gin around 8 o'clock p.m.
After consuming the bottle of gin, they went out and bought another bottle of
gin from a nearby store. It was already 9 o'clock in the evening. While they
were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin
to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 6-7).
On his way home, appellant passed by Norgina Rivera's store to buy lugaw.
Norgina Rivera informed him that there was none left of it. He left the store
and proceeded to Isip's apartment. But because it was already closed, he
decided to sleep at the second floor of Isip's unfinished house. Around 10
o'clock p.m., Zaldy and Boyet arrived carrying a cadaver. The two placed the
body inside the room where appellant was sleeping. As appellant stood up,
Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape the dead
body of the child or they would kill him. He, however, refused to follow. Then,
he was asked by Zaldy and Boyet to assist them in bringing the dead body
downstairs. He obliged and helped dump the body into the septic tank.
Thereupon, Zaldy and Boyet warned him that should they ever see him
again, they would kill him. At 4 o'clock the following morning, he left the

compound and proceeded first to Navotas and later to Batangas (TSN,


October 16, 1995, pp. 4-13).
Subsequently, appellant was apprehended by the police officers in Ibaan,
Batangas. The police officers allegedly brought him to a big house
somewhere in Manila. There, appellant heard the police officer's plan to
salvage him if he would not admit that he was the one who raped and killed
the victim. Scared, he executed an extra-judicial confession. He claimed that
he was assisted by Atty. Restituto Viernes only when he was forced to sign
the extra-judicial confession (TSN, October 16, 1995, pp. 9-11). 6
This being a death penalty case, the Court exercises the greatest circumspection in the
review thereof since "there can be no stake higher and no penalty more severe . . . than the
termination of a human life." 7 For life, once taken is like virginity, which once defiled can never
be restored. In order therefore, that appellant's guilty mind be satisfied, the Court states the
reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellant's proffered excuse
are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the
absence of any direct evidence relative to the commission of the crime for which he was
prosecuted. Absence of direct proof does not necessarily absolve him from any liability
because under the Rules on evidence 8 and pursuant to settled jurisprudence, 9 conviction may
be had on circumstantial evidence provided that the following requisites concur:
1. there is more than one circumstance;
2. the facts from which the inferences are
derived are proven; and
3. the combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support a conviction, all
circumstances must be consistent with each other, consistent with the hypothesis
that the accused is guilty, and at the same time inconsistent with the hypothesis that
he is innocent and with every other rational hypothesis except that of guilt. 10 Facts
and circumstances consistent with guilt and inconsistent with innocence, constitute
evidence which, in weight and probative force, may surpass even direct evidence in its
effect upon the court. 11
In the case at bench, the trial court gave credence to several circumstantial evidence, which
upon thorough review of the Court is more than enough to prove appellant's guilt beyond the
shadow of reasonable doubt. These circumstantial evidence are as follows:
FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip,
owner of the unfinished big house where the crime happened and the septic
tank where the body of Maria Victoria Chan was found in the morning of June
26, 1995 is located, categorically testified that at about 9:00 in the evening on

June 25, 1995, accused Larry Mahinay was in her store located in front
portion of the compound of her sister-in-law Maria Isip where the unfinished
big house is situated buying rice noodle (lugaw). That she noticed the
accused's hair was disarranged, drunk and walking in sigsagging manner.
That the accused appeared uneasy and seems to be thinking deeply. That
the accused did not reply to her queries why he looked worried but went
inside the compound.
SECOND Prosecution witness Sgt. Roberto C. Suni, categorically testified
that on June 25, 1995 between 6:00 and 7:00 in the evening, on his way to
his in-laws house, he met accused Larry Mahinay walking on the road
leading to his in-law's residence which is about 50 to 75 meters away to the
unfinished big house of Maria Isip. That he also saw victim Maria Victoria
Chan standing at the gate of the unfinished big house of Maria Isip between
8:00 and 9:00 in the same evening.
THIRD Prosecution witness Maria Isip, owner of the unfinished big house
where victim's body was found inside the septic tank, testified that accused
Larry Mahinay is her houseboy since November 20, 1993. That in the
morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from
her to leave. That after finishing some work she asked him to do accused
Larry Mahinay left. That it is customary on the part of Larry Mahinay to return
in the afternoon of the same day or sometimes in the next morning. That
accused Larry Mahinay did not return until he was arrested in Batangas on
July 7, 1995.
FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney
driver plying the route Karuhatan-Ugong and vice versa which include Dian
St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the accused Larry
Mahinay as one of the passengers who boarded his passenger jeepney on
June 26, 1995 at 2:00 early morning and alighted on top of the overpass of
the North Expressway.
FIFTH Personal belongings of the victim was found in the unfinished big
house of Maria Isip where accused Larry Mahinay slept on the night of the
incident. This is a clear indication that the victim was raped and killed in the
said premises.
There is no showing that the testimonies of the prosecution witnesses (sic)
fabricated or there was any reason for them to testify falsely against the
accused. The absence of any evidence as to the existence of improper
motive sustain the conclusion that no such improper motive exists and that
the testimonies of the witnesses, therefore, should be given full faith and
credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA 276,. 284;
People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).
SIXTH Accused Larry Mahinay during the custodial investigation and after
having been informed of his constitutional rights with the assistance of Atty.
Restituto Viernes of the Public Attorney's Office voluntarily gave his

statement admitting the commission of the crime. Said confession of accused


Larry Mahinay given with the assistance of Atty. Restituto Viernes is believed
to have been freely and voluntarily given. That accused did not complain to
the proper authorities of any maltreatment on his person (People vs. delos
Santos L-3398 May 29, 1984;150 SCRA 311). He did not even informed the
Inquest Prosecutor when he sworn to the truth of his statement on July 8,
1995 that he was forced, coersed or was promised of reward or leniency.
That his confession abound with details know only to him. The Court noted
that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as
testified by said Atty. Viernes he informed and explained to the accused his
constitutional rights and was present all throughout the giving of the
testimony. That he signed the statement given by the accused. Lawyer from
the Public Attorneys Office is expected to be watchful and vigilant to notice
any irregularity in the manner of the investigation and the physical conditions
of the accused. The post mortem findings shows that the cause of death
Asphyxia by manual strangulation; Traumatic Head injury Contributory
substantiate. Consistent with the testimony of the accused that he pushed
the victim and the latter's head hit the table and the victim lost
consciousness.
Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay
tapos tinulak ko siya, tapos tumama iyong ulo niya sa mesa.
Ayon na, nakatulog siya tapos ni-rape ko na siya.
There is no clear proof of maltreatment and/or tortured in giving the
statement. There were no medical certificate submitted by the accused to
sustain his claim that he was mauled by the police officers.
There being no evidence presented to show that said
confession were obtained as a result of violence, torture,
maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been
motivated to concoct facts narrated in said affidavit; the
confession of the accused is held to be true, correct and
freely or voluntarily given. (People v. Tuazon 6 SCRA 249;
People v. Tiongson 6 SCRA 431, People v. Baluran 52 SCRA
71, People v. Pingol 35 SCRA 73.)
SEVENTH Accused Larry Mahinay testified in open Court that he was
notable to enter the apartment where he is sleeping because it was already
closed and he proceeded to the second floor of the unfinished house and
slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of
the victim and dumped it inside his room. That at the point of a knife, the two
ordered him to have sex with the dead body but he refused. That the two
asked him to assist them in dumping the dead body of the victim in the septic
tank downstairs. (Tsn pp. 8-9 October 16, 1995). This is unbelievable and
unnatural. Accused Larry Mahinay is staying in the apartment and not in the
unfinished house. That he slept in the said unfinished house only that night of
June 25, 1995 because the apartment where he was staying was already

closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry
Mahinay) was in the second floor of the unfinished house.
Furthermore, if the child is already dead when brought by Zaldy and Boyet in
the room at the second floor of the unfinished house where accused Larry
Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver
upstairs only to be disposed/dump later in the septic tank located in the
ground floor. Boyet and Zaldy can easily disposed and dumped the body in
the septic tank by themselves.
It is likewise strange that the dead body of the child was taken to the room
where accused Larry Mahinay was sleeping only to force the latter to have
sex with the dead body of the child.
We have no test to the truth of human testimony except it's
conformity to aver knowledge observation and experience.
Whatever is repugnant to these belongs to the miraculous.
(People vs. Santos L-385 Nov. 16, 1979)
EIGHT If the accused did not commit the crime and was only forced to
disposed/dumpted the body of the victim in the septic tank, he could have
apprise Col. Maganto, a high ranking police officer or the lady reporter who
interviewed him. His failure and omission to reveal the same is unnatural. An
innocent person will at once naturally and emphatically repel an accusation of
crime as a matter of preservation and self-defense and as a precaution
against prejudicing himself. A person's silence therefore, particularly when it
is persistent will justify an inference that he is not innocent. (People vs.
Pilones, L-32754-5 July 21, 1978).
NINTH The circumstance of flight of the accused strongly indicate his
consciousness of guilt. He left the crime scene on the early morning after the
incident and did not return until he was arrested in Batangas on July 7,
1995. 12
Guided by the three principles in the review of rape cases, to wit: 13
1). An accusation for rape can be made with facility; it is difficult to prove but
more difficult for the person accused, though innocent, to disprove;

2). In view of the intrinsic nature of the crime of rape, where only two persons
are usually involved, the testimony of the complainant is scrutinized with
extreme caution; and
3). The evidence of the prosecution stands or falls on its own merits and
cannot be allowed to draw strength from the weakness of the defense.
the foregoing circumstantial evidence clearly establishes the felony of rape with
homicide defined and penalized under Section 335 of the Revised Penal Code, as
amended by Section 11, R.A. 7659, which provides:

When and how rape is committed - Rape is committed by having carnal


knowledge of a woman under any of the following circumstances.
1.) By using force or intimidation;
2.) When the woman is deprived of reason or
otherwise unconscious: and
3.) When the woman is under twelve years of
age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with use of a deadly weapon or by
two or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by
reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.
When by reason or on the occasion of the rape, a homicide is committed the
penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1.) When the victim is under eighteen (18)
years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil
degree, or the common-law spouse of the
parent of the victim.
2.) When the victim is under the custody of the
police or military authorities.
3.) When the rape is committed in full view of
the husband, parent, any of the children or
other relatives within the third degree of
consanguinity.
4.) When the victim is a religious or a child
below seven (7) years old.

5.) When the offender knows that he is


afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6.) When committed by any member of the
Armed Forces of the Philippines or Philippine
National Police or any law enforcement
agency
7.) When by reason or on the occasion of the
rape, the victim has suffered permanent
physical mutilation. 14
At the time of the commission of this heinous act, rape was still considered a crime against
chastity, 15 although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been reclassified as a crime against persons under Articles 266-A and 266-B, and thus, may be
prosecuted even without a complaint filed by the offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by
force and without consent. 16 (Under the new law, rape may be committed even by a woman and
the victim may even be a
man.) 17 If the woman is under 12 years of age, proof of force and consent becomes
immaterial 18 not only because force is not an element of statutory rape, 19 but the absence of a
free consent is presumed when the woman is below such age. Conviction will therefore lie,
provided sexual intercourse is proven. But if the woman is 12 years of age or over at the time she
was violated, as in this case, not only the first element of sexual intercourse must be proven but
also the other element that the perpetrator's evil acts with the offended party was done through
force, violence, intimidation or threat needs to be established. Both elements are present in this
case.
Based on the evidence on record, sexual intercourse with the victim was adequately proven.
This is shown from the testimony of the medical doctor who conducted post
mortem examination on the child's body:
Q: And after that what other parts or the victim did you
examine?
A: Then I examined the genitalia of the victim.
Q: And what did you find out after you examined the genitalia
of the victim?
A: The hymen was tall-thick with complete laceration at 4:00
o'clock and 8:00 o'clock position and that the edges were
congested.
Q: Now, what might have caused the laceration?

A: Under normal circumstances this might have (sic) caused


by a penetration of an organ.
Q: So, the laceration was caused by the penetration of a male
organ?
A: Adult male organ, sir.
Q: You are very sure of that, Mr. Witness?
A: I am very sure of that. 20
Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted
that he had sexual congress with the unconscious child.
15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung
malaking bahay na ginagawa, tapos dumating yung batang
babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa
kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa
mesa. Ayon na, nakakatulog na siya tapos ni rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi mo?
S: Itong short na ito, (pointing to a dirty white short placed
atop this investigator's table. Subject evidence were part of
evidences recovered at the crime scene).
17. T: Bakit mo naman ni rape yung batang babae?
S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang
ginagawa ko.
18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng
lasing?
S: Red Horse po at saka GIN.
19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni
rape yung batang babae?.
S: Sa kuwarto ko po sa itaas.
20. T: Kailan ito at anong oras nangyari?

S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko


na matandaan kung anong petsa, basta araw ng Linggo.
21. T: Saan lugar ito nangyari?
S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M.
22. T: Alam mo ba ang pangalan ng batang babae na ni rape
mo?
S: Hindi ko po alam.
23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng
batang babae na iyong ni rape at pinatay ay si MA.
VICTORIA CHAN? Matatandaan mo ha ito?
S: Oho.
24. T: Nung ma-rape mo, nakaraos ka ba?
S: Naka-isa po.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin
ng "NAKARAOS", maaari bang ipaliwanag mo ito?
S: Nilabasan po ako ng tamod.
26 T: Nung nakaraos ka, nasaan parte na katawan ng batang
babae yung iyong ari?
S: Nakapasok po doon sa ari nung babae.
27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano
pa ang sumunod mong ginawa?
S: Natulak ko siya sa terrace.
28. T: Ano ang nangyari kay MA. VICTORIA matapos mong
itulak sa terrace?
S: Inilagay ko po sa poso-negra.
29. T: Saan makikita yung poso negra na sinasabi mo?
S: Doon din sa malaking bahay ni ATE MARIA.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa


poso-negra?
S: Doon ko lang po inilagay.
31. T: Bakit nga doon mo inilagay siya?
S: Natatakot po ako.
32. T: Kanino ka natatakot?
S: Natatakot po ako sa ginawa kong masama, natatakot ako
sa mga pulis.
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa
poso-negra?
S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na
siya sa poso-negra.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka
kasama?
S: Nag-iisa lang po ako.
35. T: Noong mga oras o sandaling gahasain mo si MA.
VICTORIA CHAN, buhay pa ba siya o patay na?
S: Buhay pa po.
36. T: Papaano mo siya pinatay?
S: Tinulak ko nga po siya sa terrace. 21
In proving sexual intercourse, it is not full or deep penetration of the victim's vagina; rather
the slightest penetration of the male organ into the female sex organ is enough to
consummate the sexual intercourse. 22 The mere touching by the male's organ or instrument of
sex of the labia of the pudendum of the woman's private parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim, force was indeed
employed upon her to satisfy carnal lust. Moreover, from appellant's own account, he pushed
the victim causing the latter to hit her head on the table and fell unconscious. It was at that
instance that he ravished her and satisfied his salacious and prurient desires. Considering
that the victim, at the time of her penile invasion, was unconscious, it could safely be
concluded that she had not given free and voluntary consent to her defilement, whether
before or during the sexual act.

Another thing that militates against appellant is his extra judicial confession, which he,
however, claims was executed in violation of his constitutional right to counsel. But his
contention is belied by the records as well as the testimony of the lawyer who assisted,
warned and explained to him his constitutionally guaranteed pre-interrogatory and custodial
rights. As testified to by the assisting lawyer:
Q Will you please inform the Court what was that call
about?
A We went to the station, police investigation together with
Atty. Froilan Zapanta and we were told by Police Officer
Alabastro that one Larry Mahinay would like to confess of the
crime of, I think, rape with homicide.
Q And upon reaching the investigation room of Valenzuela
PNP who were the other person present?
A Police Officer Alabastro, sir, Police Officer Nacis and
other investigator inside the investigation room and the
parents of the child who was allegedly raped.
Q And when you reached the investigation room do you
notice whether the accused already there?
A The accused was already there.
Q Was he alone?
A He was alone, sir.
Q So, when you were already infront of SPO1 Arnold
Alabastro and the other PNP Officers, what did they tell you, if
any?
A They told us together with Atty. Zapanta that this Larry
Mahinay would like to confess of the crime charged, sir.
Q By the way, who was that Atty. Zapanta?
A Our immediate Superior of the Public Attorney's Office.
Q Was he also present at the start of the question and
answer period to the accused?
A No more, sir, he already went to our office. I was left
alone.
Q But he saw the accused, Larry Mahinay?

A Yes, sir.
Q Now, when Atty. Zapanta left at what time did the
question and answer period start?
A If I am not mistaken at around 4:05 of July 7, 1995 in the
afternoon, sir.
Q And when this question and answer period started, what
was the first thing that you did as assisting lawyer to the
accused?
A First, I tried to explain to him his right, sir, under the
constitution.
Q What are those right?
A That he has the right to remain silent. That he has the
right of a counsel of his own choice and that if he has no
counsel a lawyer will be appointed to him and that he has the
right to refuse to answer any question that would incriminate
him.
Q Now, after enumerating these constitutional rights of
accused Larry Mahinay, do you recall whether this
constitutional right enumerated by you were reduced in
writing?
A Yes, sir, and it was also explained to him one by one by
Police Officer Alabastro.
Q I show to you this constitutional right which you said
were reduced into writing, will you be able to recognize the
same?
A Yes, sir.
Q Will you please go over this and tell the Court whether
that is the same document you mentioned?
A Yes, sir, these were the said rights reduced into writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked
as our Exhibit A. proper.

Q Do you recall after reducing into writing this


constitutional right of the accused whether you asked him to
sign to acknowledge or to conform?
A I was the one who asked him, sir. It was Police Officer
Alabastro.
Q But you were present?
A I was then present when he signed.
Q There is a signature in this constitutional right after the
enumeration, before and after there are two (2) signatures,
will you please recognize the two (2) signatures?
A These were the same signatures signed in my presence,
sir.
Q The signature of whom?
A The signature of Larry Mahinay, sir.
ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures
identified by my compaero be encircled and marked as
Exhibit A-1 and A-2.
Q After you said that you apprised the accused of his
constitutional right explaining to him in Filipino, in local
dialect, what was the respond of the accused?
A Larry Mahinay said that we will proceed with his
statement.
Q What was the reply?
A He said "Opo".
Q Did you ask him of his educational attainment?
A It was the Police Officer who asked him.
Q In your presence?
A In my presence, sir.

Q And when he said or when he replied "Opo" so the


question started?
A Yes, sir.
Q I noticed in this Exhibit A that there is also a waiver of
rights, were you present also when he signed this waiver?
A Yes, sir, I was also present.
Q Did you explain to him the meaning of this waiver?
A I had also explained to him, sir.
Q In Filipino?
A In Tagalog, sir.
Q And there is also a signature after the waiver in Filipino
over the typewritten name Larry Mahinay, "Nagsasalaysay",
whose signature is that?
A This is also signed in my presence.
Q Why are you sure that this is his signature?
A He signed in my presence, sir.
Q And below immediately are the two (2) signatures. The
first one is when Larry Mahinay subscribed and sworn to,
there is a signature here, do you recognize this signature?
A This is my signature, sir.
Q And immediately after your first signature is a
Certification that you have personally examined the accused
Larry Mahinay and testified that he voluntary executed the
Extra Judicial Confession, do you recognize the signature?
A This is also my signature, sir. 23 (emphasis supplied).
Appellant's defense that two other persons brought to him the dead body of the victim and
forced him to rape the cadaver is too unbelievable. In the words of Vice-Chancellor Van Fleet
of New Jersey, 24
Evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself - such as the common experience and

observation of mankind can approve as probable under the circumstances.


We have no test or the truth of human testimony, except its conformity to our
knowledge, observation and experience. Whatever is repugnant to these
belongs to the miraculous, and is outside of judicial cognizance.
Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the
rule that the findings of facts and assessment of credibility of witnesses is a matter best left
to the trial court because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses' deportment on the stand while testifying, which
opportunity is denied to the appellate courts. 25 In this case, the trial court's findings, conclusions
and evaluation of the testimony of witnesses is received on appeal with the highest respect, 26 the
same being supported by substantial evidence on record. There was no showing that the court a
quo had overlooked or disregarded relevant facts and circumstances which when considered
would have affected the outcome of this case 27 or justify a departure from the assessments and
findings of the court below. The absence of any improper or ill-motive on the part of the principal
witnesses for the prosecution all the more strengthens the conclusion that no such motive
exists. 28 Neither was any wrong motive attributed to the police officers who testified against
appellant.
Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article
335 of the Revised Penal Code (RPC), as amended by R.A. 7659 "when by reason or on
occasion of the rape, a homicide is committed, the penalty shall be death." This special
complex crime is treated by law in the same degree as qualified rape - that is, when any of
the 7 (now 10) "attendant circumstances" enumerated in the law is alleged and proven, in
which instances, the penalty is death. In cases where any of those circumstances is
proven though not alleged, the penalty cannot be death except if the circumstance proven
can be properly appreciated as an aggravating circumstance under Articles 14 and 15 of the
RPC which will affect the imposition of the proper penalty in accordance with Article 53 of the
RPC However, if any of those circumstances proven but not alleged cannot be considered as
an aggravating circumstance under Articles 14 and 15, the same cannot affect the imposition
of the penalty because Article 63 of the RPC in mentioning aggravating circumstances refers
to those defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is
alleged in the information/complaint, it may be treated as a qualifying circumstance. But if it
is not so alleged, it may be considered as an aggravating circumstance, in which case the
only penalty is death - subject to the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by law for the crime
of "rape with homicide", the court has no option but to apply the same "regardless of any
mitigating or aggravating circumstance that may have attended the commission of the
crime" 29 in accordance with Article 63 of the RPC, as amended. 30 This case of rape with
homicide carries with it penalty of death which is mandatorily imposed by law within the import of
Article 47 of the RPC, as amended, which provides:
The death penalty shall be imposed in all cases in which it must be imposed
under existing laws,except when the guilty person is below eighteen (18)
years of age at the time of the commission of the crime or is more than
seventy years of age or when upon appeal or automatic review of the case
by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be reclusion
perpetua.

(emphasis supplied).
In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried
to alter his date of birth to show that he was only 17 years and a few months old at the time
he committed the rape and thus, covered by the proscription on the imposition of death if the
guilty person is below eighteen (18) years at the time of the commission of the
crime. 31 Again, the record rebuffs appellant on this point considering that he was proven to be
already more than 20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty
thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by
any of the circumstances under which the death penalty is authorized by present amended
law, the civil indemnity for the victim shall be not less than seventy-five thousand pesos
(P75,000.00). 32 In addition to such indemnity, she can also recover moral damages pursuant to
Article 2219 of the Civil Code 33 in such amount as the court deems just, without the necessity for
pleading or proof of the basis thereof. 34 Civil indemnity is different from the award of moral and
exemplary damages. 35 The requirement of proof of mental and physical suffering provided in
Article 2217 of the Civil Code is dispensed with because it is "recognized that the victim's injury is
inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per
se the award of moral damages". 36 Thus, it was held that a conviction for rape carries with it the
award of moral damages to the victim without need for pleading or proof of the basis thereof. 37
Exemplary damages can also be awarded if the commission of the crime was attended by
one or more aggravating circumstances pursuant to Article 2230 of the Civil Code 38 after
proof that the offended party is entitled to moral, temperate and compensatory damages. 39 Under
the circumstances of this case, appellant is liable to the victim's heirs for the amount of
P75,000.00 as civil indemnity and P50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure that the evidence
against an accused were obtained through lawful means, the Court, as guardian of the rights
of the people lays down the procedure, guidelines and duties which the arresting, detaining,
inviting, or investigating officer or his companions must do and observe at the time of making
an arrest and again at and during the time of the custodial interrogation 40 in accordance with
the Constitution, jurisprudence and Republic Act No. 7438: 41 It is high-time to educate our lawenforcement agencies who neglect either by ignorance or indifference the so-called Miranda
rights which had become insufficient and which the Court must update in the light of new legal
developments:
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must
be shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known
to and understood by said person;
2. He must be warned that he has a right to remain silent and
that anystatement he makes may be used as evidence
against him;

3. He must be informed that he has the right to be assisted at


all times and have the presence of an independent and
competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot
afford the services of a lawyer, one will be provided for him;
and that a lawyer may also be engaged by any person in his
behalf, or may be appointed by the court upon petition of the
person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he
must be informed that no custodial investigation in any form
shall be conducted except in the presence of his counsel or
after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he
has the right to communicate or confer by the most expedient
means - telephone, radio, letter or messenger - with his
lawyer (either retained or appointed), any member of his
immediate family, or any medical doctor, priest or minister
chosen by him or by any one from his immediate family or by
his counsel, or be visited by/confer with duly accredited
national or international non-government organization. It shall
be the responsibility of the officer to ensure that this is
accomplished;
7. He must be informed that he has the right to waive any of
said rights provided it is made voluntarily, knowingly and
intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in writing
AND in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insist on his waiver
and chooses to speak;
9. That the person arrested must be informed that he may
indicate in any manner at any time or stage of the process
that he does not wish to be questioned with warning that once
he makes such indication, the police may not interrogate him
if the same had not yet commenced, or the interrogation must
ceased if it has already begun;
10. The person arrested must be informed that his initial
waiver of his right to remain silent, the right to counsel or any
of his rights does not bar him from invoking it at any time
during the process, regardless of whether he may have
answered some questions or volunteered some statements;

11. He must also be informed that any statement or evidence,


as the case may be, obtained in violation of any of the
foregoing, whether inculpatory or exculpatory, in whole or in
part, shall be inadmissible in evidence.
Four members of the Court although maintaining their adherence to the separate opinions
expressed in People v. Echegaray 42 that R.A. No. 7659, insofar as it prescribes the death
penalty, is unconstitutional nevertheless submit to the ruling of the Court, by a majority vote,
that the law is constitutional and that the death penalty should accordingly be imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil
indemnity for the heinous rape which is INCREASED to P75,000.00, PLUS P50,000.00
moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised
Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded
to the Office of the President for possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Martinez, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.
Footnotes
1 Rollo, pp. 146-154: Appellees Brief filed by the Solicitor General, pp. 2-10.*Sic is no longer
indicated so as not to clutter the narration and other quotations from other quotations from the
records and the Transcript of Stenographic Notes (TSN).
2 Information docketed as Criminal Case No. 4974-V-95 filed before the Regional Trial Court
(RTC) of Valenzuela, Metro Manila.
3 Rollo, p. 8; RTC Records, p. 2.
4 Decision dated October 25. 1995 penned by Judge Adriano R. Osorio of Branch 171 of the
RTC of Valenzuela; Rollo, p. 130.
5 Art. 47, Revised Penal Code, as amended by Section 22. R.A. 7659 provides: In what cases
the death penalty shall not be imposed; automatic review of death penalty cases. . . . In all
cases where the death penalty is imposed by the trial court, the records shall be forwarded to
the Supreme Court for automatic review and judgement by the Court en banc, within twenty
(20) days but not earlier than fifteen (15) days after promulgation of the judgement or notice
of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded
within ten (10) days after the filing thereof by the stenographic reporter. (Emphasis supplied)
6 Rollo, pp. 152-154.
7 People v. Galera, 280 SCRA 492.
8 Sec. 4, Rule 133, Revised Rules on Evidence.
9 People v. Rivera, G.R. No. 117471, September 3, 1998: People v. Quitorio, et.al. G.R.
No.116765, January 28, 1998; People v. Berroya, 283 SCRA 111: People v. Abrera, 283 SCRA 1;
People v. Doro, 282 SCRA 1: People v. Dabbay, 277 SCRA 432; People v. Bonola, 274 SCRA 238;
People v. Grefoldia, 273 SCRA 591.
10 People v. De Guia, 280 SCRA 141.
11 People v. Alberca, 257 SCRA 613 citing People v. Abitono, 240 SCRA 335.
12 Rollo, pp. 126-129: RTC Decision pp. 15-18.
13 People v. Gallo, 284 SCRA (1998) 590.
14 Art. 335 of the Revised Penal Code (RPC), as amended by R.A. No. 7659 and further
amended by R.A. No. 8353, was renumbered to Articles 266-A and 266-8 of the RPC which
reeds: Art. 266-A. Rape; When and how committed. - Rape is committed

1.) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a.) Through force, threat, or intimidation:
b.) When the offended party is deprived of reason or otherwise unconscious;
c.) By means of fraudulent machination or grave abuse of authority; and
d.) When the offended party is under twelve years of age or is demented, even though
none of the circumstances mentioned above be present.
2.) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting his penis into another person's mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of another person.
Art. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be
punished byreclusion perpetua.
Whenever the rape is committed with use of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape; the victim has become insane, the penalty
shall bereclusion perpetua to death.
When the rape is attempted and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, homicide is committed, the penalty shall be
death.
The death penalty shall also be imposed if the crime of rape is committed with any of the
following aggravating/qualifying circumstances:
1.) hen the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim;
2.) hen the victim is under the custody of the police or military authorities or any law
enforcement or penal institution:
3.) hen the rape is committed in full view of the spouse, parent, any of the children or
other relatives within the third degree of consanguinity.
4.) When the victim is a religious engaged in legitimate religious vocation or calling
and is personally known to be such by the offender before or at the time of the
commission of the crime:
5.) When the victim is a child below seven (7) years old;
6.) When the offender knows that he is afflicted with Human Immuna-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually;
transmissible disease and the virus or disease is transmitted to the victim:
7.) When committed by any member of the Armed Forces of the Philippines or
Philippine National Police or any low enforcement agency.
8.) When by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation.
9.) When the offender knew of the pregnancy of the offended party at the time of the
commission of the crime: and
10.) When the offender knew of the mental disability, emotional disorder and/or
physical handicap of the offended party at the time of the commission of the crime.
Rape under paragraph. 2 of the next preceding Article shall be punished by prison mayor.
Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be prision mayor to reclusion temporal.
"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall bereclusion temporal.
When the rape is attempted and the homicide is committed by reason or on occasion
thereof, the penalty shall be reclusion temporal or reclusion perpetua.
When by reason or on the occasion of the rape, homicide is committed, the penalty
shall be reclusion perpetua.
Reclusion temporal shall also be imposed if the rape is committed with any of the ten
aggravating/qualifying circumstances mentioned in this article.
15 This case occurred after the passing of the Death Penalty Law (R.A. No. 7659) which took
effect on December 31, 1993.

16 People v. Philip Tan, Jr. 264 SCRA 425.


17 Art. 266-A, Revised Penal Code, as amended by R.A. No. 8353.
18 People v. Lagrosa, Jr., 230 SCRA 298: The two elements of statutory rape are; (1) that the
accused had carnal knowledge of a woman: and (2) that the women is below twelve years of
age. (People v. Andres, 253 SCRA 751).
19 People v. Aborda, 328 Phil. 80; People v. Oarga, 328 Phil. 395; People v. Ligator, 331 Phil.
98.
20 TSN, September 1, 1995, Dr. Antonio Vertido, pp. 18-19.
21 Sinumpaang Salaysay of appellant Larry Mahinay, dated July 8, 1995; RTC Records p. 20.
22 People v. Ligotan, 331 Phil 98: People v. Lazaro, 249 SCRA 234.
23 TSN, August 11, 1995, morning session. Atty. Restituto Viernes, pp. 6-11.
24 Cited in Daggers v. Van Dyck, 37 N.J. Eq., 130, 132: See also People v. Cora. 283 SCRA 96.
25 People v. Philip Tan, Jr. 264 SCRA 425.
26 People v. Baccay, 284 SCRA 296: People v. Tenorio, 284 SCRA 420.
27 People v. Dio, 44 SCAD 559: People v. Matrimonio, 215 SCRA 613.
28 People v. Ravanes, 284 SCRA 634.
29 People v. Ramos, G.R. No. 129439, September 25, 1998.
30 Rules for the application of indivisible penalties. In all cases in which the law prescribes a
single indivisible penalty, It shall be applied by the courts regardless of any mitigating or
aggravating circumstance that may have attended the commission of the deed. . . .
31 Art. 47, RPC, as amended.
32 People v. Perez, G.R. No. 122764, September 24, 1998; People v. Bernaldez G.R. No.
109780, August 17, 1998 citing People v. Victor y Penis, G.R. No. 127903, July 9, 1998.
33 Moral damages may be recovered in the following and analogous cases:
xxx xxx xxx
(3) seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this
Article, may also recover moral damages.
34 People v. De los Santos, G.R. No, 121906, September 17, 1998; People v. Victor y Penis,
supra.
35 People v. Prades, G.R. No. 127569. July 30. 1998 cited in People v. Mostrales, G.R.
No.125937. August 28, 1998.
36 People v. Perez, supra.
37 People v. Bartolome, G.R. No. 129054, September 29, 1998 citing People v. Prades, People v.
Alfeche, G.R. No. 124213, August 17, 1998; See also Article 2219(3), New Civil Code.
38 People v. Bernaldez, supra.
39 People v. Ramos, G.R. No. 129439, September 25, 1998; People v. Tabugoca, 285 SCRA 312.
40 People v. Dicierdo, 149 SCRA 496.
41 Under R.A. No. 7438 (AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED
OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING,
DETAINING, AND INVESTIGATING OFFICERS AND PROVIDING PENALTIES FOR VIOLATIONS
THEREOF) which took effect only on July 7, 1992, "custodial investigation" includes the practice
of issuing an "invitation" to a person who is investigated in connection with an offense he is
suspected to have committed.
42 267 SCRA 282, (1997).

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. Nos. 111771-77 November 9, 1993


ANTONIO L. SANCHEZ, petitioner,
vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of
Regional Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in
his capacity as Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB,
CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P.
LORENZO, the last six respondents in their official capacities as members of the State
Prosecutor's Office), respondents.
Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.
The Solicitor General for respondents.

CRUZ, J.:
There is probably no more notorious person in the country today than Mayor Antonio L.
Sanchez of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the
verdict has already been rendered by many outraged persons who would immediately
impose on him an angry sentence. Yet, for all the prejudgments against him, he is under our
Constitution presumed innocent as long as the contrary has not been proved. Like any other
person accused of an offense, he is entitled to the full and vigilant protection of the Bill of
Rights.
Sanchez has brought this petition to challenge the order of the respondent judge denying his
motion to quash the informations for rape with homicide filed against him and six other
persons. We shall treat it as we would any other suit filed by any litigant hoping to obtain a
just and impartial judgment from this Court.

The pertinent facts are as follows:


On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate
charges against several persons, including the petitioner, in connection with the rape-slay of
Mary Eileen Sarmenta and the killing of Allan Gomez.
Acting on this request, the Panel of State Prosecutors of the Department of Justice
conducted a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present
but was represented by his counsel, Atty. Marciano Brion, Jr.
On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner
requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was
served on Sanchez in the morning of August 13,1993, and he was immediately taken to the
said camp.
At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and
SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in
the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on
"arrest status" and taken to the Department of Justice in Manila.
The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty.
Salvador Panelo as his counsel.
After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on
August 13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch
7, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8,
in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention
Center, Camp Crame, where he remains confined.
On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of
Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio
Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape
and killing of Mary Eileen Sarmenta.
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the
arrest of all the accused, including the petitioner, in connection with the said crime.
The respondent Secretary of Justice subsequently expressed his apprehension that the trial
of the said cases might result in a miscarriage of justice because of the tense and partisan
atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the
trial court with one of the accused. This Court thereupon ordered the transfer of the venue of
the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet
Demetriou.

On September 10, 1993, the seven informations were amended to include the killing of Allan
Gomez as an aggravating circumstance.
On that same date, the petitioner filed a motion to quash the informations substantially on
the grounds now raised in this petition. On September 13, 1993, after oral arguments, the
respondent judge denied the motion. Sanchez then filed with this Court the instant petition
for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction.
The petitioner argues that the seven informations filed against him should be quashed
because: 1) he was denied the right to present evidence at the preliminary investigation; 2)
only the Ombudsman had the competence to conduct the investigation; 3) his warrantless
arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being
charged with seven homicides arising from the death of only two persons; 5) the informations
are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6)
as a public officer, he can be tried for the offense only by the Sandiganbayan.
The respondents submitted a Comment on the petition, to which we required a Reply from
the petitioner within a non-extendible period of five days. 1 The Reply was filed five days
late. 2 The Court may consider his non-compliance an implied admission of the respondents'
arguments or a loss of interest in prosecuting his petition, which is a ground for its dismissal.
Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on the
basis of the arguments before us.
The Preliminary Investigation.
The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention
that he was not accorded the right to present counter-affidavits.
During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty.
Marciano Brion, manifested that his client was waiving the presentation of a counter-affidavit,
thus:
Atty. Brion, Jr.:
[W]e manifest that after reviewing them there is nothing to rebut or
countermand all these statements as far as Mayor Sanchez is concerned,
We are not going to submit any counter-affidavit.
ACSP Zuo to Atty. Brion:
xxx xxx xxx
Q. So far, there are no other statements.

A. If there is none then, we will not submit any counteraffidavit because we believe there is nothing to rebut or
countermand with all these statements.
Q. So, you are waiving your submission of counter-affidavit?
A. Yes, your honor, unless there are other witnesses who will
come up soon. 3
Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty.
Brion that he could still file a counter-affidavit up to August 27, 1993. No such counteraffidavit was filed.
During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel,
this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and
Malabanan, and told him he could submit counter-affidavits on or before August 27, 1993.
The following exchange ensued:
ACSP Zuo:
For the record, we are furnishing to you the sworn statement
of witness Aurelio Centeno y Roxas and the sworn statement
of SPO3 Vivencio Malabanan y Angeles.
Do I understand from you that you are again waiving the
submission of counter-affidavit?
Atty. Panelo:
Yes.
ACSP Zuo:
So, insofar as the respondent, Mayor Antonio Sanchez is
concerned, this case is submitted for resolution. 4
On the other hand, there is no support for the petitioner's subsequent manifestation that his
counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was
not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio
Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the abovequoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993,
was not Atty. Brion but Atty. Panelo.

The petitioner was present at that hearing and he never disowned Atty. Panelo as his
counsel. During the entire proceedings, he remained quiet and let this counsel speak and
argue on his behalf. It was only in his tardy Reply that he has suddenly bestirred himself and
would now question his representation by this lawyer as unauthorized and inofficious.
Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent
cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the
investigating officer shall base his resolution on the evidence presented by the complainant.
Just as the accused may renounce the right to be present at the preliminary investigation 5,
so may he waive the right to present counter-affidavits or any other evidence in his defense.
At any rate, it is settled that the absence of a preliminary investigation does not impair the
validity of the information or otherwise render the same defective and neither does it affect
the jurisdiction of the court over the case or constitute a ground for quashing the
information. 6
If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion
of the accused, order an investigation or reinvestigation and hold the proceedings in the
criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or
need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her
judgment.
Jurisdiction of the Ombudsman
Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings
conducted by the Department of Justice are null and void because it had no jurisdiction over the
case. His claim is that it is the Office of the Ombudsman that is vested with the power to conduct
the investigation of all cases involving public officers like him, as the municipal mayor of Calauan,
Laguna.
The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to
investigate and prosecute, any illegal act or omission of any public official. However, as we
held only two years ago in the case ofAguinaldo v. Domagas, 9 this authority "is not an
exclusive authority but rather a shared or concurrent authority in. respect of the offense charged."
Petitioners finally assert that the information and amended information filed in
this case needed the approval of the Ombudsman. It is not disputed that the
information and amended information here did not have the approval of the
Ombudsman. However, we do not believe that such approval was necessary
at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the
Ombudsman has authority to investigate charges of illegal or omissions on
the part of any public official, i.e., any crime imputed to a public official. It
must, however, be pointed out that the authority of the Ombudsman to

investigate "any [illegal] act or omission of any public official" (191 SCRA at
550) isnot an exclusive authority but rather a shared or concurrent authority
in respect of the offense here charged, i.e., the crime of sedition. Thus, the
non-involvement of the office of the Ombudsman in the present case does
not have any adverse legal consequence upon the authority the panel of
prosecutors to file and prosecute the information or amended information.
In fact, other investigatory agencies, of the government such as the Department of Justice, in
connection with the charge of sedition, 10 and the Presidential Commission on Good
Government, in ill-gotten wealth cases, 11 may conduct the investigation,
The Arrest
Was petitioner Sanchez arrested on August 13, 1993?
"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person
into custody in order that he may be bound to answer for the commission of an offense.
Under Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to
be arrested or by his voluntary submission to the custody of the person making the arrest.
Application of actual force, manual touching of the body, physical restraint or a formal
declaration of arrest is not, required. It is enough that there be an intent on the part of one of
the parties to arrest the other and an intent onthe part of the other to submit, under the belief
and impression that submission is necessary. 12
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letterinvitation issued by PNP Commander Rex Piad requesting him to appear at the said camp
for investigation.
In Babst v. National Intelligence Board 13 this Court declared:
Be that as it may, it is not idle to note that ordinarily, an invitation to attend a
hearing and answer some questions, which the person invited may heed or
refuse at his pleasure, is not illegal or constitutionally objectionable. Under
certain circumstances, however, such an invitation can easily assume a
different appearance. Thus, where the invitation comes from a powerful
group composed predominantly of ranking military officers issued at a time
when the country has just emerged from martial rule and when the
suspension of the privilege of the writ of habeas corpus has not entirely been
lifted, and the designated interrogation site is a military camp, the same can
be easily taken, not as a strictly voluntary invitation which it purports to be,
but as an authoritative command which one can only defy at his peril. . . .
(Emphasis supplied)

In the case at bar, the invitation came from a high-ranking military official and the
investigation of Sanchez was to be made at a military camp. Although in the guise of a
request, it was obviously a command or an order of arrest that the petitioner could hardly he
expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and in
informal clothes and slippers only) with the officers who had come to fetch him.
It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial
investigation" are applicable even to a person not formally arrested but merely "invited" for
questioning.
It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest
status" after he was pointed to by Centeno and Malabanan as the person who first raped
Mary Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993
hearing that, on the basis of the sworn statements of the two state witnesses, petitioner had
been "arrested."
We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the
Rules of Court, providing as follows:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed and he has personal
knowledge of facts indicating that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escapes from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
It is not denied that the arresting officers were not present when the petitioner allegedly
participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither
did they have any personal knowledge that the petitioner was responsible therefor because
the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as
the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six
days before the date of the arrest, it cannot be said that the offense had "in fact just been
committed" when the petitioner was arrested.
The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the
Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of

the warrant of arrest it issued on August 26, 1993 against him and the other accused in
connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the trial court still
lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused
objects to the jurisdiction of the court over his person, he may move to quash the
information, but only on that ground. If, as in this case, the accused raises other grounds in
the motion to quash, he is deemed to have waived that objection and to have submitted his
person to the jurisdiction of that court. 14
The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal
Cases Nos. 93-124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of
the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for
his detention.
The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of
that detention or at least deny him the right to be released because of such defect. * Applicable
by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec, 4. When writ is not allowed or discharge authorized. If it appears that


the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall
not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall, anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines or of a person suffering imprisonment under lawful judgment.
In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested
by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant
specifically naming her had been issued, thus validating her detention. While frowning at the
tactics of the respondents, the Court said:
The, case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and the
Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it will be
followed by her immediate re-arrest pursuant to the new and valid warrant,

returning her to the same prison she will just have left. This Court will not
participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court,
the Umil case. 18

17

more recently in

The Informations
The petitioner submits that the seven informations charging seven separate homicides are
absurd because the two victims in these cases could not have died seven times.
This argument was correctly refuted by the Solicitor General in this wise:
Thus, where there are two or more offenders who commit rape, the homicide
committed on the occasion or by reason of each rape, must be deemed as a
constituent of the special complex crime of rape with homicide. Therefore,
there will be as many crimes of rape with homicide as there are rapes
committed.
In effect, the presence of homicide qualifies the crime of rape, thereby raising
its penalty to the highest degree. Thus, homicide committed on the occasion
or by reason of rape, loses its character as an independent offense, but
assumes a new character, and functions like a qualifying circumstance.
However,by fiction of law, it merged with rape to constitute an constituent
element of a special complex crime of rape with homicide with a specific
penalty which is in the highest degree, i.e. death (reduced to reclusion
perpetua with the suspension of the application of the death penalty by the
Constitution).
It is clearly provided in Rule 110 of the Rules of Court that:
Sec. 13. Duplicity of offense. A complaint or information must charge but one
offense, except only in those cases in which existing laws prescribe a simple
punishment for various offenses.
Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending
the Revised Penal Code.
The petitioner and his six co-accused are not charged with only one rape committed by him
in conspiracy with the other six. Each one of the seven accused is charged with having
himself raped Sarmenta instead of simply helping Sanchez in committing only one rape. In
other words, the allegation of the prosecution is that the girl was raped seven times, with
each of the seven accused taking turns in abusing her with the assistance of the other six.
Afterwards, their lust satisfied, all seven of them decided to kill and thus silence Sarmenta.

Every one of the seven accused is being charged separately for actually raping Sarmenta
and later killing her instead of merely assisting the petitioner in raping and then slaying her.
The separate informations filed against each of them allege that each of the seven
successive rapes is complexed by the subsequent slaying of Sarmenta and aggravated by
the killing of Allan Gomez by her seven attackers. The separate rapes were committed in
succession by the seven accused, culminating in the slaying of Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed
seven times, but the informations do not make such a suggestion. It is the petitioner who
does so and is thus hoist by his own petard.
The Alleged Discrimination
The charge of discrimination against the petitioner because of the non-inclusion of Teofilo
Alqueza and Edgardo Lavadia in the informations must also be dismissed.
While the prosecuting officer is required by law to charge all those who in his opinion, appear
to be guilty, he nevertheless cannot be compelled to include in the information a person
against whom he believes no sufficient evidence of guilt exists. 19 The appreciation of the
evidence involves the use of discretion on the part of the prosecutor, and we do not find in the
case at bar a clear showing by the petitioner of a grave abuse of such discretion. 20
The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in
special cases by the President of the Philippines. 21 But even this Court cannot order the
prosecution of a person against whom the prosecutor does not find sufficient evidence to support
at least a prima facie case. The courts try and absolve or convict the accused but as a rule have
no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a grave abuse of
discretion that will justify judicial intrusion into the precincts of the executive. But in such a
case the proper remedy to call for such exception is a petition for mandamus, not certiorari or
prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of another
person as a co-accused in the same case must first avail itself of other adequate remedies such
as the filing of a motion for such inclusion. 23
At any rate, it is a preposterous contention that because no charges have been filed against
Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be
dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were incumbent public officials
or employees at the time of the alleged commission of the crimes, the cases against them
should come under the jurisdiction of the Sandiganbayan and not of the regular courts. This

contention was withdrawn in his Reply but we shall discuss it just the same for the guidance
of all those concerned.
Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:
a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code:
(2) Other offenses or felonies committed by public officers
and employees in relation to their office, including those
employed in government-owned or controlled corporations,
whether simple or complexed with other crimes, where the
penalty prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or a fine of
P6,000.00. . . . (Emphasis supplied)
The crime of rape with homicide with which the petitioner stands charged obviously does not
fall under paragraph (1), which deals with graft and corruption cases. Neither is it covered by
paragraph (2) because it is not an offense committed in relation to the office of the petitioner.
In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as
follows:
[T]he relation between the crime and the office contemplated by the
Constitution is, in our opinion, direct and not accidental. To fall into the intent
of the Constitution, the relation has to be such that, in the legal sense, the
offense cannot exist without the office. In other words, the office must be a
constituent element of the crime as defined in the statute, such as, for
instance, the crimes defined and punished in Chapter Two to Six, Title Seven,
of the Revised Penal Code.
Public office is not of the essence of murder. The taking of human life is
either murder or homicide whether done by a private citizen or public servant,
and the penalty is the same except when the perpetrator. being a public
functionary took advantage of his office, as alleged in this case, in which
event the penalty is increased.

But the use or abuse of office does not adhere to the crime as an element;
and even as an aggravating circumstance, its materiality arises not from the
allegations but on the proof, not from the fact that the criminals are public
officials but from the manner of the commission of the crime
There is no direct relation between the commission of the crime of rape with homicide and
the petitioner's office as municipal mayor because public office is not an essential element of
the crime charged. The offense can stand independently of the office. Moreover, it is not
even alleged in the information that the commission of the crime charged was intimately
connected with the performance of the petitioner's official functions to make it fall under the
exception laid down in People v. Montejo. 25
In that case, a city mayor and several detectives were charged with murder for the death of a
suspect as a result of a "third degree" investigation held at a police substation. The
appearance of a senator as their counsel was questioned by the prosecution on the ground
that he was inhibited by the Constitution from representing them because they were accused
of an offense committed in relation to their office. The Court agreed. It held that even if their
position was not an essential ingredient of the offense, there was nevertheless an intimate
connection between the office and the offense, as alleged in the information, that brought it
within the definition of an offense "committed in relation to the public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public office is not an
element of the crime of murder in abstract, as committed by the main
respondents herein, according to the amended information, the offense
therein charged is intimately connected with their respective offices and was
perpetrated while they were in the performance, though improper or irregular,
of their official functions. Indeed they had no personal motive to commit the
crime and they would not have committed it had they not held their aforesaid
offices. The co-defendants of respondent Leroy S. Brown, obeyed his
instructions because he was their superior officer, as Mayor of Basilan City.
(Emphasis supplied).
We have read the informations in the case at bar and find no allegation therein that the crime
of rape with homicide imputed to the petitioner was connected with the discharge of his
functions as municipal mayor or that there is an "intimate connection" between the offense
and his office. It follows that the said crime, being an ordinary offense, is triable by the
regular courts and not the Sandiganbayan.
Conclusion
As above demonstrated, all of the grounds invoked by the petitioner are not supported by the
facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In

consequence, the respondent judge, who has started the trial of the criminal cases against
the petitioner and his co-accused, may proceed therewith without further hindrance.
It remains to stress that the decision we make today is not a decision on the merits of the
criminal cases being tried below. These will have to be decided by the respondent judge in
accordance with the evidence that is still being received. At this time, there is yet no basis for
judgment, only uninformed conjecture. The Court will caution against such irrelevant public
speculations as they can be based only on imperfect knowledge if not officious ignorance.
WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue
with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and
101147 and to decide them with deliberate dispatch.
SO ORDERED.
Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and
Vitug, JJ., concur.
Narvasa, C.J., took no part.
Bellosillo, J., is on leave.

# Footnotes
1 Resolution dated October 5, 1993.
2 The petitioner claims in his Reply to have received the resolution on October 15, 1993. The
reply was filed only on October 25, 1993.
3 TSN, August 9, 1993, pp. 10-11.
4 TSN, August 13, 1993, pp. 7-10.
5 Guzman v. People, 119 SCRA 337; Cruz v. Salva, 105 Phil. 1151.
6 Go v. Court of Appeals, 206 SCRA 138; Rodis v. Sandiganbayan, 166 SCRA 618; Sanciangco,
Jr. v. People, 149 SCRA 1; People v. Gomez, 117 SCRA 72; People v. Yutila, 102 SCRA 264; Solis
v. People, 84 SCRA 377; People v. Figueroa, 27 SCRA 1239; People v. Casiano, 111 Phil 73.
7 Go v. Court of Appeals, supra; Velaquez v. Tuquero, 182 SCRA 388; Crespo v. Mogul, 151
SCRA 462; People v. La Caste, 37 SCRA 767.
8 191 SCRA 545.
9 G.R. No. 98452, September 26, 1991.
10 Aguinaldo v. Domagas, supra.
11 Panlilio v. Sandiganbayan, 210 SCRA 421; Virata v. Sandiganbayan, 202 SCRA 680;
Cojuangco v. Presidential Commission on Good Government, 190 SCRA 226.
12 5 Am Jur 2d, p. 696
13 132 SCRA 318.
14 Regalado, Remedial Law Compendium Book 2, 1989 Ed., p. 318 citing 22 C.J.S. 1961 Ed., p.
418.
15 Annex 1, Comment.
* The writer of this opinion has objected to this ruling but without success. While maintaining
his dissent in this case, he nevertheless must acknowledge the binding character of the
doctrine.
16 Dugay, et al v. Ramos, G.R. No. 75221, January 15, 1987.

17 Harvey v. Defensor-Santiago, 162 SCRA 840; Domingo v. Minister of National Defense, et al.,
124 SCRA 529; Beltran v. Garcia, 89 SCRA 717; Dela Plata v. Escarcha, 78 SCRA 208; Cruz v.
Montoya, 62 SCRA 543.
18 187 SCRA 312 and 202 SCRA 215.
19 Alberto v. de la Cruz, 98 SCRA 406; People v. Santos, 30 SCRA 100; People v. Agasang, 60
Phil 182; People v. Ong, 53 Phil. 544.
20 Maddela v. Aquino, 104 Phil. 433; People v. Morton, 23 SCRA 1024; Guiao v. Figueroa, 94
Phil. 1018.
21 Section 1, par. (d) P.D. No. 911; Section 4, Rule 112, 1985 Rules on Criminal Procedure;
Department Circular No. 7, January 25, 1990; Memorandum Circular No. 1266; Vda. de Jacob v.
Puno, 131 SCRA 144; Crespo v. Mogul, supra.
22 Section 3, Rule 65, Rules of Court; Baylosis v. Chavez, 202 SCRA 405; De Castro, et al., v.
Castaeda, et al., 1 SCRA 1131; Guiao v. Figueroa, 94 Phil. 1018.
23 Aquino v. Mariano, 129 SCRA 532.
24 90 Phil. 49.
25 108 Phil. 613.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 117321 February 11, 1998


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HERSON TAN y VERZO, accused-appellant.

ROMERO, J.:
May the confession of an accused, given before a police investigator upon invitation and
without the benefit of counsel, be admissible in evidence against him?
Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of
highway robbery with murder before the Regional Trial Court, Branch 62, of Gumaca,
Quezon Province, under an information 1 dated February 8, 1989, which reads as follows:
That on or about the 5th day of December 1988, along the Maharlika Highway at
Barangay Tinandog, Municipality of Atimonan, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping each other, armed with bladed and
pointed weapons, with intent to gain, by means of force, violence, threats and
intimidation, did then and there willfully, unlawfully and feloniously take, steal and
carry away from one Freddie Saavedra, a Honda TMX motorcycle with a sidecar

bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS (P30,000.00)


Philippine currency, belonging to the said Freddie Saavedra, to the damage and
prejudice of the latter in the aforesaid amount; and that on the occasion of said
robbery and by reason thereof, the said accused, with intent to kill, with evident
premeditation and treachery, and taking advantage of their superior strength and in
pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously
attack, assault and stab with the said weapon said Freddie Saavedra, thereby
inflicting upon the latter multiple stab wounds on the different parts of his body, which
directly caused his death.
Contrary to law.
On arraignment, the accused pleaded not guilty to the charge.
The relevant facts established by the prosecution are as follows:
On December 5, 1988, at about 7:00 o'clock p.m., tricycle driver Freddie Saavedra went to
see his wife, Delfa, at Our Lady of Angeles Academy in Atimonan, Quezon, where the latter
is a third year high school student, to inform her that he will drive both accused to Barangay
Maligaya. It was the last time, however, that Freddie was seen alive. When the latter failed to
return that evening, Delfa, as early as 4:30 o'clock a.m. of December 6, 1988 inquired on his
whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel
Villarama revealed that the lifeless body of her husband was discovered on the diversion
road at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place and
found him sprawled on the ground with fourteen stab wounds in different parts of his body.
Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at
Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt. Carlos Santos
proceeded to the scene of the crime and recovered a blue sidecar which they brought back
with them to their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat.
Rolando Alandy invited appellant in connection with the instant case and with respect to two
other robbery cases reported in Lucena City. During their conversation, appellant allegedly
gave an explicit account of what actually transpired in the case at bar. He narrated that he
and co-accused Amido were responsible for the loss of the motorcycle and the consequent
death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny
Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a
guide, the Lucena PNP immediately dispatched a team to retrieve the same.
After admitting that it was purchased from both the accused and upon failure to present any
document evidencing the purported sale, Teves voluntarily surrendered it to the police who
turned it over, together with the sidecar, to the Atimonan Police Station for safekeeping.
Lt. Carlos, on cross-examination, testified that when he invited appellant to their
headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter

that he was a suspect, not only in the instant case, but also in two other robbery cases
allegedly committed in Lucena City. In the belief that they were merely conversing inside the
police station, he admitted that he did not inform appellant of his constitutional rights to
remain silent and to the assistance of counsel; nor did he reduce the supposed confession to
writing. 2
Appellant, on the other hand, alleged that he had no participation in the offense charged and
contended that his only involvement in the matter was the referral of accused Amido to
Teves. He recounted that sometime in December 1988, Amido sought him at his house and
told him that the motorcycle he was riding on was being offered for sale. Upon proof shown
that it was indeed registered under Amido's name, he accompanied the latter to Manila on
board the said motorcycle and they approached Antonio Carandang. The latter, thereafter,
brought them to a certain Perlita Aguilar and Danilo Teves with whom the sale was finally
consummated. He allegedly received P150.00 as his commission.
Amido presented alibi as his defense. He alleged that although a tricycle driver by
occupation, he was at Barangay Malusak, Atimonan on the day in question, some seven
kilometers from the town, busy assisting in the renovation of his mother's house. He narrated
that the victim was his friend and, therefore, he could not have participated in the gruesome
death of the latter.
In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion
of which reads:
WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan
GUILTY beyond reasonable doubt of the crime of Highway Robbery with Murder and
hereby sentences him to suffer an imprisonment of RECLUSION PERPETUA. He is
further ordered to indemnify the family of the deceased in the amount of Thirty
Thousand Pesos (P30,000.00).
Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges
against him and the Provincial Warden of Quezon, Provincial Jail, Lucena City, is
hereby ordered to release from custody the person of said Lito Amido, unless he is
being detained thereat for some other lawful cause.
SO ORDERED. 3
Appellant assails the finding of conviction despite failure of the prosecution to positively
identify him as the culprit of the crime and to present clear and convincing circumstantial
evidence that would overcome his innocence.
In light of the above facts and circumstances, the appealed decision is set aside and
appellant acquitted on the ground that his constitutional rights were violated.

It is well-settled that the Constitution abhors an uncounselled confession or admission and


whatever information is derived therefrom shall be regarded as inadmissible in evidence
against the confessant. Article III, Section 12, paragraphs (1) and (3) of the Constitution
provides:
xxx xxx xxx
Sec. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible against him.
Republic Act No. 7438 (R.A. No. 7438), 4 approved on May 15, 1992, reenforced the
constitutional mandate protecting the rights of persons under custodial investigation, a pertinent
provision 5 of which reads:
As used in this Act, "custodial investigation" shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the "inviting" officer
for any violation of law.
Custodial investigation involves any questioning initiated by law enforcement authorities after
a person is taken into custody or otherwise deprived of his freedom of action in any
significant manner. The rules on custodial investigation begin to operate as soon as the
investigation ceases to be a general inquiry into an unsolved crime and begins to focus a
particular suspect, the suspect is taken into custody, and the police carries out a process of
interrogations that tends itself to eliciting incriminating statements that the rule begins to
operate. 6
Furthermore, not only does the fundamental law impose, as a requisite function of the
investigating officer, the duty to explain those rights to the accused but also that there must
correspondingly be a meaningful communication to and understanding thereof by the
accused. A mere perfunctory reading by the constable of such rights to the accused would
thus not suffice. 7
Under the Constitution and existing law and jurisprudence, a confession to be admissible
must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the

assistance of competent and independent counsel; (3) it must be express; and (4) it must be
in writing. 8
While the Constitution sanctions the waiver of the right to counsel, it must, however, be
"voluntary, knowing and intelligent, and must be made in the presence and with the
assistance of counsel." 9 To reiterate, in People v. Javar,10 it was ruled therein that any statement
obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made
without the assistance of counsel, it becomes inadmissible in evidence, regardless of the
absence of coercion or even if it had been voluntarily given.
The records of this case do not indicate that appellant was assisted by counsel when he
made such waiver, a finding evident from the testimony of Lt. Santos on cross-examination,
thus:
Q Now, when you brought Herson Tan to the Headquarters, did you
tell him that he is one of the suspects in the robbery slain (sic) that
took place in Atimonan on December 5, 1988?
A Yes, sir, and he was also suspect to the robbery case which was
investigated at Lucena Police Station. There were two (2) cases
which were investigated on Herson Tan.
Q Now, so in addition to the Atimonan case, you also took Herson
Tan to your custody in connection with another case that happened in
Lucena?
A Yes, sir.
Q And you happened to have Herson Tan in your list as suspect in
both cases because Herson was previously incarcerated at Lucena
City Jail in connection with a certain case, is it not?
A Yes, sir.
Q Just for curiosity sake, you invited him in your headquarters, is that
what happened in this case?
A Yes, sir.
Q And it just happened that without applying third degree to him he
gave you that information?
A Yes, sir.

Q Did you notify him of his constitutional right to counsel before you
propounded questions to him?
A No, sir, because we are asking question only to him.
Q Before propounding question or information you sought to elicit
from him, did you inform him of his constitutional right not to testify
against himself because he is a suspect in these two (2) cases?
A No, sir, because we were just conversing. 11 (Emphasis supplied)
The evidence for the prosecution shows that when appellant was invited for questioning at
the police headquarters, he allegedly admitted his participation in the crime. This will not
suffice to convict him, however, of said crime. The constitutional rights of appellant,
particularly the right to remain silent and to counsel, are impregnable from the moment he is
investigated in connection with an offense he is suspected to have committed, even if the
same be initiated by mere invitation. "This Court values liberty and will always insist on the
observance of basic constitutional rights as a condition sine qua non against the awesome
investigative and prosecutory powers of government." 12
What remains of the evidence for the prosecution is inadequate to warrant a conviction.
Considering the circumstances attendant in the conduct of appellant's investigation which fell
short of compliance with constitutional safeguards, we are constrained to acquit the
appellant.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca,
Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is
hereby ACQUITTED of the crime charged and his immediate release from confinement is
hereby ordered, unless there is any other lawful cause for continued detention. Costs de
oficio.
SO ORDERED.
Narvasa, C.J., Kapunan, Francisco and Purisima, JJ., concur.
Footnotes
1 Rollo, pp. 9-10.
2 TSN, July 5, 1989, pp. 13-15.
3 Ibid., p. 42.
4 Otherwise known as An Act Defining Certain Rights of Persons Arrested, Detained or Under
Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating
Officers and Providing Penalties for Violations Thereof.
5 Section 2(f[b]).
6 People v. Marra, 236 SCRA 565.
7 People v. de la Cruz, G.R. No. 118866-68, September 17, 1997.

8 People v. Espanola, G.R. No. 119308, April 18, 1997; People v. Calvo, G.R. No. 91694, March
14, 1997; People v. Serzo Jr., G.R. No. 118435, June 20, 1997.
9 People v. Estevan, 186 SCRA 34 (1990).
10 226 SCRA 103 (1993).
11 TSN, July 5, 1989, pp. 13-14.
12 People v. Salcedo, G.R. No. 100920, June 17, 1997, citing People v. Januario, G.R. No. 98252,
February 7, 1997.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 122733

October 2, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.

PEDRO SASAN BARIQUIT, CRISTITUTO SASAN BARIQUIT, BASELINO LASCUA


REPE, EMEGDIO LASCUA, JR., accused-appellant.
DECISION
PER CURIAM:
In many ways - three times to be exact-the prosecution in the instant case, through the
testimony of state witness Rogelio Lascua, shatters the long-time aphorism that blood is
thicker than water.
On appeal via automatic review is the decision1 of the Regional Trial Court of Cebu City,
Branch 18, in Criminal Case No. CBU-35462, dated 30 June 1995, as modified by its
order2 dated 20 July 1995, finding accused-appellants Pedro Bariquit, Cristituto Bariquit, and
Emegdio Lascua guilty of the special complex crime of Robbery with Homicide and
sentencing them to suffer the penalty of death.
In its order dated 20 July 1995, modifying its decision dated 30 June 1995, the trial court,
while likewise finding co-accused Baselino Repe guilty of the crime charged, Nonetheless
appreciated the privileged mitigating circumstance of minority on Repes favor, sentenced
him to a reduced penalty of imprisonment of from six (6) years and one(1) day of prision
mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as
maximum, and redeemed him from the clutches of the supreme penalty of death. At the time
of the commission of the crime, accused Repe was seventeen years old.
The antecedent facts and proceedings in the instant case unfold.
On 28 February 1994, Assistant Provincial Prosecutor Adolfo Alcoseba filed a motion to drop
accused Rogelio Lascua and Baselino Repe to be utilized as state witnesses, prompting
the relatives of the deceased spouses Simon and Corazon Hermida to file a vehement
opposition, to which comment thereto was filed by the prosecution.
On 28 June 1994, Baselino Repe and brothers Pedro and Cristituto Bariquit, and brothers
Emegdio and Rogelio Lascua, were charged, in a Second Amended Information, 3 with
Robbery with Homicide, the accusatory portion of which reads:
"That on or about the 8th day of February 1994 at around 2:00 o' clock dawn, more or less,
in the Municipality of Naga, Province of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually helping
one another, by means of violence against and intimidation upon persons, with intent to gain,
did then and there willfully, unlawfully and feloniously take, steal and carry away without the
consent of the owner thereof one (1) gold necklace and Three Thousand Pesos (P3,000.00)
cash, Philippine Currency, and one (1) blanket which were placed by the owner Spouses
Simon Hermida and Corazon Manabat Hermida on their wooden trunk, to the damage and
prejudice of the said owner spouses Simon Hermida and Corazon Manabat Hermida of said
items and the cash aforestated; that by reason or on occasion of the said robbery and for the
apparent purpose of enabling the said accused to take, steal and carry away the aforestated
personal belongings of spouses Simon Hermida and Corazon Manabat Hermida, the herein
accused, in pursuance of their conspiracy, armed with bladed weapons, did then and there

willfully, unlawfully and feloniously attack, assault, hack and stab the spouses Simon
Hermida and Corazon Manabat Hermida and inflicting upon them several injuries which
caused the said victims' death.
CONTRARY TO LAW."
In an order dated 14 July 1994, the trial court resolved to drop and discharge Rogelio
Lascua as "party-accused" in Criminal Case No. CBU-35462, for the purpose of utilizing
him as state witness.
Upon arraignment, accused-appellant Pedro Bariquit entered a plea of guilty while accusedappellants Cristituto Bariquit, Emegdio Lascua, Jr. and accused Baselino Repe, pleaded
not guilty to the charge.
In the course of trial, however, accused-appellant Pedro Bariquit withdrew his earlier plea of
guilty and, upon being re-arraigned, entered anew a plea of not guilty.
In handing down the judgment of conviction, the trial court appreciated the presence of
conspiracy and relied on facts culled from the collective testimony of state witness Rogelio
Lascua and other prosecution witnesses namely: SPO3 Lino Tapao, PO1 Avelino Selloria,
PO1 Kenneth Abella, PO1 Joel Faciolan, Dr. Florencio Ubas, and Emelia Hermida Mangila.
Further, the trial court considered the testimony of co-accused Baselino Repe for the
purpose of establishing the element of robbery in this special complex crime.
Records of the case reveal that state witness Rogelio Lascua and all the accusedappellants are bound by close kinship; thus, Rogelio and Emegdio Lascua are brothers. In
the same manner, Pedro and Cristituto Bariquit are brothers. Moreover, Rogelio and
Emegdio are nephews of Pedro and Cristituto. Baselino Repe, too, is a relative of Rogelio. 4
Notwithstanding kinship and in utter disregard of blood ties, state witness Rogelio Lascua,
who at the time of the commission of the crime, was 14 years old, 5 recounted on the stand
the details and circumstances which led to the death of spouses Simon and Corazon
Hermida in the hands of accused-appellants.
Around midnight of 07 February 1994, Rogelio was at their house situated in Pandan, Naga,
Cebu when his uncle Cristituto arrived thereat looking for Rogelio's older brother Emegdio.
Rogelio told Cristituto that Emegdio and Pedro were in the upper area gathering
coconuts.6 Cristituto requested Rogelio to accompany him there.7 Upon reaching the upper
hill together with Cristituto, Rogelio saw Pedro, Emegdio and Baselino standing, not
anymore engaged in gathering coconuts.8
Emegdio then asked his brother Rogelio if the latter would participate in executing a plan to
rob a certain couple. Rogelio refused and verbally manifested to Cristituto his intention to just
go home. Cristituto and Emegdio told Rogelio not to go home, fearing that Rogelio might
reveal their devious plan to consummate the robbery.
On direct examination, Rogelio, likewise, testified that Pedro and Emegdio9 threatened to kill
Baselino in case the latter would not participate in the robbery. According to Rogelio,

Cristituto who was then armed with a bolo, even held Baselino so as to prevent him from
running away.10
On foot - Pedro, Emegdio, Cristituto, Baselino, and Rogelio trekked toward the house of
Simon and Corazon Hermida situated in Batwan, Cantaw-an, Naga, Cebu. Upon arrival at
the vicinity of the Hermida's house around 1:00 AM of 08 February 1994, the group of five
saw three persons engaged in a drinking spree inside the Hermida residence. The interior of
the house was illuminated by a fluorescent lamp while its exterior was lighted by a bulb.
Notwithstanding ample lumination, Rogelio testified that the three persons inside the
Hermida's house were unknown to him; he did not recognize them.
Accused-appellants, together with Rogelio, then waited near a mango tree which stood
about 30 meters away from the house.11 Around 2:00 AM, the three persons drinking inside
the house left. Thereafter, Pedro instructed Rogelio to stay at a pig pen located 15-20 meters
away from the Hermida house after-which, Pedro walked toward the house12 closely followed
by Emegdio, Cristituto and Baselino.
Upon reaching the house, Pedro called Simon on the pretext that he would buy Kulafu and
cigarettes.13 However, Simon told Pedro that only cigarettes were available; Pedro retorted
that he would just buy cigarettes after which Simon handed the cigarettes to Pedro.
Pedro then requested Simon for a light prompting the latter to open the door and accede to
Pedro's request. Once inside the house - and as soon as Simon lit Pedro's cigarette - Pedro
suddenly pulled out his knife and lunged it on Simon's neck.14 While Simon was already lying
prostrate on the floor,15 Emegdio followed suit and hacked Simon once on the neck with a
bolo. Pedro then stabbed Simon's wife, Corazon, who tried to fight back. Corazon managed
"to pull a knife beside the wall," stabbing Pedro on his left palm.16 However, Pedro stabbed
Corazon again which, eventually, caused the latter's death.
At the time of the stabbing, Cristituto stayed outside the house,17 holding Baselino, with his
left hand and a bolo with his right hand. After witnessing the killing, Rogelio scampered
toward his house and arrived thereat around 3:00 PM.
To bolster its case, the prosecution presented the testimony of Dr. Florencio Ubas, Medical
Health Officer of Naga, Cebu, who conducted and prepared the autopsy report of the
deceased spouses Simon and Corazon Hermida. According to Dr. Ubas, Corazon sustained
thirteen (13) fatal wounds inflicted by a sharp-edged instrument18 and a sharp-pointed
instrument,19 while Simon sustained five (5) wounds.
On the stand, Dr. Ubas testified that almost all of the wounds inflicted on Corazon were fatal,
since they caused loss of blood. Further, Dr. Ubas explained that Simon's cause of death
was similarly loss of blood due to hack wounds "at the region of the neck" 20 inflicted by a
sharp-edged instrument. As a result of these fatal wounds, Simon's "major vessels" as well
as the victim's vital organs were injured,21 causing his death.
As to the element of robbery, co-accused Baselino Repe, although denying participation in
the commission of the crime, narrated on the witness stand how the other accusedappellants stole the spouses' wooden trunk which contained money, necklace and blanket.

Accused Baselino also corroborated with Rogelio Lascua's eyewitness account of the killing
of the Hermida spouses.
As to the robbery, accused Baselino testified that Pedro, after stabbing Corazon several
times, went down the house.22 Emegdio then requested Cristituto to help carry the wooden
trunk.23 According to Baselino, as all of these events transpired, Pedro guarded him with
watchful eyes and grabbed his left hand.24
Subsequently, Cristituto and Emegdio brought the wooden trunk to the bushes. With Pedro's
assistance, Cristituto and Emegdio opened said trunk which contained money, necklace and
a blanket.25 Baselino was then ordered to sit down beside the accusedappellants.26 Thereafter, Pedro, Emegdio and Cristituto brought the money and necklace to
the house of Emegdio with Pedro holding Baselino by the hand. At Emegdio's house,
Emegdio told the other accused-appellants that they would divide the loot among
themselves. Pedro, Emegdio and Cristituto then placed the loot on the floor.
Around 5:00 AM, Baselino, by jumping downstairs, managed to escape and fled home. 27 In
the same morning, Pedro and Emegdio dropped by Baselino's house and tried to offer the
necklace and part of the money to Baselino; however, Baselino refused, prompting Pedro
and Emegdio to just leave the money and necklace on the floor of Baselino's house. 28 Before
leaving the house, Pedro and Emegdio threatened to kill Baselino in case he squeals about
the robbery and the killing.
On the stand, Baselino claimed that he never touched the money offered by Pedro and
Emegdio. He asservated his innocence and categorically denied any participation in the
commission of the crime. According to Baselino, his presence at the crime scene was
against his free will, inasmuch as the other accused-appellants were steadfast in their threats
to end his life if he were to divulge the crime and fail to participate, or join them in the
execution thereof.
Similarly, the prosecution, in order to strengthen its bid for conviction, utilized the testimony
of the police officers who responded to and investigated the robbery-killing. Thus, SPO3 Lino
Tapao testified that around 7:30 AM of 08 February 1994, Feliciano Reponte, the Barangay
Captain of Cantau-an, Naga, Cebu, reported to the police the death of the spouses Simon
and Corazon Hermida. As a result, SPO3 Tapao responded to the alarm and proceeded to
the Hermida house, accompanied by P03 Boy Celoria, Dr. Florencio Ubas, Barangay
Captain Feliciano Reponte and several Barangay Tanods.29
Upon arrival at the Hermida house, the police laid eyes on the bloodied bodies of Simon and
Corazon Hermida sprawled on the floor of the upper part of the victims' residence. 30 Further,
the police recovered from the crime scene an "electrical switch" and "bark of tree", both
stained with blood. Moreover, inside a culvert at Pandan, the police recovered a blanket. 31
At the scene of the crime, the police interviewed relatives of the victims 32 and, from them,
elicited information that the possible assailants were accused-appellants Pedro Bariquit,
Emegdio Lascua, Cristituto Bariquit and accused Baselino Repe.33 Acting on such
information, the police conducted a "hot pursuit" operation and proceeded to Umlang where
barangay tanods met Pedro, who eluded arrest.

Eventually, Pedro was arrested at Sitio Nangka, Tuyan, Cebu. From his possession, cash
amounting to P480.5034and Japanese wartime money were recovered by the police.
According to SPO3 Tapao, Pedro, upon his arrest, told police that his hand was injured when
Corazon resisted and stabbed him in the process.35
SPO3 Tapao further testified that Emegdio and Baselino were jointly arrested on 08 February
1994 at Sitio, Isabela, Pangdan, Cebu. During investigation, Emegdio admitted that "they
were together, but they were not the one(s) who killed (the spouses)."36
Emegdio pointed to Pedro and Cristituto as the killers of Simon and Corazon
Hermida.37 Based on such information, Emegdio and Baselino were brought to the police
station for further investigation.38 Thereafter, at the police headquarters, Emegdio admitted
that Rogelio was also one of their companions.39 As a consequence, the police returned to
Isabela, Pandan, where they saw Rogelio and invited him to the police station for
questioning.40
According to SPO3 Tapao, the police recovered P480.50 from Pedro; gold necklace
and P800.00 from Baselino;41 and P800.00 from Emegdio.42
On direct examination, SPO1 Avelino Selloria testified to the effect that he recovered a knife
from Baselino and that the latter admitted that said knife was the weapon Baselino brought
during the incident.43 Notwithstanding, Baselino claimed he had no participation in the
commission of the crime. Further, Baselino allegedly told SPO1 Selloria that the money
recovered from the former was Baselino's share of the proceeds of the crime.
According to SPO1 Selloria, he recovered P800.00 from Emegdio;44 Emegdio allegedly got
the P800.00 from the "upper portion of his house", turned over said amount to Selloria and
admitted that said cash was his share.45
Upon the arrest of Baselino and Emegdio, the police immediately commenced investigation
of the two accused by propounding questions regarding the commission of the crime even
while they were still walking along the highway, on their way to the police
station.46 (emphasis ours)
According to SPO1 Selloria, SPO4 Marcelino Perez, Jr. conducted further questioning of the
accused "in the investigation room" of the Police Station, to wit:47
"Q: Who conducted then the custodial investigation of this case?
A: SPO4 Marcelino Perez, Jr.
Q: Where was the accused investigated?
A: At the investigation room.
Q: And where was this investigation room located?
A: Inside the police station, in a certain room.

Q: When the accused were investigated, were you present?


A: We were there but we did not listen to the investigation.
Q: But you could see the accused being investigated?
A: No sir. That time, there were many people looking but the investigation room was closed
in order that people will not disturb the investigation.
Q: At the time when the accused was investigated, was there any lawyer who assisted him at
the time of the investigation?
Atty. Flores: Immaterial and irrelevant, Your Honor because as a matter of fact, Your Honor,
also, Your Honor, another ground is that witness was not around, he did not see whether
there was a lawyer or not.
COURT: No. The ground for that is not correct, because the testimony witness stated (sic) he
drive away some of the onlookers.
Atty. Dela Victoria: He was not listening.
Court: Yes, he was not listening.
Atty. Dela Victoria: It was your theory that there was actually an investigation conducted?
COURT: There was an investigation, according to him, by an investigator and you
asked him whether he was present during that investigation. He said he was present,
only he did not hear and see the investigation because the door was closed, and you
asked him whether at the time of the investigation, accused was assisted by a lawyer
during that custodial investigation.
(to witness):
Q: You did not see any lawyer there to assist the accused during investigation?
A: I did not notice.
Q: You mean to say there was a lawyer but you did not notice?
A: I don't know whether there was lawyer at that time the investigation was
conducted." (emphasis ours)
At the trial, the prosecution likewise presented PO1 Kenneth Abella and PO1 Joel Faciolan,
who corroborated the testimonies of SPO3 Lino Tapao and SPO1 Avelino Selloria.
As to the aspect of civil liability, Emelia Hermida Mangila, daughter of the deceased spouses,
took the witness stand to prove the funeral and burial expenses incurred as a result of the

death of her parents,48 which totaledP70,000.00. The prosecution submitted in evidence a


receipt issued by the Holy Spirit Funeral Home49 covering said expenses.
On the other hand, the accused-appellants - with the exception of accused Baselino Repe
who maintained that he had no participation in the commission of the crime - raised the twin
defenses of alibi and denial. Thus, accused-appellant Emegdio Lascua testified that around
2:00 AM of 08 February 1994, he was sleeping in his parents' house at Isabela, Naga, Cebu,
together with his siblings George and Estela, and his grandmother. On the stand, Emegdio
admitted that he and the deceased spouses were neighbors inasmuch as Simon and
Corazon lived "just a kilometer away from Emegdio's house."50
Emegdio added that he only acquired knowledge of the commission of the crime from his
neighbor's aunt, Conchita Tam-isan, who informed him thereof around 7:00 AM of 08
February 1994. Further, Emegdio declared that the travel time from his house to the Hermida
residence is approximately twenty (20) minutes.51
In the same manner, Cristituto Bariquit claimed innocence of the charge by interposing the
defense of alibi. Cristituto alleged that at the time of the commission of the crime, he was
cooking rice in the house of his parents-in-law in Sitio Isabela,52 in preparation for his
carpentry work for the day. He also testified that he witnessed the simultaneous arrest of
Baselino and Emegdio by the police on 08 February 1994.
For his defense, Pedro Bariquit, a former farm worker of the Hermida spouses, 53 relied
similarly on alibi to substantiate his claim that at the time of the commission of the crime, he
was asleep with his wife and three children in their house from 8:00 PM of 07 February to 08
February 1994.54 Pedro testified that it would take an hour, by foot, for a person to reach the
Hermida residence from his house. He, too, is unaware of any reason on the part of Rogelio
to implicate him to the robbery-killing.55
On direct examination, Pedro admitted that the police recovered the amount of P600.00 from
his possession. Nonetheless, he denied knowing the owner of said amount, claiming that
when Emegdio brought the money to his house and gave it to his wife, he was not present. 56
At the time of Pedro's arrest, he had a wound on his "knuckle and palm" which he allegedly
sustained in an accident with his "tri-sikad" on 07 February 1995.
Thus, on cross-examination:57
"Q: What cause (sic) that wound, stone or a knife when you stumbled?
A: Certain sharp object, it so happened when I stumbled, I accidentally placed my hand left
palm on it (sic).
Q: And it penetrated your palm front and back?
Atty. Dela Victoria: Already answered.
COURT: For emphasis witness may witness.

Witness: Yes it penetrated in the other side (sic)."


Unlike the other accused-appellants, accused Baselino Repe negotiated a different road in
his bid for acquittal. Thus, while Pedro, Emegdio and Cristituto relied on alibi and denial,
Baselino admitted, on the stand, his presence at the crime scene, narrated the harrowing
details of the robbery-killing, yet, denied participation in the execution thereof.
Hence, Baselino, in the course of trial, labored to establish that he was not part of the
conspiracy and was only coerced to join accused-appellants for fear of his life. According to
Baselino, he was left with no choice inasmuch as the other accused-appellants-the actual
authors of the crime-threatened to kill him and, in fact, employed physical force so that he
would not leave the group and squeal about the crime.
On 30 June 1995, the RTC of Cebu City, Branch 18, in appreciating the presence of
conspiracy, convicted accused-appellants Pedro Bariquit, Emegdio Lascua, Cristituto
Bariquit and accused Baselino Repe of the special complex crime of robbery with homicide
and, accordingly, sentenced them to death.
On 20 July 1995, however, the trial court modified its decision as to the penalty imposed on
accused Repe, considering that he was a minor at the time of the commission of the crime.
Repe opted not to appeal his conviction; the conviction of the other accused-appellants,
however, was elevated to this High Court via automatic review as a consequence of the
death penalty involved.
In the appellant's brief,58 the following errors were ascribed to the trial court, to wit:
"1. The trial court erred in giving weight and credit to the testimony of state witness
Rogelio Lascua despite lack of corroboration in its material points.
"2. The trial court erred in convicting accused-appellants despite failure of the
prosecution to prove their guilt beyond reasonable doubt."
We find the guilty verdict of the trial court, as to accused-appellants Pedro Bariquit, Cristituto
Bariquit and Emegdio Lascua, in order.
As to the first assigned error, accused-appellants in effect assail the propriety of the
discharge of Rogelio Lascua as state witness on the ground that Rogelio's testimony was
not corroborated in its material points, allegedly in violation of Section 9, Rule 119 of the
1985 Rules on Criminal Procedure, which enumerates the requisites of a proper discharge,
to wit:
"a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
"b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused;

"c) The testimony of said accused can be substantially corroborated in its


material points;
"d) Said accused does not appear to be the most guilty;
"e) Said accused has not at anytime been convicted of any offense involving moral
turpitude." (emphasis ours)
On this score, we are of the firm view that the testimony of state witness Rogelio Lascua
was, in its material points, substantially corroborated by the testimony of accused-appellant
Baselino Repe, and the findings of Dr. Valentin Ubas, who conducted and prepared the
autopsy report of the victim spouses, and who testified thereon in the course of trial. Verily,
corroborative evidence refers to additional evidence of a different kind and character tending
to prove the same point.59
Notably, the respective testimonies of Baselino Repe and Dr. Ubas lends material
corroboration to the eyewitness account of Rogelio Lascua, specifically as to the killing of
the spouses Simon and Corazon. During trial, both Rogelio and Baselino positively identified
Pedro and Emegdio as the assailants who stabbed and hacked the victim spouses with a
knife and bolo on that fateful early morning of 08 February 1994. The witnesses also
depicted how the conspiracy was hatched and carried out, with accused-appellant Cristituto
directly participating therein. Moreover, Dr. Ubas testified that Simon and Corazon died as a
result of several stab and hack wounds, inflicted by sharp-pointed and sharp-edged
instruments, on different parts of their bodies.
Beyond this, long-settled is the rule that the discharge of a defendant, in order that he may
be called to testify against his co-defendants, is within the sound discretion of the court; 60 the
discharge of an accused in order that he may be utilized as a state witness is expressly left
to the sound discretion of the court.61
Indeed, the Court has the exclusive responsibility to see that the conditions prescribed by the
rule exist.62 For the law seeks to regulate the manner of enforcement of the regulations in the
sound discretion of the court. The grant of discretion in cases of this kind under this provision
was not a grant of arbitrary discretion to the trial courts, but such is to be exercised with due
regard to the correct administration of justice.
Under these circumstances, the trial court, in ordering the discharge of Rogelio Lascua as
state witness, merely exercised its discretion in a manner consistent with the law and
prevailing jurisprudence.
Even so, this Court has time and again declared that even if the discharged witness should
lack some of the qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his
testimony will not, for that reason alone, be discarded or disregarded. In the discharge of a
co-defendant, the court may reasonably be expected to err; but such error in discharging an
accused has been held not to be a reversible one. This is upon the principle that such error
of the court does not affect the competency and the quality of the testimony of the
discharged defendant.63

Stated differently, the improper discharge, of an accused will not render inadmissible
his testimony nor detract from his competency as a witness.64 (emphasis ours)
Once the discharge is ordered, any future development showing that any, or all, of the five
conditions have not been actually fulfilled, may not affect the legal consequences of the
discharge,65 and the admissibility and credibility of his testimony if otherwise admissible and
credible.66 Any witting or unwitting error of the prosecution in asking for the discharge, and of
the court granting the petition, no question of jurisdiction being involved, cannot deprive the
discharged accused of the acquittal provided by the Rules,67 and of the constitutional
guarantee against double jeopardy.68
As to the second assigned error, accused-appellants aver that the prosecution failed to
establish their guilt beyond reasonable doubt. In support thereof, accused-appellants
question the admissibility of the testimonies of the police officers who propounded questions
and conducted the custodial investigation without apprising them of their constitutional rights.
Moreover, accused-appellants argue that certain physical evidence such as the blanket,
passbook, bolo, knife, necklace, Japanese money, wallet and cash are likewise inadmissible
in evidence, inasmuch as the same were recovered and obtained by the police as a result of
accused-appellants' uncounselled admission.
After an exhaustive perusal of the records, we find inadmissible the uncounselled extrajudicial admission of accused-appellants, as well as the testimonies of the police officers
pertaining thereto, for having been obtained in clear violation of accused-appellants' rights
enshrined in the Constitution.
Section 12, Article III of the Constitution explicitly provides:
" 1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.
"X X X X X X X X X
"3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
"X X X"
Verily, the mantle of protection under this constitutional provision covers the period from the
time a person is taken into custody for investigation of his possible participation in the
commission of a crime, or from the time he is singled out as a suspect in the commission of
the crime, although not yet in custody.69 Courts are not allowed to distinguish between
preliminary questioning and custodial investigation proper when applying the exclusionary
rule. Any information or admission given by a person while in custody - which may appear
harmless or innocuous at the time without the competent assistance of an independent
counsel - should be struck down as inadmissible.70

It bears stressing that the rights under Section 12 are accorded to "any person under
investigation for the commission of an offense." An investigation begins when it is no longer
a general inquiry into an unsolved crime but starts to focus on a particular person as
suspect, i.e., when the police investigator starts interrogating or exacting a confession from
the suspect in connection with an alleged offense.71
Thus, in People vs. Bolanos,72 we considered inadmissible the verbal extra-judicial
admission of accused-appellant Ramon Bolanos on the ground that he, "being already under
custodial investigation while on board the police patrol jeep on the way to the Police
Station where formal investigation may have been conducted, should have been informed of
his constitutional rights "under Article 3, Section 12" of the 1987 Constitution."
In the recent case of People vs. Bravo,73 where we applied the exclusionary rule, this Court,
speaking through Madame Justice Minerva Gonzaga-Reyes, aptly observed:
"The accused was under arrest for the rape and killing of Juanita Antolin and any statement
allegedly made by him pertaining to his possible complicity in the crime without prior
notification of his constitutional rights is inadmissible in evidence. The policeman's apparent
attempt to circumvent the rule by insisting that admission was made during an `informal
talk' prior to custodial investigation proper is not tenable."
Analogously in the present case, the police authorities, upon the arrest of Emegdio and
Baselino, immediately asked questions and conducted custodial investigation of said
accused-appellants regarding their participation in the commission of the crime, even while
they were still walking along the highway on their way to the police station. Records reveal
that no counsel was present to assist Emegdio and Baselino during the interrogation nor was
accused-appellants informed of their rights under the Constitution.
During trial, SPO1 Avelino Selloria testified:
"Q: Along the way, as you said, you have conducted investigation on Repe. What questions
did you ask Mr. Repe?
"A: We asked both Repe and Emegdio as to who were their companions.
"Q: That was all you asked both of them? That was the only question you asked them?
"A: We asked them who were their companions and where were they.
"Court:
"Q: And what was their answer?
"A: They mentioned, as their companions, Pedro Bariquit, Cristituto Bariquit and Roel
Lascua and they further informed me they had come here already to Tuyan. Pedro and
Roel were in Tuyan. They informed me that and (sic) Roel was just in Isabela, Pangdan.
xxx

xxx

xxx

"Q: So aside from these 2 questions, no other questions were asked on Emegdio Lascua
and Baselino Repe?
"A: Yes sir.
"Q: What (was) their answer?
"A: We asked them why they robbed and killed.
"COURT:
"Q: What was their answer?
"A: They said they had planned the robbery.
"ATTY. SARINO:
"Q: Who said that?
"A: Emegdio.
"Q: It was only Emegdio who said that?
"A :Because it was him whom I asked, because we were walking along the
road." (emphasis ours)
Moreover, on cross-examination, SPO1 Selloria stated: 74
"A: From the area where we arrested them, we asked questions along the way.
"Q: When you asked questions, the accused were already under your custody?
"A: Yes, sir. We were walking along.
"Q: Therefore, when under custody, that person is under custodial investigation?
"Atty. Flores: He is asking for opinion.
"COURT: Reform.
"Atty. Dela Victoria:
"Q: What were the questions you asked to the accused?
"A: We asked whether they were the ones who robbed the couple, Simon Hermida and
Corazon Hermida." (emphasis ours)

To our mind, the interrogation conducted by the police on accused-appellants Emegdio and
Baselino falls under the term "custodial investigation" pursuant to prevailing jurisprudence
and the provisions of Republic Act 7438. It may not be amiss to observe that under R.A.
7438, the requisites of a "custodial investigation" are applicable even to a person not formally
arrested but merely "invited for questioning.75
In the case before us, it is of no moment that the questioning was done along the
highway while Baselino and Emegdio were being led by the police to the station. To put it
differently, the place of interrogation is not at all a reliable barometer to determine the
existence or absence of Custodial investigation. Of striking material significance is and the
fact that the tone and manner of questioning by the police, as gleaned from the records,
reveal that they already presumed accused-appellants as the perpetrators of the crime and
singled them out as the despicable authors thereof.
Under these circumstances, the police authorities should have properly apprised them of
their constitutionally-protected rights, without which such uncounselled admissions or any
other evidence obtained as a result thereof, or proceeding therefrom - the putrid source - are
deemed likewise inadmissible in evidence against the accused-appellants.
In this jurisdiction, the burden to prove that an accused waived his rights to remain silent and
the right to counsel before making a confession under custodial investigation rests with the
prosecution. It is also the burden-of the prosecution to show that the evidence derived from
confession is not tainted as "fruit of the poisonous tree." The burden has to be discharged by
clear and convincing evidence.76
In the instant case, the police officers were remiss in performing such duty and the
prosecution equally failed to discharge such burden. The records, indeed, are bereft of any
finding that the police labored to properly apprise accused-appellants of their rights. Further,
no counsel was present when Emegdio and Baselino answered the questions propounded to
them by the police, both along the highway and at the police station.
In view of these constitutional infirmities attendant to the interrogation, we consider the
extrajudicial admissions of accused-appellants and the testimonies of the police officers in
relation thereto inadmissible.
For, even if the confession contains a grain of truth, but it was made without the assistance
of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or
even if it had been voluntarily given.77
Applying the exclusionary rule, we also declare inadmissible the money and necklace
recovered from accused-appellants for being tainted as "fruits of the poisonous tree." Clearly,
the records show that such evidence were derived or recovered from a polluted source, to
wit, the accused-appellants' uncounselled admissions.
In People vs. Alicando,78 this Court explicated the principle, to wit:
" We have not only constitutional ized the Miranda warnings in our jurisdiction. We also have
adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree", a phrase
minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United

States.79 According to this rule, once the primary source (the 'tree') is shown to have been
unlawfully obtained, any secondary or derivative evidence (the 'fruit') derived from it is also
inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the
illegal act, whereas the fruit of the poisonous tree' is the indirect result of the same illegal act.
The fruit of the poisonous tree' is at least once removed from the illegally seized evidence
but it is equally inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because the originally
illegally obtained evidence taints all evidence subsequently obtained."
Notwithstanding the inadmissibility of the uncounselled confessions and certain pieces of
object evidence such as the necklace and money, we still hold that the prosecution clearly
proved the guilt of accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio
Lascua, beyond reasonable doubt. It is well to note that the eyewitness account of Rogelio
Lascua, coupled with the testimony of accused Baselino Repe and further corroborated by
the testimony and findings of Dr. Valentin Ubas, suffice to convict accused-appellants of the
crime charged.
In the instant case, the prosecution, through the testimony of state witness Rogelio Lascua,
as corroborated by the recollection of Baselino Repe on the witness stand, indubitably
established the presence of conspiracy among the accused-appellants Pedro, Cristituto and
Emegdio in the commission of the crime. Clearly, the acts of Pedro, Emegdio and Cristituto
before, during and after the commission of the crime confirm that the accused-appellants-animated by a joint purpose and corrupt design, that is to rob the Hermida spouses-acted in
unison and concerted effort in the execution of the planned robbery.
Evidently, the meeting at the upper hill area, the hatching of the planned robbery, the
stabbing, hacking and killing of the Hermida spouses, the threats directed against Baselino
Repe, the asportation of the wooden trunk containing the valuables and the division of the
loot -- taken collectively -- substantiate and lend a formidable factual basis to the trial court's
finding of conspiracy among Pedro, Emegdio and Cristituto. Crystalline is the rule that where
conspiracy is established, the precise modality or extent of participation of each individual
conspirator becomes secondary and the act of one is the act of all. The degree of actual
participation in the commission of the crime is immaterial.80
Consequently, accused-appellants' defense of alibi must fail in view of the positive
identification of Pedro, Emegdio and Cristituto as the perpetrators of the crime. Alibi is one of
the weakest defenses an accused can invoke, and the courts have always looked upon it
with caution, if not suspicion, not only because it is inherently unreliable, but likewise
because it is easy to fabricate.81 To prosper, alibi must strictly meet the requirements of time
and place.82Thus, the accused must establish by clear and convincing evidence that he was
so far away that it was not possible for him to have been physically present at the locus
criminis or its immediate vicinity at the time the crime was committed.
Again, the accused-appellants miserably failed to discharge this burden. On the stand,
Emegdio testified that his house is merely twenty minutes away from the Hermida
residence.83 In the same vein, Pedro testified that a person coming from his house could
reach, by foot, the Hermida residence in about an hour.

To our mind, the short distances and negligible time between accused-appellants' residences
and the place of the commission of the crime negate their defense of alibi. Beyond this, alibi
is unavailing in light of the positive identification by credible witnesses who narrated the
details of the killing and the robbery.
This Court affords ample weight and credence to the testimonies of state witnesses Rogelio
Lascua and Baselino Repe. In doing so, we are not unmindful of the principle that the
testimony of a co-accused turned state witness should be received with great caution and
should be carefully scrutinized.84 Hence, we treated with circumspection the gleaming fact
that Rogelio Lascua is a blood relative of accused-appellants. The records show that state
witness Rogelio Lascua and accused-appellant Emegdio are brothers.
To be sure, this circumstance has not escaped our focus and attention, thus the rationale for
the greater weight and credibility accorded to Rogelio's narration. Human experience and
common knowledge taught us that no brother would ever thrust his own flesh and blood
down the pit of death, fully cognizant of the irreversible repercussions of his in-court
testimony, were he not impelled by the strongest urge to speak the language of truth. Only a
man cursed with a depraved mind and a perverted heart could perpetrate such falsehood.
The trial court, in believing the version of facts as recollected by Rogelio Lascua, found the
state witness to have spoken only one language-that of truth. Absent any clear showing that
Rogelio was actuated by ill-motive and selfish ends, and fortified by the fact that Rogelio is a
close relative of accused-appellants, this Court a fortiorifinds his narration truthful and
unblemished by falsehood.
Many times beyond numbering, we have enunciated the rule that to sustain a conviction for
the crime of robbery with homicide, it is imperative that the robbery itself be proven
conclusively as any other essential element of a crime. 85
To this end, the prosecution clearly established that the purpose of the accused-appellants in
killing the victim spouses was to ensure the success of their previous devious plan-to rob
Simon and Corazon Hermida. Thus, while it may be true that the "homicide" preceded the
taking of the victims' valuables, the killing of the spouses was nonetheless perpetrated for
the aim of eliminating an obstacle, removing an opposition to the robbery and doing away
with witnesses. Accordingly, the death of the victims arose by reason, or on occasion, of the
robbery; the pieces of evidence adduced and presented by the prosecution divulge a direct
relation and intimate connection between the asportation of the Hermida's valuables and
their brutal death in the hands of the accused-appellants.
Hence, the conviction of accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio
Lascua stands. As to the aggravating circumstances, we hold that the trial court erred in
appreciating the presence of treachery and band in the commission of the felony.
1wphi1

In the present case, the accused-appellants were charged with, tried, and convicted for the
crime of robbery with homicide. In our jurisdiction, this special complex crime is primarily
classified as a crime against property and not against persons, homicide being a mere
incident of the robbery with the latter being the main purpose and object of the criminal. 86

Under Article 14 of the Revised Penal Code, treachery is applicable only to crimes against
persons.87 Accordingly, inasmuch as robbery with homicide is a crime against property and
not against persons, treachery cannot be validly considered in the present case.
Further, the aggravating circumstance of band may not be appreciated in the commission of
the crime. Jurisprudence is consistent that band is deemed aggravating
whenever more than three armed malefactors shall have acted together in the
commission of the offense.88 (emphasis ours)
In view of the fact that only three accused-appellants- Pedro Bariquit, Cristituto Bariquit
and Emegdio Lascua-conspired and participated in the robbery-killing, band was not
attendant in the commission of the felony.
Nevertheless, this Court considers the attendance of fraud, dwelling and evident
premeditation in the commission of the offense.
Fraud consists of insidious words or machinations used to induce the victim to act in a
manner which would enable the offender to carry out his design. 89 Hence, in a decided case
where the defendants, upon the pretext of wanting to buy a bottle of wine, induced the victim
to go down to the lower story of his dwelling where the wine was stored, entered it when the
door was opened to him, and there commenced the assault which ended in his death, 90 this
Court appreciated the aggravating circumstance of fraud. 91
In the case before us, accused-appellants managed to enter the house of the victimsspouses by employing insidious words and machinations, specifically by feigning to buy
Kulafu and cigarettes from Simon. Pedro even requested Simon to light his cigarette so that
the latter would open the door and pave the way for the accused-appellants' entry into the
house.
Likewise, dwelling is deemed aggravating in the instant case where the crime was
perpetrated in the house where the Hermida Spouses lived, and without any provocation
from the victims Simon and Corazon.92
Similarly, evident premeditation attended the commission of the felony. For evident
premeditation to aggravate a crime, there must be proof, as clear as the evidence of the
crime itself, of the following elements: (1) the time when the offender determined to commit
the crime; (2) an act manifestly indicating that he clung to his determination; and (3) sufficient
lapse of time, between determination and execution, to allow himself to reflect upon the
consequences of his act93 and to allow his conscience to overcome the resolution of his will
had he desired to harken to its warnings.94
The prosecution in the present case established by clear and convincing evidence, as to how
and when the planned robbery was hatched. As borne by the records, accused-appellants
met at the upper hill area around 12:00 AM of 08 February 1994, where the planned robbery
was agreed upon and visualized. Thereafter, accused-appellants, armed with bladed
weapons, trekked from the place of assemblage toward the victims' residence and, upon
arrival at the vicinity thereof, waited under a mango tree for approximately an hour before
finally proceeding to the house to consummate the robbery-killing.

Clearly, the lapse of two hours-from 12:00 AM to 2:00 AM-suffice to satisfy the third requisite
and allow accused-appellants to meditate and reflect upon the consequences of their
criminal acts.
Thus, in one case,95 we held that there was evident premeditation where two hours passed
from the time the accused clung to his determination to kill the victim, up to the actual
perpetration of the crime. Moreover, evident premeditation can be presumed where
conspiracy is directly established96 , as in the instant case.
By way of civil indemnity, we affirm the trial court's award of P100,000.00 for the deaths of
Simon and Corazon Hermida. Further, we hold accused-appellants liable to pay the amount
of P50,000.00 as moral damages pursuant to Articles 2219(1) and 2206(3) of the Civil Code.
Considering that the crime was committed with the presence of three aggravating
circumstances,97 the amount ofP20,000.00 is also awarded as exemplary damages.
Likewise, we grant an award of P70,000.00 as actual damages representing the funeral and
burial expenses incurred as a result of the death of Simon and Corazon Hermida, inasmuch
as the evidence on record supports such award.98
Four Justices of the Court have continued to maintain the unconstitutionality of Republic Act
No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of
the majority to the effect that the law is constitutional and that the death penalty can be
lawfully imposed in the case at bar.
Nonetheless, as to accused Baselino Repe, we hold that the prosecution failed to prove his
guilt beyond reasonable doubt and that the trial, court gravely erred in convicting Repe of the
crime charged considering that the lower court overlooked circumstances and
misappreciated certain material facts, which, if weighed and treated with deeper
circumspection, would lead to Repes acquittal.
At this point, it bears emphasis that the basis of Repels conviction is riveted on the trial
court's conclusion, albeit erroneous, that accused Repe conspired and cooperated with the
other accused-appellants in the commission of the crime.
Certainly, a painstaking review and appraisal of the evidence disclose that, contrary to the
trial court's findings, Repe was not part of the conspiracy; the prosecution was remiss in
establishing Repes overt acts clearly showing his intention and participation in the criminal
design. Needless to say, evidence of intentional participation is indispensable. 99
To this end, overt acts of the accused may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-conspirators
by being present at the time of the commission of the crime, or by exerting moral
ascendancy over the other co-conspirators by moving them to execute or implement the
conspiracy.100
On the contrary, Repe did not actively participate in the commission of the crime; Repe did
not extend any moral assistance to the other accused-appellants, as in fact, from the time of
inception of the plan up to its execution, he strongly refused to assent and join the
malefactors or profit from the fruits of the crime. Moreover, Repe did not exercise moral

ascendancy over the accused-appellants, as he was even the one coerced and threatened
to be present at the crime scene, for fear of his own life.
By itself, mere presence at the scene of the crime at the time of its commission is not
sufficient to establish conspiracy.101
Likewise, the records are clear that the threats directed against Repe by the three accusedappellants-his relatives at that were real and present. Accused-appellants Pedro, Emegdio
and Cristituto were all armed with bladed weapons and persistently and aggressively
showed their resolve to harm and kill Repe if the latter would not participate or join them at
the scene of the crime; the chance for escape was hence-nil. Pitted against Pedro, Emegdio
and Cristituto-Repe was clearly no match.
Stated differently, the compulsion exerted was of such nature and character as to leave him
no genuine opportunity for self-defense in equal combat or for escape. 102
Even state witness Rogelio Lascua testified that the accused-appellants hurled serious
threats and employed physical force against Repe.103 Similarly, the records are bereft of any
showing that Repe agreed with Pedro, Emegdio and Cristituto to join the robbery, nor that
Repe acted in a manner manifesting commonality of design and purpose. 104 The fact that
Repe and Emegdio were arrested together around 3:00 PM of 08 February 1994 does not
militate against Repes bid for acquittal inasmuch as the records reveal that it was Emegdio
who approached and visited Repe in his house to ask the latter for a "young coconut." 105 All
told, without evidence-clear and convincing at that-as to how accused Repe participated in
the perpetration of the crime, conspiracy cannot be appreciated against him. 106
Undoubtedly, a verdict of conviction must hinge itself on the strength of the prosecution's
evidence, definitely not on the weakness or impotency of the evidence for the defense. As
the evidence for the prosecution fell short of the quantum of proof required to prove Repes
guilt beyond the peradventure of doubt, this Court is then duty-bound to pronounce Repels
acquittal and strike down the judgment of conviction upon him.
WHEREFORE, in view of the foregoing, accused Baselino Repe is hereby ACQUITTED on
grounds of reasonable doubt and ordered released immediately, unless he is being detained
for some other legal cause.
As to the accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio
Lascua, this Court finds them guilty of the special complex crime of Robbery with Homicide
and hereby sentences each of them to suffer the supreme penalty of death.
In addition, accused-appellants Pedro Bariquit, Cristituto Bariquit and Emegdio Lascua are
ordered to pay jointly and severally the heirs of Simon and Corazon Hermida the amount
of P100,000.00 as civil indemnity; P50,000.00 as moral damages; P20,000.00 as exemplary
damages; and P70,000.00 as actual damages.
Pursuant to Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let the records of this case be forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr.,
JJ., concur.

Footnotes
1
Rollo, pp. 39-57.
2
Ibid., pp. 154-156.
3
Records, pp. 73-74.
4
TSN, 18 August 1994, p. 10.
5
Affidavit; Records, p. 7.
6
TSN, 16 August 1994, p. 9.
7
Ibid, p. 10.
8
Ibid.
9
TSN, 17 August 1994, p. 4.
10
Ibid.
11
Ibid., p. 3.
12
Ibid., p. 4.
13
TSN, 18 August 1994, p. 2.
14
left side of the neck; TSN, 18 August
1994, p. 4.
15
TSN, 07 September 1994, p. 12.
16
Ibid., p. 5.
17
Ibid, p. 6.
18
TSN, 19 October 1994, p. 7.
19
Ibid, p. 8.
20
Ibid, p. 12.
21
Ibid, p. 14.
22
TSN, 21 February 1995, p. 7.
23
Ibid, p. 8.
24
Ibid, p. 9.
25
Ibid, p. 10.
26
Ibid.
27
Ibid, p. 11.
28
Ibid, p. 12.
29
TSN, 13 September 1994, p. 10.
30
Ibid, p. 11.
31
TSN, 14 September 1994, p.4.
32
Ibid, p. 6.
33
Ibid.
34
TSN, 09 September, p. 8.
35
Ibid, p. 9.
36
TSN, 14 September 1994, p. 7.
37
Ibid, p. 8.
38
Ibid, p. 9.
39
Ibid.
40
Ibid, p. 10.
41
TSN, 22 September 1994, p. 9.
42
Ibid.
43
TSN, 11 October 1994, p. 13.
44
Ibid, pp. 15-16.
45
Ibid, p. 16.
46
Ibid., p. 24.

Ibid, pp. 23-24.


TSN, 09 November 1994.
49
Exhibit "O."
50
TSN, 13 December 1994, p. 6.
51
Ibid, p. 12.
52
TSN, 03 January 1994, p. 6.
53
Ibid., p. 5.
54
TSN, 21 March 1995, p. 4.
55
Ibid, p. 7.
56
Ibid, p. 10.
57
TSN, 22 March 1995.
58
Rollo, pp. 120-134; Apellants Brief for
Pedro Bariquit, Cristuto Bariquit and
Egmedio Lascua.
59
Wyne vs. Newman, 75 Va. 811, 817 cited
in Francisco, R.J., " Evidence, Rules of Court
in the Philippines, Rule 128-134", Third
Edition, 1996, pp. 2-3; People vs. Platon,
08021-CR, 12 February 1971.
60
Lugtu vs. Court of Appeals, 183 SCRA
388 [1990]; People vs. Tabayoyong, 104
SCRA 724 [1981]; People vs. Bautista, 106
Phil. 39 [1959]; People vs. Ibaez, 92 Phil.
933 [1953]. People vs. Bautista, 49 Phil.
389 [1926].
61
Ramos vs. Sandiganbayan, 191 SCRA
671 [1990].
62
Ibid; People vs. Ibaez, 92 Phil. 936
[1953].
63
Mangubat vs. Sandignbayan, 135 SCRA
732 [1985].
64
People vs. Anion, 158 SCRA 701, 711
[1988].
65
Ibid.
66
People vs. Bautista, 106 Phil. 39 [1959].
67
Section 10, Rule 119, Rules of Court.
68
People vs. Anion, 158 SCRA 701, 711
[1988] citing People vs. Mendiola, 82 Phil.
740 [1949].
69
People vs. Andan, 269 SCRA 95 [1997],
cited in People vs. Bravo, G.R. No. 135562,
November 22, 1999.
70
People vs. Bravo G.R. No. 135562,
November 22, 1999; People vs. Isla, 278
SCRA 47 [1997]; People vs. Binamira, 277
SCRA 232 [1997]. Gamboa vs. Cruz, 162
SCRA 642 [1988].
47
48

People vs. Andan 269 SCRA 95 [1997];


People vs. Macam 238 SCRA 306 [1994];
People vs. Bandula, 232 SCRA 566, 575
[1994]; People vs. De Guzman, 224 SCRA
93 [1993]; People vs. Olvis, 154 SCRA 513
[1987].
72
211 SCRA 262 [1992].
73
Supra at footnote 70.
74
TSN, 19 October 1994, p. 22.
75
Sanchez vs. Demetriou, 227 SCRA 627
[1993].
76
People vs. Alicando, 251 SCRA 293
[1995].
77
People vs. Tan, 286 SCRA 207 [1998].
78
Supra at footnote 74.
79
308 US 388, 60 S. Ct. 266, 84 L. ed. 307
(1939).
80
People vs. Lising, 285 SCRA 595 [1998];
People vs. De Roxas, 241 SCRA 369 [1995].
81
People vs. Ayugue, 268 SCRA 711 [1997].
82
People vs. Piandong, 268 SCRA 555
[1997].
83
TSN, 13 December 1994, p. 6.
84
Ramos vs. Sandiganbayan, 191 SCRA
671 [1990].
85
People vs. Laurente, 255 SCRA 543
[1996].
86
People vs. Navales, 266 SCRA 569
[1997]; People vs. Cabiles, 248 SCRA 207
[1995].
87
People vs. Alfeche, 294 SCRA 352 [1998].
88
People vs. Lungbus, 162 SCRA 383
[1988]; People vs. GA, 186 SCRA 790
[1990].
71

Reyes, Luis B., The Revised Penal Code,


Book One, Fourteenth Edition, p. 393.
90
U.S. vs. Bundal, 3 Phil. 89 [1903].
91
Reyes, L.B., p. 393.
92
People vs. Prades, 293 SCRA 411 [1998].
93
People vs. Sumalpong, 284 SCRA 464
[1998]; People vs. Castillo, 289 SCRA 213
[1998]; People vs. Tulop, 289 SCRA 316
[1998].
94
People vs. Sambulan, 289 SCRA 500
[1998].
95
People vs. Bibat, 290 SCRA 27 [1998].
96
People vs. Padian, 290 SCRA 388 [1998].
97
Article 2230, Civil Code.
98
Receipt issued by the Holy Spirit Funeral
Homes marked as Exhibit "O"; TSN, 09
November 1994, p. 9.
99
People vs. Ragon, 282 SCRA 90, 101
[1997] cited in People vs. Patalinghug, G.R.
No. 125814-15, November 16, 1999.
100
People vs. Berroya, 283 SCRA 111
[1997].
101
People vs. Taacal, 178 SCRA 56 [1989].
102
People vs. Lising, 285 SCRA 595 [1998].
103
TSN, August 17, 1994, p. 4; TSN, August
18 1994, p. 6.
104
People vs. Ragon, 282 SCRA 90, 101
[1997] cited in People vs. Patalinghug, G.R.
No. 125814-15, November 16, 1999.
105
TSN, December 13, 1994, p. 13.
106
People vs. Furugganan, 193 SCRA 471
[1991]; People vs. De Dios, 187 SCRA 228,
247 [1990].
89

EN BANC
[G.R. No. 116437. March 3, 1997.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PABLITO ANDAN y
HERNANDEZ @ BOBBY, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Miguel P. Pineda for Accused-Appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF THE ACCUSED UNDER
CUSTODIAL INVESTIGATION; RATIONALE FOR THE EXCLUSION RULE THEREON.
Any person under investigation for the commission of an offense shall have the right
(1) to remain silent; (2) to have competent and independent counsel preferably of
his own choice; and (3) to be informed of such rights. These rights cannot be waived
except in writing and in the presence of counsel. Any confession or admission
obtained in violation of this provision is inadmissible in evidence against him. The
exclusionary rule is premised on the presumption that the defendant is thrust into an
unfamiliar atmosphere and runs through menacing police interrogation procedures
where the potentiality for compulsion, physical and psychological, is forcefully
apparent. The incommunicado character of custodial interrogation or investigation
also obscure a later judicial determination of what really transpired.
2. ID.; ID.; ID.; BEGINS WHEN THE INVESTIGATION STARTS TO FOCUS ON A
PARTICULAR PERSON AS A SUSPECT. It should be stressed that the rights under
Section 12 are accorded to" [a]ny person under investigation for the commission of
an offense." An investigation begins when it is no longer a general inquiry into an
unsolved crime but starts to focus on a particular person as a suspect, i.e., when the
police investigator starts interrogating or exacting a confession from the suspect in
connection with an alleged offense. As intended by the 1971 Constitutional
Convention, this covers "investigation conducted by police authorities which will
include investigations conducted by the municipal police, the PC and the NBI and
such other police agencies in our government."cralaw virtua1aw library
3. ID.; ID.; ID.; EXCLUSIONARY RULE; NOT APPLICABLE TO THE SPONTANEOUS
STATEMENT MADE BY THE ACCUSED WHICH WERE NOT ELICITED THROUGH
QUESTIONING BY THE AUTHORITIES; CASE AT BAR. Under the circumstances in
this case, it cannot be successfully claimed that appellants confession before the
mayor is inadmissible. It is true that a municipal mayor has "operational supervision
and control" over the local police and may arguably be deemed a law enforcement
officer for purposes of applying Section 12 (1) and (3) of Article III of the
Constitution. However, appellants confession to the mayor was not made in response
to any interrogation by the latter. In fact, the mayor did not question appellant at all.
No police authority ordered appellant to talk to the mayor. It was appellant himself
who spontaneously, freely and voluntarily sought the mayor for a private meeting.

The mayor did not know that appellant was going to confess his guilt to him. When
appellant talked with the mayor as a confidant and not as a law enforcement officer,
his uncounseled confession to him did not violate his constitutional rights. Thus, it
has been held that the constitutional procedures on custodial investigation do not
apply to a spontaneous statement, not elicited through questioning by the
authorities, but given in an ordinary manner whereby appellant orally admitted
having committed the crime. What the Constitution bars is the compulsory disclosure
of incriminating facts or confessions. The rights under Section 12 are guaranteed to
preclude the slightest use of coercion by the state as would lead the accused to
admit something false, not to prevent him from freely and voluntarily telling the
truth. Hence, we hold that appellants confession to the mayor was correctly
admitted by the trial court.
4. ID.; ID.; ID.; ID.; NOT APPLICABLE TO CONFESSIONS MADE BY THE ACCUSED IN
RESPONSE TO QUESTIONS BY NEWS REPORTERS; CASE AT BAR. Appellants
confessions to the media were likewise properly admitted. The confessions were
made in response to questions by news reporters, not by the police or any other
investigating officer. We have held that statements spontaneously made by a suspect
to news reporters on a televised interview are deemed voluntary and are admissible
in evidence. Clearly, appellants confessions to the news reporters were given free
from any undue influence from the police authorities. The news reporters acted as
news reporters when they interviewed appellant. They were not acting under the
direction and control of the police. They were there to check appellants confession to
the mayor. They did not force appellant to grant them an interview and reenact the
commission of the crime. In fact, they asked his permission before interviewing him.
They interviewed him on separate days not once did appellant protest his innocence.
Instead, he repeatedly confessed his guilt to them. He even supplied all the details in
the commission of the crime, and consented to its reenactment. All his confessions to
the news reporters were witnessed by his family and other relatives. There was no
coercive atmosphere in the interview of appellant by the news reporters.
5. ID.; ID.; ID.; ID.; ID.; RATIONALE. We rule that appellants verbal confessions
to the newsmen are not covered by Section 12 (1) and (3) of Article III of the
Constitution. The Bill of Rights does not concern itself with the relation between a
private individual and another individual. It governs the relationship between the
individual and the State. The prohibitions therein are primarily addressed to the
State and its agents. They confirm that certain rights of the individual exist without
need of any governmental grant, rights that may not be taken away by government,
rights that government has the duty to protect. Governmental power is not unlimited
and the Bill of Rights lays down these limitations to protect the individual against
aggression and unwarranted interference by any department of government and its
agencies.
6. CRIMINAL LAW; RAPE; ABSENCE OF SPERMATOZOA DOES NOT NEGATE THE
COMMISSION THEREOF. We have also ruled in the past that the absence of
spermatozoa in the vagina does not negate the commission of rape nor does the lack
of complete penetration or rupture of the hymen. What is essential is that there be
penetration of the female organ no matter how slight.

DECISION
PER CURIAM:
Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of the crime
of rape with homicide committed as follows:jgc:chanrobles.com.ph
"That on or about the 19th day of February 1994, in the municipality of Baliuag,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design, by means of violence and intimidation,
did then and there wilfully, unlawfully and feloniously have carnal knowledge of one
Marianne Guevarra y Reyes against her will and without her consent; and the abovenamed accused in order to suppress evidence against him and delay (sic) the identity
of the victim, did then and there wilfully, unlawfully and feloniously, with intent to kill
the said Marianne Guevarra y Reyes, attack, assault and hit said victim with concrete
hollow blocks in her face and in different parts of her body, thereby inflicting upon
her mortal wounds which directly caused her death.
Contrary to Law." 1
The prosecution established that on February 19, 1994 at about 4:00 P.M., in
Concepcion Subdivision, Baliuag, Bulacan, Marianne Guevarra, twenty years of age
and a second-year student at the Fatima School of Nursing, left her home for her
school dormitory in Valenzuela, Metro Manila. She was to prepare for her final
examinations on February 21, 1994. Marianne wore a striped blouse and faded
denim pants and brought with her two bags containing her school uniforms, some
personal effects and more than P2,000.00 in cash.
Marianne was walking along the subdivision when appellant invited her inside his
house. He used the pretext that the blood pressure of his wifes grandmother should
be taken. Marianne agreed to take her blood pressure as the old woman was her
distant relative. She did not know that nobody was inside the house. Appellant then
punched her in the abdomen, brought her to the kitchen and raped her. His lust
sated, appellant dragged the unconscious girl to an old toilet at the back of the house
and left her there until dark. Night came and appellant pulled Marianne, who was still
unconscious, to their backyard. The yard had a pigpen bordered on one side by a sixfoot high concrete fence. On the other side was a vacant lot. Appellant stood on a
bench beside the pigpen and then lifted and draped the girls body over the fence to
transfer it to the vacant lot. When the girl moved, he hit her head with a piece of
concrete block. He heard her moan and hit her again on the face. After silence
reigned, he pulled her body to the other side of the fence, dragged it towards a
shallow portion of the lot and abandoned it. 2
At 11:00 A.M. of the following day, February 20, 1994, the body of Marianne was
discovered. She was naked from the chest down with her brassiere and T-shirt pulled
toward her neck. Nearby was found a panty with a sanitary napkin.
The autopsy conducted by Dr. Alberto Bondoc revealed that Marianne died of

"traumatic injuries" sustained as follows:jgc:chanrobles.com.ph


"1. Abrasions:chanrob1es virtual 1aw library
1.1 chest and abdomen, multiple, superficial, linear, generally oblique from right to
left.
2. Abrasions/contusions:chanrob1es virtual 1aw library
2.1 temple, right.
2.2 cheek, right.
2.3 upper and lower jaws, right.
2.4 breast, upper inner quadrant, right.
2.5 breast, upper outer quadrant, left.
2.6 abdomen, just above the umbilicus, rectangular, approximate 3 inches in width,
from right MCL to left AAL.
2.7. elbow joint, posterior, bilateral.
3. Hematoma:chanrob1es virtual 1aw library
3.1 upper and lower eyelids, bilateral.
3.2 temple, lateral to the outer edge of eyebrow, right.
3.3 upper and lower jaws, right.
4. Lacerated wounds:chanrob1es virtual 1aw library
4.1 eyebrow, lateral border, right, 1/2 inch.
4.2 face, from right cheek below the zygoma to midline lower jaw, 4 inches.
5. Fractures:chanrob1es virtual 1aw library
5.1 maxillary bone, right.
5.2 mandible, multiple, complete, right, with avulsion of 1st and 2nd incisors.
6. Cerebral contusions, inferior surface, temporal and frontal lobes, right.
7. External genitalia
7.1 minimal blood present.

7.2 no signs of recent physical injuries noted on both labia, introitus and exposed
vaginal wall.
8. Laboratory examination of smear samples from the vaginal cavity showed
negative for spermatozoa (Bulacan Provincial Hospital, February 22, 1994, by Dr.
Wilfredo S. de Vera).
CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions due to
Traumatic Injuries, Face." 3
Mariannes gruesome death drew public attention and prompted Mayor Cornelio
Trinidad of Baliuag to form a crack team of police officers to look for the criminal.
Searching the place where Mariannes body was found, the policemen recovered a
broken piece of concrete block stained with what appeared to be blood. They also
found a pair of denim pants and a pair of shoes which were identified as Mariannes.
4
Appellants nearby house was also searched by the police who found bloodstains on
the wall of the pigpen in the backyard. They interviewed the occupants of the house
and learned from Romano Calma, the stepbrother of appellants wife, that accusedappellant also lived there but that he, his wife and son left without a word. Calma
surrendered to the police several articles consisting of pornographic pictures, a pair
of wet short pants with some reddish brown stain, a towel also with the stain, and a
wet T-shirt. The clothes were found in the laundry hamper inside the house and
allegedly belonged to appellant. 5
The police tried to locate appellant and learned that his parents live in Barangay
Tangos, Baliuag, Bulacan. On February 24 at 11:00 P.M., a police team led by Mayor
Trinidad traced appellant in his parents house. They took him aboard the patrol jeep
and brought him to the police headquarters where he was interrogated. Initially,
appellant denied any knowledge of Mariannes death. However, when the police
confronted him with the concrete block, the victims clothes and the bloodstains
found in the pigpen, appellant relented and said that his neighbors, Gilbert Larin and
Reynaldo Dizon, killed Marianne and that he was merely a lookout. He also said that
he knew where Larin and Dizon hid the two bags of Marianne. 6 Immediately, the
police took appellant to his house. Larin and Dizon, who were rounded up earlier,
were likewise brought there by the police. Appellant went to an old toilet at the back
of the house, leaned over a flower pot and retrieved from a canal under the pot, two
bags which were later identified as belonging to Marianne. Thereafter, photographs
were taken of appellant and the two other suspects holding the bags. 7
Appellant and the two suspects were brought back to the police headquarters. The
following day, February 25, a physical examination was conducted on the suspects by
the Municipal Health Officer, Dr. Orpha Patawaran. 8 Appellant was found to
sustain:jgc:chanrobles.com.ph
"HEENT: with multiple scratches on the neck Rt side. Chest and back: with abrasions
(scratches at the back). Extremities: freshly-healed wound along index finger 1.5
cm. in size Lt." 9

By this time, people and media representatives were already gathered at the police
headquarters awaiting the results of the investigation. Mayor Trinidad arrived and
proceeded to the investigation room. Upon seeing the mayor, appellant approached
him and whispered a request that they talk privately. The mayor led appellant to the
office of the Chief of Police and there, appellant broke down and said "Mayor,
patawarin mo ako! I will tell you the truth. I am the one who killed Marianne." The
mayor opened the door of the room to let the public and media representatives
witness the confession. The mayor first asked for a lawyer to assist appellant but
since no lawyer was available he ordered the proceedings photographed and
videotaped. 10 In the presence of the mayor, the police, representatives of the
media and appellants own wife and son, appellant confessed his guilt. He disclosed
how he killed Marianne and volunteered to show them the place where he hid her
bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated
saying he did it because of ill-feelings against them. 11 He also said that the devil
entered his mind because of the pornographic magazines and tabloid he read almost
everyday. 12 After his confession, appellant hugged his wife and son and asked the
mayor to help him. 13 His confession was captured on videotape and covered by the
media nationwide. 14
Appellant was detained at the police headquarters. The next two days, February 26
and 27, more newspaper, radio and television reporters came. Appellant was again
interviewed and he affirmed his confession to the mayor and reenacted the crime.
15
On arraignment, however, appellant entered a plea of "not guilty." He testified that in
the afternoon of February 19, 1994 he was at his parents house in Barangay Tangos
attending the birthday party of his nephew. He, his wife and son went home after
5:00 P.M. His wife cooked dinner while he watched their one-year old son. They all
slept at 8:00 P.M. and woke up the next day at 6:00 in the morning. His wife went to
Manila to collect some debts while he and his son went to his parents house where
he helped his father cement the floor of the house. His wife joined them in the
afternoon and they stayed there until February 24, 1994 when he was picked up by
the police. 16
Appellant was brought by the police to a hotel at Bagong Nayon, Baliuag. In one of
the rooms, the policemen covered his face with a bedsheet and kicked him
repeatedly. They coerced him to confess that he raped and killed Marianne. When he
refused, they pushed his head into a toilet bowl and injected something into his
buttocks. Weakened, appellant confessed to the crime. Thereafter, appellant was
taken to his house where he saw two of his neighbors, Larin and Dizon. He was
ordered by the police to go to the old toilet at the back of the house and get two
bags from under the flower pot. Fearing for his life, appellant did as he was told.
17chanroblesvirtuallawlibrary
In a decision dated August 4, 1994, the trial court convicted appellant and sentenced
him to death pursuant to Republic Act No. 7659. The trial court also ordered
appellant to pay the victims heirs P50,000.00 as death indemnity, P71,000.00 as
actual burial expenses and P100,000.00 as moral damages,
thus:jgc:chanrobles.com.ph

"WHEREFORE, in view of the foregoing, Pablito Andan y Hernandez alias "Bobby" is


found guilty by proof beyond a scintilla of doubt of the crime charged in the
Information (Rape with Homicide) and penalized in accordance with R.A. No. 7659
(Death Penalty Law) Sec. 11, Par. 8, classifying this offense as one of the heinous
crimes and hereby sentences him to suffer the penalty of DEATH; to indemnify the
family of Marianne Guevarra the amount of P50,000.00 for the death of Marianne
Guevarra and P71,000.00 as actual burial and incidental expenses and P100,000.00
as moral damages. After automatic review of this case and the decision becomes
final and executory, the sentence be carried out.
SO ORDERED." 18
This case is before us on automatic review in accordance with Section 22 of Republic
Act No. 7659 amending Article 47 of the Revised Penal Code.
Appellant contends that:jgc:chanrobles.com.ph
"I THE LOWER COURT ERRED IN ADMITTING AND USING AS BASIS OF JUDGMENT
OF CONVICTION THE TESTIMONIES OF THE POLICE INVESTIGATORS, REPORTERS
AND THE MAYOR ON THE ALLEGED ADMISSION OF THE ACCUSED DURING THE
CUSTODIAL INVESTIGATION, THE ACCUSED NOT BEING ASSISTED BY COUNSEL IN
VIOLATION OF THE CONSTITUTION;
II THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE WHEN THERE IS
NO EVIDENCE OF ANY KIND TO SUPPORT IT;
III THE LOWER COURT ERRED IN MAKING A FINDING OF CONVICTION WHEN THE
EVIDENCE IN ITS TOTALITY SHOWS THAT THE PROSECUTION FAILED TO PROVE
BEYOND REASONABLE DOUBT THE GUILT OF THE ACCUSED." 19
The trial court based its decision convicting appellant on the testimonies of the three
policemen of the investigating team, the mayor of Baliuag and four news reporters to
whom appellant gave his extrajudicial oral confessions. It was also based on
photographs and video footages of appellants confessions and reenactments of the
commission of the crime.
Accused-appellant assails the admission of the testimonies of the policemen, the
mayor and the news reporters because they were made during custodial
investigation without the assistance of counsel. Section 12, paragraphs (1) and (3) of
Article III of the Constitution provides:jgc:chanrobles.com.ph
"SEC. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
(2) . . .
(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.


(4) . . ."cralaw virtua1aw library
Plainly, any person under investigation for the commission of an offense shall have
the right (1) to remain silent; (2) to have competent and independent counsel
preferably of his own choice; and (3) to be informed of such rights. These rights
cannot be waived except in writing and in the presence of counsel. 20 Any confession
or admission obtained in violation of this provision is inadmissible in evidence against
him. 21 The exclusionary rule is premised on the presumption that the defendant is
thrust into an unfamiliar atmosphere and runs through menacing police interrogation
procedures where the potentiality for compulsion, physical and psychological, is
forcefully apparent. 22 The incommunicado character of custodial interrogation or
investigation also obscures a later judicial determination of what really transpired.
23
It should be stressed that the rights under Section 12 are accorded to" [a]ny person
under investigation for the commission of an offense." An investigation begins when
it is no longer a general inquiry into an unsolved crime but starts to focus on a
particular person as a suspect, i.e., when the police investigator starts interrogating
or exacting a confession from the suspect in connection with an alleged offense. 24
As intended by the 1971 Constitutional Convention, this covers "investigation
conducted by police authorities which will include investigations conducted by the
municipal police, the PC and the NBI and such other police agencies in our
government."25cralaw:red
When the police arrested appellant, they were no longer engaged in a general inquiry
about the death of Marianne. Indeed, appellant was already a prime suspect even
before the police found him at his parents house. This is clear from the testimony of
SPO4 Danilo S. Bugay, the police chief investigator of the crime,
viz:jgc:chanrobles.com.ph
"COURT How did you come about in concluding that it was accused who did this act?
WITNESS First, the place where Marianne was last found is at the backyard of the
house of the accused. Second, there were blood stains at the pigpen, and third,
when we asked Romano Calma who were his other companions in the house, he said
that, it was Pablito Andan who cannot be found at that time and whose whereabouts
were unknown, sir.
Q So you had a possible suspect?
A Yes, sir.
Q You went looking for Pablito Andan?
A Yes, sir.
Q And then, what else did you do?

A We tried to find out where we can find him and from information we learned that
his parents live in Barangay Tangos in Baliuag. We went there, found him there and
investigated him and in fact during the investigation he admitted that he was the
culprit." 26
Appellant was already under custodial investigation when he confessed to the police.
It is admitted that the police failed to inform appellant of his constitutional rights
when he was investigated and interrogated. 27 His confession is therefore
inadmissible in evidence. So too were the two bags recovered from appellants
house. SPO2 Cesar Canoza, a member of the investigating team
testified:jgc:chanrobles.com.ph
"Atty. Valmores: You told the court that you were able to recover these bags marked
as Exhs. B and B-1 because accused pointed to them, where did he point these
bags?
A At the police station, sir, he told us that he hid the two (2) bags beneath the canal
of the toilet.
Q In other words, you were given information where these two (2) bags were
located?
A Yes, sir.
Q And upon being informed where the two (2) bags could be located what did you
do?
A We proceeded to the place together with the accused so that we would know where
the two (2) bags were hidden, sir.
Q And did you see actually those two (2) bags before the accused pointed to the
place where the bags were located?
A After he removed the broken pots with which he covered the canal, he really
showed where the bags were hidden underneath the canal, sir." 28
The victims bags were the fruits of appellants uncounselled confession to the police.
They are tainted evidence, hence also inadmissible. 29
The police detained appellant after his initial confession. The following day, Mayor
Trinidad visited the appellant. Appellant approached the mayor and requested for a
private talk. They went inside a room and appellant confessed that he alone
committed the crime. He pleaded for forgiveness. Mayor Trinidad testified,
viz:jgc:chanrobles.com.ph
"Mayor Trinidad: . . . During the investigation when there were already many people
from the media, Andan whispered something to me and requested that he be able to
talk to me alone, so what I did was that, I brought him inside the office of the chief
of police.

Private Prosecutor Principe: And so what happened inside the office of the Chief of
Police, mayor?
A While inside the office of the headquarters he told me "Mayor patawarin mo ako,! I
will tell you the truth. I am the one who killed Marianne." So when he was telling this
to me, I told him to wait a while, then I opened the door to allow the media to hear
what he was going to say and I asked him again whether he was the one who did it,
he admitted it, sir. This was even covered by a television camera." 30
x

Q During that time that Pablito Andan whispered to you that he will tell you
something and then you responded by bringing him inside the office of the Chief of
Police and you stated that he admitted that he killed Marianne . . .
Court: He said to you the following words . . .
Atty. Principe: He said to you the following words "Mayor, patawarin mo ako! Ako ang
pumatay kay Marianne," was that the only admission that he told you?
A The admission was made twice. The first one was, when we were alone and the
second one was before the media people, sir.
Q What else did he tell you when you were inside the room of the Chief of Police?
A These were the only things that he told me, sir. I stopped him from making further
admissions because I wanted the media people to hear what he was going to say,
sir." 31
Under these circumstances, it cannot be successfully claimed that appellants
confession before the mayor is inadmissible. It is true that a municipal mayor has
"operational supervision and control" over the local police 32 and may arguably be
deemed a law enforcement officer for purposes of applying Section 12 (1) and (3) of
Article III of the Constitution. However, appellants confession to the mayor was not
made in response to any interrogation by the latter. 33 In fact, the mayor did not
question appellant at all. No police authority ordered appellant to talk to the mayor.
It was appellant himself who spontaneously, freely and voluntarily sought the mayor
for a private meeting. The mayor did not know that appellant was going to confess
his guilt to him. When appellant talked with the mayor as a confidant and not as a
law enforcement officer, his uncounselled confession to him did not violate his
constitutional rights. 34 Thus, it has been held that the constitutional procedures on
custodial investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby appellant
orally admitted having committed the crime. 35 What the Constitution bars is the
compulsory disclosure of incriminating facts or confessions. The rights under Section
12 are guaranteed to preclude the slightest use of coercion by the state as would
lead the accused to admit something false, not to prevent him from freely and
voluntarily telling the truth. 36 Hence we hold that appellants confession to the
mayor was correctly admitted by the trial court.

Appellants confessions to the media were likewise properly admitted. The


confessions were made in response to questions by news reporters, not by the police
or any other investigating officer. We have held that statements spontaneously made
by a suspect to news reporters on a televised interview are deemed voluntary and
are admissible in evidence. 37
The records show that Alex Marcelino, a television reporter for "Eye to Eye" on
Channel 7, interviewed appellant on February 27, 1994. The interview was recorded
on video and showed that appellant made his confession willingly, openly and publicly
in the presence of his wife, child and other relatives. 38 Orlan Mauricio, a reporter for
"Tell the People" on Channel 9 also interviewed appellant on February 25, 1994. He
testified that:jgc:chanrobles.com.ph
"Atty. Principe: You mentioned awhile ago that you were able to reach the place
where the body of Marianne was found, where did you start your interview, in what
particular place?
Mr. Mauricio: Actually, I started my news gathering and interview inside the police
station of Baliuag and I identified myself to the accused as I have mentioned earlier,
sir. At first, I asked him whether he was the one who raped and killed the victim and
I also learned from him that the victim was his cousin.
Q And what was the response of Pablito Andan?
A His response was he is a cousin of the victim and that he was responsible for
raping and killing the victim, sir. And then I asked him whether his admission was
voluntary or that there was a threat, intimidation or violence that was committed on
his person because I knew that there were five other suspects in this case and he
said that he was admitting it voluntarily to the policemen. I asked him whether he
was under the influence of drugs but he said no, and "nakainom lang," sir.
Q You mentioned earlier that the uncle of the accused was present, was the uncle
beside him at the time that you asked the question?
A The uncle was there including the barangay captain whose name I cannot recall
anymore. A barangay captain of the place, I dont know if it is the place of the crime
scene or in the place where Marianne Guevarra resides but . . . All throughout the
scene inside the office of the Station Commander, there was no air of any force or
any threatening nature of investigation that was being done on the suspect, that is
why, I was able to talk to him freely and in a voluntary manner he admitted to me
that he was the one who raped and killed, so we went to the next stage of
accompanying me to the scene of the crime where the reenactment and everything
that transpired during the killing of Marianne Guevarra.
Q Before you started that interview, did you inform or ask permission from the
accused Pablito Andan that you were going to interview him?
A Yes, sir.

Q You mentioned that after interviewing the accused at the office of the Baliuag PNP,
you also went to the scene of the crime?
A Yes, sir.
Q Who accompanied you?
A I was accompanied by some Baliuag policemen including Mayor Trinidad and some
of the relatives of the accused.
Q At this time, did you see the wife of the accused, Pablito Andan?
A Yes, sir, I saw her at the place where the body of Guevarra was recovered.
Q How many relatives of accused Pablito Andan were present, more or less?
A There were many, sir, because there were many wailing, weeping and crying at
that time when he was already taken in the patrol jeep of the Baliuag police, sir.
Q Now, Mr. Mauricio, upon reaching the scene of the crime in Concepcion, Baliuag,
Bulacan, what transpired?
A I started my work as a reporter by trying to dig deeper on how the crime was
committed by the accused, so we started inside the pigpen of that old house where I
tried to accompany the accused and asked him to narrate to me and show me how
he carried out the rape and killing of Marianne Guevarra, sir.
Q Did he voluntarily comply?
A Yes, sir, in fact, I have it on my videotape.
Q It is clear, Mr. Mauricio, that from the start of your interview at the PNP Baliuag up
to the scene of the crime, all the stages were videotaped by you?
A Yes, sir. 39
Journalist Berteni Causing of "Peoples Journal Tonite" likewise covered the
proceedings for three successive days. 40 His testimony is as
follows:jgc:chanrobles.com.ph
"Atty. Principe: You mentioned that you had your own inquiries?
A We asked first permission from the mayor to interrupt their own investigation so
that we can have a direct interview with the suspect.
Q Were there people?

A The people present before the crowd that included the mayor, the deputy chief of
police, several of the policemen, the group of Inday Badiday and several other
persons. I asked the suspect after the mayor presented the suspect to us and after
the suspect admitted that he was the one who killed Marianne. I reiterated the
question to the suspect. Are you aware that this offense which is murder with . . .
rape with murder is a capital offense? And you could be sentenced to death of this?
And he said, Yes. So do you really admit that you were the one who did it and he
repeated it, I mean, say the affirmative answer.
Q And that was in the presence of the crowd that you mentioned a while ago?
A Yes, yes, sir. And if I remember it right, as I took my camera to take some pictures
of the suspect, the mayor, the policemen and several others, I heard the group of
Inday Badiday asking the same questions from the suspect and the suspect
answered the same.
Q Also in the presence of so many people that you mentioned?
A The same group of people who were there, sir.
Q You mentioned that the answer was just the same as the accused answered you
affirmatively, what was the answer, please be definite?
Court: Use the vernacular.
A I asked him the question, after asking him the question," Ikaw ba talaga and
gumawa ng pagpatay at pag-rape sa kay Marianne? Ang sagot nya, "Oo." "Alam mo
ba itong kasalanang ito, kamatayan ang hatol, inaamin mo pa ba na ikaw ang
gumawa sa pagpatay at pag-rape kay Marianne?" Sagot pa rin siya ng "Oo."cralaw
virtua1aw library
x

Q Did you ask him, why did you kill Marianne?


A I asked him, your Honor and the reason he told me was because a devil gripped
his mind and because of that according to him, your Honor, were the pornographic
magazines, pornographic tabloids which he, according to him, reads almost everyday
before the crime.
Atty. Principe: At the time of your interview, Mr. Reporter, will you tell the court and
the public what was the physical condition of accused Pablito Andan?
A As I observed him that time there was no sign on his body that he was really down
physically and I think he was in good condition.
Court: So he was not happy about the incident?
A He even admitted it, your Honor.

Court: He was happy?


A He admitted it. He was not happy after doing it.
Court: Was he crying?
A As I observed, your Honor, the tears were only apparent but there was no tear that
fell on his face.
Court: Was he feeling remorseful?
A As I observed it, it was only slightly, your Honor.
x

x" 41

Another journalist, Rey Domingo, of "Bandera" interviewed appellant on February 26,


1994. 42 He also testified that:jgc:chanrobles.com.ph
"Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give you the
permission that you asked from him?
A Yes, sir.
Q And when he allowed you to interview him, who were present?
A The first person that I saw there was Mayor Trinidad, policemen from Baliuag, the
chief investigator, SPO4 Bugay, and since Katipunan, the chief of police was
suspended, it was the deputy who was there, sir.
Q Were they the only persons who were present when you interviewed the accused?
A There were many people there, sir. The place was crowded with people. There were
people from the PNP and people from Baliuag, sir.
Q How about the other representatives from the media?
A Roy Reyes, Orlan Mauricio arrived but he arrived late and there were people from
the radio and from TV Channel 9.
Q How about Channel 7?
A They came late. I was the one who got the scoop first, sir.
Q You stated that the accused allowed you to interview him, was his wife also
present?
A Yes, sir, and even the son was there but I am not very sure if she was really the
wife but they were hugging each other and she was crying and from the questions
that I asked from the people there they told me that she is the wife, sir.

Q How about the other members of the family of the accused, were they around?
A I do not know the others, sir, but there were many people there, sir.
Q Now, according to you, you made a news item about the interview. May we know
what question did you ask and the answer.
A My first question was, is he Pablito Andan and his answer was "Yes."cralaw
virtua1aw library
Q What was the next question?
A I asked him how he did the crime and he said that, he saw the victim aboard a
tricycle. He called her up. She entered the house and he boxed her on the stomach.
Q What was the next question that you asked him?
A He also said that he raped her and he said that the reason why he killed the victim
was because he was afraid that the incident might be discovered, sir.
Q Now, after the interview, are we correct to say that you made a news item on
that?
A Yes, sir, based on what he told me. Thats what I did.
Q Were there other questions propounded by you?
A Yes, sir.
Q "Ano iyon?"
A He said that he threw the cadaver to the other side of the fence, sir.
Q Did he mention how he threw the cadaver of Marianne to the other side of the
fence?
A I cannot remember the others, sir.
Q But can you produce the news item based on that interview?
A I have a xerox copy here, sir.
x

x" 43

Clearly, appellants confessions to the news reporters were given free from any
undue influence from the police authorities. The news reporters acted as news
reporters when they interviewed appellant. 44 They were not acting under the
direction and control of the police. They were there to check appellants confession to
the mayor. They did not force appellant to grant them an interview and reenact the

commission of the crime. 45 In fact, they asked his permission before interviewing
him. They interviewed him on separate days not once did appellant protest his
innocence. Instead, he repeatedly confessed his guilt to them. He even supplied all
the details in the commission of the crime, and consented to its reenactment. All his
confessions to the news reporters were witnessed by his family and other relatives.
There was no coercive atmosphere in the interview of appellant by the news
reporters.
We rule that appellants verbal confessions to the newsmen are not covered by
Section 12 (1) and (3) of Article III of the Constitution. The Bill of Rights does not
concern itself with the relation between a private individual and another individual.
46 It governs the relationship between the individual and the State. The prohibitions
therein are primarily addressed to the State and its agents. They confirm that certain
rights of the individual exist without need of any governmental grant, rights that may
not be taken away by government, rights that government has the duty to protect.
47 Governmental power is not unlimited and the Bill of Rights lays down these
limitations to protect the individual against aggression and unwarranted interference
by any department of government and its agencies. 48chanroblesvirtuallawlibrary
In his second assigned error, appellant questions the sufficiency of the medical
evidence against him. Dr. Alberto Bondoc, a Medical Specialist with the Provincial
Health Office, conducted the first autopsy and found no spermatozoa and no recent
physical injuries in the hymen. 49 Allegedly, the minimal blood found in her vagina
could have been caused by her menstruation. 50
We are unpersuaded. A second autopsy was conducted on March 1, 1994 by Dr.
Dominic L. Aguda, a medico-legal officer of the National Bureau of Investigation. His
findings affirmed the absence of spermatozoa but revealed that the victims hymen
had lacerations, thus:jgc:chanrobles.com.ph
"Hymen contracted, tall, thin with fresh lacerations with clotted blood at 6 and 3
oclock positions corresponding to the walls of the clock." 51
Dr. Aguda testified that the lacerations were fresh and that they may have been
caused by an object forcibly inserted into the vagina when the victim was still alive,
indicating the possibility of penetration. 52 His testimony is as
follows:jgc:chanrobles.com.ph
"Witness: When I exposed the hymen, I found lacerations in this 3 oclock and 6
oclock position corresponding to the walls of the clock. . . .
Court: Include the descriptive word, fresh.
Witness: I put it in writing that this is fresh because within the edges of the
lacerations, I found blood clot, that is why I put it into writing as fresh.
Atty. Valmonte: Now, Doctor, you told the Court that what you did on the cadaver
was merely a re-autopsy, that means, doctor the body was autopsied first before you
did you re-autopsy?

A Yes, sir.
Q Could it not be, doctor, that these injuries you found in the vagina could have been
sustained on account of the dilation of the previous autopsy?
A Well, we presumed that if the first doctor conducted the autopsy on the victim
which was already dead, no amount of injury or no amount of lacerated wounds
could produce blood because there is no more circulation, the circulation had already
stopped. So, I presumed that when the doctor examined the victim with the use of
forceps or retractor, vaginal retractor, then I assumed that the victim was already
dead. So it is impossible that the lacerated wounds on the hymen were caused by
those instruments because the victim was already dead and usually in a dead person
we do not produce any bleeding.
Q What you would like to tell the Court is this: that the lacerations with clotted blood
at 6 and 3 oclock positions corresponding to the walls of the clock could have been
inflicted or could have been sustained while the victim was alive?
A Yes, sir.
Q This clotted blood, according to you, found at the edges of the lacerated wounds,
now will you kindly go over the sketch you have just drawn and indicate the edges of
the lacerated wounds where you found the clotted blood?
A This is the lacerated wound at 3 oclock and this is the lacerated wound at 6
oclock. I found the blood clot at this stage. The clotted blood are found on the edges
of the lacerated wounds, sir.
Q What could have caused those lacerations?
A Well, it could have been caused by an object that is forcibly inserted into that small
opening of the hymen causing lacerations on the edges of the hymen, sir.
Q If the victim had sexual intercourse, could she sustain those lacerations?
A It is possible, sir. 53
We have also ruled in the past that the absence of spermatozoa in the vagina does
not negate the commission rape 54 nor does the lack of complete penetration or
rupture of the hymen. 55 What is essential is that there be penetration of the female
organ no matter how slight. 56 Dr. Aguda testified that the fact of penetration is
proved by the lacerations found in the victims vagina. The lacerations were fresh and
could not have been caused by any injury in the first autopsy.
Dr. Agudas finding and the allegation that the victim was raped by appellant are
supported by other evidence, real and testimonial, obtained from an investigation of
the witnesses and the crime scene, viz:chanrob1es virtual 1aw library
(1) The victim, Marianne, was last seen walking along the subdivision road near
appellants house; 57

(2) At that time, appellants wife and her step brother and grandmother were not in
their house; 58
(3) A bloodstained concrete block was found over the fence of appellants house, a
meter away from the wall. Bloodstains were also found on the grass nearby and at
the pigpen at the back of appellants house; 59
(4) The victim sustained bruises and scars indicating that her body had been dragged
over a flat rough surface. 60 This supports the thesis that she was thrown over the
fence and dragged to where her body was found;
(5) Appellants bloodstained clothes and towel were found in the laundry hamper in
his house;
(6) The reddish brown stains in the towel and T-shirt of appellant were found positive
for the presence of blood type "B," the probable blood type of the victim. 61
Mariannes exact blood type was not determined but her parents had type "A" and
type "AB." 62 The victims pants had bloodstains which were found to be type "O,"
appellants blood type; 63
(7) Appellant had scratch marks and bruises in his body which he failed to explain;
64
(8) For no reason, appellant and his wife left their residence after the incident and
were later found at his parents house in Barangay Tangos, Baliuag, Bulacan; 65
In fine, appellants extrajudicial confessions together with the other circumstantial
evidence justify the conviction of Appellant.
Appellants defense of alibi cannot overcome the prosecution evidence. His alibi
cannot even stand the test of physical improbability at the time of the commission of
the crime. Barangay Tangos is only a few kilometers away from Concepcion
Subdivision and can be traversed in less than half an hour. 66
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15, Malolos,
Bulacan in Criminal Case No. 1109-M-94 is affirmed and accused-appellant Pablito
Andan y Hernandez is found guilty of the special complex crime of rape with
homicide under Section 11 of Republic Act No. 7659 amending Article 335 of the
Revised Penal Code and is sentenced to the penalty of death, with two (2) members
of the Court, however, voting to impose reclusion perpetua. Accused-appellant is also
ordered to indemnify the heirs of the victim, Marianne Guevarra, the sum of
P50,000.00 as civil indemnity for her death and P71,000.00 as actual damages.
In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the
Revised Penal Code, upon finality of this decision, let the records of this case be
forthwith forwarded to the Office of the President for possible exercise of the
pardoning power.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
Footnotes
1 Information dated March 11, 1994, Records, p. 1.
2 TSN of May 11, 1994, pp. 34-38; Exhibit "P," Folder of Prosecution Exhibits, pp. 13-14.
3 Exhibit "U," Folder of Prosecution Exhibits, pp. 18-19.
4 TSN of April 19, 1994, pp. 47-51; TSN of April 20, 1994, pp. 45, 55-56; Exhibits "A," "C" and
"I."
5 Exhibits "J," "K," "L," and "N."
6 TSN of May 2, 1994, pp. 71-72.
7 Exhibits "O," "O-2," and "O-5;" Folder of Prosecution Exhibits; pp. 11-12; TSN of May 2, 1994,
pp. 72-73.
8 TSN of May 13, 1994, pp. 18-19.
9 Exhibit "Q," Folder of Prosecution Exhibits, p. 15.
10 TSN of May 13, 1994, pp. 21-22.
11 TSN of May 2, 1994, p. 88; TSN of May 20, 1994, pp. 13, 50.
12 TSN of May 13, 1994, pp. 78-82.
13 Id., pp. 20-24, 53, 59-64.
14 Exhibits "AA" and "CC."
15 TSN of April 27, 1994, pp. 14-18; TSN of May 13, 1994, pp. 74-87; TSN of May 27, 1994, pp.
8-32; Exhibits "S," "KK-1" to "KK-4," Folder of Prosecution Exhibits, p. 41.
16 TSN of July 22, 1994, pp. 12-20, 75-80.
17 Id., pp. 82-88; TSN of July 25, 1994, pp. 10-11.
18 Decision of the trial court, p. 23, Rollo, p. 52.
19 Appellant's Brief, p. 3, Rollo, p. 69.
20 This provision was taken from Section 20, Article IV of the 1973 Constitution which adopted
the ruling in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 [1966] and Escobedo v. Illinois,
378 U.S. 478, 12 L. ed. 2d 977 [1964].
21 People v. Enrile, 222 SCRA 586 [1993]; Sampaga v. People, 215 SCRA 839 [1992]; People v.
Penero, 213 SCRA 536 [1992].
22 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 410
[1996]; Miranda v. Arizona, supra, at 457.
23 Miranda v. Arizona, supra, at 445; Cummings v. State, 341 A. 2d 294, 298 [1975].
24 People v. Macam, 238 SCRA 306 [1994]; People v. Bandula, 232 SCRA 566, 575 [1994];
People v. de Guzman, 224 SCRA 93 [1993]; People v Olvis, 154 SCRA 513 [1987].
25 Bernas, supra, at 411.
26 TSN of April 19, 1994, pp. 62-63.
27 TSN of April 22, 1994, pp. 7-15; TSN of May 4, 1994, pp. 89-90; TSN of May 11, 1994, pp.
30-31.
28 TSN of May 2, 1994, pp. 71-72.
29 People v. Alicando, 251 SCRA 293 [1995]; People Burgos, 144 SCRA 1, 17-19 [1986].
30 TSN of May 13, 1994, pp. 20-21.
31 Id., pp. 26-27.
32 R.A. 6975, Department of Interior and Local Government Act of 1990, Chapter III (D), sec.
51 (b).
33 Leuschner v. State, 397 A. 2d 622 [1979]; Vines v. State, 394 A. 2d 809 [1978]; Cummings
v. State, 341 A. 2d 294 [1975]; Howell v. State, 247 A. 2d 291 [1968]; Statements made by
defendant while in custody of police officers but not pursuant to any questioning by officers
were properly admitted as spontaneously volunteered statements State v. Matlock, 289 N.W.
2d 625 [1980]; State v. Red Feather, 289 N.W. 2d 768 [1980].
34 Baysinger v. State, 550 S.W. 2d 445, 447 [1977], where a defendant, not in custody, in
talking with the sheriff wanted the sheriff for a confidant instead of a law enforcement officer,
his admissions on an incriminating taped conversation did not violate the 4th, 5th and 6th
Amendments of the U.S. Constitution and are thus admissible.

35 Aballe v. People, 183 SCRA 196, 205 [1990]; People v. Dy, 158 SCRA 111, 123-124 [1988];
People v. Taylaran, 108 SCRA 373, 378-379 [1981]; see also People v. Rogers, 422 N.Y.S. 18, 48
N.Y. 2d 167, 397 N.E. 2d 709, 714 [1979].
36 People v. Barlis, 231 SCRA 426, 441 [1994]; People v. Layuso, 175 SCRA 47, 53 [1989].
37 People v. Vizcarra, 115 SCRA 743, 752 [1982], the accused, under custody, gave
spontaneous answers to a televised interview by several press reporters in the office of the
chief of the CIS.
38 TSN of April 27, 1994, pp. 11, 13-14; Exhibit "S."
39 TSN of May 4, 1994, pp. 11-14; 15-16; Exhibit "AA."
40 TSN of May 13, 1994, pp. 76-77.
41 TSN of May 13, 1994, pp. 78-84.
42 TSN of May 27, 1994, p. 9.
43 Id., pp. 10-14.
44 Navallo v. Sandiganbayan, 234 SCRA 175, 183-184 [1994] We ruled that an audit
examiner is not a law enforcement officer nor did he, in this case, act as one.
45 cf. People v. Olvis, 154 SCRA 513, 525-526 [1987] where several accused were forced by
the police to reenact the commission of the crime.
46 People v. Marti, 193 SCRA 57, 67 [1991].
47 People v. Maqueda, 242 SCRA 565, 590 [1995]; Quinn v. Buchanan, 298 S.W. 2d 413, 417
[1957], citing Cooley, A Treatise on the Constitutional Limitations 93, 358.
48 16 C.J.S., Constitutional Law, Sec. 199, pp. 975-976; see also People v. Marti, supra, at 67-68
where we ruled that the constitutional proscription against unlawful searches and seizures
cannot be extended to searches and seizures done by private individuals without the
intervention of police authorities; People v. Maqueda, supra, at 59 where we held that
extrajudicial admissions of an accused to a private person and to a prosecutor in connection
with the accused's plea to be utilized as a state witness were deemed outside the scope of the
provision on custodial investigation.
49 TSN of May 2, 1994, pp. 22, 24-26.
50 Id., pp. 43-44.
51 Exhibit "Y," Folder of Prosecution Exhibits, p. 27
52 TSN of May 4, 1994, pp. 63, 75.
53 Id., pp. 59-63.
54 People v. Salomon, 229 SCRA 403 [1994]; People v. Empleo, 226 SCRA 454 [1993;] People v.
Magallanes, 218 SCRA 109 [1993].
55 People v. Rejano, 237 SCRA 627 [1994]; People v. Palicte, 229 SCRA 543 [1994].
56 People v. Fabro, 239 SCRA 146 [1994]; People v. Fortez, 223 SCRA 619 [1993]; People v.
Abiera, 222 SCRA 378 [1993].
57 TSN of May 2, 1994, pp. 78, 95.
58 TSN of May 2, 1994, p. 83; April 25, 1994, p. 38.
59 TSN of April 19, 1994, p. 51; TSN of May 2, 1994, p. 66; Exhibit "I."
60 TSN of May 2, 1994, pp. 53-54.
61 Exhibit "JJ," Folder of Prosecution Exhibits, p. 40.
62 Exhibits "MM" and "NN," Folder of Prosecution Exhibits, pp. 43, 44.
63 Exhibits "LL" and "OO, " Folder of Prosecution Exhibits, pp. 42, 45.
64 Exhibit "Q," Folder of Prosecution Exhibits, p. 15.
65 TSN of May 2, 1994, pp. 82-84.
66 TSN of July 1, 1994, pp. 13-14.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 135562 November 22, 1999


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENITO BRAVO, accused-appellant.

GONZAGA-REYES, J.:
On January 15, 1994 the decomposing body of a child was found in a vacant lot along the
road leading to Patul, Rosario Santiago City. 1 Her body was found between two concrete
fences half naked, shirtless and skirt pulled up, her panty stuffed in her mouth. 2 The body was
identified to be that of a nine year old girl named Juanita Antolin, a resident of Rosario, Santiago
City and known in her neighborhood as Len-len. Her body was found about 700 meters from her
house putrid and in rigor mortis. 3 The scalp on the left side of her head was detached exposing a
fracture on the left temporal lobe of her skull. Vaginal examination showed fresh laceration at 2:30
o'clock and old lacerations at 5:00 and 7:00 o'clock and easily accepts two fingers. The cause of
death was cerebral hemorrhage. 4
On May 25, 1994 an Information for rape with homicide 5 was filed against herein accusedappellant which states:
That on or about the 12th day of January 1994, in the municipality of
Santiago, province of Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, did then and there, willfully, unlawfully
and feloniously, with lewd design and by means of violence and intimidation,
have carnal knowledge with one Juanita Antolin y Jandoc, a nine year old
girl, against her will and consent; that on the occasion and by reason of the
said rape, the said accused, did then and there, willfully, unlawfully and
feloniously, assault, attack and hit with a blunt instrument the said Juanita
Antolin y Jandoc, inflicting upon her, a fracture on the skull, which directly
caused her death.
CONTRARY TO LAW.

On September 26, 1994 the accused was arraigned and pleaded not guilty to the
crime charged. 6
Evelyn San Mateo an eight year old second grader from Rosario, Santiago City
neighbor and cousin of the victim testified that she was with the deceased the night
before she disappeared. She stated that while they stood on the roadside watching
"Home Along Da Riles" from an open window of a neighbor's house the appellant
approached them and asked Len-Len to come with him to a birthday party and then
he will buy her Coke and balut. Len-Len asked her to go with them but she did not
want to because she was watching television. Len-Len went alone with the accused.
The following morning Len-Len's mother told Evelyn and her mother that Len-Len
was missing. In court, Evelyn positively identified the appellant as the person last
seen with Len-len before she was found dead. 7
The owner of the house where Len-len and Evelyn watched television, Gracia Monahan,
corroborated Evelyn's testimony that on the evening of January 12, 1994 she saw the
appellant talking to Len-len while the two girls were watching television from her open
window and that when she looked again towards the end of the program to the direction
where the girls were situated, only Evelyn was left watching television. Monahan testified that
she is familiar with the appellant and the two children because they are neighbors. 8
The Chief of the Intelligence Section of the Santiago Police Department, Alexander Mico,
testified that on January 15, 1994 his office received a report that a dead body was found in
a vacant lot. The body was later identified as Juanita Antolin. Mico stated that he interviewed
San Mateo who pointed to the appellant as the man last seen with the deceased. Mico found
the appellant at his place of work at the Spring Garden Resort at Sinsayon, Santiago City.
Upon seeing Bravo, Mico informed him that he is a suspect in the killing of a girl in Rosario,
Santiago City and asked him to come with him for questioning. The appellant agreed. Mico
further narrated in court that at the police station the appellant admitted he was with the girl
and he carried her on his shoulder but he was so drunk that night that he does not remember
what he did to her. 9 On cross-examination Mico admitted that he did not inform the appellant of
his constitutional rights to remain silent, to counsel and of his right against self-incrimination
before the appellant made the said admission because according to Mico he was only informally
interviewing the accused when he made the admission and that custodial interrogation proper
was conducted by the assigned investigator. 10
The appellant Benito Bravo testified in court that on his way home after work at around five
o'clock in the afternoon of January 12, 1994 he was invited to go on a drinking spree at
Purok 1, Rosario, Santiago City where he and four other men consumed five round bottles of
gin until 7:30 that evening. He then headed for home. Appellant admitted in court that he
passed by the house of Gracia Monahan but stated that he did not see the two girls watching
television along the road. At home, he found his mother very sick and so he decided to stay
home all night. He woke up the following morning at around 4:30 a.m. and prepared to go to
work. On January 15, 1994 a policeman came to his place of work and apprehended him

without a warrant of arrest and at the police station he was forced to admit commission of the
crime of rape with homicide of Juanita Antolin. The appellant denied the accusation and
stated that the deceased was his godchild and that he has known Fely Handoc, the mother
of the child, for three years prior to this proceedings. 11
Juanito Bravo, the brother of the appellant testified that the appellant stayed home on the
night of January 12, 1994 to take care of their sick mother who died a few days thereafter. 12
Ernesto Pastor, the foreman at the Spring Garden Resort where the appellant was
employed, testified that he has known the appellant for a long time and that he knows him to
be hardworking and of good moral character. Pastor corroborated the appellant's testimony
that police investigator Mico came to the Spring Garden Resort and arrested Bravo without a
warrant. 13
The testimony of the Municipal Health Officer who conducted the autopsy was dispensed
with by the prosecution as the handwritten Autopsy Report made by the Municipal Health
Officer of Santiago, Isabela, marked as Exhibit B, was admitted by both parties. 14 The Report
reads:

AUTOPSY REPORT
ABEL MEMORIAL HOMES PUROK 2, ROSARIO,SANTIAGO, ISABELA JANUARY 15,
1994 2:30 P.M.
JUANITA ANTOLIN
PUROK 1, BARANGAY ROSARIO
AGE: 9
FATHER: ANTONIO
MOTHER: OFELIA JANDOC
Was investigated under the mango tree where the crime was committed and
left side of the face is covered by sand (done by anay) with rigor mortis and
with putrification, easy pulling of the skin and plenty of small worms coming
out from the ears, nose, eyes and mouth (without panty), the whole body is
edematous.
After complete washing, coming out of small worms on both eyes and ears
and mouth, scalp on the left side was detached and skull exposed.
Fracture of the skull with left temporal
Edematous
Abdomen, extremities has no pertinent findings except easy pulling of skin
and all are edematous

Vaginal examination shows fresh laceration at 2:30 o'clock, old lacerations


at 5:00 and 7:00 o'clock could easily accept two fingers.
Cause of death cerebral hemorrhage (fracture of skull temporal region,
left). 15
On August 25, 1998 the trial court rendered judgment finding the accused guilty of the crime
charged as follows:
Wherefore, finding the accused BENITO BRAVO "GUILTY" beyond
reasonable doubt of the crime of RAPE WITH HOMICIDE punishable under
Art. 335 of the Revised Penal Code, as amended by Republic Act 7659, the
court sentences him the penalty of DEATH and ordering him to pay the heirs
of Juanita Antolin y Jandoc the amount of one hundred thousand pesos
(P100,000.00) as indemnity and three hundred thousand pesos
(P300,000.00) as exemplary damages.
SO ORDERED. 16
and held that abuse of confidence and treachery attended the commission of the
crime.
This case is before us on automatic review in view of the penalty imposed by the trial court.
Both counsels for the accused-appellant and the appellee plead for the acquittal of the
accused. Both the accused-appellant and the appellee invoke the constitutionally guarded
presumption of innocence in favor of the accused and the latter's right to remain silent and to
counsel. The testimony of the policeman that the accused admitted he was with the victim on
the evening of January 12, 1994 but the latter was too drunk to remember what happened
should have been held inadmissible by the trial court in view of the policeman's own
admission in court that although he informed the accused that he is a suspect in the rape
and killing of one Juanita Antolin he did not inform the accused of his constitutional rights
before he asked him of his participation in the crime under investigation. Both the appellant
and the appellee are in agreement that the trial court grievously erred in finding the accused
guilty beyond reasonable doubt based on the sole circumstantial evidence that the victim
was last seen by her cousin in the company of the accused whereas the Rules of Court
clearly requires the presence of at least two proven circumstances the combination of which
creates an unbroken link between the commission of the crime charged and the guilt of the
accused beyond reasonable doubt. The single circumstance proven by the prosecution that
the victim was last seen conversing with the accused two days before she was found dead
cannot serve as basis for any conclusion leading to the guilt of the accused of the crime
charged. The evidence for the prosecution falls short of the quantum of evidence required by
the Rules to establish guilt of the accused beyond reasonable doubt. In sum, both the

appellant and the appellee profess that the presumption of innocence of the accused was
not successfully overturned by the prosecution.
We resolve to acquit Benito Bravo.
Sec. 12 of Article III of the 1987 Constitution embodies the mandatory protection afforded a
person under investigation for the commission of a crime and the correlative duty of the
State and its agencies to enforce such mandate. It states:
Sec. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
(1) No torture, force, violence, threat,
intimidation or any other means which vitiate
the free will shall be used against him. Secret
detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
(2) Any confession or admission obtained in
violation of this or section 17 hereof shall be
inadmissible in evidence against him.
(3) The law shall provide for penal and civil
sanctions for violations of this section as well
as compensation to and rehabilitation of
victims of torture or similar practices, and their
families.
The mantle of protection under this constitutional provision covers the period from
the time a person is taken into custody for investigation of his possible participation in
the commission of a crime or from the time he is singled out as a suspect in the
commission of a crime although not yet in custody. 17 The exclusionary rule sprang
from a recognition that police interrogatory procedures lay fertile grounds for coercion,
physical and psychological, of the suspect to admit responsibility for the crime under
investigation. It was not intended as a deterrent to the accused from confessing guilt, if
he voluntarily and intelligently so desires but to protect the accused from admitting what
he is coerced to admit although untrue. 18 Law enforcement agencies are required to
effectively communicate the rights of a person under investigation and to insure that it is
fully understood. Any measure short of this requirement is considered a denial of such
right. 19 Courts are not allowed to distinguish between preliminary questioning and

custodial investigation proper when applying the exclusionary rule. Any information or
admission given by a person while in custody which may appear harmless or innocuous
at the time without the competent assistance of an independent counsel should be struck
down as inadmissible. 20 It has been held, however, that an admission made to news
reporters or to a confidant of the accused is not covered by the exclusionary rule. 21

The admission allegedly made by the appellant is not in the form of a written extra-judicial
confession; the admission was allegedly made to the arresting officer during an "informal
talk" at the police station after his arrest as a prime suspect in the rape and killing of Juanita
Antolin. The arresting policeman testified that the appellant admitted that he was with the
victim on the evening of January 12, 1994, the probable time of the commission of the crime
and that he carried her on his shoulder but that he was too drunk to remember what
subsequently happened. The arresting policeman admitted that he did not inform the
appellant of his constitutional rights to remain silent and to counsel. We note that the alleged
admission is incriminating because it places the accused in the company of the victim at the
time the crime was probably committed.
The exclusionary rule applies.
The accused was under arrest for the rape and killing of Juanita Antolin and any statement
allegedly made by him pertaining to his possible complicity in the crime without prior
notification of his constitutional rights is inadmissible in evidence. The policeman's apparent
attempt to circumvent the rule by insisting that the admission was made during an "informal
talk" prior to custodial investigation proper is not tenable. The appellant was not invited to the
police station as part of a general inquiry for any possible lead to the perpetrators of the
crime under investigation. At the time the alleged admission was made the appellant was in
custody and had been arrested as the prime suspect in the rape and killing of Juanita
Antolin. The exclusionary rule presumes that the alleged admission was coerced, the very
evil the rule stands to avoid. Supportive of such presumption is the absence of a written
extra-judicial confession to that effect and the appellant's denial in court of the alleged oral
admission. The alleged admission should be struck down as inadmissible.
We also agree with both the appellant and the appellee that the trial court erred in rendering
judgment convicting the appellant based on a single circumstance. Only one circumstantial
evidence was proven i.e., that the victim went with the accused to buy soda and balut on the
evening of January 12, 1994. Section 4 Rule 133 of the Rules of Court states:
Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence
is sufficient for conviction if:
a) There is more than one circumstance;
b) The facts from which the inferences are
derived are proven; and

c) The combination of all the circumstances is


such as to produce a conviction beyond
reasonable doubt.
In the case of People vs. Adorfina 22 this court held that:
. . . a judgment of conviction based on circumstantial evidence can be upheld
only if the circumstances proven constitute an unbroken chain which leads to
one fair and reasonable conclusion which points to the accused, to the
exclusion of all others, as the guilty person, that is, the circumstances proved
must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with any other
hypothesis except that of guilty.
The rule is clear that there must be at least two proven circumstances which in complete
sequence leads to no other logical conclusion than that of the guilt of the accused. The two
witnesses for the prosecution testified to a single circumstance, namely, that the victim was
seen in the company of the appellant on the night of January 12, 1994. This circumstance
alone cannot be the basis of a judgment of conviction. There is no other proven
circumstance linking the appellant to the crime as the perpetrator thereof to the exclusion of
any other possible culprit e.g. that the appellant was at or near the scene of the crime at the
time it was probably committed or any other evidence to establish the appellant's
participation in the commission thereof. The prosecution's theory that the appellant is guilty
of the crime charged because he was seen with the victim a few days before she was found
dead is not tenable. The approximate time the crime was committed was not established at
all because the physician who made the autopsy report was discharged as a witness when
both parties admitted the report. The two day interval between the evening of January 12th
when the victim was seen with the appellant and the day when her dead body was found on
January 15th presents a wide range of possibilities as to the perpetrator of the crime. The
Rules and jurisprudence demand no less than an unbroken chain of proven facts pointing to
the appellant as the guilty person to the exclusion of all others. This the evidence for the
prosecution failed to do. Both counsels for the appellant and the appellee are correct in their
submission that the single circumstance that the victim was seen with the appellant two days
before she was found dead is clearly insufficient to overcome the presumption of innocence
in favor of the accused.
The rape and killing of nine year old Juanita Antolin is supported by concrete evidence
undisputed by both parties. The unpardonable assault on the child is tragic and the trial court
may have been swayed by the tide of human indignation. We must however uphold the
primacy of the presumption of innocence in favor of the accused when the evidence at hand
falls short of the quantum required to support conviction.

Wherefore, the judgment appealed from is hereby reversed. The appellant Benito Bravo is
acquitted of the crime charged herein. The Director of the Bureau of Corrections is ordered
to immediately release him from custody unless he is detained for another legal cause.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago and De Leon, Jr., JJ., concur.
Footnotes
1 Mico, tsn., June 26, 1997, pp. 4-6.
2 San Mateo, tsn., April 26, 1995, pp. 1213.
3 Tsn., June 7, 1995, p. 4.
4 Autopsy Report, Exh. B, p. 8, OR.
5 Rollo, p. 1.
6 OR, p. 49.
7 San Mateo, tsn., April 26, 1995, pp. 5-11;
June 7, 1995, pp. 18-19.
8 Monahan, tsn., April 11, 1996, pp. 7-12,
29.
9 Mico, tsn., June 26, 1997, pp. 10-14.
10 Mico, tsn., June 26, 1997, pp. 16-20.
11 Benito Bravo, tsn., November 10, 1997,
pp. 3-11;14-18.
12 Juanito Bravo, tsn., October 20, 1997,
pp. 4-6, 14.

13 Pastor, tsn., September 30, 1997, pp. 59.


14 RTC Order dated October 7, 1996, p.
181 OR.
15 Autopsy Report, Exh. B, p. 8, OR.
16 Rollo, p. 20.
17 People vs. Andan, 269 SCRA 95; Bernas,
The Constitution of the Republic of the
Philippines: A Commentary, 1996 ed., p.
412., citing, People vs. Mara 236 SCRA 565.
18 People vs. Deniega, 251 SCRA 626.
19 People vs. Santos, 283 SCRA 443;
People vs. Januario, 267 SCRA 608.
20 Gamboa vs. Cruz, 162 SCRA 642; People
vs. Isla, 278 SCRA 47; People vs. Binamira,
277 SCRA 232.
21 People vs. Andan, supra.
22 239 SCRA 67.

THIRD DIVISION
[G.R. No. 95089. August 11, 1997.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NICOMEDES FABRO,


FRANCISCO DIMALANTA, AMADO ALCALA, WILLIAM HOGE and "JOHN DOE,"
accused, NICOMEDES FABRO, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Romeo C. Alinea for Accused-Appellant.
SYNOPSIS
In an information dated June 11, 1987, the Second Assistant Fiscal of Olongapo City
charged Nicomedes Fabro, Francisco Dimalanta, Amado Alcala, William Hoge and a
certain "John Doe" with the murder of one Dionisio Joaquin in the Regional Trial
Court of Olongapo City. Said accused shot the victim and as a result thereof, the
latter suffered shock and hemorrhage massive, secondary to gunshot wound, which
caused is death. Upon arraignment, appellant Fabro and Dimalanta pleaded not
guilty, then followed by accused Alcala. The other two accused William Hoge and
John doe were never arrested or arraigned. In the course of the trial, both accused
Dimalanta and Alcala jumped bail. Thus, only appellant was presented as witness by
the defense. Thereafter, the trial court rendered a decision finding accused Francisco
Dimalanta, Amado Alcala and appellant Nicomedes Fabro guilty beyond reasonable
doubt of murder and sentenced them to suffer reclusion perpetua, in lieu of the
abolition of the death penalty and to indemnify the heirs the sum of P30,000.00.
Only appellant Fabro appealed to the Supreme Court interposing that the trial court
erred for not considering the defense of alibi and the admission and confessions as
inadmissible in evidence.
The Supreme Court ruled that the appeal is not meritorious. The Court finds the
admission of herein appellant was voluntary and in accordance with the constitutional
mandate regarding valid confession obtained under custodial investigation. Moreover,
appellants assertion that his counsel is not independent does not hold water
considering that his counsel is not a special counsel, public prosecutor, counsel of the
police or a municipal attorney whose interest is adverse in that of the appellant. In
fact, he was the president of the Zambales chapter of the Integrated Bar of the
Philippines and not a lackey of the lawmen. For this matter, appellants confession
was properly admitted by the trial court as part of the prosecution evidence. Anent
the issue of the defense of alibi, the Court said that appellants alibi is more of a
denial in view of his admission that he was at the scene of the crime. A denial, like
other defenses, remains subject to the strength of the prosecution evidence, which is
independently assessed. However, such defense was clearly rebutted by the fact that
the prosecution witness positively identified herein appellant. In the light of said
confession, the denial is actually a belated retraction of said confession, which under
this jurisdiction are looked upon with disfavor as unreliable. Thus, the Court agrees
with the trial court that appellants denial is totally unconvincing. In view of the
foregoing, the Court affirmed the appealed decision with slight modification, i.e., the
indemnity is increased to P50,000.00 in line with the current jurisprudence.
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSION; REQUISITES. A


confession is defined in jurisprudence as a declaration made voluntarily and without
compulsion or inducement by a person, stating or acknowledging that he has
committed or participated in the commission of a crime. But before it can be
admitted in evidence, several requirements have to be satisfied, as that provided in
Article III, Section 12 of the 1987 Constitution; and, in Article III, Section 17 of the
same Constitution, guaranteeing the right of the accused against self-incrimination.
In jurisprudence, no confession can be admitted in evidence unless it is given: 1.
Freely and voluntarily, without compulsion, inducement or trickery; 2. Knowingly
based on an effective communication to the individual under custodial investigation
of his constitutional rights; and 3. Intelligently with full appreciation of its importance
and comprehension of its consequences.
2. ID.; ID.; ID.; EFFECT WHEN ADMITTED. Once admitted, the confession must
inspire credibility or be one which the normal experience of mankind can accept as
being within the realm of probability. A confession meeting all the requisites
constitutes evidence of a high order since it is supported by the strong presumption
that no person of normal mind will knowingly, freely and deliberately confess that he
is the perpetrator of a crime unless prompted by truth and conscience. When all the
requirements are met and the confession is admitted in evidence, the burden of
proof that it was obtained by undue pressure, threat or intimidation rests upon the
accused.
3. ID.; ID.; ID.; CONSTITUTIONAL REQUIREMENTS ADHERED TO IN CASE AT BAR.
Atty. Jungco testified that after he apprised appellant of his constitutional rights to
be silent and to have counsel during the investigation, the latter waived them in his
(Atty. Jungcos) presence. There was adherence to the Constitution, further
confirmed by the confession itself. It starts off with a Pasubali wherein appellant was
informed of his constitutional rights and a Pagpapatunay which confirmed that he
understood said rights. Both parts also serve as a written proof of appellants waiver
in fulfillment of the requirements of the Constitution. Also, the Constitution further
requires that the counsel be independent; thus, he cannot be a special counsel,
public or private prosecutor, counsel of the police, or a municipal attorney whose
interest is admittedly adverse to that of the accused. Atty. Jungco does not fall under
any of said enumeration. Nor is there any evidence that he had any interest adverse
to that of the accused. Hence, appellant failed to overcome the presumption that
Atty. Jungco regularly performed his official duty as an officer of the court in giving
assistance to persons undergoing custodial interrogation.
4. ID.; ID.; ID.; PRESENCE OF DURESS, NOT ESTABLISHED. After the prosecution
has shown that the confession was obtained in accordance with the aforesaid
constitutional guarantee, the burden of proving that undue pressure or duress was
used to obtain it rests on the accused. Here, appellant has miserably failed to
present any convincing evidence to prove the use of force or intimidation on his
person to secure his confession. The records show that appellants confession was
sworn and subscribed to before Fiscal Dorante, to whom he could have and should
have voiced his objection, if any. Quite the contrary, Fiscal Dorante certified that he
personally examined appellant and was convinced that the latter gave his statement
freely and voluntarily and that he understood the contents of his confession.
Appellants failure to voice out his complaints is tantamount to a manifestation that

indeed he waived his right to counsel in the presence of Atty. Jungco in accordance
with the Constitution. His assertion on appeal that he was intimidated into giving said
confession rings hollow and too late. This claim is further belied by appellants lack of
complaint, or even any mention thereof, to his sister and relatives who visited him at
Camp Maquinaya where he was detained for one year. This reinforces the trial courts
ruling. And perhaps the most telling indication that appellants confession was
voluntary is the fact that said confession contained exculpatory claims and facts that
only the appellant could have known.
5. ID.; ID.; DENIAL; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. Witness
Beck claimed that he saw appellant running away from the scene of the shooting,
that when he opened his eyes after hearing the gun report, he saw a person who
immediately ran away. He testified that he saw appellants face while chasing the
latter, although he did not catch up with appellant. Therefore, from the time he was
awakened until he lost the appellant during the chase, witness Beck saw appellants
face. Subsequently, in open court, he pointed to appellant as the man he had
chased. While witness Beck may not have known the name of the appellant, he was
certain about the latter s identity. Indeed, appellants name which was supplied by
another person may be considered hearsay; but appellants identity which the said
witness personally knew is not. The defense claims that this is a "weak" identification
by witness Beck and thus strengthened appellant s "alibi," which is actually a denial
in view of appellants admission that he was at the scene of the crime. A denial, like
other defenses, remains subject to the strength of the prosecution evidence which is
independently assessed. When the evidence for the prosecution convincingly
connects the crime and the culprit, the probative value of the denial is negligible.
6. ID.; ID.; ID.; DISFAVORED OVER APPELLANTS OWN CONFESSION. The denial
is directly contravened by appellants confession that he shot the victim. In the light
of his confession, the denial is actually a belated retraction of said confession. The
rule in this jurisdiction is that repudiation and recantation of confessions which have
been obtained in accordance with the Constitution are looked upon with disfavor as
unreliable. They have negligible probative weight.
7. ID.; ID.; WITNESSES; CREDIBILITY; FINDINGS OF TRIAL COURT, RESPECTED.
The assessment by the trial court of credibility and weight of evidence is accorded
the highest respect and will not be disturbed on appeal in the absence of any clear
showing that the trial court overlooked, misunderstood or misapplied some facts or
circumstances of substance which would have affected the result of the case.
8. CRIMINAL LAW; CONSPIRACY; PRESENT HERE. The acts of the accused show
that they were animated by the same purpose and were united in their execution.
When, by their acts, two or more persons proceed toward the accomplishment of the
same unlawful object each doing a part so that their acts though apparently
independent were in fact connected, indicating a closeness of formal association and
a concurrence of sentiment conspiracy may be inferred.
9. ID.; AGGRAVATING CIRCUMSTANCES; PRICE; EVIDENT PREMEDITATION;
TREACHERY; ALL PRESENT IN CASE AT BAR. That the crime was committed in
consideration of a price has been satisfactorily shown be appellants confession. From
the confession also, evident premeditation is manifest from the fact that appellant

was approached and hired by someone to kill the victim; that appellant clung to his
determination to kill the victim even after an unsuccessful first attempt and that a
sufficient lapse of time had passed giving the appellant a chance to reinfect upon the
consequences of his act. In U .S. v. Manalinde, the Court held that the aggravating
circumstances of evident premeditation and offer of money, reward or promise are
not incompatible and may be appreciated together, one being independent of the
other. Also, treachery is shown by the fact that appellant, after several days of
observing the movements of the victim, shot the latter while he was asleep. The
means of execution (1) gave the person attacked no opportunity to defend himself or
to retaliate: and (2) showed that such method was deliberately or consciously
adopted.
10. ID.; MURDER; PROPER PENALTY WHEN TWO (2) AGGRAVATING
CIRCUMSTANCES AND ONE (1) MITIGATING CIRCUMSTANCE ARE PRESENT.
Although all three circumstances (price, premeditation and treachery) were proven,
only one will be appreciated to qualify the killing to murder and the two others can
be used only as generic aggravating circumstances. The mitigating circumstance of
voluntary surrender should also be appreciated in appellants favor, thus, offsetting
one generic aggravating circumstance. Accordingly, the proper penalty is reclusion
perpetua.
DECISION
PANGANIBAN, J.:
The 1987 Constitution guarantees persons undergoing custodial investigation the
rights to remain silent and to have competent and independent counsel. These rights
cannot be waived except in writing and in the presence of counsel. The Constitution
impels strict compliance with these requirements because a confession of guilt given
during such investigation constitutes formidable evidence against the accused on the
principle that no one will knowingly, freely and deliberately admit authorship of a
crime unless prompted by truth and conscience, particularly where the facts given
could have been known only by appellant. On the other hand, any allegation of force,
duress, undue influence or other forms of involuntariness in exacting such confession
must be proven by clear, convincing and competent evidence by the defense.
Otherwise, the confessions full probative value may be used to demonstrate the guilt
of the accused beyond reasonable doubt.
Statement of the Case
These doctrines are applied by the Court in deciding this appeal from the Decision 1
of the Regional Trial Court of Olongapo City, Branch 72, 2 in Crim. Case No. 364-87,
finding the accused guilty of murder and sentencing them to reclusion perpetua.
In an Information dated June 11, 1987, Second Assistant Fiscal of Olongapo City,
Jesus P. Duranto, charged Nicomedes Fabro, Francisco Dimalanta, Amado Alcala,
William Hoge and a certain "John Doe" with murder committed as

follows:jgc:chanrobles.com.ph
"That on or about the twelfth (12th) day of April 1987, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping one
another, Accused Nicomedes Fabro armed with a gun, with intent to kill and with
treachery, evident premeditation and in consideration of promise of reward, did then
and there wilfully, unlawfully and feloniously assault, attack and shot (sic) therewith
one Dionisio Joaquin and as a result thereof, the latter suffered shock and
Hemorrhage Massive, Secondary to Gun Shot Wound which directly caused his death
shortly thereafter.
CONTRARY TO LAW: With the qualifying circumstances of treachery, evident
premeditation and reward." 3
On August 10, 1987, Dimalanta and Appellant Fabro, with the assistance of Counsel
de oficio Romeo C. Alinea, pleaded not guilty. On September 8, 1987, Accused Alcala
entered the same plea. The other two accused, William Hoge and "John Doe," were
never arrested or arraigned.
In the course of the trial, both Accused Dimalanta and Alcala jumped bail. 4 Thus,
only appellant was presented as witness by the defense.
On June 25, 1990, the trial court rendered its assailed Decision, the dispositive
portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, premised on all the foregoing consideration, the Court finds accused
NICOMEDES FABRO, FRANCISCO DIMALANTA and AMADO ALCALA guilty beyond the
shadow of a doubt of the crime of MURDER as charged in the information, with three
aggravating circumstances and pursuant to Article 248, and hereby sentences them
(to) the maximum penalty of death. However, with the abolition of death
penalty, Accused shall suffer reclusion perpetua, with costs against the accused. The
Court orders the accused collectively to indemnify the heirs of Dionisio Joaquin (in)
the sum of P30,000.00." 5
On June 29, 1990, a Notice of Appeal direct to the Supreme Court was filed in the
trial court in view of the penalty imposed, reclusion perpetua. As Dimalanta and
Alcala jumped bail during the proceedings before the court a quo, their appeal is
deemed dismissed pursuant to Rule 124, Section 8 of the Rules of Court 6 and
Supreme Court Administrative Circular 2-92. 7 Hence, only the appeal of Fabro will
be ruled upon. 7-A References to Dimalanta and Alcala in this Decision are made only
to complete the narration of the case, and thus will affect only Fabro.
The Facts
Version of the Prosecution
The prosecution presented five witnesses: (1) Dr. Richard Patilano who conducted the
autopsy on the remains of the victim; (2) Sgt. Felipe Bolina, the police investigator;

(3) Anthony Beck, companion of the victim; (4) Conrado Joaquin, the victims father;
and (5) Atty. Isagani Jungco, the IBP President (Zambales Chapter) who was
presented as rebuttal witness. Among the documentary evidence submitted were the
sworn statements of appellant, Beck, Dimalanta and Joaquin, and the joint affidavit
of Sgts. Bolina and Lappay. The prosecutions version of the facts, as summarized by
the Solicitor General in the Appellees Brief, 8 is as follows:jgc:chanrobles.com.ph
"Sometime in the second week of April, 1987, a strike was held by workers on the
premises of the Casa Blanca, located at Barrio Barretto, Olongapo City. Dionisio
Joaquin, the victim, was one of organizers thereof. He sought the assistance of
friends, among whom was Anthony Beck, a stevedore and resident of Olongapo City
(pp. 28-31, TSN, May 24, 1988).
At about 6:00 P.M. on April 11, 1987, Joaquin and Beck were at Whisky Bar fronting
the Casa Blanca, at Barrio Barretto, Olongapo City. They were conversing while
resting at the veranda of said Whisky Bar, fronting the Casa Blanca where a picket
was being conducted by their co-strikers. Both had fallen asleep, as they lacked
sleep the previous nights, on a chair near each other with their feet resting on the
veranda railings (pp. 39-46, ibid).
Anthony Beck fell asleep at about 4:00 oclock in the early morning of April 12, 1987.
Shortly thereafter, at about 5:00 to 5:30 in the morning, he was awakened by gun
report. Opening his eyes, he saw Joaquin dead, with a single bullet wound on the
forehead. Blood was oozing from Joaquins head. Seeing a man running away from
where he and Joaquin were seated, Anthony Beck then gave chase. The fleeing man
turned left on an alley and then right on another. Beck lost him at the second turn.
He saw an old man who inquired why he was chasing the fleeing man. Beck told the
old man of the shooting incident. Then and there the old man told Beck that the man
he (Beck) was running after was "Badong", later identified as the accused Nicomedes
Fabro (pp. 54-62, ibid).
Police officers from the Olongapo Metrodiscom, led by Sgt. Felipe Bolina, proceeded
to Fabros residence at about noon that same day. They failed to apprehend Fabro as
he was allegedly then asleep. The accused (Fabro) was surrendered by his sister to
the CIS the following day (pp. 12-14, TSN, July 18, 1989).
At 6:00 oclock that night, April 13, 1987, Fabro was interrogated by CIS personnel
and grilled for about two (2) hours (pp. 16-19, supra).
At that juncture, CIS investigator Santiago requested Fabro to sign a document,
which turned out to be his extra-judicial confession/admission (Exh. "F"). Accused
Fabro (claims that he) was not allowed to read the document, neither were its
contents read to him (pp. 24-26). A certain Atty. Isagani Jungco was however
present when he signed the document (p. 28, supra; pp. 2-18, TSN, March 19,
1990).
While it appears from the transcript that co-accused Francisco Dimalanta executed
an extrajudicial statement (confession) (pp. 24-25, TSN, Feb. 2, 1988), Dimalanta
himself was never presented in court as defense witness, as both accused Dimalanta
and Alcala jumped bail during trial."cralaw virtua1aw library

Version of the Defense


The defense presented its only witness in the person of the appellant. No
documentary evidence was submitted. The counter-statement of facts, as narrated in
the six-page Brief for the Appellants, 9 reads as follows:jgc:chanrobles.com.ph
"The version of the defense as testified to by Nicomedes Fabro was that at two
oclock in the morning of April 12, 1987, he stopped ferrying passengers and slept on
a sofa at the Whiskey River Club, located on a terrace of said club. When he laid
down and rested at the sofa, there was also another person who was seated on the
sofa and was more or less one arms length away from him. The man was then
asleep but (Fabro) only knew his face but not his name. While sleeping, he was
awakened by the shout of one of his companion saying "may binaril, may binaril."
The shout was very loud and after shouting the man ran towards Olongapo City.
Accused according to him was standing and looking at the bloodied person who was
more or less two arms length away from him. The bloodied person was at the
balcony of the Whiskey River Club.
Accused was surrendered to the CIS by his sister on April 13, 1987. Nicomedes Fabro
claimed that he was made to sign a document without allowing him to read the
contents. According to accused Fabro, investigator Santiago told him that if he will
not sign the document something will happen to him. Atty. Isagani Jungco was
present when he signed his name, however, the document was already prepared and
ready for signature."cralaw virtua1aw library
Trial Courts Findings
In its Decision, the trial court leaned towards the version of the prosecution: 10
"From the evidence presented by the prosecution, both testimonial and documentary,
the Court finds these facts to be indubitable. That in the early morning of April 12,
1987, between 5:00 and 5:30, the deceased Dionisio Joaquin who was sleeping side
by side with Anthony Beck on the terrace of the Whiskey Bar, opposite Casa Blanca,
Barrio Barretto, Olongapo City, was shot in the head at close range by accused
Nicomedes Fabro. The deceased was bleeding with blood oozing from the forehead
when found by some Olongapo police and Sgt. Bolina, a PC soldier who arrived at the
scene: The deceased was found on a chair, his feet raised on the veranda with his
head inclined back.
x

Anthony Beck who was asleep side by side with the deceased was awakened by a
shot and even heard the "kalansing" of the bullet, chased the person whom he saw
running away after the shot was fired. He testified that when he was chasing the
man he did not yet know his name but he could identify him. Beck made the
identification when accused Fabro was mixed with other people getting clearance at
164th PC Company Office. Beck positively identified the accused when he testified in
Court.chanrobles.com : virtual law library

Beck testified that Dionisio Joaquin was an organizer of a labor organization and that
the latter invited the former to support the strikers.
Sgt. Bolina thru his investigation learned the identity of the man who was running
away from the scene of the crime as Nicomedes Fabro. Upon learning the identity of
the suspect, Bolina went to the parents of Fabro whom he knew personally and
requested that Fabro be surrendered to him. Bolina learned later that the suspect
was surrendered to the CIS. After the CIS investigation, Nicomedes Fabro gave his
confession in the presence of Atty. Isagani Jungco who was called to assist the
suspect. In his confession, Fabro implicated Francisco Dimalanta and Amado Alcala.
From reliable information received by Sgt. Bolina and the other policemen, they
learned the identity of two other suspects, namely: Francisco Dimalanta and Amado
Alcala. From unconfirmed reports these two Dimalanta and Alcala participated in the
killing of Dionisio Joaquin. The confession of Fabro confirmed that indeed Dimalanta
and Alcala were his co-conspirator.
x

. . . (Sgt.) Lappay testified that he was present during the investigation of Fabro.
Fabro in his presence admitted his participation and pointed to Francisco Dimalanta
and Amado Alcala and one Ernesto de Guzman. It was in early morning of April 14,
1987 that de Guzman and Dimalanta were apprehended along Rizal Extension, they
being neighbors. Alcala was arrested at above street."cralaw virtua1aw library
After analyzing and weighing all the pieces of testimonial and documentary evidence,
the trial court declined to give credence to the uncorroborated claim of appellant that
he was asleep at the terrace of the Whiskey Club at the time of the incident. The
court a quo also rejected his contention that he was coerced into signing a
confession, since the solitary verbal "threat" allegedly made by the investigator was
vague and not backed up by the use of actual physical force. After considering the
presence of the counsel (Atty. Jungco) who assisted the appellant and his co-accused
during the custodial investigation as well as in the execution of their respective
sworn statements, the lower court admitted in evidence their extrajudicial
confessions.
The confession of Appellant Fabro was summarized by the lower court,
thus:jgc:chanrobles.com.ph
"In the confession of Nicomedes Fabro he narrated how Francisco Dimalanta offered
him P10,000.00 to kill a man, how the gun was given him and how they observed
the movements of the victim to the time of the killing. While Nicomedes Fabro did
the actual shooting, Accused Alcala and Dimalanta were present awaiting the
outcome of the shooting.
The confession of Dimalanta coincided in all material points with the confession of

Fabro. Dimalanta narrated how he was promised the amount P10,000 by a certain
Bill Hoge and how he was paid of P5,000.00 as initial payment and the balance to be
paid after the killing is accomplished. The P5,000.00 initial payment was shared by
the three accused."cralaw virtua1aw library
From the foregoing, the trial court established the existence of conspiracy among the
three accused. The trial court further found the testimony of Beck unbiased, truthful
and credible.
Finally, the court below held that the commission of the crime was attended by the
aggravating circumstances of treachery, evident premeditation and consideration of
price or reward.
Assignment of Errors
Appellant interposes the present appeal, faulting the trial court:chanrob1es virtual
1aw library
"I
"For not considering the defense of alibi when there is doubt as to the identity of the
suspect.
II
For not considering the admissions and confessions as inadmissible as violative of the
Constitution.
III
For not considering the statements and testimonies of prosecution witnesses as
hearsay.
IV
For presuming that conspiracy exists."cralaw virtua1aw library
The Courts Ruling
The appeal is not meritorious. In view of the incriminatory nature of appellants
confession, the Court will tackle the second assigned error ahead of the first.
First Issue: Admissibility of Appellants Confession
A confession is defined in jurisprudence as a declaration made voluntarily and

without compulsion or inducement by a person, stating or acknowledging that he has


committed or participated in the commission of a crime. 11 But before it can be
admitted in evidence, several requirements have to be satisfied.
Article III, Section 12 of the 1987 Constitution, which came into effect on February
2, 1987, requires that:jgc:chanrobles.com.ph
"(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
x

(3) Any confession or admission obtained in violation of this or section 17 hereof


shall be inadmissible in evidence against him."cralaw virtua1aw library
Moreover, Article III, Section 17 of the Constitution, guaranteeing the right of the
accused against self-incrimination, provides:jgc:chanrobles.com.ph
"SEC. 17. No person shall be compelled to be a witness against himself."cralaw
virtua1aw library
In jurisprudence, no confession can be admitted in evidence unless it is
given:chanrob1es virtual 1aw library
1. Freely and voluntarily, without compulsion, inducement or trickery; 12
2. Knowingly based on an effective communication to the individual under custodial
investigation of his constitutional rights; 13 and
3. Intelligently with full appreciation of its importance and comprehension of its
consequences. 14
Once admitted, the confession must inspire credibility or be one which the normal
experience of mankind can accept as being within the realm of probability. 15
A confession meeting all the foregoing requisites constitutes evidence of a high order
since it is supported by the strong presumption that no person of normal mind will
knowingly, freely and deliberately confess that he is the perpetrator of a crime unless
prompted by truth and conscience. 16 When all these requirements are met and the
confession is admitted in evidence, the burden of proof that it was obtained by undue
pressure, threat or intimidation rests upon the accused. 17
Admittedly, the case of the prosecution hinges on appellants confession. The defense
maintains that the same is inadmissible for the following reasons: (1) appellants
confession was extracted under threat and intimidation; (2) the lawyers (Atty.
Jungcos) participation was only as a witness during the signing of the prepared

confession and not during the investigation or interrogation itself; and (3) appellant
was made to sign the confession without having read it and without the presence of
counsel.
As proof thereof, the defense quotes appellants statements during direct
examination: 18
"Q. And what did (CIS Investigator) Santiago tell you if he told you anything?
A. Santiago told me that if I will not sign it, something will happen to me.
Q. But you will admit before this Court that before you affixed your signature, the
document was shown to you by Santiago, did he not?
A. No more, I was just made to sign.
Q. Do you want to impress the Court that you just affixed your signature without you
being allowed to read the documents or the investigator Santiago did not even read
unto you the contents of the documents?
A. No, sir." chanrobles law library : red
Such uncorroborated and anemic allegations are insufficient to render appellants
confession inadmissible. Rather, they appear to be a mere subterfuge designed to
impute constitutional infirmity to the conduct of the custodial interrogation.
The more credible evidence is the rebuttal testimony of Atty. Jungco showing
adherence to the constitutional requirements. Atty. Jungco testified that after he
apprised appellant of his constitutional rights to be silent and to have counsel during
the investigation, the latter waived them in his (Atty. Jungcos) presence. Thus: 19
"ATTY. DE DIOS:chanrob1es virtual 1aw library
Q Atty. Jungco, I would like to bring your attention to April 13, 1987, do you
remember having been called to assist an accused detained at the CIS Office, Camp
Maquinaya, Olongapo City?
A Yes, I was then the President of the IBP of Zambales-Olongapo Chapter and the
CIS people approached me if I will help them in the waiver, to be present when
waiver will be signed by the person before the CIS.
Q Waiver of what?
A Waiver of the right to counsel and the presence of counsel during the taking of his
investigation.
x

Q To refresh your memory, Atty. Jungco, I am showing you a statement which has

been marked as Exhibit F for the prosecution, please go over this before I ask my
question.
A (Witness going over the document handed to him) I recognize this statement.
x

Q Can you explain what is this Pagpapatunay wherein you are a witness to that?
A I was present when Nicomedes Fabro during the time that I was there signed his
waiver of the right to have counsel at the time of the taking of his testimony.
Q Now, it is the waiver of the accused to counsel, will you please tell the Court if you
advised him of his rights and effect of such waiver?
x

A Before he signed this waiver, I apprised him of his rights under the Constitution,
that is, the right to be silent, the right to counsel and that any statement that he will
make in any investigation may be used for or against him in any court of law and
after that, I asked him if despite his right to have counsel present during the taking
of his testimony, he still waives that right to counsel and he said Yes and he signed
that statement there. As a matter of fact, in this Pagpapatunay, the last sentence
Pumirma ako . . . sa harapan ni Atty. Isagani Jungco, IBP President. (Sgd)
Nicomedes Fabro.
Q Atty. Jungco, was that advice given in Tagalog or in English?
A It was given in Tagalog and in English.
Q Did he understand your admonition or your reminders concerning his right?
A He understood because he said Yes.
x

Q Thank you. Atty. Jungco, at the last page and this is the end of his confession,
there is a signature of Nicomedes Fabro, were you present when he signed the last
page of his testimony?
A At the time that he signed this, I was there present because I was talking then
with their Chief there which is I think Capt. Flores and before I left, this statement
was completed.
ATTY. DE DIOS:chanrob1es virtual 1aw library
Q Thank you. Atty. Jungco, when you signed this first page and when Nicomedes

Fabro signed this waiver, do you remember whether or not there was already a
statement prepared?
x

A At the time that he signed this, the investigation has not yet began because
precisely, I was asked to be present because of the waiver. And after he signed his
waiver and I signed it also in his presence, I was talking with Capt. Flores and they
were taking his testimony at that time.
Then, afterwards, before I left."cralaw virtua1aw library
This adherence to the Constitution is further confirmed by the confession itself. It
starts off with a Pasubali 20 wherein appellant was informed of his constitutional
rights and a Pagpapatunay which confirmed that he understood said rights. Both
parts also serve as a written proof of appellants waiver in fulfillment of the
requirements of the Constitution.
As pointed out by the Solicitor General, the testimony of Atty. Jungco was replete
with details as to how he informed and warned appellant of the consequences of the
waiver of his right to counsel. Thus, he argues that there is no room for doubt that
appellant was indeed assisted by counsel when he waived his right to counsel during
the time that his statement was taken, and not only at the time he signed it as
claimed by Appellant.
The Constitution further requires that the counsel be independent; thus, he cannot
be a special counsel, public or private prosecutor, counsel of the police, or a
municipal attorney whose interest is admittedly adverse to that of the accused. Atty.
Jungco does not fall under any of said enumeration. Nor is there any evidence that
he had any interest adverse to that of the accused. 21 The indelible fact is that he
was president of the Zambales Chapter of the Integrated Bar of the Philippines, and
not a lackey of the lawmen.
Doubts that Atty. Jungcos assistance to appellant was not independent since he was
engaged by the CIS Investigators are further dispelled by the fact that he was sent
22 to the CIS Office by Sgt. Bolina who personally knew appellants parents and was
a friend of his brother-in-law. 23 He took the trouble to ensure that a lawyer was
present during the taking of appellants statement, even though he (Bolina) would
not be there. Ineluctably, appellant, by his uncorroborated, puerile and matter-offact claim, failed to overcome the presumption that Atty. Jungco regularly performed
his official duty as an officer of the court in giving assistance to persons undergoing
custodial interrogation. 24 Upon the other hand, the overwhelming evidence is that
he did perform such duty faithfully.
After the prosecution has shown that the confession was obtained in accordance with
the aforesaid constitutional guarantee, the burden of proving that undue pressure or
duress was used to obtain it rests on the accused. 25 In Antillon v. Barcelon, 26 the
Court imposed a high degree of proof to overthrow the presumption of truth in the
recitals contained in a public instrument executed with all the legal formalities.

In People v. Pia, 27 the Court held that where the accused failed to present credible
evidence of compulsion or duress or violence on their persons, e. g., where they
failed to complain to the officers who administered the oaths; where they did not
institute any criminal or administrative action against their alleged intimidators for
maltreatment; where there appeared to be no marks of violence on their bodies; and
where they did not have themselves examined by a reputable physician to buttress
their claim, their confession should be considered voluntary. 28
Appellant has miserably failed to present any convincing evidence to prove the use of
force or intimidation on his person to secure his confession. The records show that
appellants confession was sworn and subscribed to before Fiscal Jesus Dorante, to
whom he could have and should have voiced his objection, if any. Quite the contrary,
Fiscal Dorante certified that he personally examined appellant and was convinced
that the latter gave his statement freely and voluntarily and that he understood the
contents of his confession. Appellants failure to voice out his complaints is
tantamount to a manifestation that indeed he waived his right to counsel in the
presence of Atty. Jungco in accordance with the Constitution. 29 His assertion on
appeal that he was intimidated into giving said confession rings hollow and too late.
30
This claim is further belied by appellants lack of complaint, or even any mention
thereof, to his sister and relatives who visited him at Camp Maquinaya where he was
detained for one year. 31 This reinforces the trial courts ruling.
Perhaps the most telling indication that appellants confession was voluntary is the
fact that said confession contained exculpatory claims 32 (Question Nos. 5, 7, 8 and
9) and facts that only the appellant could have known (Question Nos. 5, 6, 7, 8, 9,
14, 15, 17, 20 and 29). 33
Thus, we can only affirm the following findings of the trial
court:jgc:chanrobles.com.ph
"Neither can the Court accept that accused Nicomedes Fabro was only forced into
giving a confession. The Court cannot even for a while believe that he was only
forced to give his statement when the accused himself stated that he was not even
once hurt by any of the CIS investigators. In (fact), he was even told to rest.
Atty. Alinea:chanrob1es virtual 1aw library
Q And immediately after your sister left, your interrogation by the CIS agents
started, that is correct or it is not?
A No, sir I was asked to clean.
Q What portion or portions of the CIS headquarters were you ordered to clean?
A The ceilings.
Q And after cleaning the ceiling of the CIS headquarters, what was the next order to

you?
A They asked me to rest.
(TSN, July 18, 1989, pp. 15-16.)
x

Q And after cleaning the car of Capt. Flores, what was your next chore or activity?
A I cooked food for them.
Q And these activities became routinary and ordinary for how many days?
A I stayed there for a year and that was the routinary work I did. (TSN, July 18,
1989, p. 23)
The only alleged threat to him was that Santiago told me that if I will not sign it
something will happen to me. (TSN, July 18, 1989, p. 26). Nothing was mentioned
about actual physical force used on accused. 34 . . ."cralaw virtua1aw library
We hold that appellants confession was properly admitted by the trial court as part
of the prosecution evidence.
Second Issue: Defense of "Alibi" v. Positive Identification
The defense argues that, although alibi is the weakest defense, easily fabricated and
concocted, nevertheless it gains strength when there is doubt as to the identity of
the suspect. Although appellant admitted that he was sleeping next to the victim
when the latter was shot, he claims that Witness Beck could not have seen the face
of the person running away from the crime scene since it was still dark at that time.
Beck had just awakened, so it would have taken some time before his eyes could
have adjusted. Thus, the defense speculates that the identification of appellant by
Beck was "coached and suggested" by the investigators who fetched him and
prepared his second statement.
These arguments do not inspire belief. Beck claimed that he saw appellant running
away from the scene of the shooting. In answer to the trial judges clarificatory
questions during the cross-examination, the witness replied that, when he opened
his eyes after hearing the gun report, he saw a person who immediately ran away.
35 Beck testified that he saw appellants face while chasing the latter, although he
did not catch up with appellant. 36 Therefore, from the time he was awakened until
he lost the appellant during the chase, Beck saw appellants face. Subsequently, in
open court, he pointed to appellant as the man he had chased. This fact was not lost
on the defense; thus, the defense claimed that, considering the time of the incident
(5:00 to 5:30 a.m. in mid-April), there would have been insufficient daylight to
permit clear and positive identification of the culprit by the witness.
The defense claims that this "weak" identification by Beck strengthened appellants

"alibi," which is actually and more accurately a denial in view of appellants admission
that he was at the scene of the crime. However, giving it a different name does not
increase its probative value. A denial, like other defenses, remains subject to the
strength of the prosecution evidence which is independently assessed. When the
evidence for the prosecution convincingly connects the crime and the culprit, the
probative value of the denial is negligible. Otherwise, credibility of testimonies and
their evidentiary weight come into play. The well-settled rule is that the assessment
by the trial court of credibility and weight of evidence is accorded the highest respect
and will not be disturbed on appeal in the absence of any clear showing that the trial
court overlooked, misunderstood or misapplied some facts or circumstances of
substance which would have affected the result of the case.
Becks testimony that appellant was the man he chased contravenes the contention
that appellant was sleeping one arms length away from the victim; that appellant
was only awakened by shouts that somebody was shot; and that he stayed at the
crime scene for a time during the investigation. Moreover, the denial is directly
contravened by his confession that he shot the victim.
In light of this confession, the denial is actually a belated retraction of said
confession. The rule in this jurisdiction is that repudiation and recantation of
confessions which have been obtained in accordance with the Constitution are looked
upon with disfavor as unreliable. 37 They have negligible probative weight.
Thus, we agree with the trial court that appellants denial is totally unconvincing.
Appellants uncorroborated testimony is: (1) that he just happened to be asleep at
the terrace of the Whiskey Bar; (2) that appellant who resided nearby, for no
explainable reason, elected to sleep on the same veranda during the very same night
that the victim was shot; (3) that he was awakened only by the shouting of people
and not by the sound of the gunshot; (4) and finally, that he stayed at the scene of
the crime for about 30 minutes without anybody noticing that he was there at all. 38
Third Issue: Alleged Hearsay Evidence
The defense claims that the identification of appellant was hearsay because
appellants name was allegedly given to Witness Beck by a certain Eduardo Ragonton
who, however, was not presented as a witness. We cannot sustain this. The fact
remains that Witness Beck was able to identify appellant in open court because he
had seen the latters face that fateful night. 39 While Beck may not have known the
name of the appellant, he was certain about the latters identity. Indeed, appellants
name which was supplied by another person to Witness Beck may be considered
hearsay; but appellants identity which the said witness personally knew is not.
Fourth Issue: Existence of Conspiracy
The defense raises this issue without elaborating further or offering any evidence in
support thereof.
We are not persuaded. In fact, the conspiracy between appellant and his co-accused
appears indubitable. The decision of the trial court states that:jgc:chanrobles.com.ph

"From reliable information received by Sgt. Bolina and other policemen, they learned
the identity of two other suspects, namely: Francisco Dimalanta and Amado Alcala.
From unconfirmed reports these two (,) Dimalanta and Alcala(,) participated in the
killing of Dionisio Joaquin. The confession of Fabro confirmed that indeed Dimalanta
and Alcala were his co-conspirators."cralaw virtua1aw library
x

"In the confession of Nicomedes Fabro he narrated how Francisco Dimalanta offered
him P10,000.00 to kill a man, how the gun was given him and how they observed
the movements of the victim to the time of the killing. While Nicomedes Fabro did
the actual shooting, Accused Alcala and Dimalanta were present awaiting the
outcome of the shooting." 40
The said decision further elaborates:jgc:chanrobles.com.ph
"The confession of Dimalanta coincided in all material points with the confession of
Fabro. Dimalanta narrated how he was promised the amount of P10,000.00 by a
certain Bill Hoge and how he was paid of P5,000.00 as initial payment and the
balance to be paid after the killing is accomplished. The P5,000.00 initial payment
was shared by the three accused." 41
The acts of the accused show that they were animated by the same purpose and
were united in their execution. When, by their acts, two or more persons proceed
toward the accomplishment of the same unlawful object each doing a part so that
their acts though apparently independent were in fact connected, indicating a
closeness of formal association and a concurrence of sentiment conspiracy may be
inferred. 42
From appellants confession, it is clear that Dimalanta offered him money to kill
Joaquin; that, together with Alcala, they observed the movements of the victim; that
prior to the shooting, they had attempted to kill the victim at the D & E Fast Food
Restaurant; and that at the time of the shooting, on April 12, 1987, Dimalanta and
Alcala were at or near the scene of the crime, acting as lookouts and awaiting the
outcome of the killing. 43
Aggravating Circumstances
The trial court held that the following circumstances attended the
killing:jgc:chanrobles.com.ph
"1. The crime was committed in consideration of a price. Dimalanta was promised
P10,000.00 by Hoge to look for a killer. P5,000.00 was actually paid. In turn
Dimalanta secured the services of the triggerman, Fabro in exchange for money.
Alcala was paid for his participation in the plan.
2. With evident premeditation, the accused directly aiming the gun at a (sic) close
range; and

3. Treachery, by shooting the helpless victim while asleep to insure its execution
without risk to the killer." 44
That the crime was committed in consideration of a price has been satisfactorily
shown by appellants confession. From the confession also, evident premeditation is
manifest from the fact that on April 10, 1987, appellant was approached and hired
by Dimalanta to kill the victim; that the appellant clung to his determination to kill
the victim even after an unsuccessful first attempt on April 11, 1987 at the D & E
Fast Food Restaurant; and that a sufficient lapse of time had passed giving the
appellant a chance to reflect upon the consequences of his act. cdti
In U . S . v. Manalinde, 45 the Court held that the aggravating circumstances of
evident premeditation and offer of money, reward or promise are not incompatible
and may be appreciated together, one being independent of the other.
Treachery is shown by the fact that appellant, after several days of observing the
movements of the victim, shot the latter while he was asleep. 46 The means of
execution (1) gave the person attacked no opportunity to defend himself or to
retaliate; and (2) showed that such method was deliberately or consciously adopted.
47
Although all three circumstances (price, premeditation and treachery) were proven,
only one will be appreciated to qualify the killing to murder and the two others can
be used only as generic aggravating circumstances.
However, the mitigating circumstance of voluntary surrender should also be
appreciated in appellants favor, as he surrendered to the CIS in Camp Maquinaya on
April 13, 1987, thus, offsetting one generic aggravating circumstance. Accordingly,
the proper penalty is reclusion perpetua.
WHEREFORE, the assailed Decision is hereby AFFIRMED with slight modification, i.e.,
the indemnity is INCREASED to P50,000.00 in line with current jurisprudence.
48chanroblesvirtuallawlibrary
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Endnotes:

1. Rollo, pp. 50-57.


2. Presided by Judge Esther Nobles Bans.
3. Rollo, p. 8.
4. Decision, p. 2; rollo, p. 72.
5. Ibid., p. 8; rollo, p. 57.

6. "SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. . . .


The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if
the appellant escapes from prison or confinement or jumps bail or flees to a foreign country
during the pendency of the appeal."cralaw virtua1aw library
7. "ADMINISTRATIVE CIRCULAR NO. 2-92
TO: ALL REGIONAL TRIAL COURT PRESIDING JUDGES, THE INTEGRATED BAR OF THE
PHILIPPINES, THE NATIONAL PROSECUTION SERVICE, DEPARTMENT OF JUSTICE
RE: CANCELLATION OF BAIL BOND OF ACCUSED CONVICTED OF CAPITAL OFFENSE IN THE
REGIONAL TRIAL COURT
Strict observance by all concerned is enjoined with the following policies and guidelines laid
down in the Resolution of the Court promulgated on October 15, 1991 in G.R. No. 92560
entitled People v. Ricardo C. Cortez, relative to the application of Section 3, Rule 114 of the
1985 Rules on Criminal Procedure, to wit:chanrob1es virtual 1aw library
The basic governing principle on the right of the accused to bail is laid down in Section 3 of
Rule 114 of the 1985 Rules on Criminal Procedure, as amended, . . .
Pursuant to the aforecited provision, an accused who is charged with a capital offense or an
offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of
right even if he appeals the case to this Court since his conviction clearly imports that the
evidence of his guilt of the offense charged is strong.
Hence, for the guidance of the bench and bar with respect to future as well as pending cases
before the trial courts, this Court en banc lays down the following policies concerning the
effectivity of the bail of the accused, to wit:chanrob1es virtual 1aw library
x

(3) When an accused is charged with a capital offense or an offense which under the law at
the time of its commission and at the time of the application for bail is punishable by reclusion
perpetua and is out on bail and after trial is convicted by the trial court of the offense charged,
his bond shall be cancelled and the accused shall be placed in confinement pending resolution
of his appeal.
As to criminal cases covered under the third rule abovecited, which are now pending appeal
before this Court where the accused is still on provisional liberty, the following rules are laid
down:chanrob1es virtual 1aw library
1) This Court shall order the bondsmen to surrender the accused within ten (10) days from
notice to the court of origin. The bondsmen thereupon, shall inform this Court of the fact of
surrender, after which, the cancellation of the bond shall be ordered by this Court;
2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru
the Philippine National Police as the accused shall remain under confinement pending
resolution of his appeal;
3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his
bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken

by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court
as he shall be deemed to have jumped his bail."cralaw virtua1aw library
7-A. Per Administrative Circular No. 2-92, the trial court should not have allowed the appeal of
Dimalanta and Alcala since they jumped bail prior to such appeal.
8. Rollo, pp. 89-92.
9. Rollo, pp. 66.
10. Decision, pp. 2-4; rollo, pp. 72-74.
11. People v. Januario, G.R. No. 98252, February 7, 1997, p. 34; and U .S . v. Corrales, 28 Phil
362, 363 (1914).
12. People v. Caguioa, 95 SCRA 2, 9-12, January 17, 1980.
13. People v. Januario, supra, p. 32; and People v. De la Cruz, 224 SCRA 506, 526-527, July 6,
1993.
14. People v. Caguioa, supra.
15. People v. Pascual, 80 SCRA 1, 16, October 28, 1977.
16. U .S . v. De los Santos, 24 Phil. 329, 358 (1913).
17. People v. Saligan, 101 SCRA 264, 277, November 21, 1980.
18. TSN, July 18, 1989, p. 26.
19. TSN, March 19, 1990, pp. 3-14.
20. Exh. "F," Records, pp. 233-234.
21. People v. Bandula, 232 SCRA 566, 576, May 27, 1994.
22. TSN, January 11, 1988, p. 95.
23. TSN, November 10, 1987, pp. 42 and 44.
24. People v. Barlis, 231 SCRA 427, 441, March 24, 1994.
25. People v. Saligan, supra, p. 277.
26. 27 Phil. 148, 151 (1917).
27. 145 SCRA 581, 586, November 14, 1986.
28. Cf. People v. Villanueva, 128 SCRA 488, 501, April 2, 1984; People v. Urgel, 134 SCRA
483, 491, February 25, 1985; and People v. Toledo, 140 SCRA 259, 267-268, November 22,
1986.
29. People v. Luvendino, 211 SCRA 36, 49, July 3, 1992.
30. People v. Remollo, 227 SCRA 375, 377, October 22, 1993.

31. TSN, October 24, 1989, pp. 316-317.


32. People v. Alvarez, 201 SCRA 364, 377, September 5, 1991; and People v. Oracoy, 224
SCRA 506, 768, July 27, 1993.
33. People v. Damaso, 190 SCRA 595, 608-609, October 18, 1990.
34. Rollo, p. 75.
35. Ibid., p. 53.
36. TSN, May 24, 1988, p. 35.
37. People v. Oracoy, supra, p. 767; People v. Logronio, 214 SCRA 519, 530, October 13,
1992; and People v. Del Pilar, 188 SCRA 37, 44-45, July 28, 1990.
38. Rollo, pp. 53-54.
39. Supra, footnote no. 36.
40. RTC Decision, p. 7; rollo, p. 56.
41. Ibid.
42. People v. Azugue, G.R. No. 110098, February 26, 1997, pp. 16-17; People v. Layno, G.R.
No. 110833, November 21, 1996, pp. 17-19; and People v. Isleta, G.R. No. 114971, November
19, 1996, pp. 11-12.
43. Exhibit "F," records, pp. 241-244.
44. Decision, p. 7; rollo, p. 77.
45. 14 Phil. 77, 82 (1909).
46. People v. Miranda, 90 Phil 91, 93-95 (1951); People v. Azuque, supra, p. 17; and People v.
Layno, supra, pp. 19-20.
47. People v. Mallari, 212 SCRA 777, 784, August 21, 1992; People v. Mabubay, 185 SCRA
675, 680, May 24, 1990; and People v. Samonte, 64 SCRA 319, 325-326, June 11, 1975.
48. People v. Abalos, 258 SCRA 523, 534, July 9, 1996; People v. Porras, 255 SCRA 514, 531,
March 29, 1996; People v. Panlilio, 255 SCRA 497, 503, March 29, 1996.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 71208-09 August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE
JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE
SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN,
GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO
TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents.

G.R. Nos. 71212-13 August 30, 1985


PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN
(OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS,
SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT.
PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

CUEVAS, JR., J.:


On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed
inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator
Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a longsojourn abroad, was gunned down to death. The assassination rippled shock-waves
throughout the entire country which reverberated beyond the territorial confines of this
Republic. The after-shocks stunned the nation even more as this ramified to all aspects of
Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free,
unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was
promulgated creating an ad hoc Fact Finding Board which later became more popularly known as
the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public
hearings wherein various witnesses appeared and testified and/or produced documentary and
other evidence either in obedience to a subpoena or in response to an invitation issued by the
Board Among the witnesses who appeared, testified and produced evidence before the Board
were the herein private respondents General Fabian C. Ver, Major General Prospero
Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio,
Sgt. Prospero Bona and AIC Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His Excellency,
President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano
Agrava; and another one, jointly authored by the other members of the Board namely:
Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera.
'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate
action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed
with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno
S. Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No.
10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from
the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private
respondents were charged as accessories, along with several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents pleaded
NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution
represented by the Office of the petition TANODBAYAN, marked and thereafter offered as

part of its evidence, the individual testimonies of private respondents before the Agrava
Board. 6 Private respondents, through their respective counsel objected to the admission of said
exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen.
Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled
cases" 7 contending that its admission will be in derogation of his constitutional right against selfincrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid
testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other
private respondents likewise filed separate motions to exclude their respective individual
testimonies invoking the same ground. 8Petitioner TANODBAYAN opposed said motions
contending that the immunity relied upon by the private respondents in support of their motions to
exclude their respective testimonies, was not available to them because of their failure to invoke
their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent
SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their
respective memorandum on the issue after which said motions will be considered submitted for
resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having been
required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the
pending motions for exclusion being resolved, issued a Resolution directing that by
agreement of the parties, the pending motions for exclusion and the opposition thereto,
together with the memorandum in support thereof, as well as the legal issues and
arguments, raised therein are to be considered jointly in the Court's Resolution on the
prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985,
the prosecution made a written "Formal Offer of Evidence" which includes, among others, the
testimonies of private respondents and other evidences produced by them before the Board, all of
which have been previously marked in the course of the trial. 12
All the private respondents objected to the prosecution's formal offer of evidence on the
same ground relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in
these two (2) petitions, admitting all the evidences offered by the prosecution except the
testimonies and/or other evidence produced by the private respondents in view of the
immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they
now come before Us by way of certiorari 14 praying for the amendment and/or setting aside of
the challenged Resolution on the ground that it was issued without jurisdiction and/or with grave
abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the
mother of deceased Rolando Galman, also filed a separate petition for certiorari 15 on the same
ground. Having arisen from the same factual beginnings and raising practically Identical issues,
the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in
this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies given
by the eight (8) private respondents who did not invoke their rights against self-incrimination
before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner TANODBAYAN,
that said testimonies are admissible against the private respondents, respectively, because

of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886.
Since private respondents did not invoke said privilege, the immunity did not attach.
Petitioners went further by contending that such failure to claim said constitutional privilege
amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that
notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board,
said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886.
They contend that without the immunity provided for by the second clause of Section 5, P.D.
1886, the legal compulsion imposed by the first clause of the same Section would suffer from
constitutional infirmity for being violative of the witness' right against self- incrimination. 17 Thus,
the protagonists are locked in horns on the effect and legal significance of failure to set up the
privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not been
previously called upon to rule on issues involving immunity statutes. The relative novelty of
the question coupled with the extraordinary circumstance that had precipitated the same did
nothing to ease the burden of laying down the criteria upon which this Court will henceforth
build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out
this monumental task, however, We shall be guided, as always, by the constitution and
existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an
impartial and independent body, instead of any ordinary police agency, be charged with the task
of conducting the investigation. The then early distortions and exaggerations, both in foreign and
local media, relative to the probable motive behind the assassination and the person or persons
responsible for or involved in the assassination hastened its creation and heavily contributed to its
early formation.19
Although referred to and designated as a mere Fact Finding Board, the Board is in truth and
in fact, and to all legal intents and purposes, an entity charged, not only with the function of
determining the facts and circumstances surrounding the killing, but more importantly, the
determination of the person or persons criminally responsible therefor so that they may be
brought before the bar of justice. For indeed, what good will it be to the entire nation and the
more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit
or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section
12 of the said Presidential Decree, the pertinent portion of which provides
SECTION 12. The findings of the Board shall be made public. Should the
findings warrant the prosecution of any person, the Board may initiate the
filing of proper complaint with the appropriate got government agency. ...
(Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the
ascertainment and/or determination of the culprit or culprits, their consequent prosecution
and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to
testify before the Board the right to counsel at any stage of the proceedings." 20 Considering
the foregoing environmental settings, it cannot be denied that in the course of receiving evidence,
persons summoned to testify will include not merely plain witnesses but also those suspected as
authors and co-participants in the tragic killing. And when suspects are summoned and called to
testify and/or produce evidence, the situation is one where the person testifying or producing
evidence is undergoing investigation for the commission of an offense and not merely in order to

shed light on the facts and surrounding circumstances of the assassination, but more importantly,
to determine the character and extent of his participation therein.

Among this class of witnesses were the herein private respondents, suspects in the said
assassination, all of whom except Generals Ver and Olivas, were detained (under technical
arrest) at the time they were summoned and gave their testimonies before the Agrava Board.
This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent.
They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886
leave them no choice. They have to take the witness stand, testify or produce evidence,
under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed
behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot
invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined
and protected by our fundamental law. 21-a Both these constitutional rights (to remain silent and
not to be compelled to be a witness against himself) were right away totally foreclosed by P.D.
1886. And yet when they so testified and produced evidence as ordered, they were not immune
from prosecution by reason of the testimony given by them.
Of course, it may be argued is not the right to remain silent available only to a person
undergoing custodial interrogation? We find no categorical statement in the constitutional
provision on the matter which reads:
... Any person under investigation for the commission of an offense shall
have the right to remain and to counsel, and to be informed of such
right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this
specific portion of the subject provision. In all these cases, it has been categorically declared that
a person detained for the commission of an offense undergoing investigation has a right to be
informed of his right to remain silent, to counsel, and to an admonition that any and all statements
to be given by him may be used against him. Significantly however, there has been no
pronouncement in any of these cases nor in any other that a person similarly undergoing
investigation for the commission of an offense, if not detained, is not entitled to the constitutional
admonition mandated by said Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial" by
having it inserted between the words "under" and investigation", as in fact the sentence
opens with the phrase "any person " goes to prove that they did not adopt in toto the entire
fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the
use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea
that it applies only to police investigation, for although the word "confession" is used, the
protection covers not only "confessions" but also "admissions" made in violation of this section.
They are inadmissible against the source of the confession or admission and against third
person. 25
It is true a person in custody undergoing investigation labors under a more formidable ordeal
and graver trying conditions than one who is at liberty while being investigated. But the
common denominator in both which is sought to be avoided is the evil of extorting from the
very mouth of the person undergoing interrogation for the commission of an offense, the very
evidence with which to prosecute and thereafter convict him. This is the lamentable situation
we have at hand.

All the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while disembarking from the plane that brought him
home to Manila on that fateful day. Being at the scene of the crime as such, they were
among the first line of suspects in the subject assassination. General Ver on the other hand,
being the highest military authority of his co-petitioners labored under the same suspicion
and so with General Olivas, the first designated investigator of the tragedy, but whom others
suspected, felt and believed to have bungled the case. The papers, especially the foreign
media, and rumors from uglywagging tongues, all point to them as having, in one way or
another participated or have something to do, in the alleged conspiracy that brought about
the assassination. Could there still be any doubt then that their being asked to testify, was to
determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy? It is too taxing upon one's credulity to believe that private respondents'
being called to the witness stand was merely to elicit from them facts and circumstances
surrounding the tragedy, which was already so abundantly supplied by other ordinary
witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas
were among the last witnesses called by the Agrava Board. The subject matter dealt with
and the line of questioning as shown by the transcript of their testimonies before the Agrava
Board, indubitably evinced purposes other than merely eliciting and determining the socalled surrounding facts and circumstances of the assassination. In the light of the
examination reflected by the record, it is not far-fetched to conclude that they were called to
the stand to determine their probable involvement in the crime being investigated. Yet they
have not been informed or at the very least even warned while so testifying, even at that
particular stage of their testimonies, of their right to remain silent and that any statement
given by them may be used against them. If the investigation was conducted, say by the PC,
NBI or by other police agency, all the herein private respondents could not have been
compelled to give any statement whether incriminatory or exculpatory. Not only that. They
are also entitled to be admonished of their constitutional right to remain silent, to counsel,
and be informed that any and all statements given by them may be used against them. Did
they lose their aforesaid constitutional rights simply because the investigation was by the
Agrava Board and not by any police investigator, officer or agency? True, they continued
testifying. May that be construed as a waiver of their rights to remain silent and not to be
compelled to be a witness against themselves? The answer is yes, if they have the option to
do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome
contempt power of the Board to punish any refusal to testify or produce evidence, We are not
persuaded that when they testified, they voluntarily waived their constitutional rights not to be
compelled to be a witness against themselves much less their right to remain silent.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion 'tending to force testimony from the unwilling
lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New
Jersey" where certain police officers summoned to an inquiry being conducted by the Attorney
General involving the fixing of traffic tickets were asked questions following a warning that if they
did not answer they would be removed from office and that anything they said might be used
against them in any criminal proceeding, and the questions were answered, the answers given

cannot over their objection be later used in their prosecutions for conspiracy. The United States
Supreme Court went further in holding that:

the protection of the individuals under the Fourteenth Amendment against


coerced statements prohibits use in subsequent proceedings of statements
obtained under threat or removal from office, and that it extends to all,
whether they are policemen or other members of the body politic. 385 US at
500, 17 L Ed. 562. The Court also held that in the context of threats of
removal from office the act of responding to interrogation was not voluntary
and was not an effective waiver of the privilege against self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause,
petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be
compelled to be a witness against himself" applies only in favor of an accused in a criminal
case. Hence, it may not be invoked by any of the herein private respondents before the
Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against this theory. Said
case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a
prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn
and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of
illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify
will be in violation of his right against self- incrimination. We did not therein state that since he is
not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand
and testify, and that he can invoke his right against self-incrimination only when a question which
tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the
character of the suit involved but the nature of the proceedings that controls. The privilege has
consistently been held to extend to all proceedings sanctioned by law and to all cases in which
punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture
case where only property rights were involved, "the right not to be compelled to be a witness
against himself" is secured in favor of the defendant, then with more reason it cannot be denied to
a person facing investigation before a Fact Finding Board where his life and liberty, by reason of
the statements to be given by him, hang on the balance. Further enlightenment on the subject
can be found in the historical background of this constitutional provision against selfincrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to the
Federal Constitution. In the Philippines, the same principle obtains as a direct result of American
influence. At first, the provision in our organic laws were similar to the Constitution of the United
States and was as follows:
That no person shall be ... compelled in a criminal case to be a witness
against himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to make said
provision also applicable to cases other than criminal. Decidedly then, the right "not to be
compelled to testify against himself" applies to the herein private respondents
notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a
criminal case

No doubt, the private respondents were not merely denied the afore-discussed sacred
constitutional rights, but also the right to "due process" which is fundamental
fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court, the
former Chief Justice Enrique M. Fernando, due process
... is responsiveness to the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to paraphrase Cardozo,
must not outrun the bounds of reason and result in sheer oppression. Due
process is thus hostile to any official action marred by lack of
reasonableness. Correctly, it has been Identified as freedom from
arbitrariness. It is the embodiment of the sporting Idea of fair play(Frankfurter,
Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty
"to those strivings for justice and judges the act of officialdom of whatever
branch "in the light of reason drawn from considerations of fairness that
reflect (democratic) traditions of legal and political thought."(Frankfurter,
Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical
conception with fixed content unrelated to time, place and
circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230) Decisions
based on such a clause requiring a 'close and perceptive inquiry into
fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US
121). Questions of due process are not to be treated narrowly or pedantically
in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments,
manifestations and admissions of both counsel, failed to reveal adherence to and
compliance with due process. The manner in which the testimonies were taken from private
respondents fall short of the constitutional standards both under the DUE PROCESS
CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such
grave constitutional infirmities, the individual testimonies of private respondents cannot be
admitted against them in ally criminal proceeding. This is true regardless of absence of claim
of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We
shall rule on the effect of such absence of claim to the availability to private respondents of
the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and
extensively discussed in the pleadings and oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity";
and the other, which grants what is known as "transactional immunity." The distinction
between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony
and its fruits in any manner in connection with the criminal prosecution of the witness. On the
other hand, "transactional immunity" grants immunity to the witness from prosecution for an
offense to which his compelled testimony relates." 32 Examining Presidential Decree 1886,
more specifically Section 5 thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any

transaction, matter or thing concerning which he is compelled, after having


invoked his privilege against self-incrimination, to testify or produce evidence,
except that such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying, nor shall he be exempt
from demotion or removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants
merely immunity from use of any statement given before the Board, but not immunity from
prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence
do not render the witness immuned from prosecution notwithstanding his invocation of the
right against self- incrimination. He is merely saved from the use against him of such
statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted
even if he sets up his right against self- incrimination. The dictates of fair play, which is the
hallmark of due process, demands that private respondents should have been informed of
their rights to remain silent and warned that any and all statements to be given by them may
be used against them. This, they were denied, under the pretense that they are not entitled
to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the
petitioners that the right against self-incrimination must be invoked before the Board in order
to prevent use of any given statement against the testifying witness in a subsequent criminal
prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of
the Constitution, which is the first test of admissibility. It reads:
No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in violation thereof.
As herein earlier discussed, this exclusionary rule applies not only to confessions but also to
admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal
proceeding or any person under investigation for the commission of an offense. Any interpretation
of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much
so that if two or more constructions or interpretations could possibly be resorted to, then that one
which will avoid unconstitutionality must be adopted even though it may be necessary for this
purpose to disregard the more usual and apparent import of the language used. 34 To save the
statute from a declaration of unconstitutionality it must be given a reasonable construction that
will bring it within the fundamental law. 35 Apparent conflict between two clauses should be
harmonized. 36
But a literal application of a requirement of a claim of the privilege against self- incrimination
as a condition sine qua non to the grant of immunity presupposes that from a layman's point
of view, he has the option to refuse to answer questions and therefore, to make such claim.
P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its
exercise, thus:

SEC. 4. The Board may hold any person in direct or indirect contempt, and
impose appropriate penalties therefor. A person guilty of .... including ...
refusal to be sworn or to answer as a witness or to subscribe to an affidavit or
deposition when lawfully required to do so may be summarily adjudged in
direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no choice
but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity
of such application is apparent Sec. 5 requires a claim which it, however, forecloses under
threat of contempt proceedings against anyone who makes such claim. But the strong
testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the
sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As
a rule, such infringement of the constitutional right renders inoperative the testimonial
compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive
protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of
P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer,
so as to safeguard his sacred constitutional right. But in this case, the compulsion has already
produced its desired results the private respondents had all testified without offer of immunity.
Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered.
We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to
answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed
immunized under Section 5 of the same law. The applicability of the immunity granted by P.D.
1886 cannot be made to depend on a claim of the privilege against self-incrimination which the
same law practically strips away from the witness.
With the stand we take on the issue before Us, and considering the temper of the times, we
run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by,
the frightening consequences that hover before Us, we have strictly adhered to the
Constitution in upholding the rule of law finding solace in the view very aptly articulated by
that well-known civil libertarian and admired defender of human rights of this Court, Mr.
Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote:
I am completely conscious of the need for a balancing of the interests of
society with the rights and freedoms of the individuals. I have advocated the
balancing-of-interests rule in an situations which call for an appraisal of the
interplay of conflicting interests of consequential dimensions. But I reject any
proposition that would blindly uphold the interests of society at the sacrifice of
the dignity of any human being. (Emphasis supplied)
Lest we be misunderstood, let it be known that we are not by this disposition passing upon
the guilt or innocence of the herein private respondents an issue which is before the
Sandiganbayan. We are merely resolving a question of law and the pronouncement herein
made applies to all similarly situated, irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without
merit, same are DISMISSED. No pronouncement as to costs.
SO ORDERED.

Aquino, J., concurs (as certified by Makasiar, C.J.).


Abad Santos, J., is on leave.

Separate Opinions

MAKASIAR, C.J., concurring:


To admit private respondents' testimonies and evidence before the Fact-Finding Board (FFB)
against them in the criminal prosecution pending before the Sandiganbayan, would violate
their constitutional or human rights the right to procedural due process, the right to remain
silent, and the right against self- incrimination.
That their testimonies and other evidence they submitted before the FFB in these criminal
cases are incriminatory, is confirmed by the very fact that such testimonies and evidence
were the very bases of the majority report of the FFB recommending the prosecution of
private respondents as accessories.
It should be stressed that the basic purposes of the right against self- incrimination are (1)
humanity or humanitarian reasons to prevent a witness or accused from being coerced,
whether physically, morally, and/or psychologically, into incriminating himself, and (2) to
protect the witness or accused from committing perjury, because the first law of nature is
self- preservation.
The utilization in the prosecution against them before the Sandiganbayan of the testimonies
and other evidence of private respondents before the FFB collides with Section 1, Section 17
and Section 20 of the Bill of Rights of the 1973 Constitution:
Section 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal of the laws.
xxx xxx xxx
Section 17, No person shall be held to answer for a criminal offense without
due process of law.
xxx xxx xxx
Section 20. No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free

will shall be used against him. Any confession obtained in violation of this
Section shall be inadmissible in evidence.
The Bill of Rights constitutes the reservation of the sovereign people against, as well as the
limitation on, the delegated powers of government. These rights thus enshrined need no
express assertion. On the contrary, the police and prosecution officers of the country should
respect these constitutional liberties as directed in the recent decision in the Hildawa and
Valmonte cases (G.R. Nos. 67766 and 70881, August 14, 1985). The established
jurisprudence is that waiver by the citizen of his constitutional rights should be clear,
categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US 458, 464, cited in Abriol vs.
Homeres, 84 Phil. 525 [1949] and in Chavez vs. CA, 24 SCRA 663, 682-683).
The use of testimonies and other evidence of private respondents before the FFB against
them in the criminal cases subsequently filed before the Sandiganbayan would trench upon
the constitutional guarantees that "no person shall be deprived of life, liberty, or property
without due process of law ... that "no person shall be held to answer for a criminal offense
without due process of law" and that (Section 17, Article IV, 1973 Constitution), that "no
person shall be compelled to be a witness against himself. ..." and that " a person has the
right to remain silent ..." (Section 20, Article IV, 1973 Constitution).
There can be no implied waiver of a citizen's right against self-incrimination or of his right to
remain silent.
Any such renunciation cannot be predicated on such a slender or tenuous reed as a dubious
implication. Otherwise, it would be easier to lose the human rights guaranteed by the Bill of
Rights than to protect or preserve them; it would be easier to enslave the citizen than for him
to remain free. Such a result was never intended by the Founding Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no person shall be
compelled to be a witness against himself," applies to both the ordinary witness and the
suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right against selfincrimination and all other constitutional rights by the witness or by the accused, is the fact
that the right against double jeopardy can only be renounced by the accused if the criminal
case against him is dismissed or otherwise terminated with his express consent. Without
such express consent to the dismissal or termination of the case, the accused can always
invoke his constitutional right against double jeopardy.
If Section 5 of P.D. 1886 were interpreted otherwise, said section would become a booby
trap for the unsuspecting or unwary witness, A witness summoned either by subpoena or by
Invitation to testify before the FFB under Section 5, cannot refuse, under pain of contempt, to
testify or produce evidence required of him on the ground that his testimony or evidence may
tend to incriminate or subject him to a penalty or forfeiture; because the same Section 5
prohibits the use of such testimony or evidence which may tend to incriminate him in any
criminal prosecution that may be filed against him. The law or decree cannot diminish the
scope and extent of the guarantee against self-incrimination or the right to remain silent or
the right against being held to answer for a criminal offense without due process of law, or
against deprivation of his life, liberty or property without due process of law.

As a matter of fact, numerous decisions culled by American jurisprudence are partial to the
rule that immunity statutes which compel a citizen to testify, should provide an immunity from
prosecution that is as co-extensive, as total and as absolute as the guarantees themselves
(Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US 1972,
406 US 441).
Even if the witness testified pursuant to an invitation, the invitation does not remove the
veiled threat of compulsion, because as stated in the Chavez case, supra.
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressures which
operate to overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion attending to force testimony from the unwilling
lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663, 679).
The summons issued to private respondents has been euphemistically called as an
invitation, instead of a subpoena or subpoena duces tecum, as a sign of respect for the
important and high positions occupied by private respondents. But the effect of such an
invitation thus worded is the same as a subpoena or subpoena duces tecum. Precisely, the
phraseology of Section 5 of P.D. 1886 entices the unsuspecting private respondents to testify
before the FFB, by dangling in the same Section 5 the assurance that their testimony or the
evidence given by them will not be used against them in a criminal prosecution that may be
instituted against them.
At the very least, their consent to testify was under such misapprehension. Hence, there can
be no clear, categorical, knowing and intelligent waiver of the right to remain silent, against
self-incrimination, against being held to answer for a criminal offense without due process of
law, and against being deprived of life, liberty or property without due process of law under
such misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is accentuated by the
difference of opinion thereon among the counsels in these cases and among members of
this Court. And it is basic in criminal law that doubts should be resolved liberally in favor of
the accused and strictly against the government.
The procedural due process both under Sections 1 and 17 of the Bill of Rights, Article IV of
the 1973 Constitution, simply means, in the language of Justice Frankfurter, the sporting
Idea of fair play. The FFB and its counsel did not inform the private respondents herein of
their right to remain silent and their right against self-incrimination, and that their testimonies
may be utilized against them in a court of law, before they testified. This is not fair to them,
and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for the purpose of
gathering all the possible facts that may lead to the Identity of the culprit. Such testimonies
may provide leads for the FFB, its counsels and agents to follow up. The FFB and its
counsels cannot rely solely on such testimonies to be used against the private respondents
in these criminal cases. It should be recalled that the FFB had ample funds for the purpose
of accomplishing its object. As a matter of fact. it refunded several million pesos to the

government after it concluded its investigation. The Board and its counsel could have utilized
the said amount to appoint additional agents to look for witnesses to the assassination. In
this respect, the FFB counsel could be faulted in not utilizing the funds appropriated for them
to ferret out all evidence that will Identify the culprit or culprits. The failure of the FFB's
counsel to use said funds reflects on the initiative and resourcefulness of its counsel. He
could prosecute private respondents on evidence other than their testimony and the
evidence they gave before the FFB.
As heretofore stated, the private respondents were compelled to testify before the FFB
whether by subpoena or by invitation which has the effect of a subpoena as provided for in
Section 5 of P.D. 1886; because private respondents then believed, by reading the entire
Section 5, that the testimony they gave before the FFB could not be used against them in the
criminal cases subsequently filed before the Sandiganbayan. Because the Board was merely
a fact-finding board and that it was riot conducting a criminal prosecution the private
respondents were under the impression that there was no need for them to invoke their
rights to remain silent, against self-incrimination and against being held for a criminal offense
without due process of law.
It should be recalled that the counsel of the FFB after submitting the majority report, refused
to cooperate with the Tanodbayan in these cases with the pompous declaration that, after
submitting their majority report, he automatically became functus oficio. Was his refusal to
cooperate with, and assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And when the
Tanodbayan has now his back to the wall, as it were, by the ruling of the respondent
Sandiganbayan excluding the testimonies and other evidence of private respondents herein
on the ground that the use of their testimonies and other evidence will incriminate them, the
FFB counsel, without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. what is the reason for this turn-about to save his
report from the fire which they started with such enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting authorities to respect
their rights under the Constitution as we stated in the recent Hildawa and Valmonte
cases, supra.
The grant of immunity under Section 5 of P.D. 1886 would be meaningless if we follow the
posture of petitioners herein. Such a posture would be correct if the phrase "after having
invoked his privilege against self- incrimination" were transposed as the opening clause of
Section 5 to read a follows "After having invoked his privilege against self-incrimination, no
person shall be excused from attending and testifying ... etc."
Said Section 5 has two clauses and contemplates two proceedings. The first clause from "No
person shall be excused ... etc." up to "penalty or forfeiture refers to the proceeding before
the FFB. The second clause after the semi-colon following the word "forfeiture which begins
with but his testimony or any evidence produced by him shall not be used against him in
connection with any transaction, matter, or thing concerning which he is compelled, after
having invoked his privilege against self-incrimination to testify . refers to a subsequent
criminal proceeding against him which second clause guarantees him against the use of his
testimony in such criminal prosecution, but does not immunize him from such prosecution
based on other evidence.

The private respondents herein, if the contention of the prosecution were sustained, would
be fried in their own fat. Consequently, the petition should be dismissed.

CONCEPCION, JR., J., concurring:


1. Let me preface my opinion by quoting from my dissent in Pimentel.

1. We are committed to the mandate of the Rule of Law. We resolve


controversies before Us without considering what is or what might be the
popular decision. No. We never do. We only consider the facts and the law.
Always the facts and the law.
2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged
participation in the assassination of former Senator Benigno S. Aquino, Jr.
3. The issue is: Are the testimonies given by them before the Agrava Board
admissible in evidence against them in their trial before the Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the interpretation
of Sec. 5, P.D. No. 1886 and calls for the application of the Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience
to a subpoena issued by the Board on the ground that his testimony or the
evidence required of him may tend to incriminate him or subject him to
penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing
concerning which he is compelled. after having invoked his privilege against
self-incrimination, to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal
from office.
6. This section means that any person who is invited or summoned to appear must obey and
testify as to what he knows. Even if the testimony tends to incriminate him he must testify.
Even if he claims his constitutional right against self-incrimination, he still must testify.
However, his testimony cannot be used against him in any subsequent proceeding, provided
that at the time it is being presented, he invokes his privilege against self-incrimination. His
testimony, no matter what it may be, cannot in any way cause him harm.
The only exception is if the testimony he gave is false, in which case he can be prosecuted
and punished for perjury. He may also be demoted or removed from office.

7. The testimonies given by private respondents before the Agrava Board are therefore not
admissible against them in their trial before the Sandiganbayan, having invoked their
privilege against self-incrimination.

PLANA, J., concurring:


I would like to underscore some considerations underlying my concurrence:
1. According to the Constitution, no person shall be compelled to be a witness against
himself. But the law (PD 1886) which created the Agrava Board decrees that no person shall
be excused from testifying on the ground of self- incrimination. If the law had stopped after
this command, it would have been plainly at variance with the Constitution and void. lt was to
ward off such a Constitutional infirmity that the law provided for immunity against the use of
coerced testimony or other evidence, an immunity which, to be constitutionally adequate,
must give at least the same measure of protection as the fundamental guarantee against
self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or expand the constitutional
guarantee against self-incrimination. On the one hand, a law cannot restrict a constitutional
provision. On the other hand, PD 1886 was adopted precisely to coerce the production of
evidence that hopefully would unmask the killers of Senator Aquino, although the compulsory
process is accompanied by "use" immunity.
3. It is argued that the right against self- incrimination must have been invoked before the
Agrava Board if the use of evidence given therein against the witness in a subsequent
criminal prosecution is to be barred. I did not agree.
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional right against selfincrimination, one has to offer resistance to giving testimony a resistance which the said law
itself says is futile and cannot prevail, as no witness by its specific injunction can refuse to
testify.
4. The constitutional right against self-incrimination may be waived expressly. It may also be
waived impliedly by speaking when one has the option to hold his tongue. Waiver by
implication presupposes the existence of the right to keep silent. Thus, when one speaks
because the law orders him to do so, his action is not really voluntary and therefore his
testimony should not be deemed an implied waiver of his constitutional right against selfincrimination.
5. Presidential Decree 1886 does not give private respondents absolute immunity from
prosecution, It only bars the use against them of the evidence that was elicited from them by
the Agrava Board. If there are other evidence available, private respondents are subject to
indictment and conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my view, completedly
immunized. What PD 1886 bars from use is only the testimony of the witness who testified
before the Agrava Board and whatever was presented as part of his testimony, as such. PD

1886 could not have intended to convert non-confidential official documents into shielded
public records that cannot be used as evidence against private respondents, by the mere
fact that they were admitted in evidence as part of private respondents' testimony before the
Agrava Board. In other words, evidence otherwise available to the prosecution, such as
official documents, do not become barred just because they have been referred to in the
course of the testimony of private respondents and admitted in evidence as part of their
testimony They may still be subpoenaed and offered in evidence. Conceivably, some
objections might be raised; but the evidence will be unfettered by the exclusionary rule in PD
1886.

ESCOLIN, J., concurring:


I concur in the dismissal of the petitions. The admission in evidence of the testimonies of
private respondents given before the Agrava Board would constitute a violation of their right
against self- incrimination guaranteed under Section 20, Article IV of the Constitution. I
subscribe to the majority view that Section 5 of P.D. 1886 cannot be constitutionally tenable,
unless a grant of immunity is read into it vis-a-vis the compulsion it imposes upon a witness
to testify. Otherwise stated, Section 5 of P.D. 1886 should be interpreted as an immunity
statute, which, while depriving one of the right to remain silent, provides an immunity from
prosecution that is as co-extensive, as total and as absolute as the guarantees themselves.
(Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S., 1972,
406 US 441).
Clearly, this is how the private respondents understood the legal provision under
consideration. For ably assisted as they were by counsel, they would not have allowed
themselves to be deliberately dragged into what the Chief Justice would call a "booby trap".
Viewed from another angle, therefore, it could not be truly said that private respondents had
waived their right against self- incrimination in a manner that is clear, categorical, knowing
and intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres, 84 Phil. 525
and Chavez v. CA, 24 SCRA 663).

GUTIERREZ, JR., J., concurring:


I concur in the majority opinion penned by Justice Serafin R. Cuevas and in the pithy
separate opinion of Justice Nestor B. Alampay but would like to add some personal
observations.
This case furnishes an opportunity to appreciate the workings of our criminal justice system.
The prosecutions which led to this petition serve as a timely reminder that all of us-civilian or
military, layman or judge, powerful or helpless- need the Bill of Rights. And should the time
ever come when like the respondents we may have to invoke the Constitution's protection,
the guarantees of basic rights must be readily available, in their full strength and pristine
glory, unaffected by what is currently popular or decreed and heedless of whoever may be
involved

In many petitions filed with this Court and lower courts, the military has often been charged
with riding roughshod over the basic rights of citizens. Officers and enlisted men in the
frontlines of the fight against subversion or rebellion may, in the heat of combat, see no need
to be concerned over such ,niceties" as due process, unreasonable searches and seizures,
freedom of expression, and right to counsel. They are best reminded that these rights are not
luxuries to be discarded in times of crisis. These rights are the bedrock of a free and civilized
society. They are the reason why we fight so hard to preserve our system of government.
And as earlier stated, there may come times when we may have to personally invoke these
basic freedoms for ourselves. When we deny a right to an accused, we deny it to ourselves.
The decision of the Court underscores the importance of keeping inviolate the protections
given by the Bill of Rights. Acts which erode or sacrifice constitutional rights under seductive
claims of preserving or enhancing political and economic stability must be resisted. Any
lessening of freedom will not at all increase stability. The liberties of individuals cannot be
preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand and subversion or
rebellion on the other may be difficult to pinpoint during troubled times. The lesson of this
petition is that those charged with suppressing the rebellion and those who sit in courts of
justice should ever be vigilant in not lumping legitimate dissenters and rebels together in one
indiscriminate classification.
An abiding concern for principles of liberty and justice is especially imperative in periods of
crisis and in times of transition. And all persons from the mighty to the lowy must be given
the fullest measure of protection under the Bill of Rights if our constitutional guarantees are
to have any meaning.
In addition to the right against self- incrimination, of not being compelled to be a witness
against one's self, so ably discussed by Justice Cuevas in the Court's opinion, I am
constrained by considerations of basic fairness to vote against granting the petition.
The private respondents were called to testify before the Agrava Commission. The decree
creating the commission stated that no person may refuse to attend and testify or to produce
evidence before it on the ground that what he says or produces may incriminate him. But
since the witness is compelled to give all he knows or possesses in effect shorn by law of his
right not to incriminate himself the decree states that the evidence wrung from that witness
may not be used against him later. This is, simply speaking, what the petition is all about.
The respondents may be prosecuted as indeed they have been prosecuted. They may
eventually be convicted if the evidence warrants conviction. however, they may not be
convicted solely on the evidence which came from their own mouths or was produced by
their own hands. The evidence must come from other sources. It would be the height of
unfairness and contrary to due process if a man is required to state what he knows even if it
would incriminate him, is promised immunity if he talks freely, and is later convicted solely on
the testimony he gave under such a promise of immunity.
I believe that P.D. 1886 is the first Immunity Act to be enacted in the Philippines. It may be
relevant, therefore, to refer to American decisions expounding on immunity statutes, more so
when a comparison of P.D. 1886 with such statutes as the U.S. Immunity Act of 1954, 68

Stat. 745, 18 U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in their
investigatins of attempts to endanger the national security or defense of the United States
by treason, sabotage, espionage, sedition, seditious conspiracy, and violations of various
laws on internal security, atomic or nuclear energy, and immigration and nationality. The law
stated that a witness shall not be excused from testifying or from producing books, papers, or
other evidence on the ground that it may tend to incriminate him or subject him to a penalty
or forfeiture. The statute then provides:
But no such witness shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing concerning
which he is compelled, after having claimed his privilege against selfincrimination, to testify or produce evidence nor shall testimony so compelled
be used as evidence in any criminal proceeding ... against him in any court.
The American statute provides immunity against prosecution, penalties, and use of the
testimony. P.D. 1886 is of more limited scope. Only the use of the compelled testimony is
proscribed. The witness may still be prosecuted but the prosecution will have to look for
evidence other than the words of the accused given before the Agrava Commission.
In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted with the validity
of the 1893 Immunity Act. Brown was subpoenaed to testify before a grand jury investigating
railroad anomalies. lie refused to testify on grounds of self- incrimination, arguing that the
Immunity Act compelling him to testify was unconstitutional. The Court ruled that "(W)hile the
constitutional provision in question is justly regarded as one of the most valuable
prerogatives of the citizen, its object is fully accomplished by the statutory immunity and we
are therefore of opinion that the witness was compellable to answer." In other words, the
statutory immunity takes the place of the invocation of the constitutional guarantee. There is
no need at the time of taking testimony to invoke the Fifth Amendment because it would be
denied any way and the witness would be compelled to testify. It would be absurd to invoke a
protection which cannot be availed of when compelled to testify. The time to invoke the
immunity is when the testimony is being used contrary to the granted immunity. Protected by
the statutory immunity, a witness cannot even insist on his right to remain silent when
testifying.
In Ullmann v. United States (350 U.S. 422), the court interpreted the Immunity Act of 1954
and stated.
xxx xxx xxx
... Since that time the Court's holding in Brown v. Walker has never been
challenged; the case and the doctrine it announced have consistently and
without question been treated as definitive by this Court, in opinions written,
among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v.
Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The
1893 statute has become part of our constitutional fabric and has been
included in substantially the same terms, in virtually all of the major

regulatory enactments of the Federal Government.' Shapiro v. United States,


335 U.S. 1, 6. For a partial list of these statutes, see, Id., 335 U.S. at pages
6-7, note 4. Moreover, the States, with one exception a case decided prior to
Brown v. Walker have, under their own constitutions, enunciated the same
doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed numerous
statutes compelling testimony in exchange for immunity in the form either of
complete amnesty or of prohibition of the use of the compelled testimony. For
a list of such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp.
478-501) and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157).
(Emphasis supplied)
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann treated the immunity not
only against the use of the testimony (as under P.D. 1886) but even against prosecution.
xxx xxx xxx
Petitioner, however, attempts to distinguish Brown v. Walker. He argues that
this case is different fromBrown v. Walker because the impact of the
disabilities imposed by federal and state authorities and the public in general
such as loss of job, expulsion from labor unions, state registration and
investigation statutes, passport eligibility and general public opprobrium-is so
oppressive that the statute does not give him true immunity. This, he alleges,
is significantly different from the impact of testifying on the auditor in Brown v.
Walker, who could the next day resume his job with reputation unaffected.
But, as this Court has often held, the immunity granted need only remove
those sanctions which generate the fear justifying the invocation of the
privilege 'The interdiction of the other Amendment operates only here a
witness may possibly expose him to a criminal charge. But if the criminality
has already been taken away, the amendment ceased to apply.' Hale v.
Henkel 201 U.S. 43, 67. Here, since the Immunity Act protects a witness who
is compelled to answer to the extent of his constitutional immunity, he has of
course, when a particular sanction is sought to be imposed against him, the
right to claim that it is criminal in nature. (Emphasis supplied).
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle established is
that full and complete immunity against prosecution by the government compelling the
witness to answer is equivalent to the protection furnished by the rule against compulsory
self-incrimination.
P.D. 1886, being an immunity statute should not be given a strained or absurd interpretation
in order to achieve a certain result. If the immunity given by the decree is equivalent to the
protection furnished by the right against self- incrimination, then, paraphrasing Justice
Frankfurter in Ullmann, the same protection given by one of the great landmarks in man's
struggle to make himself civilized must not be interpreted in a hostile or niggardly spirit,
xxx xxx xxx

... Too many, even those who should be better advised, view this privilege as
a shelter for wrongdoers. They too readily assume that those who invoke it
are either guilty of crime or commit perjury in claiming the privilege. Such a
view does scant honor to the patriots who sponsored the Bill of Rights as a
condition to acceptance of the Constitution by the ratifying States. The
Founders of the Nation were not naive or disregard ful of the interest of
justice ...
I, therefore, join the majority in dismissing the petition.

DE LA FUENTE, J., concurring:


No person shall be compelled to be a witness against himself." 1 This basic
right against self- incrimination, which supplanted the inquisitorial methods of
interrogating the accused as practiced during the Spanish regime, has become
an indispensable part of our laws since 1900. Pursuant thereto, an accused in a
criminal case has the right not only to refuse to answer incriminating questions
but also to refuse to take the witness stand. He cannot be compelled even to
utter a word in his defense. 2 As stressed in Chavez vs. Court of Appeals, 3 the
rule may otherwise be stated as the constitutional right of the accused to remain
silent. " The accused can forego testimony 4 without any adverse implication
drawn from his decision to do so, The burden is on the State to establish the guilt
of the accused beyond reasonable doubt; the prosecution must look elsewhere
for other "evidence independently and freely secured," The rule forbids what has
been considered as "the certainly inhuman procedure of compelling a person 'to
furnish the missing evidence necessary for his conviction'." According to Justice
Harlan, it was intended "to shield the guilty and imprudent as well as the innocent
and foresighted." 5 Transplanted in this country with the advent of American
sovereignty 6 and firmly imbedded in our fundamental law, 7 the said privilege
against compulsory self-incrimination, which is predicated on grounds of public
policy and humanity, 8 "is fundamental to our scheme of justice" 9 and is one of
the procedural guarantees of our accusatorial system.
1. As I see it, what the prosecution proposed to do in these cases was to present, as
evidence of the alleged accessorial acts of private respondents, the transcripts of their
respective testimonies before the Agrava Board. Confronted by the apparent unwillingness of
said respondents to be called to the witness stand in subsequent criminal proceedings, the
prosecution sought to put into the record of these criminal cases (in lieu of private
respondents' testimonies) the said transcripts and other evidence given by them in the
course of their testimony before the Agrava Board. If allowed over and despite private
respondents' objection, this would be a clear infringement of the constitutional guarantee that
they can invoke in said criminal proceedings, as all of them did. Since the prosecution
cannot require said respondents to testify in the criminal cases before the Sandiganbayan, it
stands to reason that it is equally disabled from indirectly compelling respondents to give
evidence against themselves by using their Agrava Board testimonies. The prosecution must
present evidence "derived from a legitimate source wholly independent of the compelled
testimony." 10

2. It is contended, however, that these self- incriminatory testimonies were given voluntarily
because they did not claim the constitutional guarantee before or while giving testimony to
the Agrava Board. Voluntariness, I think. cannot be inferred simply from such failure to
invoke the privilege. There was no fair warning or notice to the declarant that his testimony
would be used against him if incriminatory, unless the privilege is invoked beforehand or
during his testimony. If they were properly warned and still gave testimony without t invoking
the privilege, then it would be clear that they knowingly waived the privilege. Otherwise, it
meant at the most a willingness on their part to help the Agrava Board in its fact-finding
investigation without waiving (a) the immunity granted by law, and (b) the constitutional
guarantee against self- incrimination in case of subsequent prosecution based on their selfincriminatory testimony. For waiver, it is wellsettled, to be effective. "must be certain,
unequivocal and intelligently, understandably and willingly made. " 11 Mere submission to an
illegal search or seizure "is not consent or waiver of objection. 12 The prosecution has the burden
to prove otherwise. The same standard should be observed in self-incrimination cases.
PD No. 1886 (as amended), which created that "independent ad hoc fact-finding Board,"
vested it with "plenary powers to determine the facts and circumstances surrounding the
killing [of former Senator Aquino] and to allow for a free, unlimited and exhaustive
investigation into all aspects of said tragedy." In consonance with these objectives, the law
declared that the privilege was unavailable to an Agrava Board "witness", as follows: "No
person shall be excused from attending and testifying or from producing other evidence on
the ground that his testimony or any evidence requested of him may tend to incriminate him,
" 13 etc. At the same time, the Board was empowered to summarily hold and punish any person in
direct contempt for "refusal to be sworn or to answer as a witness," its judgment being "final and
unappealable."
Quite plainly, the constitutional right against compulsory self-incrimination could not be
invoked by Agrava Board witnesses, The privilege was suspended or temporarily taken away
for purposes of the investigation, in order that the Board would have access to all relevant
evidence and all sources of information, not excluding compelled incriminatory statements of
probable and possible or potential defendants. An Agrava Board witness was, under the
terms of the quoted provision, placed in a dilemma: (1) to answer truthfully all questions
including those tending to be self-incriminatory, since he cannot invoke the privilege; (2) to lie
and become liable criminally for perjury; and (3) to insist on his right to remain silent and be
summarily punished by the Board for direct contempt. It is plain that such a witness was
under compulsion to give self-incriminatory testimony. It was not voluntary. Precisely
because of its coerced nature (an infringement of his constitutional right against selfincrimination), PD No. 1886 promised. in exchange or as a substitute for the privilege, limited
immunity (as provided in the next succeeding clause, same section), to wit:
... but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning
which he was compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence. 14
Such immunity 15 would bar the prosecution's use against the witness of his said testimony in
subsequent criminal proceedings (wherein he is charged with offenses related to his testimony).
Nevertheless, this would not operate to change the involuntary nature of his self- incriminatory
testimony. As far as the witness is concerned, it was "coerced", not freely given, because he was
not fully accorded the "liberty of choice." The law withheld his basic freedom to choose between

testifying and remaining silent without the risk of being punished for direct contempt to forego
testimony which could possibly be to his detriment.

3. I cannot agree with the proposition that the privilege should be invoked by the witness
before or while giving testimony to the Agrava Board. Section 5 should be reasonably
construed and fairly applied to the cases at bar, in the light of the accused's constitutional
right against compulsory self- incrimination. The formula of limited-immunity in-lieu-of-theprivilege contained in said section rendered unnecessary or superfluous, the invocation of
the privilege before the Board. Under said formula, the witness was deprived of the privilege
to protect himself against inquisitorial interrogation into matters that a targeted defendant or
virtual respondent can keep to himself in ordinary investigations or proceedings.
Even if the provision is susceptible of an interpretation in support of the petitioner's stand, it
appears that the time for invoking the privilege is not clear enough or certain from the
language of the law. Equally plausible and logical is the contrary view that it may be invoked
later on when it became apparent that the prosecution intended to use the testimony given
before the Board to secure conviction of the declarant in the subsequent criminal
proceedings. The privilege cannot be deemed waived by implication merely as a
consequence of failure to claim it before the Board. It bears emphasis that the right of an
accused "witnesses" against compulsory self-incrimination is predicated on the constitutional
guarantee, not on the special law in question.
3. In the United States, the generally accepted approach in Fifth Amendment Cases
(involving the constitutional guarantee under consideration) was stated as follows in Johnson
vs Zerbst:" 16 It has been pointed out that 'courts indulge in every reasonable presumption
against a waiver of the fundamental rights and that we do not presume acquiescence in the loss
of such fundamental rights.'" Because, as Dean Griswold of Harvard Law School (later, Solicitor
General of the United States) eloquently puts it:
[T]he privilege against self-incrimination is one of the great landmark,s in
man's struggles to make himself civilized ... [W]e do not make even the most
hardened criminal sign his own death warrant, or dig his own grave ... We
have through the course of history developed a considerable feeling of the
dignity and intrinsic importance of the individual man. Even the evil man is a
human being. 17
In this jurisdiction, more than four decades ago, the late Justice Jose P. Laurela nationalist,
constitutionalist and eminent jurist, whose incisive and authoritative opinions on
constitutional questions are often cited by the bench and the bar- voted to sustain a claim of
the constitutional guarantee in Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
(1) As between two possible and equally rational constructions, that should
prevail which is more in consonance with the purpose intended to be carried
out by the Constitution. The provision ... should be construed with the utmost
liberality in favor of the right of the individual intended to be secured. ...
(2) I am averse to the enlargement of the rule allegedly calculated to gauge
more fully the credibility of a witness if the witness would thereby be forced to
furnish the means for his own destruction. Unless the evidence is voluntarily

given, the policy of the constitution is one of protection on humanitarian


considerations and grounds of public policy...
(3) The privilege should not be disregarded merely because it often affords a
shelter to the guilty and may prevent the disclosure of wrongdoing. Courts
can not, under the guise of protecting the public interest and furthering the
ends of justice, treat a sacred privilege as if it were mere excrescence in the
Constitution. (Emphasis supplied; at page 493.)
In sum, considering the pertinent legal provisions and judicial pronouncements as well as the
climate prevailing when the private respondents testified before the Agrava Board, I find it
unavoidable to reach the conclusion that they did so under legal, moral and psychological
compulsion. Their compelled testimonies before the Agrava Board cannot thereafter be used
against them in the cases at bar in view of the immunity granted by P.D. No. 1886. They
were not obliged to invoke then and there the constitutional guarantee. If they did, that would
have sufficed to afford them adequate protection. If they did not, they could do so later on
when the Government prosecutors (in spite of the statutory grant of immunity) decided in the
subsequent criminal proceedings, to use against them their Agrava Board testimonies. For,
as earlier stated, there was no intelligent and knowing waiver on their part of their
constitutional right against self-incrimination.
Accordingly, and for other reasons well stated in the main separate concurring opinions, I
vote to dismiss the petitions.

ALAMPAY, J., concurring:


I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the consideration of the Court is
addressed to is the singular question of whether testimonies adduced by the private
respondents before the Ad Hoc Agrava Fact Finding Board and sought to be introduced
against them in the Sandiganbayan wherein they have been accused were rightfully
excluded as evidence against them.
I find untenable the insistence of the petitioner Tanodbayan that the private respondents
should have claimed the right against self-incrimination before the said Fact Finding Board
and that having omitted doing so, the said privilege afforded to them by law can no longer be
invoked by them before the Sandiganbayan.
The right claimed by private respondents rests on the fundamental principle that no person
shall be compelled to be a witness against himself as so stated in our Constitution and from
the fact that Section 5 of P.D. 1886 disallows the use against him of such testimony or any
evidence produced by him before the said Fact Finding Board, except for perjury. Petitioner
argues however, that there was a waiver of this right to self-incrimination when respondents
proceeded to give their testimonies on various dates before the Agrava Fact Finding Board
without formally invoking on said occasions their right against self-incrimination.

As private respondents could not have excused themselves from testifying before said Board
as clearly emphasized in the very first clause of Section 5 of P.D. 1886, and as at that point
of time, there was no reason for the declarant to anticipate or speculate that there would be
any criminal charge or any proceeding instituted against them, it would therefore, be
unnatural and illogical to expect that private respondents would even contemplate the need
of prefacing their declarations with an invocation before the Fact Finding Board of their
privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior to or while
testifying before said Fact Finding Board, would irresistibly create an inference and convey
an impression that said witness is burdened with his own awareness that he stands already
incriminated in some wrong. To insist therefore, even in the absence yet of any proceeding
against him, that the witness invoke the said privilege before the Agrava Fact Finding Board,
would be obviously self-demeaning. Such an effect could not have been intended by Section
5 of P.D. 1886, which was even meant to grant to the witness a benefit rather than a burden.
It is more reasonable therefore, to conclude that the privilege against self-incrimination would
be accorded to said witness after he has invoked the same in a subsequent proceeding
wherein he has been charged of a wrong doing, except in a case for perjury. It is only at such
time when the necessity of invoking the mantle of the privilege or the immunity afforded to
him by law would arise.
It cannot also be rightfully concluded that private respondents had intentionally relinquished
or abandoned the said right which they claimed before the Sandiganbayan. The fact that the
issue of when and before what forum should such claim to the right against self-incrimination
be necessarily presented has provoked much discussion and debate because of divergent
views. This has even prompted the submissions to the Court of opinions of amicus curiae or
friends of the court as to how Section 5 of Presidential Decree 1886 should be construed
and applied which are however different from and contrary to the views expressed by the
Justices of the Sandiganbayan and other legal luminaries. These conflicting views negate
the proposition that there was an effective waiver made by the private respondents of their
rights.
It has earlier been stated by this Court that to be effective, such waiver must be certain and
unequivocal and intelligently, understandably and willingly made. (Chavez vs. Court of
Appeals, et al., 24 SCRA 663). In the same cited case, it has been stated that courts indulge
in every reasonable presumption against waiver of fundamental constitutional rights and that
we do not presume acquiescence in the loss of fundamental rights (Citing Johnson vs.
Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the alleged waiver is
express or implied, it must be intentional. (Davison vs. Klaess 20 N.E. 2d. 744, 748, 280 N.Y.
252; 92 CJS, 1058).
I find it difficult to accept that private respondents had at any time, ever intended to relinquish
or abandon their right against self-incrimination.

PATAJO, J., concurring:

I vote for the dismissal of the petition in these consolidated cases. Said petitions do not merit
being given due course and should be dismissed outright.
I hold the view that the testimonies and evidence given before the Agrava Board are
inadmissible as evidence against those who testified or gave said evidence irrespective of
whether said persons were subpoenaed or invited. I believe it is not a condition sine quo non
to the non-admissibility of said evidence that at the time they testified or gave evidence
before the Agrava Board that they had invoked their privilege against self-incrimination.
The Agrava Board was created as an independent ad hoc fact finding board to determine all
the facts and circumstances surrounding the assassination of former Senator Benigno S.
Aquino, Jr. on August 21, 1983. It was given plenary powers to allow for a free, unlimited and
exhaustive investigation into all the aspects of said tragedy. It was given the power to issue
subpoena or subpoena duces tecum and "other compulsory processes" requiring the
attendance and testimony of witnesses and the production of any evidence relative to any
matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce any documentary
evidence before the Board shall not be excused from testifying or presenting evidence
before said Board on the ground that their testimony or evidence may tend to incriminate
them or subject them to penalty or forfeiture. I believe an invitation from the Board is as
much a compulsory process 1 to appear and testify before the Board as a subpoena and one
receiving said invitation cannot also excuse himself from appearing and testifying before the
Board. Petitioners appear to share this view when they said in subparagraph (c), paragraph 7 of
their petition in G.R. No. L-71208-09.
(c) People were either invited or issued subpoenas, depending upon their
rank and office, to give testimony before the Board and among those invited
were respondents General Fabian C. Ver and Major General Olivas while the
rest of the military respondents were issued subpoenas.
Unquestionably, it was the intention of the decree creating the Board to investigate the
Aquino assassination to encourage all who have some information on any "aspect of said
tragedy" to furnish the Board said information whether they are subpoenaed or issued other
forms of compulsory process such as an invitation and to do so without fear that what they
will say may be used against them. It is in this context that Section 5 of PD No. 1886 should
be viewed. When they testified before the Board, they were given full assurance that
whatever they say before the Board will not be used against them. Only if they testify falsely
that they may be prosecuted for perjury. This is to prevent people from preventing the Board
from finding out the truth about the Aquino assassination by giving false leads or information
for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes which do not
pronounce an entire immunity by forbidding punishment or prosecution for any testimony or
evidence given in connection with the investigation of certain offenses more widely known as
immunity statutes, but merely prohibit in any criminal prosecution the use of the testimony of
the witness. Immunity statutes as well as statutes prohibiting the use of testimony in any
subsequent criminal prosecution have been the expedients resorted for the investigation of

many offenses, chiefly those whose proof or punishment were otherwise impracticable
because of the implication in the offense itself of all who could bear useful testimony.
The expediency and practical utility of this mode of obtaining evidence may
as a measure of legislation, be open to argument. But the tradition of it as a
lawful method of annulling the privilege against self-incrimination is
unquestioned in English history." ignore on Evidence, Vol. III, p. 469.
Speaking of this kind of privilege of non-admission of testimony given by the witness in
subsequent prosecutions as allowed by the common law and modified by subsequent
statutes, State vs. Quarles 13 Ark 307, 311, said:
The privilege in question, in its greatest scope, as allowed by the common
law and no one, be he witness or accused, can pretend to claim it beyond its
scope at the common law never did contemplate that the witness might not
be proved guilty of the very crime about which he may be called to testify; but
only that the witness should not be compelled to produce the evidence to
prove himself guilty of that crime. His privilege, therefore, was not an
exemption from the consequences of a crime that he might have committed;
but only an exemption from the necessity of himself producing the evidence
to establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have voluntarily
said as a witness on a prosecution against another, there were no means by
which the privilege could be made available short of a claim by the witness to
be silent; and as that was the rule of the common law, this was the commonlaw mode of making the privilege available. And that silence was but a mode
of making the privilege available, and was not of the essence of the privilege
itself, is conclusively proven by all that current of enlightened authority, to
which we yield our fullest assent, which holds that the privilege has ceased
when the crime has been pardoned, when the witness has been tried and
acquitted, or is adjudged guilty, or when the prosecution, to which he was
exposed, has been barred by lapse of time ... But the Legislature has so
changed the common-law rule, by the enactment in question in the
substitution of a rule that the testimony required to be given by the act, shall
never be used against the witness for the purpose of procuring his conviction
for the crime or misdemeanor to which it relates, that it is no longer
necessary for him to claim his privilege as to such testimony, in order to
prevent its being afterwards used against him. And the only question that can
possibly arise under the present state of the law, as applicable to the case
now before us, is as to whether our statutory regulations afford sufficient
protection to the witness, responsive to this new rule and to his constitutional
guarantee against compulsory self-accusation ...
Considering the objectives sought to be achieved by PD No. 1886 the provision thereof
making testimony and evidence given before the Board inadmissible in evidence against the
ones giving the same, provides protection beyond that granted by the Constitutional
provision against self- incrimination, otherwise it will be constitutionally suspect. Counselman
vs. Hitchcock, 142 US 547, 35 L Ed 1110.

Of relevance are the observations of the District Court, N.D. Illinois, in United States vs.
Armour & Co., 112 Fed 808, 821, 822:
All of these immunity acts are relied upon by the individual defendants, and,
while expressed in, slightly varying language, they all mean the same thing,
and each of them is a substitute for the privilege contained in that clause of
the fifth amendment to the Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a witness against himself.'
This fifth amendment deals with one of the most cherished rights of the
American citizen, and has been construed by the courts to mean that the
witness shall have the right to remain silent when questioned upon any
subject where the answer would tend to incriminate him. Congress by the
immunity laws in question, and by each of them, has taken away the privilege
contained in the amended it is conceded in argument that this cannot be
done without giving to the citizen by way of immunity something as broad and
valuable as the privilege thus destroyed We are not without authority on this
question. By a previous act, Congress undertook to take away the
constitutional privilege by giving the citizen an equivalent, and the Supreme
Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct.
195, 35 I Ed., 1110, that the substitution so given was not an equivalent.
Then, at various times, the immunity acts in question were passed by
Congress with full knowledge that in furnishing a substitute for this great right
of the citizen, it must give something as broad as the privilege taken away. It
might be broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege given by
the fifth amendment, which the act was intended to substitute. The privilege
of the amendment permits a refusal to answer. The act wipes out the offense
about which the witness might have refused to answer. The privilege permits
a refusal only as to incriminating evidence. The act gives immunity for
evidence of or concerning the matter covered by the incident and the
evidence need not be self-incriminating. The privilege must be personally
claimed by the witness at the time. The immunity flows to the witness by
action of law and without any claim on his part. Brown v. Walker, 161 U.S.
591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26
Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S.
567, 12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden,
160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11.
236, 248, 66 N.E. 349.
I am further of opinion that the immunity given by the act must be as broad as
the liabilities imposed by the act. The act calls upon the citizen to answer any
'lawful requirement' of the Commissioner. 'Require' means to ask of right and
by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37 Fed.
545, 547. Anything is a requirement by a public officer which brings home to
the person called upon that the officer is there officially and desires

compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me.


454, 34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the duty of
the witness to obey.
The contention has been made that in order to get immunity the citizen shall
wait until the compulsion becomes irresistible. That is the effect of the
government contention. I am not able to bring my mind to accept that
doctrine. If I am right in saying that immunity flows from the law l, without any
claim on the part of the defendant and at different times that has been
conceded here in argument then no act of any kind on his part which
amounts to a claim of immunity, which amounts to setting up a claim of
immunity is demanded by the law. The law never puts a premium on
contumacy. A person does not become a favored citizen by resistance to a
lawful requirement. On the contrary, the policy of the law favors the willing
giving of evidence whenever an officer entitled to make a demand makes it
upon a citizen who has no right to refuse. And it would be absurd and unAmerican to favor the citizen who resists and places obstacles in the way of
the government as against the citizen who, with a full knowledge of the law,
obeys without resistance the demand of an officer who has the legal right to
make the demand for something which the citizen has no legal right to
refuse. This, then, is the proposition to which we are led. When an officer,
who has a legal right to make a demand, makes such demand upon a citizen
who has no legal light to refuse, and that citizen answers under such
conditions, he answers under compulsion of the law.
There is no merit then to the contention that private respondents should be invoked the
privilege against self-incrimination before the Agrava Board for precisely PD No. 1886 had
explicitly provided that the testimony of those who testified before the Board can not be used
against them. It will be a meaningless act of supererogation to require that said witnesses
before answering any question addressed to them must invoke their privilege against selfincrimination. The phrase "after having invoked his privilege against self-incrimination" in
Section 5 of PD No. 1886 to be consistent with the intention of said decree, should refer to
the time that the testimony of the witness will be used against him in another proceeding,
such as the cases now pending before the Sandiganbayan. It could not refer to the
proceedings before the Agrava Board because no one is being accused before said Board
and no matter how self-incriminating the testimony of said witness is, he runs no risk of being
prejudiced, much less convicted by the Agrava Board. It is in the prosecution of cases based
on the report of said Board that the witness should invoke his right against self-incrimination.
These private respondents did just that when they moved for the exclusion in evidence of
their statement before the Agrava Board. Any other interpretation would defeat the very
purpose of PD No. 1886.

TEEHANKEE, J., dissenting:

The majority decision is based on erroneous premises, viz. what the case at bar presents a
"novel question;" that "this Court has not been previously called upon to rule on issues
involving immunity statute" and is burdened with the monumental task" of "laying the
criteria ... (to) build future jurisprudence on a heretofore unexplored area of judicial
inquiry." 1 The fact is that we have a wealth of settled jurisprudence and precedents, Philippine
and foreign, that control the determination of the simple issue at bar and call for the setting aside
of the exclusion order issued by respondent court (Sandiganbayan) which wrongly rules as totally
and absolutely inadmissible the testimonies given by private respondents General Ver and Olivas
and their six co- respondents (all charged as accessories) as well as all the documents, records
and other evidence produced by them before the Fact-Finding Board, notwithstanding that all
were represented by counsel 2 and none of them invoked the privilege or right against selfincrimination or made any claim or objection at the time of his testimony before the Board that
any question propounded to him and which he willingly answered called for an incriminating
answer against himself.
The following vital considerations based on settled jurisprudence and precedents show that
respondent court acted with gross error and misconception of the applicable principles of the
right against self-incrimination:
1. Respondent court grossly disregarded the settled guidelines laid down for trial courts by
this Court of Appeal vs. Paylo 3 thru Mr. Justice J.B.L. Reyes, speaking for a unanimous Court,
Chat
By so doing [ordering the exclusion of the proferred confessions of the two
accused upon a ground not raised by counsel but motu proprio by the trial
court, i.e. lack of independent proof of conspiracy] the [trial] court overlooked
that the right to objection is a mere privilege which the parties may waive;
and if the ground for objection is known and not seasonably made, the
objection is deemed waived and the [trial] court has no power, on its own
motion, to disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ... Suffice it
to say that the lower court should have allowed such confessions to be given
in evidence at least as against the parties who made them, and admit the
same conditionally to establish conspiracy, in order to give the prosecution a
chance to get into the record all the relevant evidence at its disposal to probe
the charges. At any rate, in the final determination and consideration of the
case, the trial court should be able to distinguish the admissible from the
inadmissible, and reject what, under the rules of evidence, should be
excluded.
Trial courts should be liberal in the matter of admission of proof and avoid the premature and
precipitate exclusion of evidence on doubtful objections to its admissibility, citing the Court's
long-standing basic ruling and policy inPrats & Co. vs. Phoenix Ins. Co. 4 that reception and
admission of evidence objected to on doubtful or technical grounds is ultimately the less harmful
course to either litigant, since the Supreme Court upon appeal would then have all the materials
before it necessary to make a correct judgment (instead of returning the case for a new trial which
only prolongs the determination of the case); and
There is greater reason to adhere to such policy in criminal cases where
questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the

accused or the dismissal of the charges, from which the People can no
longer appeal 5
2. The right against self-incrimination is found in the first sentence of section 20 of the Bill of
Rights of the 1973 Constitution stating that "No person shall be compelled to be a witness
against himself." This single sentence constituted the whole text of section 18 of the Bill of
Rights of the 19,7,5 Constitution. This right against self-incrimination has a settled meaning
in jurisprudence which is fully applicable here since the right against self-incrimination was
first enforced here as an inviolable rule" in U.S. President McKinley's instructions under date
of April 7, 1900 to the Taft Commission. 6 As recounted by the late Mr. Justice Conrado
Sanchez as ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court of
Appeals 7, "Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized
in England in the early days 'in a revolt against the thumbscrew and the rack.' An old Philippine
case [1904] speaks of this constitutional injunction as 'older than the Government of the United
States;' as having 'its origin in a protest against the inquisitorial methods of interrogating the
accused person;' and as having been adopted in the Philippines 'to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial
examinations, and to give testimony regarding the offenses will which they were charged.' " But
Mr. Justice Sanchez equally stressed that "(an) accused occupies a different tier of protection
from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring an incriminating answer is shot at
him, 8 an accused may altogether refuse to take the witness stand and refuse to answer any and
all questions." 9
As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs. Tengco, 10 "No
legal impediment exists against a litigant calling any of the adverse parties to be his witness. ...
True, an accused in a criminal case may not be compelled to testify, or to so much as utter a
word, even for his own defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs.
Binayoh 35 Phil. 23; Sec. l(c), Rule 111, Rules of Court). But while the constitutional guaranty
against self-incrimination protects a person in all types of cases, be they criminal, civil, or
administrative (Art. 111, Sec. 1, No. 18, Phil. constitution: Bermudez vs. Castillo, 64 Phil, 483),
said privilege in, proceedings other than a criminal case against him who invokes it, is considered
an option of refusal to answer incriminating question, and not a prohibition of inquiry.
Except in criminal cases, there is no rule prohibiting a party litigant from
utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123,
Rules of Court expressly authorizes a party to call an adverse party to the
witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself.
But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a
question calling for a incriminating answer is propounded. This has to be so,
because before a question is asked there would be no way of telling whether
the information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to be
sworn as a witness' and 'no claim of privilege can be made until a question
calling for a incriminating answer is asked, at that time, and, generally
speaking, at that time only, the claim of privilege may properly be interposed.'
(Gonzales vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro,
Criminal Procedure, p. 302.)'

Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12 wherein once again
the Court, with the concurrence in the result of the now Chief Justice, under similar facts held that
the petitioner (provincial treasurer) could not refuse to take the stand as an adverse party in a civil
case since the privilege against self-incrimination "in proceedings other than a criminal case
against him who invokes it, is considered an option to refuse to answer incriminating questions,
and not a prohibition of inquiry" and "must be invoked when a question calling for an incriminating
answer is propounded, because before a question is asked, there would be no way of telling
whether the information to be elicited from the witness is self-incriminating or not." The Court
therein denied "the petition to prohibit respondent judge from directing petitioner to take the
witness stand and testify ... without prejudice to petitioner's properly invoking the guaranty against
self-incrimination when questions are propounded to him on the stand. Costs against the
petitioner."
3. All the respondents at bar were in this category of ordinary witnesses in the hearings of
the Fact-Finding Board. They were not accused in any criminal case nor were they persons
under custodial interrogation who under the second part of section 20 of the Bill of Rights
(consisting of three additional sentences 13) were given additional rights to silence and counsel
and to be informed of such rights and to the out-lawing of any confession obtained in violation of
the rights guaranteed in the cited section, by virtue of the incorporation into the Bill of Rights of
the rights granted in the rulings of the U.S. Supreme Court in the Miranda-Escobedo cases. As
noted by former Chief Justice Enrique M. Fernando, "(I)t amounts to an acceptance of the
applicability in this jurisdiction of the epochal American Supreme Court decision inMiranda vs.
Arizona, the opinion being rendered by Chief Justice Warren. It is thus now a part of our
fundamental law. Such doctrine was promulgated in response to the question of the admissibility
of statements obtained from an individual interrogated under police custody, considering that
such a time and under the stress of such conditions, his right against self-incrimination could be
rendered futile." 14 The Miranda pronouncements thus became necessarily a part and parcel of
the additional rights granted in the cited section 20, as made by the late U.S. Chief Justice
Warren in the Miranda case thus: "The prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination. By
custodial interrogation we mean questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant way.
" 15 These additional Miranda rights could not be invoked by respondents, as the members of the
Fact-Finding Board were not law enforcement officers nor were respondents under custodial
interrogation.
As ordinary witnesses before the Fact-Finding Board and under the settled jurisprudence
above-cited, they could not invoke the right to silence and refuse to take the witness stand.
Their right and privilege (which is not self-executory or automatic ipso jure) was, while
testifying, whether voluntarily or by subpoena, to invoke the privilege and refuse to answer
as and when a question calling for an incriminating answer is propounded. Failure to invoke
the privilege which is personal does automatically result in its loss ipso facto. The law, usage
and settled jurisprudence uniformly require that the privilege must be asserted or else is lost.
The court or board upon its invocation still has to pass upon and rule upon the proper
application of the privilege. As restated by Francisco, the rule and exceptions are: "Certainly,
where the witness, on oath declares his belief that the answer to the question would
criminate or tend to criminate him, the court cannot compel him to answer, unless it is clear
perfectly, from a careful consideration of all the circumstances of the case, that the witness is
mistaken, or is acting in bad faith, and that the answer cannot possibly have any such
tendency. " 16

4. The view that withal, it is best, although not required, that a warning to the witness of his
option to refuse an answer to incriminating questions as advanced even by the Tanodbayan
at the hearing dates back to a century ago and has been long discarded as "witnesses are
usually well enough advised beforehand by counsel as to their rights when such issues
impend" and "as general knowledge spread among the masses and the preparation for
testimony became more thorough." Thus, "ignore, the bible on the law of evidence so
remarks and adds that "there is no reason for letting a wholesome custom degenerate into a
technical rule."
It is plausible to argue that the witness should be warned and notified, when
a incriminating fact is inquired about, that he has an option to refuse an
answer; and this view was often insisted upon, a century ago, by leaders at
the Bar,
xxx xxx xxx
But there are opposing considerations. In the first place, such a warning
would be an anomaly; it is not given for any other privilege; witnesses are in
other respects supposed to know their rights; and why not here? In the next
place, it is not called for by principle, since, until the witness refuses, it can
hardly be said that he is compelled to answer; nor is it material that he
believes himself compelled; for the Court's action, and not the witness' state
of mind, must be the test of compulsion. Again, the question can at any rate
only be one of judicial propriety of conduct, for no one supposes that an
answer given under such an erroneous belief should be struck out for lack of
the warning. Finally, in practical convenience, there is no demand for such
rule; witnesses are usually well enough advised beforehand by counsel as to
their rights when such issues impend, and judges are too much concerned
with other responsibilities to be burdened with the provision of individual
witnesses' knowledge; the risk of their being in ignorance should fall rather
upon the party summoning than the party opposing.
Nevertheless, it is plain that the old practice was to give such a warning,
when it appeared to be needed. But, as general knowledge spread among
the masses, and the preparation for testimony became more thorough, this
practice seems to have disappeared in England, so far at least as any
general rule was concerned.
In the United States, both the rule and the trial custom vary in the different
jurisdictions. No doubt a capable and painstaking judge will give the warning,
where need appears, but there is no reason for letting a wholesome custom
degenerate into a technical rule. 17
But from the environmental facts and circumstances of the Fact-Finding Board hearings, to
require such a warning to the witness of his option of refusal to answer incriminatory
questions would have been an exercise in absurdity and futility, As is a matter of public
knowledge, respondents had concluded in their investigation that Galman was the assassin
of the late Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus
curiae at the hearing on the merits of August 15, 1985, they were all too eager to testify and

make a strong effort to gain support from the Fact-Finding Board and the public for the
military version and report that the assassin was Galman who was forthwith gunned down by
the military escorts and guards at the tarmac. It would have been ridiculous, if not bordering
on officiousness and impropriety, to warn them as the highest ranking military officers of their
option of refusal to answer incriminatory questions and also as the majority holds, 18 of their
right to remain silent. When respondents generals appeared before the Board, respondent Ver
precisely made the opening statement that
GENERAL VER:
I welcome this opportunity, Madame Justice, members of this
Honorable Board, Dean, Gentlemen this opportunity to
assist ... this Honorable Board in the quest for truth and
justice, We all deplore this tragic incident which is now the
subject of inquiry, This Board, this Honorable Board is
mandated to conduct a free, full and exhaustive investigation
into the matter under investigation We all hope that my
testimony, madame, will somehow dispel any misconception,
or any misinformation surrounding this tragic incident. I am
now ready to answer your questions.
JUSTICE AGRAVA:
Now, General, at the outset, we give the right and the
privilege for every witness to be assisted by counsel Do you
have your counsel with you this morning?
GENERAL VER:
I did not bring any counsel, madame, but ... if I need a
counsel, madame, I could probably look for... probably ...
JUSTICE AGRAVA:
Yes?
GENERAL VER:
I may call Fiscal Parena or the Public Coordinator. I was
talking to Atty. Tan to assist me, in the protection of my
constitutional rights ...
JUSTICE AGRAVA:
Yes.
GENERAL VER:

... if it is necessary:
ATTY. TAN:
Your Honor, please, it is part of the function of this office to
help the witness if he doesn't have counsel, and so, if the
General is willing to have me, I will happily serve as counsel,
Your Honor.
JUSTICE AGRAVA:
All right.
GENERAL VER:
Thank you. 19
Respondent Olivas likewise testified before the Board in response to its invitation to assist it
in determining the true facts and circumstances surrounding the double killing.
6. The majority decision would go around this by asserting without basis in the record that
"(A)ll the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while embarking from the plane that brought him home
to Manila on that fateful day. Being at the scene of the crime as such, they were among the
first line of suspects in the subject assassination. General Ver on the other hand, being the
highest military authority of his co-petitioners labored under the same suspicion and so with
General Olivas, the first designated investigator of the tragedy, but whom others suspected,
felt and believed to have bungled the case. The papers, especially the foreign media, and
rumors from ugly wagging tongues, all point to them as having, in one way or another
participated or have something to do, in the alleged conspiracy that brought about the
assassination. Could there still be any doubt then that their being asked to testify, was to
determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy?" In fact, the respondent court's decision and separate opinions as well
as the majority decision at bar and the separate concurring opinions all fail to specify the
particular portions of the testimonies of respondents or any specific question and answer that
can be in any way deemed to be self-incriminating. Indeed, even if we assumed arguendo
that they were warned of their right against self-incrimination and tried absurdly to invoke the
same, there is no specific question and answer by way of testimony that could be pointed to
them as having been made under compulsion for the simple reason that their testimony was
in full support of their own military report that Galman was Aquino's killer and for which they
were trying to gain the Board's acceptance. In the all too brief and inadequate deliberations
held on August 20 and 21, 1985 after the hearing on the merits of August 15, 1985, without
reaching a definite conclusion, the ponente reported and I share this view from a cursory
examination, for want of material time, of the excluded testimonies only since the excluded
documents, records and other evidence produced by them were not before the Court that
there is nothing in the excluded testimonies that could in any way be deemed selfincriminatory perse. So there would be no legal basis whatever for their exclusion. But the
ponente circulated only last August 26th at noon his draft for dismissal of the petitions which
were filed only last month. And its release has been set for August 30th.

7. There has not been enough time to weigh and ponder on the far-reaching consequences
of the decision at bar. The decision orders the total and unqualified exclusion of the
testimonies and evidence produced before the Fact-Finding Board by the eight respondents
charged as accessories "even though (they) failed to claim (their) privilege before giving the
incriminating testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of American
State and Federal Law expressly cautions that "The question whether a witness must claim
exemption . on from self-incrimination to be entitled to immunity from subsequent
prosecution must in each case be determined in the light of constitutional and statutory
provisions in the jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on
the same cited page that "Under a statute granting immunity to persons who have been
compelled to testify, one who has appeared voluntarily and testified without claiming his
privilege against self-incrimination or one who has appeared and testified pursuant to a void
subpoena or one addressed to another person, without claiming the privilege, cannot say he
has been compelled to testify, and therefore, he is not entitled to immunity." And the
necessity of claiming the privilege against self-incrimination before an administrative officer
or board such as the Fact Finding Board is recognized to be essential, thus:
This is not only equally true as for the case of testimony in a judicial trial, but
the explicitness is here even more essential, and particularly where the
administrative officer makes a general demand for documents or testimony
upon a broad class of topics. The reason is clear. The officer has testimonial
powers to extract a general mass of facts, or which some, many, or most will
certainly be innocent and unprivileged, some may be privileged
communications (e.g., between attorney and client) whose privilege remains
unaffected by the statute defining his powers, and some may be privileged as
self-incriminating but liable to become demandable by overriding this
privilege with a grant of immunity. Among these mass of facts, then, the
officer will seek those which are relevant to his administrative inquiry; he
cannot know which of them fall within one or another privilege in particular,
which of them tend to criminate at all, or to criminate a particular person; if
such facts are there, he may not desire or be authorized to exercised the
option of granting immunity so as to obtain them; his primary function and
power is to obtain the relevant facts at large, and his power to obtain a
special and limited class of facts by grant of immunity is only a secondary
one, and one which he will not exercise till a cause arises, if even then.
For these reasons of practical sense, then, as well as for the inherent
requirements of principle already noticed for judicial officers, it is particularly
true for an inquiry by an administrative officer that the witness must explicitly
claim his privilege, and specifically the privilege against self- incrimination,
and must then be overridden in that claim, before immunity can take effect.
(VII Wigmore on Evidence, 2282, pp. 517-518)
The concurrence of Justice Vera Cruz sounds even more ominous thus:
I believe that where evidence is produced by a witness in accordance with
the conditions of the statute granting immunity such as P.D. No. 1886, as
amended, its immunity provisions attach instantly and it is entirely immaterial

what use the investigation authority makes of it (People ex rel. Massarsky v.


Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244).
Consequently, the evidence, given before the Agrava Board by the accused
in the instant cases namely, Generals Fabian Ver and Prospero Olivas, and
Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio,
Prospero Bona and Aniceto Acupido cannot be used against them and this
proscription did attach instantly when they testified before the same Board.
Verily, the prohibition stands, irrespective of the purpose for which the
prosecution would like to use this evidence.
The total and unqualified exclusion of the testimony and evidence granted by respondent
court and sustained by the majority decision herein refers expressly to the eight respondents
charged as accessories. Would not this unprecedented grant of immunity and exclusion of
testimony be now claimed by the rest of the twenty-two accused charged as principals
except for the lone civilian? As reported by the press, respondent court has suspended its
trial and placed the pressure on the Court to rush its decision, as "(T)he so-called 'trial of the
century' has been delayed since last week on motion of the defense panel which had argued
that the high court's decision on the admissibility of Ver's testimonies was a vital prerequisite
to the presentation of witnesses for the defense. " 20Would this not result in the People holding
an empty bag of excluded testimonies and evidence, since to all intents and purposes all
respondents-accused testified before the Fact-Finding Board? Would their testimonies be
inadmissible for purposes even of impeaching such testimony as they may now give before
respondent court? These ponderous questions need not confront us had we but required
respondent court to hew to the settled procedure and doctrine of Yatco (supra, par. I hereof) of
giving the prosecution a chance to get into the record its relevant evidence until the final
determination and consideration of the case, for the unjustified exclusion of evidence of the
prosecution may lead to the erroneous acquittal of the accused or dismissal of the charges, from
which the People can no longer appeal.
8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886 cited in respondent court's
questioned order and bolstered by the majority decision's "novel" conclusion and ruling that
the cited section quoted therein 21requires a claim from the witness of the privilege against selfincrimination but "forecloses under threat of contempt proceedings [under section 4] against
anyone who makes such a claim. But the strong testimonial compulsion imposed by section 5 of
P.D. 1886 viewed in the light, of the actions provided in section 4, infringes upon the witness' right
against self- incrimination. As a rule, such infringement of the constitutional right renders
inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer
UNLESS a co-extensive protection in the form of IMMUNITY is offered. Hence, under the
oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he
can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the
compulsion has already produced its desired results the private respondents had all testified
without offer of immunity. Their constitutional rights are, therefore, in jeopardy. The only way to
cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in
fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal
to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are
deemed immunized under Section 5 of the same law. The applicability of the immunity granted by
P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which
the same law practically strips away from the witness. " Emphasis supplied).

It bears emphasis that none of respondents made any such claim against self-incrimination.
The "oppressive compulsion" if it may be so-called, consists of a maximum penalty of P200.
fine and/or 30 days imprisonment for direct contempt. As indicated, it would be ridiculous for
any respondent to 1 make such claim when his testimony was but in full support of their own
military theory and report that Galman killed Aquino.
The language of the cited section 22 is plain and simple. It excuses no one from testifying and
producing books and records but grants him immunity from prosecution (except for perjury) after
having invoked his privilege against self-incrimination " There is nothing oppressive about such
compulsion in exchange for immunity provided the witness invokes his and aims his privilege a
against self-incrimination.
In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to dismiss outright the
petitions. opined that The clause 'concerning which lie is compelled to testify after having
invoked his privilege against self-incrimination' is surplusage. It is in conflict with the first
clause which, as already stated, gives immunity to the witness except in case of perjury. So,
section 5 should be read as if that clause were not there.This is contrary to the rules of
statutory construction that there is no room for construction when tile text is plain and simple,
i.e. requires invocation and that the provisions must be taken in context and all the words
taken into account and given their full meaning. The Anti-Gambling Law, Act No. 1757,
enacted on October 9, 1907 by the Philippine Commission (probably the first Philippine
immunity statute) granted such absolute immunity and does not contain the conditional
clause requiring that the witness invoke his privilege against self-incrimination. Section 10 of
the cited Act reads:
Sec. 10. Upon any investigation or proceeding for violation of this Act no
person shall be excused from giving testimony upon the ground that such
testimony would tend to convict him of a crime, but such testimony cannot be
received against him upon any criminal investigation or proceeding;
Provided, however, That no person so testifying shall be exempt from
prosecution or punishment for perjury committed in the course of any
proceeding or investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190)
But when the statute grants conditional immunity (and not absolute as in the above-quoted
section 10 of the Anti-Gambling Act.), then it explicitly contains the cited conditional clause in
section 5 of P.D. 1886 granting immunity only when "he is compelled to testify after having
invoked his privilege against self-incrimination. "
This is but in accord with long-settled Philippine jurisprudence cited above (supra. paragraph
2 hereof), that the witness has an option of refusal to answer incriminatory questions, which
he loses ipso facto if he does not invoke the privilege and nevertheless answers the
questions. Here, in review of the national and international importance of the case with the
country's very prestige at stake, the P.D. added the incentive of offering immunity: "The
purpose of immunity provisions is to aid prosecuting officers by inducing criminals or their
confederates to turn state's evidence and tell on each other, to enable prosecuting officers to
procure evidence which would otherwise be denied to them because of the constitutional
right against self-incrimination, and at the same time to protect every person from gluing
testimony which directly or indirectly would be helpful to the prosecution in securing an
indictment or a conviction. The provisions for immunity are or should be as broad as or co-

extensive with the constitutional provisions granting the privilege against self-incrimination."
(21 Am. Jur. 2d. Criminal Law, sec. 148). It is bad enough that no state's evidence turned up
to tell on his confederates in exchange of immunity. But to call the cited section " a booby
trap for the unsuspecting or unwary witness" unless it was construed as granting absolute
and unconditional immunity from the very fact of merely testifying as a witness before the
Board without claiming immunity nor giving any incriminatory information that would aid the
state to determine the true facts about Aquino's assassination would be a sell-out. It would
make a shambles of the letter and spirit as well as the salutary intent and objective of the
Decree to ferret out the truth and obtain state witnesses.
9. The truncated and distorted reading of the cited section 5 which consists of a single
integrated paragraph and splitting it into two isolated parts so as to allow the privilege
against self-incrimination (which was already lost for failure to claim it in the Board hearings)
to be resurrected and raised in a much later time frame and "subsequent criminal
proceeding" is against all usage and rules of statutory construction, not to mention the long
line of above-cited jurisprudence to the contrary. And if there still be doubt, we need only
reproduce hereunder the similar wording of Senate Joint Resolution 137 (Public Law 88-202)
after which section 5 of P.D. 1886 was patterned. Said law was enacted by the U.S.
Congress in December 1963 to empower the Warren Commission to issue subpoenas
requiring the testimony of witness and the production of evidence relating to any matter
under its investigation. The Report of the President's Commission on the Assassination of
President John F. Kennedy in its foreword on page X stated that "In addition, the resolution
authorized the Commission to compel testimony from witnesses claiming the privilege
against self-incrimination under the fifth amendment to the U.S. Constitution by providing for
the grant of immunity to persons testifying under such compulsion." (Emphasis supplied).
The cited Public Law reads:
(e) No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena, on the ground that the testimony or evidence
required of him may tend to incriminate him or subject him to a penalty or
forfeiture but no individual shall be prosecuted or subjected to any penalty or
forfeiture (except demotion or removal from office) for or on account of any
transaction matter, or thing concerning which he is compelled, after having
claimed his privilege against self-incrimination to testify or produce evidence,
except that such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying. (Emphasis supplied).
10. As already indicated above, none of the respondents, public and private, has indicated
the specific portions of their testimony that they have been "oppressively compelled" to glue,
in alleged violation of their privilege against self-incrimination. The reason for this is that they
all testified voluntarily and eagerly to support the military report and version that Galman
killed Senator Aquino. The Board unanimously rejected the military report and found that the
killings were the product of criminal conspiracy. A brief flashback is herein appropriate: Within
60 seconds from his being led away by soldiers from his plane that had just landed at the
Manila International Airport on Sunday, August 21, 1983 at past one p.m., former Senator
Benigno S. Aquino, Jr. who was coming home after three years of self-exile in the U.S. laid
dead face down on the tarmac, with his brain smashed by a bullet fired point blank into the
back of his head by a murderous assassin. 23 Also lying dead on the tarmac, face up, near the
senator was another man, to be Identified much later as Rolando Galman, whom the soldiers

admittedly gunned down. The military pointed to him as Aquino's assassin, who had somehow
allegedly penetrated the air-tight security of close to 2000 men ringing the airport. The military
version met with great public disbelief and skepticism. The first fact-finding commission created
under Administrative Order No. 469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983
was the object of several suits charging bias and that the President "had already prejudged the
case, by rejecting the version of foreign media that it is one of the soldiers, supposed to guard
Aquino, who fatally shot him." 24 The said commission was dissolved per P.D. 1886, dated
October 14, 1983 (later amended by P.D. 1903 dated February 8, 1984) which created the ad hoc
Fact-Finding Board with plenary powers to investigate "the treacherous and vicious assassination
(which) has to all Filipinos become a national tragedy and national shame ... (and) to determine
the facts and circumstances surrounding the killing and to allow for a free, unlimited and
exhaustive investigation into all the aspects of said tragedy." The Board after extensive hearings,
submitted to the President their majority report on October 24, 1984, while the chairman former
Court of Appeals Justice Corazon Agrava submitted her minority report one day earlier on
October 23, 1984. All five members of the Board unanimously rejected the official military version
that Galman was the assassin and instead found that there was criminal conspiracy. Their main
difference of opinion is that the four-member majority found twenty-five military men (headed by
respondents Generals Ver, Olivas and Luther Custodia) and one civilian "indictable for the
premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August
21, 1983." The chairman's report confined the conspiracy to seven men headed by General
Custodia. The Tanodbayan, after conducting the preliminary investigation, adopted the Board's
majority report recommending the indictment of the accused as "involved in this conspiracy, either
as principals, upon the theory that the act of one is the act of all, or as accessories, for attempting
to hide the corpus of the offense." The eight accessories so indicted are the private respondents
herein named headed by respondents Ver and Olivas. (The chairman in her minority report had
found that "(T)he indications are that the plotters had agreed that only one would be the assassin;
that the others can either point to Galman as the killer; or they can state that they did not see the
shooting; and that they will give false testimony to mislead and confuse.

11. Only the former lawyers of the Fact-Finding Board created under P.D. No. 1886,
consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan, Jr., Mario E. Ongkiko and
Francisco A. Villa have given us the answer that there is nothing incriminatory per se in the
testimonies of the respondents, in the Memorandum submitted by them, to wit:
I. The so-called 'Galman Theory that it was Rolando Galman who killed
Senator Aquino is either true or untrue, a matter the SANDIGANBAYAN will
have to resolve.
II. If the 'Galman Theory' be true as advocated by the military officers
concerned then the testimony of Ver, et al. is true. It is not self-incriminatory.
There would then be no reason to exclude it.
If, on the other hand, the theory be untrue as the prosecution in turn
advocates then the testimony of Ver, et al. is untrue. It is incriminatory of
them, because by giving it and thereby seeking to hide the crime, they
incriminated themselves. Withal there would also be no reason to exclude it.
Surely, after their plot to deceive the Board had been exposed, they should
not now be allowed to use the law to bring about exclusion of the very proof
of their deception.

In short, the testimonies of respondents could only be deemed incriminating if it be found


that they sought thereby to hide or cover up the crime and thus incriminate themselves, as
accessories to the murder of Senator Aquino. The former Fact-Finding Board lawyers amplify
their theory, as follows:
5. The plain language of Section 5, PD 1886 precludes its interpretation as extending
immunity to all testimony or evidence produced before the Board in obedience to subpoena
regardless of whether the witness giving such evidence invokes the privilege against selfincrimination or not.
6. The fact is, the invocation by Ver, et al. of such right would have been self-defeating first, it
would have prevented them from presenting evidence in substantiation of the 'Galman
Theory,' which they wished the Board to accept; and second, it might have exposed to some
extent their real objective, which was to deceive the Board.
7. It would have been incongruous for Ver, et al. to have claimed that their testimony would
incriminate them as accessories to the murder of Aquino when they were, by testifying,
actually in process of committing that precise crime, becoming accessories.
8. Neither PD 1886 nor the Constitution should be used as a shield for crime, fraud or
trickery.
9. The foregoing propositions were ignored by the SANDIGANBAYAN. Instead, with all due
respect, it has
a. given Section 5, PD 1886 a strained construction not justified by and
contrary to its plain language;
b. given Section 20, Article IV, Constitution, a meaning at odds with its plain
terms and contrary to relevant decisions of this Honorable Supreme Court;
and
c. sanctioned the use of legal provisions to shield persons from criminal
liability arising from their perfidious testimony before the Fact-Finding Board.
There is no legal ground nor justification for the exclusion order. It is for respondent court,
upon consideration of the evidence for the People, without any exclusion, and of the
evidence for the defense in due course, to render its verdict of guilty or not guilty.
With a word of commendation for the former Fact-Finding Board lawyers and former Senator
Ambrosio Padilla and Atty. Ramon Gonzales, whose memoranda as amid curiae, have been
of great assistance, I vote, accordingly, to grant the petitions at bar and to set aside the
questioned exclusion order.

MELENCIO-HERRERA, J., dissenting:

I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The resolution of the issue revolves around the interpretation to be given to Sec. 5 of PD No.
1886, reading as follows:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the grounds that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter, or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce evidence,
except that such an individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall
he be exempt from demotion or removal from office. (Emphasis supplied)
As I read the law, Section 5 does not require that the person testifying before the Agrava
Fact Finding Board (the Board, for short) shall first invoke the privilege against selfincrimination. Under said statute it is obvious that he has no such privilege.
But what is the effect of the second part providing that his testimony or any evidence
produced by him shall not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has testified before the Board
absolute or total immunity. It should not operate as a shield against criminal liability specially
since, under Section 12 of the same Decree, the Board may initiate the filing of the proper
complaint if its finding so warrant. Thus,
SEC. 12. The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person the Board may initiate the filing of the
proper complaint with the appropriate government agency. ... (Emphasis
supplied)
The inquiry before the Board was a general one. It was not directed against any particular
individual or individuals. Private respondents did not testify therein as suspects or as
accused persons. There should therefore be no hindrance to a criminal prosecution.
It has been held that where an inquiry by a grand jury is a general one and is
not directed against a particular individual the fact that on the basis of the
information elicited, grounds for a criminal prosecution may evolve against a
witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J.,
154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he
testified before the grand jury without being warned of his constitutional
privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis
supplied)

The right against self incrimination is not a prohibition of inquiry but an option of refusal to
answer incriminating questions Cabal vs. Kapunan, 6 SCRA 1059 [1962]). The kernel of the
privilege is testimonial compulsion. Whether or not any specific portion of the testimonies of
private respondents is incriminating should be determined by the Sandiganbayan itself. The
claim against self-incrimination should be invoked when a specific question, which is
incriminating in character, is put to a witness in the subsequent proceeding. There should be
no automatic "immunity bath" of the entire testimony before the Board for immunity does not
extend to such of the evidence as is not privileged.
... But it is established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when a
question calling for an incriminating answer is propounded. This has to be so,
because before a question is asked there would be no way of telling whether
the information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can be decline to be
sworn as a witness' and 'no claim or privilege can be made until a question
calling for a incriminating answer is asked; at that time, and generally
speaking, at that time only, the claim of privilege may be interposed.
(Gonzales vs. Sec. of Labor, et al., 94 Phil. 325, 326 [19541).
Moreover, the issue actually addresses itself to a question of admissibility or competency of
evidence and not to its credibility. Whether the evidence so admitted is to be given any
probative weight or credence is best addressed to the Sandiganbayan. It should be recalled
that the Board was not unanimous in its assessment of the testimonies given.
There are additional considerations. While the right against self-incrimination is indubitably
one of the most fundamental of human rights, Section 5 of PD No. 1886 should be construed
so as to effect a practical and beneficent purpose and not in such a manner as to hinder or
obstruct the administration of criminal justice.
... Any statute which, while it compels him to testify, protects the witness if he
does disclose the circumstances of his offense and the sources from which or
the means by which evidence of its commission or of his connection with it
may be obtained or made effectual for his subsequent prosecution and
conviction is sufficient to comply with the constitutional requirements. Such a
statute, however should be construed to effect a practical and beneficent
purpose, namely, at the same time to secure the witness in his constitutional
rights and to permit the prosecuting officer to secure evidence of a crime. It
should not be construed so as to unduly impede, hinder, or obstruct the
administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup. Ct.
644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132 App.
Div. 406)
The objective in all this exercise is to arrive at the truth. "Though the constitutional provisions
for the protection of one who appears ... must be liberally and fairly applied, the interests of
the people are also entitled to consideration" (Wharton's Criminal Evidence, 11th Ed., Vol. 1,
p. 609; People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so since, in the language
of PD No. 1886 itself, the "treacherous and vicious assassination of former Senator Benigno

S. Aquino, Jr. on August 21, 1983, has to all Filipinos become a national tragedy and national
shame. "
In the interest of eliciting the truth, the excluded testimonies should be admitted, leaving it to
the Sandiganbayan to determine which specific questions and answers are to be excluded
because they are incriminatory, and which should be given credibility, in found to be
competent and admissible.

RELOVA, J., dissenting:


The issue raised in these two petitions is whether the testimonies and other evidence
produced by the private respondents before the Agrava Board may be used as evidence
against them before the Sandiganbayan
Respondent Sandiganbayan rejected their testimonies on the ground that "under statutes
providing in substance that no person shall be excused from testifying or furnishing evidence
on the ground that the testimony or evidence may tend to incriminate him, but that no person
shall be subject to indictment or prosecution for anything concerning which he may testify or
furnish evidence, it has been held that one who testifies concerning criminal offenses when
required to do so is entitled to immunity from prosecution even though he fails to claim his
privilege before giving the incriminating testimony (21 Am Jur 2d 218). He could not be
required, in order to gain the immunity which the law afforded, to go though the formality of
an objection or protest which, however made, would be useless (VIII Wigmore 516)." (p. 4,
Resolution of Sandiganbayan)
Section 5 of Presidential Decree No. 1886 provides that:
SEC. 5. No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other evidence in
obedience to a subpoena issued by the Board on the ground that his
testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in connection with any
transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self- incrimination to testify or produce
evidence ... (Emphasis supplied.)
Pursuant to the above Presidential Decree no one can refuse to testify or furnish evidence
before the Fact Finding Board. However, his testimony or any evidence produced shall not
be used against him after he invoked the privilege against self-incrimination. Stated
differently, the privilege against self-incrimination must be invoked when the question at the
hearing before the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the information to
be elicited from him is incriminating or not.
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court held that "the
privilege against self-incrimination must be invoked at the proper time, and the proper time to

invoke it is when question calling for a incriminating answer is propounded. This has to be
so, because before a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not. As stated in Jones on
Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify 'cannot
decline to appear, nor can he decline to be sworn as a witness' and 'no claim of privilege can
be made until a question calling for a incriminating answer is asked; at that time, and
generally speaking, at that time only, the claim of privilege may properly be interposed.'" And,
since it is a personal right to be exercised only by the witness, this privilege against selfincrimination may be waived by him and, when so waived, cannot thereafter be asserted.
The privilege is waived by his voluntary offer to testify by, answering questions without
objecting and/or claiming the privilege.
When private respondents gave testimonies before the Board they were not defendants but
witnesses invited and/or subpoenaed "to ventilate the truth thorougly free, independent and
dispassionate investigation." They could not refuse or withhold answers to questions
propounded to them unless the inquiry calls for an incriminating answer and a timely
objection is raised.
In the case at bar, since the private respondents answered questions from the Fact Finding
Board without claiming the privilege against self-incrimination they cannot now be allowed to
invoke the immunity clause provided in Section 5 of Presidential Decree No. 1886.
I vote to grant the petitions.
Footnotes
1 SECOND WHEREAS.
2 Justice Corazon Juliano Agrava being the appointed Chairman of this ad hoc Fact Finding
Board.
3 Gen. Fabian C, Ver & Major Gen. Prospero Olivas both appeared and testified in response to
an invitation-p. 6, COMMENT.
4 The other private respondents appeared and testified pursuant to subpoenas.
5 Petitioner in G. R. Nos. -71212-13.
6 Exh. VVV, tsn, April 6, 1984-Gen. Ver (1-97); Exh. VVV-1, tsn, April 6, 1984-Gen. Ver (1-54);
Exh. VVV-2, tsn, April 10, 1984-Gen. Ver (1- 150); Exh. VVV-3, tsn, April 23, 1984- Gen. Ver (1135): Exh. VVV-4, tsn, April 23, 1984 -Gen. Ver (1-43, 90); Exh. WWW, tsn, June 27, 1984-Gen.
Olivas (1-87); Exh. WWW-1, tsn, June 27, 1984-Gen. Olivas (1-81, 93); Exh. XXX, tsn, Dec. 22,
1983-Martinez (1-93); Exh. XXX-1, Dec. 22, 1983- Martinez (1-82); Exh. XXX-2, tsn, Jan. 12,
1984-Martinez (1-20, 91); Exh. YYY, tsn, Dec. 28, 1983- Fernandez (1-60); Exh. YYY-1, tsn, April
25, 1984-Fernandez (18-86, 104 with page 48); Exh. YYY-2, tsn, April 30, 1984- Fernandez (127, 80); Exh. ZZZ, tsn, Jan. 17, 1984-Mojica (1- 83); Exh. ZZZ-1, tsn, Jan. 17, 1984-Mojica Exh.
ZZZ-2, no date-Mojica (57-106); Exh. ZZZ-3, tsn, March 23, 1984- Kavinta and Mojica (1-7);
Exh. ZZZ-4, tsn, April 2, 1984- Mojica and Kavinta (1-43, 112); Exh. AAAA, tsn, Dec. 27, 1983Torio (1-79); Exh. AAAA-1, tsn, Dec. 27, 1983-Torio (1-25, 62): Exh. AAAA-2, tsn, no date-Torio
(36- 54); Exh. AAAA-3, tsn, June 21, 1984-Torio (43153); Exh. BBBB, tsn, no date-Bona (80-93):
Exh. BBBB-1, tsn, June 28, 1984-Bona (1- 36, 83 without page 15); Exh. BBBB-2 no date-Bona
(84-110); Exh. CCCC, tsn, April 25, 1984-Acupido (87104); Exh. CCCC-1, tsn, April 30,1984Acupido (1-46).
7 Annex "B", Petition.
8 Annexes "B" & "C", Petition.
9 Annex "E", Petition.
10 Annex "F", Petition.
11 Annex "J", Petition.
12 Petition. page 9.

13 Annex "N", Petition.


14 G.R. Nos. 71212-13.
15 G.R. Nos. 71208-09.
16 Petition, pages 14-18. 17
17 Comment, pages 8-11.
18 Ad Hoc Board,
19 Whereas-P.D. 1886.
20 Sec. 10, 3rd par., P.D. 1886.
21 Section 4, P.D. 1886.
21-A Art. IV, Sec. 20, 1973 Constitution.
22 Art. IV, Sec. 20, 1973 Constitution.
23 Magtoto vs. Manguera, 63 SCRA 4 (1975); People vs. Jimenez, 71 SCRA 186 (1976); People
vs. Buscato, 74 SCRA 30 (1976); People vs. Pena, 80 SCRA 589 (1977); People vs. Page, 77
SCRA 348 (1977); Draculan vs. Donato, 85 SCRA 266 (1978); People vs. Molleda 86 SCRA 667
(1978); People vs. Saldua 87 SCRA 169 (1978); People vs. Beralde, 91 SCRA 125 (1979); People
vs. Tampus 96 SCRA 624 (1980); People vs. Comendador, 100 SCRA 155 (1980); People vs.
Hipolito, 106 SCRA 610 (1981); People vs. Matilla, 105 SCRA 768 (1981); People vs. Umali, 116
SCRA 23 (1982); Morales, Jr. vs. Enrile, 121 SCRA 538 (1983); People vs. Ramos, 122 SCRA
312(1983); People vs. Jose, 124 SCRA 89 (1983); People vs. Colana, 126 SCRA 23 (1983);
People vs. Tuvera, 130 SCRA 168 (1984); People vs. Pizarro, 131 SCRA 624 (1984); People vs,
Lachica, 132 SCRA 230 1984); People vs. Pizarro, 131 SCRA 624 (1984).
24 Miranda vs. Arizona, 384 US 436.
25 Bernas, the 1973 Philippine Constitution, Cases & Materials, Part II, 1974 Ed., p. 745 citing
Session of November 25, 1972; Session of November 27, 1972 of the 1971 Constitutional
Convention.
26 Chavez vs. CA, 24 SCRA 663, citing State vs. Wolfe, 266 N.W. 11 6,125; 104 ALR 464.
27 414 U.S. 70,38 L. Ed. 2d 274 (1973).
28 6 SCRA 1059.
29 70 C.J. Sec. 875, page 722; Wigmore on Evidence, Volume 8, Section 2252, pages 834- 835.
30 President's Instructions to the Philippine Commission; Philippines Bill of July 1, 1902, Section
5, par. 3-cited in Francisco's Revised Rules of Court in Criminal Procedure, pages 390-391.
31 Pinkerton v. Farr W., Va., 220 S.E. 2d 682,687.
32 Black Law Dictionary, 5th Edition, 1979.
33 Proceedings of the Convention, Session of November 29, 1972, cited in BERNAS The 1973
Philippine Constitution Notes and Cases, Part 11, 1974 ed., page 745.
34 In Re Guarina 24 Phil. 375; Paredes v. Executive Secretary, 128 SCRA 6 (1984).
35 Yu Cong vs. Trinidad, 47 Phil. 385; Automotive Parts & Equipment, 30 SCRA 248 (1969).
36 Araneta vs. Concepcion, 52 O.G. 151.
37 Lefkowitz vs. Turley, 414 US 70, at 85.
38 123 SCRA 583, 603 (1983).
Concepcion, J.
1 G.R. No. 68113, Aquilino Q. Pimentel , Jr., versus Commission on Elections, et al.,
promulgated December 19, 1984.
Dela Fuente, J.
1 Section 20, Art. IV, 1973 Constitution.
2 Bagadiong vs. Gonzales, 94 SCRA 906.
3 24 SCRA 663.
4 Pascual vs. Board of Medical Examiner, 28 SCRA 344, at 350, citing Chavez.
5 Marchetti vs. United States, mentioned also in Chavez at page 678.
6 President McKinley's Instructions, under date of April 7, 1900.
7 Section 1(18), Art, III. 1935 Constitution: Section 20, Art. IV, 1 973 Constitution.
8 "... of policy because it would place the witnesses against the strongest temptation to
commit perjury, and of humanity because it would be to extort a confession of truth by a kind
of duress species and degree of which the law abhors." (Chavez at page 679)
9 Ibid, at page 678.
10 Kastigar vs. US, 406 US 441, 32 L. Ed. 2d 212.
11 Chavez, at page 682.
12 Passion Vda. de Garcia vs. Locson, 65 Phil. 689. 695.

13 Section 5, PD No. 1886.


14 "except that such individual so testifying shall not be exempt from prosecution and
punishment for perjury committed in so testifying, nor shall he be exempt from demotion or
removal from office."
15 which is not an immunity against prosecution as that found in RA No. 1379.
16 304 U.S. 458, 464, cited in Chavez at p. 683.
17 E. Griswold, the Fifth Amendment Today, 1955, cited by Justice Fred Ruiz Castro in his
separate opinion in Chavez, at page 689, emphasis supplied.
18 64 Phil. 483.
Patajo, J.
1 Section 3, PD No. 1886 empowers the Board to issue subpoena and "other compulsory
processes." An invitation is such a compulsory process. The use of the word invitation is a mere
euphemism used instead of subpoenas in deference to the exalted position of those "invited."
As this Court had occasion to say in Babst vs. National Intelligence Board, 132 SCRA 316,
under certain circumstances and invitation to appear for interview are in fact "thinly veiled
commands," in short summons or subpoena to appear.
In States vs. Sacks, 116 Kan. 148, 225 Pac. 738, the Supreme Court of Kansas said:
"The State contends that appellant cannot take advantage of this statute for the reason that
no subpoena was issued for him. No subpoena was necessary. 4 Wigmore on Evidence 960;
U.S. vs. Armour (DC) 142 Fed 808; Atkinson vs. State, 190 Ind. 1, 128 N.E. 433. The purpose of
issuing a subpoena is to get a witness into court. If he appears by request of attorney for either
side, it is no longer material whether a subpoena has been issued for him. His testimony is
subject to the same objections and should be given the same weight and he is entitled to
immunity to the same extent as though he had been served with a subpoena." See also
Atkinson vs. State, 190 Ind. 1, 128 N.E. 433.
We may assume that if the one invited will not appear in response to said invitation, he would
be issued a subpoena. The Board will be remiss of its duty if it does not do so. Those invited
certainly know this to be so and, therefore, regard the invitation to be as much a compulsory
process as an invitation.
Teehankee, J.
1 At page 6.
2 Except respondent General Olivas. who as a member of the bar, represented himself.
3 97 Phil. 940 (1955); emphasis supplied.
4 52 Phil. 807, 816-817 (1929).
5 Emphasis supplied.
6 Vol- 1, Public Laws of the Phil., p, 1 XIII
7 24 SCRA 663 (1968).
8 Gonzales vs. Secretary of Labor, 94 Phil. 325, 326.
9 Cabal vs. Kapunan, L-19052, December 29, 1962; 21 Am. Jur. 2d p. 383; 98 C.J.S., p. 265; 8
Wigmore, Evidence 1961 ed., p. 406: 3 Wharton's Criminal Evidence, 11th ed., pp. 1959- 1960.
10 2 SCRA 71 (1961); emphasis supplied.
11 94 Phil. 325.
12 94 SCRA 906 (Dec. 28, 1979), First Division, per Pacifico de Castro, J.
13 "... Any person under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible in evidence."
14 Fernando, The Constitution of the Philippines, 2nd Ed., p. 710.
15 Miranda vs. Arizona, 384 U.S. 436 (1966).
16 VIII Francisco's Revised Rules of Court, Evidence, Part II, p. 226.
17 VIII Wigmore on Evidence, 2268, sec. 398-400.
18 Separate opinion of the Chief Justice at page 4.
19 Petition in G.R. No. 71208-09, p. 9.
20 Metro Manila Times issue of Aug. 28, 1985.
21 Quoted in full at page 14, majority decision.
22 At page 14, majority decision.
23 Par. 1.0.0., Board members' Majority Report, composed of Messrs. Luciano S. Salazar,
Amado C. Dizon, Dante G. Santos and Ernesto F. Herrera.

24 Petition in G.R. No. 64969, Ramon A. Gonzales vs. Fernando Commission, page 5; G.R. No.
64983, LABAN vs, Chief Justice Enrique M. Fernando, and G.R. No. v4993, Demetrio G.
Demetria vs. Hon. E. M. Fernando, etc., et al. The three cases were eventually dismissed as
moot and academic by joint Resolution of the Court dated October 20, 1983 "considering that
the respondent Chairman and Our members of the respondent Commission created by
Administrative Order No. 469 had already tendered their resignations, which the President of
the Philippines accepted with deep regret; and that the respondent Commission had been
dissolved and superseded by the Commission created by P.D. No. 1886.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 85215 July 7, 1989
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First
Judicial Region, Baguio City, and FELIPE RAMOS, respondents.
Nelson Lidua for private respondent.

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the
right of an individual not to "be compelled to be a witness against himself" accorded by
Section 20, Article III of the Constitution, with the right of any person "under investigation for
the commission of an offense . . . to remain silent and to counsel, and to be informed of such
right," granted by the same provision. The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL),
assigned at its Baguio City station. It having allegedly come to light that he was involved in
irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation
to be conducted into the matter of February 9, 1986. That investigation was scheduled in
accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement
signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos
pertained. 2
On the day before the investigation, February 8,1986, Ramos gave to his superiors a
handwritten notes 3 reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO
SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT.
OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE
IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.
(s) Felipe Ramos (Printed) F. Ramos
At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio
City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight
Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was
informed "of the finding of the Audit Team." Thereafter, his answers in response to questions
by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had
not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the
proceeds had been "misused" by him, that although he had planned on paying back the
money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing
to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the
amount would be known in the next investigation;" that he desired the next investigation to
be at the same place, "Baguio CTO," and that he should be represented therein by "Shop
stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact
afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would
seem that no compromise agreement was reached much less consummated.
About two (2) months later, an information was filed against Felipe Ramos charging him with
the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986
to January 29, 1987. In that place and during that time, according to the indictment, 5 he
(Ramos)

.. with unfaithfulness and/or abuse of confidence, did then and there


willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the
following manner, to wit: said accused ... having been entrusted with and
received in trust fare tickets of passengers for one-way trip and round-trip in
the total amount of P76,700.65, with the express obligation to remit all the
proceeds of the sale, account for it and/or to return those unsold, ... once in
possession thereof and instead of complying with his obligation, with intent to
defraud, did then and there ... misappropriate, misapply and convert the
value of the tickets in the sum of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good his obligation, to the damage
and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial
thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the
direction and supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence
dated June 21, 1988, 6which included "the (above mentioned) statement of accused Felipe J.
Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as
Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above
referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly
as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a
confession, was taken without the accused being represented by a lawyer." Exhibit K was
objected to "for the same reasons interposed under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the
testimony of the witnesses who testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence,
it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL
Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does
not appear that the accused was reminded of this constitutional rights to remain silent and to
have counsel, and that when he waived the same and gave his statement, it was with the
assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten
admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason
stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by
counsel when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated
September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's
rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA
467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to
the effect that "in custodial investigations the right to counsel may be waived but the waiver shall
not be valid unless made with the assistance of counsel," and the explicit precept in the present
Constitution that the rights in custodial investigation "cannot be waived except in writing and in
the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL
Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets
issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and
the fact that Ramos was not detained at the time, or the investigation was administrative in

character could not operate to except the case "from the ambit of the constitutional provision
cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition
for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name
of the People of the Philippines. By Resolution dated October 26, 1988, the Court required
Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a
"TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding
further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe
Ramos), including the issuance of any order, decision or judgment in the aforesaid case or
on any matter in relation to the same case, now pending before the Regional Trial Court of
Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor
General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the
Solicitor General have all been filed. The Solicitor General has made common cause with the
petitioner and prays "that the petition be given due course and thereafter judgment be
rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A'
and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety
might have attended the institution of the instant action in the name of the People of the
Philippines by lawyers de parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue of whether or not it was
grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and
K. It will now proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which
respondent Judge has given a construction that is disputed by the People. The section reads as
follows:
SEC. 20. No person shall be compelled to be a witness against himself Any
person under investigation for the commission of an offense shall have the
right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him. Any confession obtained in violation of this
section shall be inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the
section, namely:
1) the right against self-incrimination i.e., the right of a person not to be
compelled to be a witness against himself set out in the first sentence,
which is a verbatim reproduction of Section 18, Article III of the 1935
Constitution, and is similar to that accorded by the Fifth Amendment of the
American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every
suspect "under investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights in separate sections. The right against

self- incrimination, "No person shall be compelled to be a witness against himself," is now
embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial
interrogation, which have been made more explicit, are now contained in Section 12 of the
same Article III. 13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973
Constitution, is accorded to every person who gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is
NOT to "be compelled to be a witness against himself"
The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of
refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a
witness, whether he be a party or not, the right to refue to answer any particular incriminatory
question, i.e., one the answer to which has a tendency to incriminate him for some crime.
However, the right can be claimed only when the specific question, incriminatory in character, is
actually put to the witness. It cannot be claimed at any other time. It does not give a witness the
right to disregard a subpoena, to decline to appear before the court at the time appointed, or to
refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required,
take the stand, be sworn and answer questions. It is only when a particular question is addressed
to him, the answer to which may incriminate him for some offense, that he may refuse to answer
on the strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the
judge, or other officer presiding over a trial, hearing or investigation, any affirmative
obligation to advise a witness of his right against self-incrimination. It is a right that a witness
knows or should know, in accordance with the well known axiom that every one is presumed
to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of
things, neither the judge nor the witness can be expected to know in advance the character
or effect of a question to be put to the latter. 17
The right against self-incrimination is not self- executing or automatically operational. It must
be claimed. If not claimed by or in behalf of the witness, the protection does not come into
play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it
at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said,
group of rights. These rights apply to persons "under investigation for the commission of an
offense," i.e., "suspects" under investigation by police authorities; and this is what makes
these rights different from that embodied in the first sentence, that against self-incrimination
which, as aforestated, indiscriminately applies to any person testifying in any proceeding,
civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation for an offense was not in
the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in
Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

Section 20 states that whenever any person is "under investigation for the commission of an
offense"-1) he shall have the right to remain silent and to counsel, and to be informed
of such right, 21
2) nor force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him; 22 and

3) any confession obtained in violation of x x (these rights shall be


inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a
person in police custody, "in-custody interrogation" being regarded as the commencement of
an adversary proceeding against the suspect.24
He must be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires. Opportunity to exercise those rights must be
afforded to him throughout the interrogation. After such warnings have been given, such
opportunity afforded him, the individual may knowingly and intelligently waive these rights
and agree to answer or make a statement. But unless and until such warnings and waivers
are demonstrated by the prosecution at the trial, no evidence obtained as a result of
interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statement without full warnings of constitutional
rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." 26 And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described by this Court." 28
.. . After a person is arrested and his custodial investigation begins a
confrontation arises which at best may be tanned unequal. The detainee is
brought to an army camp or police headquarters and there questioned and
"cross-examined" not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in strange and
unfamiliar surroundings, and every person he meets he considers hostile to
him. The investigators are well-trained and seasoned in their work. They
employ all the methods and means that experience and study have taught
them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And
even if they were, the intimidating and coercive presence of the officers of the
law in such an atmosphere overwhelms them into silence. Section 20 of the
Bill of Rights seeks to remedy this imbalance.

Not every statement made to the police by a person involved in some crime is within the
scope of the constitutional protection. If not made "under custodial interrogation," or "under
investigation for the commission of an offense," the statement is not protected. Thus, in one
case, 29 where a person went to a police precinct and before any sort of investigation could be
initiated, declared that he was giving himself up for the killing of an old woman because she was
threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was
admissible, compliance with the constitutional procedure on custodial interrogation not being
exigible under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against
self-incrimination and (2) those during custodial interrogation apply to persons under
preliminary investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already
have been ended at the time of the filing of the criminal case in court (or the public
prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in
court (or the public prosecutor's office), there is no occasion to speak of his right while under
"custodial interrogation" laid down by the second and subsequent sentences of Section 20,
Article IV of the 1973 Constitution, for the obvious reason that he is no longer under
"custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the
public prosecutor), in common with all other persons, possesses the right against selfincrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution,
i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to
him. 30
Additionally, the accused in a criminal case in court has other rights in the matter of giving
testimony or refusing to do so. An accused "occupies a different tier of protection from an
ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is
entitled among others1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own
behalf; but if he offers himself as a witness he may be cross-examined as any other witness;
however, his neglect or refusal to be a witness shall not in any manner prejudice or be used
against him. 32
The right of the defendant in a criminal case "to be exempt from being a witness against
himself' signifies that he cannot be compelled to testify or produce evidence in the criminal
case in which he is the accused, or one of the accused. He cannot be compelled to do so
even by subpoena or other process or order of the Court. He cannot be required to be a
witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words
unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by
subpoena, having only the right to refuse to answer a particular incriminatory question at the time

it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to
take the witness stand, be sworn, answer any question. 34 And, as the law categorically states,
"his neglect or refusal to be a witness shall not in any manner prejudice or be used against
him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if
he does testify, then he "may be cross- examined as any other witness." He may be crossexamined as to any matters stated in his direct examination, or connected therewith . 36 He
may not on cross-examination refuse to answer any question on the ground that the answer that
he will give, or the evidence he will produce, would have a tendency to incriminate him for the
crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be asked a question
which might incriminate him, not for the crime with which he is charged, but for some other
crime, distinct from that of which he is accused, he may decline to answer that specific
question, on the strength of the right against self-incrimination granted by the first sentence
of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution).
Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he
may not on cross-examination refuse to answer any question on the ground that he might be
implicated in that crime of murder; but he may decline to answer any particular question
which might implicate him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing
evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor,
for preliminary investigation), but after having been taken into custody or
otherwise deprived of his liberty in some significant way, and on being
interrogated by the police: the continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force, violence,
threat, intimidation or any other means which vitiates the free will; and to
have evidence obtained in violation of these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such
refusal;
c) to testify in his own behalf, subject to cross-examination by
the prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific
question which tends to incriminate him for some crime other
than that for which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the
nature and import of the disparate rights set forth in Section 20, Article IV of the 1973
Constitution. He has taken them as applying to the same juridical situation, equating one
with the other. In so doing, he has grossly erred. To be sure, His Honor sought to
substantiate his thesis by arguments he took to be cogent and logical. The thesis was
however so far divorced from the actual and correct state of the constitutional and legal
principles involved as to make application of said thesis to the case before him tantamount to
totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered
with grave abuse of discretion. They should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense
under custodial interrogation, as the term should be properly understood, prior to and during
the administrative inquiry into the discovered irregularities in ticket sales in which he
appeared to have had a hand. The constitutional rights of a person under custodial
interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into
play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily
answered questions posed to him on the first day of the administrative investigation,
February 9, 1986 and agreed that the proceedings should be recorded, the record having
thereafter been marked during the trial of the criminal action subsequently filed against him
as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his
superiors on February 8,1986, the day before the investigation, offering to compromise his
liability in the alleged irregularities, was a free and even spontaneous act on his part. They
may not be excluded on the ground that the so-called "Miranda rights" had not been
accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the
right of any person against self-incrimination when the investigation is conducted by the
complaining parties, complaining companies, or complaining employers because being
interested parties, unlike the police agencies who have no propriety or pecuniary interest to
protect, they may in their over-eagerness or zealousness bear heavily on their hapless
suspects, whether employees or not, to give statements under an atmosphere of moral
coercion, undue ascendancy and undue influence." It suffices to draw attention to the
specific and peremptory requirement of the law that disciplinary sanctions may not be
imposed on any employee by his employer until and unless the employee has been
accorded due process, by which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to explain his side. The
requirement entails the making of statements, oral or written, by the employee under such
administrative investigation in his defense, with opportunity to solicit the assistance of
counsel, or his colleagues and friends. The employee may, of course, refuse to submit any
statement at the investigation, that is his privilege. But if he should opt to do so, in his
defense to the accusation against him, it would be absurd to reject his statements, whether
at the administrative investigation, or at a subsequent criminal action brought against him,
because he had not been accorded, prior to his making and presenting them, his "Miranda
rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are
relevant only in custodial investigations. Indeed, it is self-evident that the employee's
statements, whether called "position paper," "answer," etc., are submitted by him precisely so
that they may be admitted and duly considered by the investigating officer or committee, in
negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's
expressed apprehensions may be realized, that violence or intimidation, undue pressure or
influence be brought to bear on an employee under investigation or for that matter, on a
person being interrogated by another whom he has supposedly offended. In such an event,
any admission or confession wrung from the person under interrogation would be
inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a
violation of Section 20, Article IV of the 1973 Constitution, but simply on the general,
incontestable proposition that involuntary or coerced statements may not in justice be
received against the makers thereof, and really should not be accorded any evidentiary
value at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14,
1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution
in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment
thereof. The temporary restraining order of October 26, 1988 having become functus officio,
is now declared of no further force and effect.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Rollo, P. 21, 34.
2 Id., p. 13.
3 Id., p, 29.
4 Rollo pp. 6, 28.
5 Id., p. 19.
6 Rollo, pp. 8, 21-27.
7 Id., pp. 30-32.
8 Id., pp. 8-9, 33.
9 Id., pp. 34-44.
10 Id., pp. 48-55.
11 The admissions were allegedly made on February 8 and 9, 1986, at which time the 1987
Constitution was not yet in effect, indeed had not yet been conceived or drafted.
12 SEE, e.g., Tanada & Fernando, Constitution of the Phil., Anno., 2d ed., pp. 378-379.
13 The provision reads as follows:
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited. (3) Any confession or
admission obtained in violation of this or the preceding section shall be inadmissible in
evidence against him. (4) The law shall provide for penal and civil sanctions for violations of
this section as well as compensation to and rehabilitation of victims of torture or similar
practices, and their families.
14 Bermudez v. Castillo, 64 Phil. 483; Gonzales v. Secretary of Labor, 94 Phil. 325; Suarez v.
Tengco, 2 SCRA 71; Pascual v. Board of Medical Examiners, 28 SCRA 344.
15 SEE Chavez v. C.A., 24 SCRA 663; Suarez v. Tengco, supra, 2 SCRA 71; Gonzales v. Secretary
of Labor, supra, 94 Phil. 325, citing Jones on Evidence, Vol. 6, pp. 4926-7.
16 Suarez v. Tengco, supra, at p. 73.
17 SEE Cruz, I.A., Constitutional Law, 1987 ed., p. 275.

18 U.S. v. Molina, 317 U.S., 424; U.S. v. Binayoh, 35 Phil. 23; SEE also Tanada & Fernando, op.
cit., p. 379.
19 384 U.S. 436, 16 L. Ed. 694. 1 0 A.L.R. 3d 974.
20 Peo. v. Duero, 104 SCRA 379.
21 The 1987 Constitution (Sec. 12, ART. III) makes clear that the person's right to "counsel"
refers to "competent and independent counsel preferably of his own choice," that if "the
person cannot afford the services of (such) counsel, he must be provided with one," and, as
suggested in Peo. v. Galit, 135 SCRA 465, that the rights to silence and to counsel "cannot be
waived except in writing and in the presence of counsel' (SEE Cruz, op. cit., p. 282).
22 The 1987 Constitution adds that "Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited."
23 The proviso, as now found in the 1987 Constitution, makes inadmissible in evidence any
confession or admission obtained not only in infringement of the rights mentioned (to silence,
to counsel, etc.) but also in violation of Sec. 11, Art. III, to the effect that "Free access to the
courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any
person by reason of poverty." The new charter also requires that "The law shall provide for
penal and civil sanctions for violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their families."
24 SEE Peo. v. Duero, supra, 104 SCRA 379; Peo. v. Jimenez, 71 SCRA 186; Peo. v. Robles, 104
SCRA 450; Peo. v. Caguioa, 95 SCRA 2.
25 Peo. v. Duero, supra, at p. 388.
26 Peo. v. Duero, supra, at p. 386.
The Solicitor General's Comment, rollo, pp. 95, 102-103, states that the 1971 Constitutional
Convention defined "investigation" as "investigation conducted by the police authorities which
will include investigations conducted by the municipal police, the PC and the NBI and such
other police agencies in our government (Session, November 25,1972)."
27 Peo. V. Caguioa, 95 SCRA 2, 9, quoting Miranda.
The Solicitor General's Comment (rollo, p. 103) states that according to Escobedo v. Illinois,
378 U.S. 478, which preceded Miranda, 384 U.S. 436, "the right to counsel attaches when 'the
investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect. the suspect has been taken into police custody, the police carry out a
process of interrogations that lends itself to eliciting incriminating statements."' The Comment
(rollo, p. 108) also draws attention to Gamboa v. Cruz G.R. No. 56292, June 27, 1988 where this
Court declared that "The right to counsel attaches only upon the start of an investigation,
when the police officer starts to ask questions designed to elicit information and/or confessions
or admissions from the accused."
28 Morales v. Enrile, et al; Moncupa, Jr. v. Enrile, et al., 121 SCRA 538, 553.
29 Peo. v. Taylaran 108 SCRA 373. In this connection, the Solicitor General opines that so-called
"on-the-scene questioning" of citizens by police officers in the fact- finding process are
"undoubtedly admissible," for, as "distinguished from all questioning of a suspect, in x x (such
a) situation the compelling atmosphere inherent in the process of in-custody interrogation is
not necessarily present." According to him, "when investigating crimes, an officer may inquire
of persons not under restraint (Constitutional Law, Klotter/Kanovitz, 4th ed., 1984) x x x and
such general on-the-scene questions are not thought to be accusatory because they lack the
compelling atmosphere inherent in the process of in-custody interrogation' (Civil Rights and
Liberties, A.L. Bonnicksen, 1982 ed.).'
30 See footnotes 2 to 5 and related text, at p. 5, supra.
31 Sec. 1 (e), Rule 115 of the 1964 Rules of Court. The 1985 Rules on Criminal Procedure have
amended the provision to read, 'to be exempt from being compelled to be a witness against
himself.'
32 Sec. 1 (d), Rule 115. The 1985 Rules on Criminal Procedure amended the provision to read:
"To testify as a witness in his own behalf but subject to cross-examination on matters covered
by direct examination. His silence instead of merely his 'neglect or refusal to be a witness shall
not in any manner prejudice him."
33 Chavez v. C.A., supra, 24 SCRA 663.
34 Id., at pp. 677-678, citing; Cabal v. Kapunan, L-19052, Dec. 29, 1962; 21 Am. Jur. 2d., p.
383; 98 C.J.S., p. 265; Wigmore, Evidence, 1961 ed., p. 406; 3 Wharton's Criminal Evidence, llth
ed., pp. 19591960, all cited in Gupit, Jr., Rules of Criminal Procedure, 1986 ed., p. 240.

35 See People v. Gargoles, 83 SCRA 282.


36 However, as already pointed out, the rule now limits cross-examination of an accused only
to "matters covered by direct examination."
37 Or during preliminary investigation before a Judge or public prosecutor.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 125938

April 4, 2003

PEOPLE OF THE PHILIPPINES, appellee,


vs.
JOEL JANSON and RICKY PINANTAO alias "OGCO", appellants.
QUISUMBING, J.:

On appeal is the decision1 of the Regional Trial Court, Branch XVII, Kidapawan, Cotabato
promulgated on September 15, 1995, declaring appellants guilty of the crime of robbery with
rape, and sentencing each of them to the penalty of Reclusion Perpetua, and ordering them
to pay P30,000.00 and P10,000.00 in favor of Marites Alcantara and Cesario Alcantara,
respectively.
The information filed on August 31, 1987 alleged:
That on or about the 24th day of March 1986, at about 10:00 oclock in the evening at
Barangay Mateo, Municipality of Kidapawan, Province of Cotabato, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused JOEL
JANSON, RICKY PINANTAO alias OGCO in company with alias ABDUL, alias
PUTO, JOHN DOE and PETER DOE, who are still at large and whose names are
still unknown, constituting a band and armed with long and short firearms, conspiring,
confederating and mutually helping one another, with intent to gain, with force and
intimidation, did then and there willfully, unlawfully and feloniously take and carry
away, at gun point, cash money in the amount of P1,400.00, three (3) pieces of wrist
watches, one (1) can coffee beans and one (1) chicken and if converted into cash it
amounted to P1,845.00 or a total amount of Three Thousand Two Hundred Fourty
(sic) Five Pesos (P3,245.00), Philippine Currency, owned by Mr. & Mrs. CESARIO
ALCANTARA; and on the same occasion, the above-named accused, with the use of
force, violence and intimidation and armed with firearms, did then and there willfully,
unlawfully and feloniously take turns in having carnal knowledge with one
MARITESS ALCANTARA, a girl about 13 years old, daughter of Mr. & Mrs.
CESARIO ALCANTARA, against her will and consent, to the damage and prejudice
of the aforesaid persons in the aforesaid amount.
All contrary to law with the aggravating circumstances of dwelling, nighttime and the
use of unlicensed firearms.
Kidapawan, Cotabato, August 31, 1987.2
On December 9, 1987, both accused pleaded not guilty.3 Trial then ensued.
For the prosecution, the following witnesses were presented: Teresa Alcantara, Marites
Alcantara, Dante Alcantara, Cesario Alcantara, Dr. Cesar Manuel, Atty. Jorge Zerrudo, and
police officers Pedro Idpan, Jr. and Ortello Achas.
TERESA ALCANTARA testified that on March 24, 1986 at about 10:00 in the evening, the
accused with six (6) other companions asked for food. She asked them to come back the
following day but they threatened to strafe and burn the house if they are not let in. The
accused then entered the house and once inside, made all occupants lie down before
covering them with a blanket. The accused demanded money from Teresa and she gave
them P1,000. She was brought to the kitchen and someone guarded her. For a while, there
was complete silence. Then she went inside the room of her daughter Marites, and saw her
totally naked. Her daughter told her that she was raped. She gave an additional P1,000 to
the accused who also got two (2) wristwatches worth P690.00, two (2) Seiko watches worth
P443.00, a chicken worth approximately P20.00, and one can of coffee beans. The
appellants were speaking among themselves in the Manobo dialect.

Teresa identified appellants Janson and Pinantao as two of the men who robbed their house
and raped her daughter that night. She testified that she knew appellants since they were
their neighbors at Mateo. She also claimed that while Janson and Pinantao were masked
during the incident, she recognized them through their body built, physical appearance, and
their voices while speaking in Manobo.4
MARITES5 ALCANTARA testified that she was thirteen (13) years old at the time of the
incident. She corroborated the testimony of her mother and added that after the group
entered their house and hogtied her father, the appellants entered her room and turned off
the lights inside. Someone poked a gun at her. Then Ricky Pinantao, who had an amputated
right hand; Joel Janson, and Abdul Jona raped her. In open court she identified appellants
Pinantao and Janson as two of her abusers, claiming that they were previously known to her.
She claimed that she knew Ricky because he was their neighbor and that he often went to
their house to buy bananas, while she knew Joel because he often went to their barangay to
visit his relatives. She likewise claimed that while the appellants turned off the lights in their
house, there was a full moon that night which gave her enough light to see her abusers. She
immediately told her parents that she was raped, and she underwent medical examination
the following day.6
DANTE ALCANTARA testified that on the day of the robbery he was only nine (9) years old.
He said he recognized appellants Janson and Pinantao because they were their neighbors.
On cross-examination, he admitted that the four robbers were masked, but the witness
insisted that he was able to recognize Pinantao with his cut wrist and mustache, and also
Janson because of his built.7
CESARIO ALCANTARA testified that on March 24, 1986, their house was robbed and his
daughter was raped. He admitted that during the incident, he was not able to identify the
perpetrators since he was hogtied face downwards, and he was covered with a blanket. 8
The prosecution also presented DR. CESAR MANUEL. He testified that the physical
examination he conducted on Marites Alcantara a day after the incident revealed that there
were lacerations between the labia majora, labia minora, and the prepuce caused by a sharp
instrument. There was also the presence of seminal fluid in the vagina of the victim indicating
that there was actual sexual contact.9
ATTY. JORGE ZERRUDO testified that he only assisted appellant Janson in waiving his right
to counsel, and that the sworn statement was already prepared when he signed it.
Nevertheless, he asked appellant Janson if the contents of the statement were true, and
whether he wished to be assisted by counsel.10
P/SGT. PEDRO IDPAN, JR. testified that he was a member of the Integrated National Police
(INP), Kidapawan, Cotabato, assigned in the investigation of the crime of robbery with rape
involving appellant Joel Janson. He identified Jansons sworn statement saying it was signed
by him without being forced. He admitted that during the investigation, there was no lawyer
present and that Atty. Zerrudo signed the affidavit only after the investigation was conducted.
He claimed, however, that prior to the custodial investigation, he informed Janson of his
constitutional rights and that despite being a Manobo, Janson fully understood
Cebuano,11 which was the language used during the custodial investigation.

Finally, P/SGT. ORTELLO ACHAS testified that he was at the police station when Teresa
Alcantara appeared on June 24, 1986, and requested that she be accompanied to the jail to
identify the person who was earlier apprehended and detained. She identified the person as
appellant Joel Janson. On cross-examination, P/Sgt. Achas admitted that he was not the one
who conducted the investigation on the person of Joel Janson and that he could not
remember whether appellant Janson who was then sixteen (16) years old and a Manobo
was assisted by a lawyer. Neither could he remember whether a mental or physical
examination was made upon Janson.12
For the defense, the following witnesses were presented: Datu Amado Pinantao, Atty.
Francis Palmones, Jr., and the two appellants: Joel Janson and Ricky Pinantao.
DATU AMADO PINANTAO testified that he is an uncle of Ricky Pinantao, and that they
belong to a cultural minority group, the Manobos. He admitted that they lived near the house
of Cesario Alcantara. He said that on March 24, 1986, appellant Pinantao was in their house
and that it was impossible for him to be elsewhere because earlier, in 1985, Pinantao was
hacked by one Bernardo Agio resulting in the amputation of Pinantaos hand. He averred that
Pinantao could not go out of their house because at the time of the incident, the wound he
sustained was not yet completely healed.13
ATTY. FRANCIS PALMONES, JR., testified that he notarized the sworn statement 14 of the
appellant Janson on April 3, 1987, marked as Exh. 4 and that Janson affirmed and
understood the contents of said affidavit because it was translated to him in the Visayan
vernacular.15
Appellant JOEL JANSON, for his own defense, declared that he was assisted by a lawyer
when he was investigated and made to sign a sworn statement before the police on June 26,
1986. But he denied the accusation against him and claimed that he was not assisted by
counsel during the custodial investigation. He claimed that he did not know how to read or
write, and that he was made to execute a sworn statement before a certain policeman
named Ulep. Only after the investigation did Atty. Zerrudo sign the document. On crossexamination, he said that he was put in jail for another crime, robbery.16
Appellant RICKY PINANTAO also denied the accusation against him, saying that he did not
know Marites and Cesario Alcantara. He claimed that he was arrested in March 1987
because he was implicated by appellant Janson as one of the perpetrators of the crime, per
instruction of one Cristina Agio.17
On September 15, 1995, the Regional Trial Court rendered judgment thus:
WHEREFORE, prescinding from all of the foregoing considerations, the Court hereby
pronounces the accused Ricky Pinantao alias Ogco and Joel Janson guilty of the
crime of Robbery with Rape beyond reasonable doubt and accordingly, sentences
Ricky Pinantao and Joel Janson each to undergo a prison term of Reclusion
Perpetua and to indemnify Marites Alcantara the sum of P30,000.00; to indemnify
Cesario Alcantara the sum of P10,000,00. No award of other damages in the
absence of proof thereof.
SO ORDERED.18

Both appellants filed their notices of appeal and submitted separate appellants briefs.
Appellant Ricky Pinantao averred that:
I
THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED EXTRA-JUDICIAL
CONFESSION OF APPELLANT JOEL JANSON, SAID EVIDENCE BEING
INADMISSIBLE BECAUSE IT WAS OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED AND SHOULD NOT HAVE TAKEN
AGAINST HIS CO-ACCUSED RICKY PINANTAO, UNDER THE INTER ALIOS
ACTA RULE AS AGAINST HIS CO-ACCUSED RICKY PINANTAO EITHER FOR
PROBABLE CAUSE AND THE RESULTANT CONVICTION OF RICKY PINANTAO;
II
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE
PROSECUTION WITNESSES OF THE ALCANTARA FAMILY WHICH WERE SHOT
THROUGH WITH MATERIAL CONTRADICTIONS, INCONSISTENCIES AND
UNNATURAL TESTIMONIES; and
III
THE TRIAL COURT ERRED IN NOT FINDING THAT THE PROSECUTION
MISERABLY FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT, AND THAT IN FACT THERE WAS A REASONABLE
DOUBT IN THE IDENTITIES AND GUILT OF BOTH ACCUSED.19
Appellant Joel Janson, for his part, averred that:
I
THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT JOEL
JANSON WAS POSITIVELY IDENTIFIED BY THE PROSECUTION WITNESSES;
and
II
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT JOEL JANSON
GUILTY OF THE CRIME OF ROBBERY WITH RAPE DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.20
Simply put, the issues in this case are as follows: (1) Was the guilt of appellants Janson and
Pinantao proved beyond reasonable doubt? (2) Is the extrajudicial confession of Janson
admissible as evidence for the prosecution? and (3) May said confession be used against
co-accused Pinantao?
We find the appeal impressed with merit. Appellants should be acquitted.

Generally, the findings of the trial court concerning credibility of witnesses are accorded great
weight and respect because it had the opportunity to observe closely in the first instance the
demeanor of the witnesses presented before it. 21 However, when the trial court overlooked or
misunderstood significant contrarieties in the testimony of witnesses which if considered
would materially affect the result of the conviction, such findings will not bind this
Court.22 Such is the case at hand.
Consistent with the testimonies of Teresa, Marites, Cesario, and Dante Alcantara, we can
gather that what transpired that fateful night is as follows:
In the evening of March 24, 1986, six (6) men came to the house of Cesario Alcantara
threatening to strafe and burn it should they not be let in. Once inside, the masked group of
men turned off the lights, hogtied Cesario, pushed him facedown and covered him with
blankets. They asked for money and Teresa gave them P400.23Teresa was then led to the
kitchen. During this time, her daughter Marites was raped24 by four men. Then Marites was
led to the kitchen where the culprits threatened to abduct her if her mother would not give
them money. Teresa then gave them an additional P1,000 while the group took three
wristwatches, one can of coffee, and one chicken. Then they left the house, all the while
speaking in the Manobo dialect.25
While the testimonies of the witnesses up to this point are credible and undisputed, it is
unfortunate that the certainty ends here.
Marites testified in open court that she was raped by Ricky alias Ogco Pinantao, Joel
Janson, and Abdul Jona.26She said that she came to know Ricky Pinantao because he is a
neighbor and that he often goes to their house to buy bananas. She also said that she came
to know Joel Janson because he is always going to Mateo since he has a relative there. 27
Upon cross-examination, however, Marites admitted that she was not certain of the identity
of her perpetrators at the time of the incident or immediately thereafter. According to her, it
was only after Joel Janson was apprehended for another crime, and after he confessed to
the police, that she was able to confirm her suspicion. When asked in open court, she was
not able to satisfactorily explain the discrepancy in her initial sworn statement before the
police and her testimony later.
Pertinent portions of her testimony in court are instructive:
Q:

Was this Ricky Pinantao armed when he entered your room?

A:

No sir, he wasnt.

Q:

Where (sic) you afraid of him?

A:

No, sir.

Q:
Knowing that, according to you, you know him, did you not question him,
Ricky, why are you doing this to me?

A:

I did not because I was only suspecting.28


xxx

Q:
Is it not Marites, to refresh your memory, is it not that when a sworn
statement was taken from your (sic), you stated in your affidavit that you did not
recognize anybody?
A:

That was what I stated in my statement.29


xxx

Q:
Miss Marites, in this sworn statement of yours, which was already marked as
Exhibit "E" for the prosecution and Exhibit "1" for the defense, there is a question
here: "Can you recognized (sic) any of the four men or any of the six men that
robbed and raped you?" [you answered, "I do not know anyone sir. Now] in your
testimony here, you said that you know the two accused, how will you reconcile this
one?
A:
It is like this, what I am telling now in Court is the one true, during that time,
when the statement was taken on me (sic), I have already suspect in my mind and I
could not tell their names but there were some evidence that dovetailed in my mind,
like, the cut wrist of the one perpetrator, Ricky Pinantao and the mustache. And these
are the things that I recall.
Q:
Now, how come that you did not tell the police of the perpetrators during that
time of investigation?
A:
Sir, it is very hard to name names during that time when a statement was
taken on me. But when this Joel Janson was first apprehended, it was confirmed by
his statement to the policeman. (sic)30
xxx
Q:
So, when Joel Janson was apprehended, that was the time you confirmed
that he was the perpetrator?
A:

xxx Yes, sir.


xxx

Q:
Therefore, you failed to recognize Joel Janson during said time of the
incident?
A:

I knew him through his body built.


xxx

Q:
So, you merely assumed that Joel Janson is one of those persons who
robbed you, because of the aforesaid statement, that his alleged statement in the
police?
A:

Yes, sir.
xxx

Q:
According to you, you have confirmed your suspicion of this Joel Janson
after he was apprehended?
A:

Yes, sir.

Q:
In the same manner you confirmed your suspicion of Ricky Pinantao after he
was apprehended?
A:
He himself revealed. Aside from that I already suspected because of his cut
wrist and his mustache.31 (emphasis ours)
While courts generally brush aside inconsequential contradictions between declarations of
the affiant in her sworn statements and those in court, the rule is otherwise where the
discrepancies touch on substantial and irreconcilable facts such as those omissions in the
affidavit concerning important details which the affiant would not have failed to mention and
which omission could well affect the credibility of the affiant.32 If indeed, the victim recognized
one of her assailants as Ricky Pinantao because of his amputated hand, she should have
mentioned such glaring trait the first time she gave her statement to the investigating officers.
But she never mentioned anything. On the contrary, she admitted that she did not recognize
any of her assailants. She also admitted that it was only after Joel Janson was apprehended
and confessed to the crime, implicating Ricky Pinantao, that she confirmed her suspicion.
The testimony of Teresa Alcantara is also riddled with uncertainties:
Q:
How many day had lapsed (sic) before you reported the incident to the
police?
A:

Three months after the incident.


xxx

Q:

Will you please explain why you reported the incident after three months?

A:
It was only upon hearing through radio DXND the name of this person Joel
Janson who was reported to have robbed the corn of a certain Atty. Jalipa, that I
reported to the police.
Q:
That was the only reason why you reported to the police after three months
already?

A:
It is like this: After hearing that, I went to the police right then and there. I saw
this Joel Janson who was the person among those who raped my daughter and
entered our house.
Q:
If you knew already that Joel Janson was among those persons who robbed
you, why did you not report to the police immediately?
A:

The following morning, I immediately reported, sir.

Q:

And you gave sworn statement before the police on the following morning?

A:

Not yet, sir.

Q:
Of course, this Joel Janson was unmasked when those six men came to
your house?
A:

This Joel Janson and Ricky Pinantao were the one (sic) wearing mask.

Q:
In other words, during the incident you failed to recognize outright who were
those persons masked?
A:
I identified them through their body built and voice because they were
speaking Manobo.
Q:

But you identified them because of their voice?

A:

Voice and bodybuilt.

Q:

But of course, you did not actually see the face of Joel Janson?

A:

How can I see when he is masked.


xxx

Q:
You only mentioned his (Joel Jansons) name (to the police) after you heard
his name over the DXND?
A:

Yes...33 (emphasis ours)

What stands out in the testimonies of the victims is that they were uncertain of the identities
of the masked men who committed the robbery and rape that night and anchored their
suspicion on the alleged confession of Joel Janson. This confession, however, is itself
inadmissible for failing to meet the constitutional requirements for admissibility.
The lawyer who allegedly assisted Joel Janson in the waiver of his right to counsel, Atty.
Zerrudo, testified:

Q:
In other words, this sworn statement marked Exhibit "B" was already
typewritten and prepared when it was brought to you by the police?
A:

Yes, sir, that is correct.34


xxx

Q:
But before he was brought to your office allegedly to assist him in his waiving
of his right, he was already subjected to investigation as this sworn statement was
already prepared?
A:

That is true, but not signed.

Q:
Of course he was not assisted because he was already subjected to police
investigation in his waiving of his constitutional rights?
A:
May be, I am not sure about that. That was may be, that was already
prepared when they came to my office but only unsigned.
Q:
What was prepared, the whole investigation or this entire part or that part of
waiving his rights?
A:

As far as I can remember, it was already prepared, Your Honor.35


xxx

Q:
Atty. Zerrudo, we are clear to the fact that this document was already
prepared before when it was brought to your office?
A:

Yes, sir.36 (emphasis ours)

The investigating police officer, P/Sgt. Pedro Idpan, also admitted in open court that the
sworn statement of appellant Joel Janson was taken without the presence of counsel and
that this statement together with the waiver of his right to counsel, was already prepared
when it was presented to Atty. Zerrudo for signing.
As shown by the transcript:
Q:
right?

But the accused during the investigation was not assisted by counsel, is that

A:

At the time when I conducted the investigation, the counsel is not yet present.

Q:
In other words, during the conduct of the investigation there was no counsel
being present assisting the accused Joel Janson?
A:

None, sir.

Q:
So in all the sworn statement of the accused Joel Janson made earlier was
made without the assistance of counsel? (sic)
A:
When I prepared the investigation I advised him to get a counsel of his own
choice but the counsel was not yet present.
Q:

He was not assisted by counsel during the conduct of the investigation?

A:

Yes, sir.

Court : What do you mean, Sergeant, Atty. Zerrudo was not yet present?
A:

When I conducted the investigation, Atty. Zerrudo was not present.


xxx

Court: He signed it after the investigation?


A:

The prepared testimony.

Court: After the investigation?


A:

After the investigation.37 (emphasis ours)

Clearly, the alleged extrajudicial confession of appellant Joel Janson cannot be admitted in
evidence. The manner by which it was obtained violated accuseds constitutional right to
counsel.
It is well-settled that the Constitution abhors an uncounselled confession or admission and
whatever information is derived therefrom shall be regarded as inadmissible in evidence
against the confessant.38
As provided for in Article III, Section 12 of the 1987 Constitution,
(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx
(3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible against him.
In People v. Javar,39 this Court was clear in pronouncing that any statement obtained in
violation of the Constitution, whether exculpatory or inculpatory, in whole or in part, shall be

inadmissible in evidence. Even if the confession contains a grain of truth, if it was made
without the assistance of counsel, it becomes inadmissible in evidence, regardless of the
absence of coercion or even if it had been voluntarily given.40 In People v.
Gomez,41citing People v. Rodrigueza,42 this Court held that Section 12(1), Article III of the
Constitution requires the assistance of counsel to a person under custody even when he
waives the right to counsel.
Under the Constitution and existing law as well as jurisprudence, a confession to be
admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be
made with the assistance of competent and independent counsel; (3) it must be express;
and (4) it must be in writing.43
The purpose of providing counsel to a person under custodial investigation is to curb the
uncivilized practice of extracting confession by coercion no matter how slight, as would lead
the accused to admit something false. What is sought to be avoided is the evil of extorting
from the very mouth of the person undergoing interrogation for the commission of an offense,
the very evidence with which to prosecute and thereafter convict him. These constitutional
guarantees have been made available to protect him from the inherently coercive
psychological, if not physical, atmosphere of such investigation. 44
While the Constitution sanctions the waiver of the right to counsel, it must, however, be
voluntary, knowing, and intelligent, made in the presence and with the assistance of
counsel,45 and it must be in writing. Indeed, any waiver of the right to counsel without the
assistance of counsel has no evidentiary value. 46
In this case, it cannot be said that the waiver of the right to counsel was made knowingly and
intelligently. Appellant Joel Janson was illiterate, and a minor of sixteen (16) years at the time
of the offense. As held in the case of People v. Bonola,47 where the accused was unschooled
and only nineteen (19) years old when arrested, it is difficult to believe that considering the
circumstances, the accused made an intelligent waiver of his right to counsel. In such
instances, the need for counsel is more pronounced.
It is also important to mention that the investigating officers already had a prepared
statement when they went to the lawyer who is supposed to assist appellant Janson in
waiving his right to counsel.
This is not what is contemplated by law. In People v. Quidato, Jr.,48 where the police officers
already prepared the affidavits of the accused when they were brought to the CLAO (now
PAO) lawyer, and the latter explained the contents of the affidavits in Visayan to the accused
who affirmed the veracity and voluntary execution of the same, the court held that the
affidavits are inadmissible in evidence even if they were voluntarily given. As also ruled
inPeople v. Compil,49 the belated arrival of the CLAO lawyer the following day, even if prior to
the actual signing of the uncounseled confession, does not cure the defect of lack of counsel
for the investigators were already able to extract incriminatory statements from the accused
therein. Thus, in People v. De Jesus,50 we said that admissions obtained during custodial
interrogations without the benefit of counsel, although later reduced to writing and signed in
the presence of counsel, are still flawed under the Constitution.

As pointed out in People v. Deniega,51 if the lawyers role is reduced to being that of a mere
witness to the signing of a priorly prepared document albeit indicating therein compliance
with the accuseds constitutional rights, the constitutional standard is not met.
Finally, the invalid extrajudicial confession of Joel Janson cannot be used against Ricky
Pinantao. An extrajudicial confession by an accused implicating another may not be utilized
unless repeated in open court or when there is an opportunity for the co-accused to crossexamine the confessant on his extrajudicial statements. It is considered hearsay as against
said co-accused under the res inter alios acta rule, which ordains that the rights of a party
cannot be prejudiced by an act, declaration, or omission of another.52
For all the foregoing considerations, the judgment of the Regional Trial Court finding Janson
and Pinantao guilty of the crime of robbery with rape fails to persuade us that appellants
have been adequately identified as the perpetrators of the heinous offense. In our view, to
affirm that judgment of conviction on the basis of contradictory testimony of prosecution
witnesses and the flawed extrajudicial confession of appellant Joel Janson is to sanction a
possible miscarriage of justice.
What befell the Alcantara family, particularly to Marites, is abhorrent and should be
condemned. But after due reflection and deliberation, we still find difficulty in sustaining the
trial courts conclusion regarding appellants guilt because of inconclusive identification.
Doubts persist in our mind as to who are the real malefactors. Yes, a complex offense has
been perpetrated, but who are the perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts! But we have only uncertain testimonies to rely on. It is only when
the conscience is satisfied that the persons on trial are the ones who committed the offense
that the judgment should be for conviction. Only when there is proof beyond reasonable
doubt can we be certain that, after trial, only those responsible should be made
answerable.53 The evidence for the prosecution must stand or fall on its own merit and
cannot be allowed to draw strength from the weakness of the evidence for the defense. 54 In
this exacting standard, the prosecution failed. It follows that the judgment of the lower court
convicting appellants ought to be set aside for failure to meet the quantum of evidence
constitutionally required.
WHEREFORE, the decision of the Regional Trial Court of Kidapawan, Cotabato, Branch
XVII, in Criminal Case No. 2016 is hereby REVERSED and SET ASIDE. Appellants Joel
Janson and Ricky Pinantao are ACQUITTED, on grounds of reasonable doubt, and ordered
released from prison unless they are being held for some other lawful cause. The Director of
Prisons is DIRECTED to implement this Decision and to report to this Court immediately the
action taken hereon within five (5) days from receipt hereof.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Austria-Martinez, and Callejo, Sr., JJ., concur.

Footnotes
1
Rollo, pp. 17-24.
2
Records, pp. 21-22.

3
4

Id. at 28.
Id. at 18-19.

Spelled as "Maritess" in some parts of the


Records.
6
Supra, note 1 at 20.
7
Id. at 21.
8
Ibid.
9
Id. at 18.
10
Id. at 19.
11
Ibid.
12
Ibid.
13
Id. at 21.
14
Supra, note 2 at 171.
15
Supra, note 1 at 22.
16
Ibid.
17
Ibid.
18
Id. at 24.
19
Id. at 57.
20
Id. at 87.
21
People v. Vidal, G.R. No. 90419, 1 June
1999, 308 SCRA 1, 10.
22
Ibid.
23
Although Teresa testified that she initially
gave P1,000, the trial court found that it
was really just 400.
24
Exhibit "A," Records, p. 4 (Medical
Certificate of Dr. Cesar Manuel).
25
Id. at 281-287.
26
TSN, July 16, 1992, p. 8.
27
Id. at 9.
28
Id. at 14.
29
Id. at 15.
30
Id. at 17-18.
31
Id. at 18-21.
32
Supra, note 21.
5

TSN, October 1, 1991, pp. 11-14.


TSN, October 16, 1989, p. 18.
35
Id. at 19-20.
36
Id. at 22.
37
TSN, October 3, 1990, pp. 7-9.
38
People v. Tan, G.R. No. 117321, 11
February 1998, 286 SCRA 207, 213.
39
G.R. No. 82769, 6 September 1993, 226
SCRA 103.
40
Supra, note 38 at 214-215.
41
G.R. No 101817, 26 March 1997, 270
SCRA 432, 444.
42
G.R. No. 95902, 4 February 1992, 205
SCRA 791.
43
Supra, note 38 at 214.
44
People v. Olivarez, Jr., G.R. No. 77865, 4
December 1998, 299 SCRA 635, 650.
45
Supra, note 38 at 214.
46
People v. Vidal, supra at 21.
47
G.R. No. 116394, 19 June 1997, 274
SCRA 238, 254.
48
G.R. No. 117401, 1 October 1998, 297
SCRA 1.
49
G.R. No. 95028, 15 March 1995, 244
SCRA 135, 142.
50
G.R. No. 91535, 2 September 1992, 213
SCRA 345.
51
People v. Binamira, G.R. No. 110397, 14
August 1997, 277 SCRA 232, 248.
52
People v. Olivarez, Jr., supra at 650-651.
53
People v. Vidal, supra at 24.
54
Id. at 20.
33
34

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 77865 December 4, 1998


PEOPLE OF THE PHILIPPINES, appellee,
vs.
RAFAEL OLIVARES, JR. and DANILO ARELLANO, appellants.

MARTINEZ, J.:

Involved in this case is the crime of robbery with homicide committed during the season of
yuletide. The facts as narrated in the People's brief are as follows:
Prosecution witness Sgt. Eduardo Marcelo testified that he took the
statements of appellant Rafael Olivares, Jr. and one Purisimo Macaoili and
verbal investigation of appellant Danilo Arellano because the latter refused to
give any statement.
Prosecution witness Cpl. Tomas Juan of the Valenzuela Police Station V
testified that in the morning of December 28, 1981, he was assigned by his
station commander to follow-up the robbery with homicide that took place at
Tanada Subdivision, Gen. T. De Leon, Valenzuela, Metro Manila. He learned
from Patrolman Bote that a regular employee of the Cardinal Plastic
Industries (where the crime was committed) had not yet reported for work.
With that information, Cpl. Juan, accompanied by Pat. Rodriquez Acharon,
and Reyes proceeded to the business establishment and were able to
confirm from the workers that appellant Danilo Arellano failed to report for
work since the commission of the crime, Melchor Salle (cousin of appellant
Arellano) volunteered to bring them to Danilo Arellano, in a factory situated in
San Juan, Metro Manila. Thereat, Melchor Salle was able to secure
information from the "barkada" of appellant Arellano who turned out to be
appellant Olivares, Jr. Appellant Olivares accompanied them to Broadway,
Barangay Kristong Hari, Quezon City, where they found appellant Arellano.
After being ask about the incident that took place at the Cardinal Plastic
Industries, appellant Arellano readily admitted to the police authorities his
participation in the commission of the crime. Thereafter, appellant Arellano
was invited to the police station (pp. 4-9, TSN, November 3, 1982). On further
direct examination, Cpl. Juan identified in open court the Sanyo cassettes,
the tapes and the wristwatch they recovered from the place where appellant
Arellano pointed to them. Said items were turned over to the police station
(pp. TSN, Nov. 17, 1982).
Prosecution witness Purisimo Macaoili testified that he found the dead body
of Mr. Sy (Tiu Hui) in the morning of december 26, 1981 inside the building
where the business establishment is situated. Mr. Sy was residing alone
inside his room because at that time his wife was in Hongkong. Some of the
workers also reside inside the business establishment. Mr. Macaoili also saw
the dead body of the father of Mr. Sy (Zie Sing Piu) in the same building
inside the establishment which was at that time registered as Foodman &
Company, a candy manufacturer (now Cardinal Plastic Industries). The
bodies of the victims were about eight (8) to ten (10) arms-length apart.
Thereafter, his companion Erning phoned Mr. Sy's brother who was then
residing near Malacaang and informed him about the incident. Mr. Sy's
brother arrived in the factory at around 6:30-o'clock in the morning and saw
the bodies of the victims. The same brother asked for the assistance of the
police who arrived at the scene of the crime and who conducted on-the-spot
investigation. Later on and upon the direction of the police, the bodies of the
victims were brought to the morgue. Mr. Macaoili did not notice any missing
personal belongings of the victims at that time inside the building (pp. 4-13,
TSN, Aug. 6, 1982). Further, Mr. Macaoili testified that he came to know that

the wristwatch, the cassettes, and other personal items of the victims were
missing when appellants were apprehended. He knew the cassette and the
wristwatch because said items had been used by the victim, Tiu Heu. He
knew appellant Arellano because he is his barriomate at Tuburan, Iloilo and
was a laborer at Foodman Industries long before December 26, 1981. He
also knew appellant Olivares, Jr. as they are also barriomates and worked
somewhere in Quezon City. He testified that appellant Olivares, Jr. twice
visited the factory before December 26, 1981 and he saw him two or three
weeks before said date. He also saw appellant Arellano inside the compound
of Foodman Industries on December 25, 1981. Appellant Arellano resides
inside the compound of the factory staying in the other room with other coworkers apart from the room of Mr. Macaoili and the members of his family.
He stated that the wristwatch worn by victim Tiu Heu was mortgaged to the
latter by the former's friend named Raul (pp. 5-11, TSN, August 20, 1982).
Prosecution witness, Sgt. Eduardo Marcelo of the PNP, Valenzuela, Metro
Manila testified that he conducted an investigation on the person of Rafael
Olivares, Jr. at about 10:45 o'clock in the morning of December 29, 1981.
Sgt. Marcelo apprised him of his constitutional rights. When informed,
appellant Olivares, Jr. declined any assistance of a lawyer during the
investigation considering that he will tell the truth about the incident. Mr.
Melchor Salle and the chief of Sgt. Marcelo were present during the police
investigations. Sgt. Marcelo prepared a statement (Exhibit B) signed by
appellant Olivares, Jr. relative to the investigation (pp. 4-11, TSN, October 8,
1982).
Prosecution witness Sika Chong testified that the victim Tiu Hu is his brother
and other victim Zie Sing Piu is his father. On December 26, 1981, the
victims were residing inside the factory situated at Gen. T. de Leon,
Valenzuela, Metro Manila. Sika Chong did not witness the commission of the
crime. He personally knew the two (2) radio cassettes belong to his father as
said items were his birthday gifts sometime in 1977 (Exhibit C) and in 1980
(Exhibit D). He bought the cassettes (Sanyo brand) from a store at Cartimar.
The small cassettes costs him P700.00 and the big radio at P800.00. Along
with the said items, he also bought five (5) tapes (Exhibits E, E-1 to E-4) (pp.
5-14, TSN, March 4, 1983).
Prosecution witness Ong Tian Lay testified that victim Zie Sing Piu is his
father and victim Tiu Hu is his brother. The victims were at the time of thier
death engaged in sago and plastic business. When they ceased operation in
the sago business, they engaged in plastic manufacturing until the time of
thier death. He spent more than P40,000.00 for the funeral expenses of the
victims and although the total receipts from Funeraria Paz amounted only to
P13,000.00, he also spent other expenses totalling P40,000.00 (pp. 3-8,
TSN, April 22, 1983). On further direct examination, Ong Tian Lay testified
that he saw the publication about the death of his father and brother at the
police department of Valenzuela, Metro Manila. He was able to get a clipping
of the publication (Exhibit F). He could not remember the names of the
newspaper where the victims' death were published but could remember that
the incident was published in at least three (3) newspapers, one (1) in the

Chinese language and the two (2) in the English language (pp. 4-13, TSN,
June 29, 1983).
Prosecution witness Narciso Gador, factory worker of Cardinal Plastics,
testified that the factory is owned by Ka Tiong Sy. He knew that the father of
his employer is already dead as well his brother. He knew appellant Danilo
Arellano because the latter is a former laborer of Cardinal Plastics. He only
came to the person of appellant Olivares, Jr. after the incident. He saw
appellants between the hours of 9:00 o'clock and 10:00 o:clock in the
evening of December 25, 1981 inside the Delia's restaurant located at BBB,
Valenzuela, Metro Manila. Narciso Gador and his companions arrived, they
ordered beer while seated at another table. They left the restaurant between
the hours of 9:00 o'clock and 10:00 o'clock in the evening of December 25,
1981 ahead of appellants. (pp. 3-6, TSN, June 15, 1983).
Dr. Rodolfo Lizondra conducted the autopsy of the cadaver of the victims. He
prepared a Necropsy Report on victim Tiu Heo Hu (Exhibits G, G-1, G-2) and
similar report on victim Sy Sing Kiaw (Exhibits H-H-1 to H-3) (Decision, Jan.
30, 1987, p. 4. 1 *
For the death of the two victims and the loss of some items, appellants were charge with the
complex crime of "robbery with double homicide" under the following informations:
That on or about the 26th day of December 1981, in the municipality of
Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Rafael Olivarez, Jr. y Jaba and Danilo
Arellano y Montinol, conspiring and confederating together and mutually
helping each other, did then and there wilfully, unlawfully and feloniously, with
intent of again and by means of force, violence and intimidation upon the
persons of Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw" take, rob and carry
away with them cash in the amount of P1,800.00 two (2) radio cassettes
marked "Sanyo", one (1) wrist watch marked "Citron" and five (5) tape
recorder cassettes, belongings to Tiu Hu, to the damage and prejudice of the
latter in the sum of more than P1,800.00; and that by reason or on the
occasion (sic) of the said robbery and for the purpose of enabling them to
take, rob and carry away the said amount of P1,800.00, two (2) radio
cassettes, one (1) wrist watch and five (5) tape recorder cassettes, the herein
accused, in pursuance of their conspiracy, did then and there willfully,
unlawfully and feloniously, with evidence (sic) premeditation and treachery
and taking advantage of their superior strenght, attack, assault and use
personal violence on the said Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw",
thereby inflicting fatal physical injuries which directly caused the death of the
said Tiu Hu and Sing Piu alias "Sy Sing Kiaw".
That in the commission of the said crime, other aggravating circumstances of
nocturnity and unlawful entry were present. 2

After the trial, the lower court rendered a decision dated Janaury 30, 1987 convicting
appellants of the crime charged, sentence them to suffer the death penalty and to indemnify
the victim' heirs. The dispositive portion of the trial court's decision reads:
In view of the foregoing circumstancial evidence and not mainly on the basis
of the extrajudicial confession, the Court finds both accused guilty beyond
reasonable doubt of the crime of Robbery with Double Homicide and
sentences them to suffer the penalty imposed by law is death on 2 counts,
and to indemnify the heirs of the victim in the sum of P60.000.00 and to pay
the cost.
SO ORDERED. 3
On direct appeal to this Court, appellants, who are imprisoned, seek their acquittal on the
ground that their guilt was not proven by the prosecution beyond reasonable doubt.
Alternatively, they argued that in case their conviction is sustained, the death penalty should
not be imposed on them in the light of the 1987 Constitution.
In the course of the elevation of the records, the Court found that the transcript of
stenographic notes (TSN) for the November 12, 1982 4 hearing was missing. When the
whereabouts of the said TSN could not be traced despite diligent efforts and after disciplinary
measures were imposed on some court personnel, the counsels of both parties were ordered to
submit their respective manifestation if said TSN may be dispensed with or a retaking of the
testimony of the witness should instead be made. 5 The Office of the Solicitor General (OSG)
agreed to dispense with the TSN. 6 Counsel for appellants (Atty. Escolastico R. Viola), who failed
to comply with the order, was penalized with fine and later ordered arrested byt this
Court. 7 Thereafter, the Court appointed the Public Attorney's Office (PAO) to represent
appellants. 8 The PAO made a similar manifestation as the OSG did with respect to the TSN. 9
Upon a thorough review of the records of the case, appellants' conviction cannot stand for
reasons which were not discussed or even mentioned by appellants' appointed counsel. The
PAO, as the duly designated government agency to represent and render legal services to
pauper litigants who cannot hire their own counsel, should have exerted more effort on this
case. Its pleadings filed before this court could hardly be considered as the product of an
advocate who has the responsibility to serve his client with competence and diligence. 10 The
preparation of his case is a duty the lawyer owes not only to his client whose property, money and
above all life and liberty he is bound to protect. It is also a duty he owes to himself, to his own
integrity and self-respect at the bar. Nonetheless, the Court is not powerless to address and
consider unassigned issues and relevant facts and law that may affect the merits and justifiable
disposition of the case.
Initially, the categorization by the prosecution of the crime of robbery with double homicide is
erroneous because the word "homicide" in Article 294 of the Revised Penal Code (RPC)
should be taken in its generic sense. 11absorbing not only acts which results in death (such as
murder) but also all other acts producing anything short of death (such as physical injuries)
committed during the robbery. 12 and regardless of the multiplicity of the victim which is only
considered as an aggravating circumstances. 13 The indictable offense is still the complex crime of
robbery with homicide (which is its proper nomenclature), the essential elements of which are:

a.) the taking of personal property with the use of violence or


intimidation against a person;
b.) the property thus taken belongs to another;
c.) the taking is characterized by intent to gain or animus
lucrandi;
d.) on the occasion of the robbery or by reason thereof, the
crime of homicide which is therein used in a generic sense,
was
committed. 14
In this case, there were no eyewitnesses to the killing and robbery and; thus, no direct
evidence points to appellants criminal liability. The prosecution's principal evidence against
them is based solely on the testimony of the police officers who arrested, investigated and
subsequently took their confession. Such evidence when juxtaposed with appellants'
constitutional rights concerning arrests and the taking of confessions leads to a conclusion
that they cannot he held liable fort the offense charged despite the inherent weakness of
their defenses of denial and alibi, not because they are not guilty but because the evidence
adduced against them are inadmissible to sustain a criminal conviction.
First, appellants were arrested without a valid warrant of arrest and their arrest cannot even
be justified under any of the recognized exceptions for a valid warrantless arrest mentioned
in Section 6, (now section 5) Rule 113 of the Rules on Criminal Procedure, which prior to its
amendment in 1998 15 provides:
Arrest without warrant; when lawful. A peace officer or private person may,
without a warrant, arrest a person:
a) when the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;
b) when the offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested
has committed it;
c) when the person to be arrested is a prisoner who has
escaped from a penal establishment or/place where he is
serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
None of the foregoing exceptions for a valid warrantless arrest concurs herein. At the time
appellants were apprehended, two days had already lapsed after the discovery of the crime
they were not doing nor had just done any criminal act. Neither were they caught
in flagrante delicto or had escaped from confinement. Probably aware of the illegality of the
arrest they made the arresting officers testified that appellants were merely invited to the
police precinct. Such invitation, however when construed in the light of the circumstances is

actually in the nature of an arrest designed for the purpose of conducting an


interrogation. 16 Mere invitation is covered by the proscription on a warrantless arrest because it is
intended for no other reason than to conduct an investigation. Thus, pursuant to Section 4(2),
Article IV of the 1973 Constitution which was in effect at that time, "any evidence" obtained in
violation of their right under Section 3, Article IV (pertaining to invalid warrantless arrests) 17 "shall
be inadmissible for any purpose in any
proceeding." 18 By virtue of said constitutional protection any evidence obtained, including all the
things and properties alleged to be stolen by appellants which were taken by the police from the
place of the illegal arrest cannot be used as evidence for their conviction. In the same manner, all
the products of those illegal arrest cannot be utilized to sustain any civil liability that they may
have incurred by reason of their acts. This is the clear mandate of the Constitution when it
provides that those illegally obtained evidence being "the fruits of the poisonous tree" are
"inadmissible for any purpose in any proceeding". The foregoing constitutional protection on the
inadmissibility of evidence (which are the product of an illegal search and arrest) known as the
eclusionary rule, applies not only to criminal cases but even extends to civil, administrative and
any other form of proceedings. No distinction is made by the Constitution; this Court ought not to
distinguish.
Even assuming arguendo that by entering a plea without first questioning the legality of their
arrest, appellants are deemed to have waived any ojection concerning their arrest: 19 yet the
extrajudicial confession of appellant Olivares, Jr. on which the prosecution relies, is likewise
inadmissible in evidence. Under the Constitution, any person under investigation for the
commission of an offense shall have the right, among other to have a counsel, 20 which right can
be validly waived. In this case, the said confession was obtained during custodial investigation
but the confessant was not assisted by counsel. His manifestation to the investigating officer that
he did not need the assistance of counsel does not constitute a valid waiver of his right within the
contemplation of our criminal justice system. This notwithstanding the fact that the 1973
Constitution does not state that a waiver of the right to counsel to be valid must be made with the
assistance or in the presence of counsel. Although this requisite concerning the presence of
counsel before a waiver of the right to counsel can be validly made is enshrined only in the 1987
Constitution, which further requires that the waiver must also be in writing, 21 yet jurisprudence is
replete even during the time of appellants arrest where it has been categorically ruled that a
waiver of the constitutional right to counsel shall not be valid when the same is made without the
presence or assistance of counsel.22 Consequently, the valid waiver of the right to counsel during
custodial investigation makes the uncounselled confession, whether verbal or nonverbal, 23 obtained in violation thereof as also "inadmissible in evidence" 24 under Section 20,
Article IV of the 1973 Constitution 25 which provides:
. . . . Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of such
right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used aginst him. Any confession obtained in
violation of this section shall be inadmissible in evidence. (emphasis
supplied).
Under the present laws, a confession to be admissible must be: 26
1.) express and categorical; 27
2.) given voluntarily, 28 and intelligently where the accused
realizes the legal significance of his act; 29

3.) with assistance of competent and independent counsel; 30


4.) in writing; and in the language known to and understood
by the confessant; 31 and
5 signed, or if the confessant does not know how to read and
write thumbmarked by him.32
In this case, the absence of the third requisite above makes the confession
inadmissible. The purpose of providing counsel to a person under custodial
investigation is to curb the uncivilized practice of extracting confession even by the
slightest coercion 33 as would lead the accused to admit something false. 34 What is
sought to be avoided is the "evil of extorting from the very mouth of the person
undergoing interrogation for the commission of an offense, the very evidence with which
to prosecute and thereafter convict him. 35 These constitutional guarantees have been
made available to protect him from the inherently coercive psychological, if not physical
atmosphere of such investigation. 36 In any case, said extrajudicial confession of one
accused may not be utilized against a co-accused unless they are repeated in open court
or when there is an opportunity to cross-examine the other on his extrajudicial
statements. It is considered hearsay as against said accused under the rule onres enter
alios acta rule, which ordains that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another. 37
Aware of the abuses committed by some investigating and police agencies on a
criminal suspect to get leadings confessions, information and evidence just so they
can claim to have speedily resolved a crime and fulfilled their duty, all at the expense
of the basic human rights guaranteed by the Constitution the Court cannot turn a
blind eye by disregarding the constitutional rights accorded to every accused and
tolerate official abuse. The presumption that a public officer had regularly performed
his official duty, 38 which is only a matter of procedure, cannot prevail over the
presumption of innocence stated in the highest law of the land the Constitution. As a
contract between and among the people, the provisions of the Constitution cannot just be
taken lightly.
With the inadmissibility of the material circumstancial evidence which were premised
on the likewise extrajudicial confession upon which both the prosecution and the
lower court relied to sustain appellants' conviction the remaining circumstances
cannot produce a logical conclusion to establish their guilt. In order to sustain a
conviction based on circumstancial evidence, it is necessary that the same satisfies
the following elements:
1. there is more than one circumstances;
2. the facts from which the inferences are derived are proven;
and
3. the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. 39

Simply put for circumstancial evidence to be sufficient to support a conviction, all


circumstances must be consistent with each other consistent with the hypothesis that
the accused is guilty, and at the same time incosistent with the hypothesis that he is
innocent and with every other rational hypothesis except that the guilt. 40
The findings of the trial, to wit:
Both accused are barriomates from Iloilo which means that there is a
common factor for them to come together and act on a plan hatched by them
during a drinking spree. It would not be remote for Melchor Sali who was
questioned by the police and on whose statement the police made a start to
investigate, would be a part of the plan to rob two or three weeks before the
incident, because he is also a barriomate of the two accused. The truth of the
testimony of Narciso Gador that both accused were seen by him on
Christmas night at Delia's restaurant between 9:00 and 10:00 o'clock at night
which is corroborated in the statement of Rafael Olivarez, Jr. is not remote
and is more credible than the defense (sic) alibi of the Olivarez brothers that
they were together sleeping in an employer's house. Another matter to
consider was the failure of Danilo Arellano to report for work after the killing
that was from December 26, 1981 until he was arrested. His having left his
place of employment and residence without explanation is an evidence of
flee from the scene of the crime. Flee without anyone pursuing is an
indication of guilt. Another ciscumstantial evidence showing that the crime
was perpretrated by both accused was the recovery of the radio cassettes,
tapes and wrist watch by Cpl. Juan Tomas who testified that the place were
recovered was pointed to by Danilo Arellano (TSN Nov. 17, 1982, p. 4).
These stolen articles having been recently stolen and their whereabouts
being known to Danilo Arellano raises the presumption that he was the one
who took the same with intent to gain from their rightful
owner. 41
cannot entirely be considered because some of the circumstancial evidence relied
upon by the trial court were, at the risk of being repetitive, based on the inadmissible
extrajudicial confession. The facts which became known only by virtue of the
extrajudicial confession pertains to how the victims were killed, how appellants
gained entrance into the premises, and how the alleged stolen properties were found
in the house where one of them was arrested. Without the foregoing facts a
combination of the remainder of the circumstancial evidence cannot sustain a
conviction beyond the shadow of reasonable doubt: hence, the absence of the third
requisite. Forthwith the prosecution failed to discharge its burden of proof and
consequently to rebut with the required quantum of evidence 42 the presumption of
innocence 43 fundamentally enjoyed by both appellants. For it is a basic evidentiary rule in
criminal law that the prosecution has the onus probandi of establishing the guilt of the
accused. El incumbit probatio non qui negat. He who asserts not he who denies
must prove. Likewise, it is settled that conviction must rest on the weakness of the
defense but on the strength of the prosecution. 44 Accordingly, circumstancial evidence
with has not been adequately established cannot, by itself, be the basis of conviction. 45

WHEREFORE, appellants' conviction is herein REVERSED and both are ACQUITTED for
the crime charged. The person detaining them is ordered to IMMEDIATELY RELEASE
appellants UNLESS they are held for some other lawful cause.
SO ORDERED.
Melo, Puno and Mendoza, JJ., concur.
Footnotes
1 Rollo, pp. 234-342.
* Sic is no longer indicated so as not to clutter the above narration, the other quoated portion
of the trial court's decision and the informations.
2 Rollo, pp. 232-233.
3 Regional Trial Court (RTC) Decision dated January 30, 1987, penned by Judge Teresita DizonCapulong, pp. 9-10; Rollo, pp. 63-64, 202-211.
4 In some Court resolutions, the year was written as 1992.
5 Supreme Court Minute Resolution dated November, 24, 1993; Rollo, p. 114.
6 Manifestation dated May 13, 1994; Rollo, p. 137-138.
7 Supreme Court Minute Resolution dated July 12, 1995; Rollo, pp. 155-157.
8 Supreme Court Minute Resolution dated September 18, 1995; Rollo, p. 164.
9 Manifestation of Public Attorney's Office dated November 15, 1995; Rollo, pp. 165-166.
10 Canon 18, Code of Professional Responsibility.
11 People v. Sequio, 264 SCRA 79; People v. Camat, 326 Phils. 56.
12 People v. Feliciano, 256 SCRA 706; People v. Feleciano, 326 Phils. 719.
13 People v. Bracamonte, 257 SCRA 380; People v. Salvatiera, 257 SCRA 489.
14 People v. Mendoza, G.R. No. 115809, January 23, 1998; People v. Bacay, G.R. No. 120366,
January 16, 1998; People v. Gavina, 264 SCRA 450.
15 The amended 1988 Rules provides: "Arrest without warrants when lawful A peace officer
or a private person may, without a warrant, arrest a person:
(a) when, in his presence, the person to be arrested has committed, is actually committing, or
is about to commit an offense;
(b) when the offense has in fact been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c) when the person to be arrested is a prisoner who has escaped from a penal establisment or
place where he is serving final judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another.
In case falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall
be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7.
16 Under Republic Act (R.A.) No. 7438 (AN ACT DEFINING CERTAIN RIGHTS OF PERSON
ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE
ARRESTING, DETAINING, AND INVESTIGATING OFFICERS AND PROVIDING PENALTIES FOR
VIOLATING THEREOF) which took effect only on July 7, 1992 "custodial investigation" includes
the practice of issuing an "invitation" to a person who is investigated in connection with an
offense he is suspected to have committed.
17 The right of the people to be secure in their, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purposes shall not be
violated, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the witness he may
produce, and particularly describing the place to be searched, and the persons or things to be
seized.
18 Sec. 4 (2), Article IV, 1973 Constitution provides: "Any evidence obtained in violation of this
or the preceding section shall be inadmissible for any purpose in any proceeding.
19 Padillia v. Court of Appeals and People of the Philippines, 269 SCRA 402 (1997).

20 Part of the so-called "Miranda rights" enunciated by the American Supreme Court in
Miranda v. Arizona, 384 US 436, 16 L ed 694, 10 A.L.R. 3d, 1974.
21 Sec. 20, Article IV, 1973 Constitution now Section 12 (1), Article III, 1987 Constitution.
22 People v. Dacoycoy, 208 SCRA 583 and People v. Pecardal, 145 SCRA 647 cited in People v.
Bonola, 274 SCRA 238; People v. Rojas, 147 SCRA 169; People v. Galit, 135 SCRA 465.
23 People v. Bonola, 274 SCRA 238.
24 People v. Parel, 330 Phil. 453.
25 People v. Dicierdo, 149 SCRA 496; Soliman v. Sandiganbayan, 145 SCRA 640; People v.
Ribadajo, 143 SCRA 637; People v. Poyos, 143 SCRA 542; People v. Sison, 142 SCRA 218;
People v. Morales, 121 SCRA 538; People v. Robles, 104 SCRA 450; People v. Jimenez, 71 SCRA
184.
26 People v. Jerez, G.R. No. 114385, Janaury 29, 1998; People v. Cabiles, 284 SCRA 199.
27 Sec. 33, Rule 130, Rules on Evidence, U.S. v. Corrales, 28 Phil. 362; U.S. v. Lio Team, 23 Phil.
64.
28 Sec. 12 (1), Article III, 1987 Constitution; People v. Nishishima, 57 Phil. 26.
29 Bilaan v. Cusi, 5 SCRA 451, 115 Phil. 449; U.S. v. Agatea, 40 Phil. 596.
30 Sec. 12 (1), Article III, 1987 Constitution.
31 Sec. 2 (b), R.A. No. 7438.
32 Ibid.
33 People v. Paule, 330 Phil. 373.
34 People v. Andal, 279 SCRA 474; People v. Layuso, 175 SCRA 47.
35 People v. Bonola, supra.
36 Miranda v. Arizona, supra.
37 People v. Raquel, 333 Phil. 72.
38 Sec. 5 (m), Rule 131, now Section 3 (m), of the Revised Rules on Evidence.
39 Sec. 4, Rule 133, Revised Rules on Evidence; People v. Berroya, et al., 283 SCRA 111 (1997);
People v. Doro, 282 SCRA 1 (1997); People v. Bonola, 274 SCRA 238; People v. Grefaldia, 273
SCRA 591.
40 People v. De Guia, 280 141 (1997).
41 Rollo, p. 60; RTC Decision, p. 6.
42 Sec. 2, Rule 131, in relation to Sec. 2, Rules 133, Rules of Evidence before the 1989
amendments.
43 Sec. 19, Article IV, 1973 Constitution (now Section 14 (2), Article III, 1987 Constitution);
People v. Villaviray, 330 Phil. 541.
44 People v. Balderas, 276 SCRA 470; People v. Raquel, supra.
45 People v. Ilaoa, 233 SCRA 231.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 89223 May 27, 1994


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AURELIO BANDULA y LOPEZ, accused-appellant.
The Solicitor General for plaintiff-appellee.
Saleto J. Erames for accused-appellant.

BELLOSILLO, J.:
After he and his wife were individually hog-tied and their house ransacked, JUANITO
GARAY, a lawyer, was found dead with three (3) gunshot wounds. For his death and the loss
of their things on the occasion thereof, AURELIO BANDULA, PANTALEON SEDIGO,
TEOFILO DIONANAO and VICTORIANO EJAN were haled to court for robbery with
homicide.
On 5 May 1989, after hearing twelve (12) prosecution and nine (9) defense witnesses, the
trial court rendered judgment finding accused Aurelio Bandula guilty of the crime charged.
However, his three (3) co-accused were acquitted "for insufficiency of evidence." 1
As found by the court a quo, 2 on 27 January 1986, at around ten o'clock in the evening, six (6)
armed men barged into the compound of Polo Coconut Plantation in Tanjay, Negros Oriental. The
armed men were identified by Security Guard Antonio Salva of the plantation as Aurelio Bandula,
Teofilo Dionanao, Victoriano Ejan and Pantaleon Sedigo while the two others who wore masks
were simply referred to as "Boy Tall" and "Boy Short." At gunpoint, the two (2) masked men held
Salva who was manning his post, disarmed him of his shotgun and tied his hands behind his
back. They then went up the house of Leoncio Pastrano, Chief of Security and General Foreman
of the plantation,
hog- tied him, and divested him of his driver's license, goggles, wristwatch and .38 cal. snubnose
revolver. From there, the six (6) armed men with Salva and Pastrano in tow proceeded to the
house of Atty. Juanito Garay, Manager of the Polo Coconut Plantation. Accused Dionanao, Ejan
and Sedigo stayed downstairs while accused Bandula and the two masked men with Salva and
Pastrano went up the house of Atty. Garay. After forcing their way into the house, the masked
men and Bandula ransacked the place and took with them money and other valuables.
Thereafter, the hooded men who were bringing with them Atty. Garay locked Pastrano inside his
house together with Salva. A few minutes later, Pastrano and Salva heard gunshots coming from
the direction of the gate of the compound. After succeeding in untying themselves, Pastrano and
Salva went to report the matter to the police. On their way, they found outside the gate the lifeless
body of Atty. Garay.
In arriving at its conclusions, the trial court considered the alleged confession of accused
Bandula that after the incident he gave his .38 cal. revolver for safekeeping to Jovito
Marimat, Jr., from whom three handguns were recovered by the police, i.e., a .38 cal.
revolver with four (4) live ammunitions and one (1) empty shell, a .22 cal. "paltik" revolver,
and a revolver with M16 bullets. It likewise took into account the supposed admission of
accused Victoriano Ejan that he kept a 12-gauge Winchester shotgun, a tape recorder, a

bayonet and a pair of binoculars in the house of his relative Emilio Rendora who was found
to have the goods in his possession. The court also noted that a sum of money suspected to
be part of the loot was recovered from accused Pantaleon Sedigo.
Admitted also in evidence were the alleged extrajudicial confessions of accused Bandula
and Dionanao that they were merely forced to participate in the commission of the crime by
"Boy Tall" and "Boy Short." "These extrajudicial confessions made by accused Teofilo
Dionanao and Aurelio Bandula extracted during custodial investigation," the trial court ruled,
"have all the qualities and have complied with all the requirements of an admissible
confession, it appearing from the confession itself that accused were informed of their rights
under the law regarding custodial investigation and were duly represented by counsel (Atty.
Ruben Zerna)." 3
Thus the trial court disregarded the following defenses of the four (4) accused:
(a) Teofilo Dionanao that he was arrested without a warrant and brought to the Tanjay
Police Station on 28 January 1986 for no apparent reason; that there he was made to sit on
a bench for about an hour when Cpl. Kagawasan Borromeo, Pat. Tomas Borromeo and Pat.
El Moso arrived and took turns in mauling him until he spat blood, after which, he was locked
up in the municipal jail; that his repeated requests to see a doctor were ignored; that the
following morning, he was taken out of his cell and again mauled, after which, he was forced
to sign a piece of paper without a counsel and the contents of which he did not know; that,
prior to his detention, he did not know his three (3)
co-accused as he met them for the first time only when they were detained together in the
Municipal Jail of Tanjay.4
(b) Aurelio Bandula that in the evening of 27 January 1986 he was in the house of Jovito
Marimat, Sr., a quack doctor; that he was bedridden as he was undergoing treatment for an
inflamed stomach which, at that time, was fully covered with herbs; that, the following
morning, at around six o'clock, he was awakened and dragged by Cpl. Borromeo and Pat.
Moso from his sickbed into a waiting motorcycle and brought to the Municipal Hall where he
was interrogated by Pat. Melvin Baldejera; that, later that afternoon, he was brought to a
room where four (4) persons, including Antonio Salva, took turns in beating him up until he
became unconscious; that that evening, he was made to sign a blank paper purportedly for
his release; that he was then put behind bars; that because of the mauling, he felt extreme
pain on his left rib; that he saw accused Dionanao for the first time only on 28 January 1986
in the Municipal Hall, and his two (2) other co-accused Sedigo and Ejan only the following
day when they were locked up together with him in his cell; that his relatives were not
allowed to see him; and, that he did not know nor ever met Atty. Ruben Zerna. 5
(c) Victoriano Ejan that he first met his three (3) co-accused only on
29 January 1986 when he was confined in the Municipal Hall; that after taking supper on 27
January 1986, he slept with his wife and four (4) children; that he was not aware of the
incident that transpired that night until he was arrested at gunpoint by Pat. Moso, Pat. Gaste
and Pat. Esparicia at around five o'clock the following afternoon; that he was brought to the
Municipal Hall and there mauled until he lost consciousness; that his relatives were barred
from seeing him; that during his four-month detention in Tanjay, he was never investigated;
that he has not relative by the name of Emilio Rendora. 6

(d) Pantaleon Sedigo that on 29 January 1986, at around six-thirty in the morning, Pat.
Esparicia and Cpl. Borromeo, with their guns drawn, just barged into his house, searched his
belongings and arrested him without a warrant; that when he refused to go with them, he
was hit on the chest and eye; that he had never met any of his co-accused prior to his
detention, neither did he know the deceased Atty. Garay; and, that he did not know anything
about the charges against him. 7
On 6 June 1986, the four (4) accused were transferred from the Municipal Jail of Tanjay to
the Negros Oriental Provincial Rehabilitation Center in Dumaguete City. It was there where
accused Bandula asked to see a doctor; that, as a result of his request, he was brought to
the provincial hospital where he was examined 8 and diagnosed to have an "[o]ld healed
fracture with callous formation at the 6th and 7th rib along the mid-auxiliary line, left;" 9 that when
prosecution witness Pat. Baldejera was asked on 15 September 1987 in open court if he saw any
contusions or bruises on any of the four (4) accused after their arrest, he admitted that he noticed
accused Sedigo with a "black eye." 10
Although the respective alibis of all four (4) accused were disregarded considering their
positive identification by Salva as the ones who raided Polo Coconut Plantation, the trial
court nevertheless acquitted Dionanao, Ejan and Sedigo on the ground that while "these
three accused were present at the scene of the crime . . . from the inception of the crime to
its final termination, they were merely bystanders and did not participate in one way or
another in the commission thereof . . . The mere knowledge, acquiescence or approval of the
act without cooperation or agreement to cooperate is not enough to constitute one a party to
a conspiracy." 11 Hence, the instant appeal by the lone convict.
Appellant Bandula argues that the extrajudicial confessions he and accused Dionanao
executed suffer from constitutional infirmities, hence, inadmissible in evidence considering
that they were extracted under duress and intimidation, and were merely countersigned later
by the municipal attorney who, by the nature of his position, was not entirely an independent
counsel nor counsel of their choice. Consequently, without the extrajudicial confessions, the
prosecution is left without sufficient evidence to convict him of the crime charged.
The prosecution witnesses themselves disclosed that on 28 January 1986 accused
Dionanao was "picked-up for investigation" and interrogated by
Cpl. Ephraim Valles inside the Police Station in Tanjay where he implicated accused
Sedigo. 12 The following day, on 29 January 1986, he was brought to the Office of the Municipal
Attorney of Tanjay, Atty. Ruben Zerna, where he supposedly executed his extrajudicial confession
in the presence of the latter. 13 On 4 February 1986, upon the suggestion of another investigator,
Cpl. Valles took the Supplementary Sworn Statement of Dionanao, again in the presence of Atty.
Zerna. 14 In his Sworn Statement, Dionanao supposedly admitted that he was with Bandula when
the latter, together with "Boy Short" and "Boy Tall," shot Atty. Garay. He added that he was going
to be killed if he did not join the group. He also said that Sedigo and Ejan were with them that
evening. 15 Then, in his Supplementary Sworn Statement, he implicated three (3) more persons
but they were not thereafter included in the Information. 16
The prosecution likewise asseverated that accused Bandula was arrested on 28 January
1986, at around six o'clock in the morning, brought to the
Tanjay Police Station and there interrogated. 17 He was investigated by
Cpl. Borromeo, Cpl. Esparicia, Cpl. Ebarso, Pat. Moso and Pat. Baldejera. 18 In that investigation,
Bandula allegedly admitted that he together with two (2) others shot Atty. Garay with a .38 cal.

revolver. 19 At that time, there was no counsel present "because that (investigation) was not yet in
writing." 20 Two weeks after his arrest, Bandula allegedly gave a sworn statement in the presence
of Atty. Zerna admitting his participation in the killing of Atty. Garay. In
that statement, Bandula narrated that after "Boy Short" and "Boy Tall" shot Atty. Garay, he
(Bandula) was ordered likewise to shoot the latter which he
did. 21

From the records, it can be gleaned that when accused-appellant Bandula and accused
Dionanao were investigated immediately after their arrest, they had no counsel present. If at
all, counsel came in only a day after the custodial investigation with respect to accused
Dionanao, and two weeks later with respect to appellant Bandula. And, counsel who
supposedly assisted both accused was Atty. Ruben Zerna, the Municipal Attorney of Tanjay.
On top of this, there are telltale signs that violence was used against the accused. Certainly,
these are blatant violations of the Constitution which mandates in
Sec. 12, Art. III, that
(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
In the twin cases of Morales, Jr., v. Enrile 22 and Moncupa, Jr. v.
Enrile, 23 and the subsequent case of People v. Galit, 24 all promulgated even before the effectivity
of the 1987 Constitution, we laid down the procedure for peace officers to follow when making an
arrest and conducting a custodial investigation
. . . At the time a person is arrested, it shall be the duty of the arresting officer
to inform him of the reason for the arrest and he must be shown the warrant
of arrest, if any. He shall be informed of his constitutional rights to remain
silent and to counsel, and that any statement he might make could be used
against him. The person arrested shall have the right to communicate with
his lawyer, a relative, or anyone he chooses by the most expedient means
by telephone if possible or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf, or

appointed by the court upon petition either of the detainee himself or by


anyone on his behalf. The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether exculpatory
or inculpatory, in whole or in part, shall be inadmissible in evidence.
We further said in Gamboa v. Judge Cruz 25 that "[t]he right to counsel attaches upon the start
of an investigation, i.e., when the investigating officer starts to ask questions to elicit information
and/or confessions or admissions from respondent/accused. At such point or stage, the person
being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false
or coerced admissions or confessions from the lips of the person undergoing interrogation for the
commission of the offense." Hence, if there is no counsel at the start of the custodial
investigation, any statement elicited from the accused is inadmissible in evidence against him.
Custodial investigation is the stage where the police investigation is no longer a general inquiry
into an unsolved crime but has began to focus on a particular suspect who had been taken into
custody by the police who carry out a process of interrogation that lends itself to elicit
incriminating statements. It is when questions are initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. 26
Indeed, the instant case is analogous to the more recent case of People v. De Jesus 27 where
we said that admissions obtained during custodial interrogations without the benefit of counsel
although later reduced to writing and signed in the presence of counsel are still flawed under the
Constitution.
The Constitution also requires that counsel be independent. Obviously, he cannot be a
special counsel, public or private prosecutor, counsel of the police, or a municipal attorney
whose interest is admittedly adverse to the accused. Granting that Atty. Zerna assisted
accused Dionanao and Bandula when they executed their respective extrajudicial
confessions, still their confessions are inadmissible in evidence considering that Atty. Zerna
does not qualify as an independent counsel. As a legal officer of the municipality, he provides
legal assistance and support to the mayor and the municipality in carrying out the delivery of
basic services to the people, including the maintenance of peace and order. It is thus
seriously doubted whether he can effectively undertake the defense of the accused without
running into conflict of interests. He is no better than a fiscal or prosecutor who cannot
represent the accused during custodial investigations. 28
What is most upsetting however is the allegation of the four (4) accused that they were
mauled into owning the crime. Based on the records, we are strongly drawn to the belief that
violence indeed attended the extraction of statements from the accused.
For, why did the investigators not inform the accused of their right to remain silent and to
have competent and independent counsel, preferably of their own choice, even before
attempting to elicit statements that would incriminate them? Why did the investigators not
advise the accused that if they could not afford the services of counsel they could be
provided with counsel free of charge before conducting any investigation? Why did the
investigators continuously disregard the repeated requests of the accused for medical
assistance? How did accused Sedigo get his "black eye" which even
Pat. Baldejera admitted? How and why did accused-appellant Bandula suffer a fractured rib?

We cannot close our eyes to these unanswered questions. This Court is greatly disturbed
with the way the accused were treated or maltreated. In fine, we cannot accept the
extrajudicial confessions of the accused and use the same against them or any of them.
Where there is doubt as to their voluntariness, the same must be rejected in toto. 29
Consequently, the prosecution is left with nothing but the alleged positive identification of
appellant Bandula by witness Salva. But this by itself does not measure up to the required
standard of moral certainty.
We cannot give credence to the lone identification by witness Salva of all four (4) accused
who were supposedly bold enough to bare their faces. For, Maria Paz Garay, widow of the
victim, recounted that except for Pastrano and Salva whose hands were tied behind their
backs, she could not recognize any of the men as all their faces were fully covered, although
according to Salva only two (2) were hooded. She could only see their eyes. 30 Thus, even
Pastrano who witnessed the crime together with Salva was not able to recognize any of the
armed men as they were hooded. In fact, even if there was light, he said he would not be able to
recognize the malefactors. 31 Contraposed with the testimonies of Garay and Pastrano, the
alleged positive identification by Salva crumbles.
With the failure of the prosecution to prove the guilt of accused-appellant Bandula beyond
reasonable doubt, acquittal should follow as a matter of course. We have oftentimes said
that while the alibi of the accused is easily fabricated, this claim assumes importance when
faced with the inconsistencies and the rather shaky nature of the prosecution
evidence. 32 The prosecution must rely not on the weakness of the defense evidence but rather
on its own proof which must be strong enough to convince this Court that the prisoner in the dock
deserves to be punished. In this, the state has utterly failed.
Indeed, it is unfortunate that the investigators who are sworn to do justice to all appear to
have toyed with the fundamental rights of the accused. Men in uniform do not have blanket
authority to arrest anybody they take fancy on, rough him up and put words into his mouth.
There is a living Constitution which safeguards the rights of an accused, 33 a penal law which
punishes maltreatment of prisoners 34 and a statute which penalizes the failure to inform and
accord the accused his constitutional rights. 35
WHEREFORE, on reasonable doubt, the conviction of accused-appellant AURELIO
BANDULA Y LOPEZ by the court a quo is REVERSED and SET ASIDE and a new one
entered ACQUITTING him of the crime charged.
Costs de oficio.
SO ORDERED.
Davide, Jr. and Quiason, JJ., concur.
Cruz and Kapunan, JJ., are on leave.

#Footnotes

1 Decision penned by Judge Jesus L.


Tabilon, Regional Trial Court of Dumaguete
City, Br. 42.

2 Decision of the court a quo, pp. 35-37.


3 Id., p. 38.
4 TSN, 15 June 1988, pp. 18-34.
5 Id., 25 July 1988, pp. 2-27.
6 Id., 16 September 1988, pp. 4-22, 32; 10
October 1988, pp. 5-6.
7 Id., 10 October 1988, pp. 16-26.
8 Id., 25 July 1988, pp. 28-30.
9 Id., 23 August 1988, p. 6.
10 Id., 15 September 1987, pp. 31-32.
11 Decision of the trial court, pp. 39-40.
12 TSN, pp. 20 October 1987, pp. 7-9.
13 Id., 1 March 1988, pp. 10-11.
14 Id., pp. 19-20.
15 Sworn Statement of Teofilo Dionanao
taken on 29 January 1986 (Exh. "R").
16 Supplementary Sworn Statement of
Teofilo Dionanao taken on 4 February 1986
(Exh. "T").
17 TSN, 15 September 1987, pp. 55-57.
18 Id., 19 May 1987, pp. 4-7.
19 Ibid.
20 Id., 15 September 1987, pp. 32-33.
21 Sworn Statement of Aurelio Bandula
taken on 11 February 1986 (Exh. "N").
22 G.R. No. 61016, 26 April 1983, 121
SCRA 538.
23 G.R. No. 61107, 26 April 1983, 121
SCRA 538.

24 G.R. No. 51770, 20 March 1985, 135


SCRA 465.
25 G.R. No. 56291, 27 June 1988, 162 SCRA
642, cited by Mr. Justice Teodoro Padilla in
his Separate Concurring Opinion in
Sampaga v. People, G.R.
No. 62305, 23 November 1992, 215 SCRA
839.
26 Miranda v. Arizona, 384 U.S. 436, 444.
27 G.R. No. 91535, 2 September 1992, 213
SCRA 345.
28 People v. Matos-Viduya, G.R. No. 60025,
11 September 1990, 189 SCRA 403.
29 People v. Galit, see Note 24.
30 TSN, 3 May 1988, pp. 5-22.
31 Id., 7 January 1987, pp. 21-33, 50-51.
32 People v. Malakas, G.R. No. 92150, 8
December 1993; People v. Ambih, G.R.
No. 101006, 3 September 1993.
33 Sec. 12, Art. III, 1987 Constitution.
34 Art. 235, The Revised Penal Code.
35 R.A. 7438, "An Act Defining Certain
Rights of Persons Arrested, Detained or
Under Custodial Investigation as well as the
Duties of the Arresting, Detaining, and
Investigating Officers and Providing
Penalties for Violations thereof."

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 122142 May 17, 2000


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JIMMY OBRERO y CORLA, accused-appellant.

MENDOZA, J.:
This is an appeal from the decision 1 of the Regional Trial Court, Branch 12, Manila, finding
accused-appellant Jimmy Obrero y Corla 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 indemnify the heirs of the victims Nena Berjuega and
Remedios Hitta in the amount of P50,000.00 each and to pay the sum of P4,000.00
representing the amount of money stolen.
The information alleged
That on or about August 11, 1989, in the City of Manila, Philippines, the said
accused conspiring and confederating with one, whose true name, identity
and present whereabouts are still unknown and mutually helping one
another, did then and there willfully, unlawfully and feloniously with intent of
gain and by means of force, violence and intimidation, to wit: the said
accused take, rob and carry away the amount of P4,000.00 cash belonging
to Antonio Cabrera against his will, to the damage and prejudice of said
owner in the aforesaid amount of P4,000.00 Philippine Currency; that on the
occasion thereof and by reason of the aforesaid robbery, the said accused
willfully, unlawfully and feloniously, with intent to kill, attacked, assaulted and
used personal violence upon the person of NENA BERJUEGA and
REMEDIOS HITTA, by stabbing them to death, thereby inflicting upon the
said victims mortal stab wounds which were the direct and immediate cause
of their death thereafter.
Contrary to law.
Only accused-appellant had been apprehended. His co-accused Ronnie Liwanag has been
at large. When arraigned, accused-appellant pleaded not guilty, whereupon, trial ensued.
The prosecution presented three witnesses, namely, Pat. Benjamin Ines, Dr. Marcial G.
Cenido, and Atty. Bienvenido De los Reyes. Pat. Ines of the Western Police District
investigated the robbery with homicide. The gist of his testimony is to the following effect:

Accused-appellant was a delivery boy employed by Angie Cabosas whose business was
selling chickens to customers. Cabosas's business was located in Blumentritt Street, Sta.
Cruz, Manila.
In the morning of August 11, 1989, accused-appellant was asked to deliver dressed chickens
to Emma Cabrera, a regular customer at Room 4-D Gatlin Building, 1344 C.M. Recto Avenue
in Sta. Cruz, Manila. At about 10:20 a.m., accused-appellant came back and turned over to
his employer the amount of P2,000.00. Pat. Ines testified that after receiving report of the
killing, he and Pfc. Ricardo Sibal went to see Angie Cabosas from which they learned that
the latter has received a call from Emma Cabrera informing Angie that her house had been
robbed and her two maids killed. They were told that accused-appellant had gone to
Pangasinan allegedly to attend the burial of his grandfather. Pat. Ines said he and P/Lt.
Villamor Valdez, Pfc. Sibal, Pfc. Edmundo Cabal and Pat. Renato Gutierrez went to Rosales,
Pangasinan but failed to find accused-appellant. They were told by the sister of accusedappellant, Merly Asuncion, that accused-appellant had gone to La Union. According to Pat.
Ines, accused-appellant confided to his sister that he had allegedly done something wrong in
Manila.
Pat. Ines identified two sworn statements, both executed on August 11, 1989, one of which,
he said, had been executed by Helen N. Moral, a househelp of Emma Cabrera, and the
other by Angie C. De los Reyes. In her statement marked Exhibit I, Moral said that upon
arriving in the house at about 12:20 p.m. that day, she and her employer's nephew, Carlos
Emerson, found the bodies of the victims sprawled on the floor. She told Pat. Ines that
accused-appellant used to deliver pork and dressed chicken to their place.
On the other hand, in her sworn statement given on August 14, 1989 and marked as Exhibit
L, Anita C. De los Reyes stated that on August 11, 1989, she had seen accused-appellant
and Ronnie Liwanag, their hands covered with blood, coming out of the Gatlin Building on
C.M. Recto Avenue, Sta. Cruz, Manila. 2
Pat. Ines testified that on March 3, 1990, he and his group received information from Pat.
Alfredo Que of the Urdaneta Police Station that accused-appellant was in Cataban,
Urdaneta, Pangasinan. Accordingly, they went to the place indicated and the next day, March
4, 1990, they were able to apprehend accused-appellant whom they brought to Manila. Pat.
Ines said accused-appellant was positively identified by Anita De los Reyes as one of those
whom she saw running down the stairs of the Gatlin Building on C.M. Recto Avenue, Sta.
Cruz, Manila with blood in his hands. 3
Pat. Ines testified that on that same day, March 4, 1990, accused-appellant gave a
confession (Exh. O) in writing with the assistance of counsel, Atty. Bienvenido De los Reyes,
in which he admitted participation in the killing of Nena Berjuega and Remedios Hitta. Pat.
Ines himself executed an affidavit (Exh. P) stating the circumstances of accused-appellant's
arrest. He said accused-appellant refused to sign the booking and information sheet. 4
Accused-appellant's extrajudicial confession was presented in evidence as Exhibit O. 5 In it,
accused-appellant said he started working for Angie Cabosas in the latter's business on
Blumentritt Street, Manila three or four months before the incident. Cabosas and accusedappellant's sister Merly Asuncion, had been neighbors in Rosales, Pangasinan. Accusedappellant's work was to deliver dressed chicken. Emma Cabrera was a regular customer to

whom he made deliveries in the morning. On August 10, 1989, his fellow employee, Ronnie
Liwanag, proposed that they rob Emma in order to be able to go to La Union to visit his
family. On August 11, 1989, after learning that only two helpers were then at the residence of
Emma Cabrera, accused-appellant and Ronnie decided to pull the heist. Ronnie covered the
mouth of one Nena Berjuega to prevent her from shouting but, as she tried to run away,
Ronnie stabbed and killed her. Ronnie then gave the knife to accused-appellant who stabbed
the younger maid Remedios Hitta from which she died. Thereafter, the two proceeded to
Blumentritt Street and divided the money Ronnie had taken from the house of Emma
Cabrera. From Blumentritt Street, Ronnie went to La Union, while accused-appellant
proceeded to Pangasinan. The extrajudicial confession is in Tagalog and signed by accusedappellant in the presence of Atty. De los Reyes.
The prosecution next presented Atty. Bienvenido De los Reyes, a PC Captain of the WPD
Headquarters, U.N. Avenue, Manila. He said that on March 4, 1990, he happened to be at
Station 7 of the WPD, representing a client accused of illegal recruitment. He was asked by
Lt. Generoso Javier of the WPD Homicide Section to assist accused-executing an
extrajudicial confession. According to Atty. De los Reyes, he apprised accused-appellant of
his constitutional rights, explaining to him that any statement made by him could be used
against him in court, but accused-appellant said he was willing to give a statement as in fact
he did, confessing to the commission of the crime of robbery with homicide. 6
The other prosecution witness was Dr. Marcial G. Cenido, medico-legal officer who
conducted autopsies on August 11, 1989 on the victims, Nena Berjuega and Remedios Hitta.
After proper identification (Exh. D) by the victim's employer, Antonio Cabrera, Dr. Cenido
prepared a postmortem report (Exh. A) that Nena Berjuega suffered 16 stab wounds from
which she died.
Dr. Cenido testified that the victim sustained 16 stab wounds which affected her vital organs,
specifically the right and left lungs and the heart, causing her death. Six of these wounds
were fatal so that she could not survive despite immediate medical attention. He concluded
that the assailant and the victim could be facing each other when wounds nos. 1, 3 and 5
(Exhs. B-1, B-2, and B-4, respectively) were inflicted and that the assailant may have been
on the left lateral side of the victim when he inflicted wound no. 8 (Exh. B-5) and at the
victim's back when assailant inflicted wound no. 16 (Exh. B-6). He said that there could be
one or more assailant who inflicted these wounds by using a single bladed weapon. 7
Dr. Cenido likewise prepared a postmortem report (Exh. F) that Remedios Hitta suffered 12
stab wounds from which she died.
Dr. Cenido testified that the victim sustained 12 stab wounds with seven fatal ones that
caused her death. The fatal wounds damaged her left and right lungs and the heart that she
would not survive despite immediate medical attention. He observed that in wounds nos. 1, 2
and 3 (Exhs. G-1, G-2, and G-3, respectively), the assailant and the victim could be facing
each other, while in wounds nos. 4, 9 and 11 (Exhs. G-4, G-6, and G-7, respectively), the
assailant could have been at the back of the victim. He said that there could be one or more
assailant who inflicted these wounds using a single bladed weapon. 8

Dr. Cenido prepared the certificates of death of the victims, Nena Berjuega and Remedios
Hitta (Exhs. C and H). He stated that the weapon used on both victims could have been the
same and that both victims sustained multiple stab wounds. 9
With the testimonies of Pat. Ines, Atty. De los Reyes, and Dr. Cenido and the extrajudicial
confession (Exh. O), as well as the sworn statements of Helen Moral (Exh. I) and Anita De
los Reyes (Exh. L), the prosecution rested its case.
The defense presented, as its sole witness, accused-appellant Jimmy Obrero y Corla.
Accused-appellant testified that he had worked for Angie Cabosas in Blumentritt Street for
four (4) months before the incident in this case. Angie was a neighbor of his sister, Merly
Asuncion, in Pangasinan. Angie's business was selling dressed chickens. Accused-appellant
said that at about 9:00 a.m. on August 11, 1989, he delivered dressed chickens to Emma
Cabrera's residence on C.M. Recto Avenue. He came back from his errand at around 10:20
a.m. and remitted the amount of P2,000.00 which had been paid to him. He denied
participation in the commission of the crime and claimed that he was arrested without a
warrant in Pangasinan. He claimed that, after being informed of the charges against him, he
was beaten up and detained for a week and made to execute an extrajudicial confession. He
denied having known or seen Atty. De los Reyes before and stated that he did not
understand the contents of the extrajudicial confession which he signed because he does
not know how to read. 10
On August 31, 1995, the trial court rendered its decision, the dispositive portion of which
reads:
WHEREFORE, this Court finds accused JIMMY OBRERO Y CORLA, guilty
beyond reasonable doubt of the crime of Robbery with Homicide, defined and
punishable under Article 294(a) of the Revised Penal Code, and he is hereby
sentenced to suffer the penalty of reclusion perpetua, with all the accessory
penalties provided by law. He is further condemned to pay the heirs of the
victims, Remedios Hitta and Nena Berjuega the sum of FIFTY THOUSAND
(P50,000.00) PESOS each as civil indemnity for their death and the
additional sum of P4,000.00 as the amount of money taken, without
subsidiary imprisonment in case of insolvency.
His immediate transfer to the National Bilibid Prisons, Muntinlupa is hereby
ordered.
SO ORDERED.
Hence, this instant appeal. Accused-appellant assails the validity of this extrajudicial
confession which forms the basis of his conviction for the crime of robbery with homicide. He
claims that Atty. De los Reyes, who assisted him in executing his confession, was not the
counsel of his own choice. That was the reason, he said, he refused to sign the booking and
information sheet. He said he signed the extrajudicial confession five times as a sign that it
was involuntarily executed by him.
Art. III, 12 of the Constitution provides in pertinent parts:

(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel, preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
shall be inadmissible in evidence against him.
There are two kinds of involuntary or coerced confessions treated in this constitutional
provision: (1) those which are the product of third degree methods such as torture, force,
violence, threat, intimidation, which are dealt with in paragraph 2 of 12, and (2) those which
are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of
the same 12.
Accused-appellant claims that his confession was obtained by force and threat. Aside from
this bare assertion, he has shown no proof of the use of force and violence on him. He did
not seek medical treatment nor even a physical examination. His allegation that the fact that
he was made to sign the confession five times is proof that he refused to sign it.
To begin with, what accused-appellant claims he was made to sign five times is not the same
confession (Exh. O) but different parts thereof. He signed his name on page 1 to
acknowledge that he had been given the Miranda warnings. (Exh. O-3) Then, he signed
again as proof that after being given the Miranda warnings he agreed to give a statement.
(Exh. O-6) Next, he signed again his name at the end of page 2 to authenticate that page as
part of his confession. (Exh. O-7) Fourth, he signed the third page at the end of his
confession. (Exh. O-10) Fifth, he signed his name again on the third page in which the jurat
appears. (unmarked, [p. 3] of Exh. O).
We discern no sign that the confession was involuntarily executed from the fact that it was
signed by accused-appellant five times.
Nor can it be inferred that the confession was involuntarily executed from the fact that
accused-appellant refused to sign the booking and information sheet. For if he were simply
forced to execute the extrajudicial confession and sign it for five times, there is no reason the
police was not able to make him sign the said sheet as well. The inference rather was that no
force was used to make accused-appellant execute the confession, otherwise, he could also
have been forced to sign the booking and information sheet.
Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive
evidence showing the declarant's consent in executing the same has been vitiated, such
confession will be sustained.

Moreover, the confession contains details that only the perpetrator of the crime could have
given. No one except accused-appellant could have stated that it was he who killed the
younger maid of Emma Cabrera (Remedios Hitta), that he committed the crime together with
his townmate, Ronnie Liwanag, and that he used the same weapon given to him by Ronnie
after the latter had stabbed and killed the other helper (Nena Berjuega), details which are
consistent with the medico-legal findings that the wounds sustained by the two victims were
possibly caused by one and the same bladed weapon. It has been held that voluntariness of
a confession may be inferred from its being replete with details which could possibly be
supplied only by the accused, reflecting spontaneity and coherence which cannot be said of
a mind on which violence and torture have been applied. 11 When the details narrated in an
extrajudicial confession are such that they could not have been concocted by one who did
not take part in the acts narrated, where the claim of maltreatment in the extraction of the
confession is unsubstantiated and where abundant evidence exists showing that the
statement was voluntarily executed, the confession is admissible against the declarant.
There is greater reason for finding a confession to be voluntary where it is corroborated by
evidence aliunde which dovetails with the essential facts contained in such confession. 12
But what renders the confession of accused-appellant inadmissible is the fact that accusedappellant was not given the Miranda warnings effectively. Under the Constitution, an
uncounseled statement, such as it is called in the United States from which Art. III, 12(1)
was derived, is presumed to be psychologically coerced. Swept into an unfamiliar
environment and surrounded by intimidating figures typical of the atmosphere of police
interrogation, the suspect really needs the guiding hand of counsel.
Now, under the first paragraph of this provision, it is required that the suspect in custodial
interrogation must be given the following warnings: (1) He must be informed of his right to
remain silent; (2) he must be warned that anything he says can and will be used against him;
and (3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer will
be appointed to represent him. 1
In the case at bar, the prosecution presented Pat. Ines and Atty. De los Reyes to establish
that the above-enumerated requisites were fully satisfied when accused-appellant executed
his extrajudicial confession. Pat. Benjamin Ines testified: 14
Q What happened during the investigation of the accused?
A He consented to give a written statement to me, sir.
Q Now, when accused Jimmy Obrero consented to give
statement, Patrolman, was he assisted by counsel?
A Yes, sir, we provided him with a lawyer.
Q And who was that lawyer that was provided by you?
A Atty. Bienvenido De los Reyes, sir.
Q And who personally took down the statement of the
accused?

A I was the one who personally took the statement of accused


Obrero.
Q Do you know what was the gist of that statement that was
given to you, what was it all about?
A It's all about the admission of Jimmy Obrero, the gruesome
slaying of two househelps.
xxx xxx xxx
Q Before having taken down the admission of Jimmy Obrero,
what investigative steps did you undertake relative to his
constitutional right, patrolman?
A I informed Jimmy Obrero of his constitutional right to remain
silent, to have an attorney; that everything that he will say will
be used for or against him. He, however, consented to
proceed with the written statement.
Q Now, Patrolman, did you indicate his constitutional rights
that you stated in this written statement of Jimmy Obrero?
A Yes, sir, I put it on the statement which he voluntarily gave.
Q And will you please tell us which part of the statement of
Jimmy Obrero is it indicated, the consent which he gave after
having pointed out to him his constitutional right?
A This portion sir, this "sagot-opo" and then it was further
affirmed by his signature over his typewritten name, sir.
For his part, Atty. De los Reyes testified: 15
Q: Were you able to confront the suspect at that time, herein
accused?
A: Yes, sir, I told him for the purpose of investigation
custodial investigation I can render my services to him and
afterwards avail the services of another lawyer and I told him
his rights under the law, sir.
Q: What was the reply of Jimmy Obrero, the accused, in this
case at that time you confronted Jimmy Obrero?
A: He is willing at that time and [voluntarily] gave his
affirmation that he wanted to secure my services, sir.

xxx xxx xxx


Q After having manifested that he will retain your services as
counsel for the investigation, Atty. De los Reyes, what
happened next?
A I told him the rights under the Constitution, the right to
remain silent, the right to secure lawyer, the right not to give
statement, the right not to be placed in any identification
procedure in a police line up, and I told him that all the
evidences he might give will be utilized against him in the
court with respect to the case and despite of that, he said
he wanted to give his statement to the police in my presence.
Q Was he able to give statement to the police?
A Yes, sir. I was there inside the room with the client and
observing fairly [when he] gave statement voluntarily.
Q Was that statement taken down into writing?
A In a question and answer form, sir.
Indeed, the waiver signed by accused-appellant reads:
MGA KARAPATAN AYON SA ATING BINAGONG
SALIGANG BATAS:
Ikaw, JIMMY OBRERO y CORLA, ay aking isasailalim sa pagsisiyasat sa
salang Pagnanakaw na may kasamang Pagpatay, nais kong ipaalam sa iyo
ang iyong mga karapatan ayon sa ating Binagong Saligang Batas:
1. Karapatan mo ang manahimik at huwag sagutin ang mga itatanong ko sa
iyo;
2. Karapatan mo ang kumuha ng isang abogado na iyong sariling pili na
maaaring makatulong sa iyo sa imbistigasyon na ito at kung hindi ka
makakakuha ng iyong abogado ay bibigyan ka namin ng isa na walang
bayad para makatulong sa iyo;
3. Karapatan mo rin na malaman na ang lahat ng iyong sasabihin dito sa
iyong salaysay ay maaaring gamiting katibayan o ebidensya laban o pabor
sa iyo o sa kanino mang tao sa alinmang hukuman dito sa Pilipinas.
Ngayon na naipaalam ko na sa iyo ang iyong mga karapatan, nais mo pa
bang magbigay ng iyong malaya at kusang loob na salaysay?

SAGOT : (ni Jimmy Obrero y Corla) Opo.


TANONG: Kung ganoon ay sabihin mo ulit ang iyong
pangalan at lagdaan mo ito sa ibabaw ng iyong pangalan na
ipipirma o imamakinilya ko?
(Sgd.) JIMMY OBRERO y
CORLA
There was thus only a perfunctory reading of the Miranda rights to accused-appellant without
any effort to find out from him whether he wanted to have counsel and, if so, whether he had
his own counsel or he wanted the police to appoint one for him. This kind of giving of
warnings, in several decisions 16 of this Court, has been found to be merely ceremonial and
inadequate to transmit meaningful information to the suspect. Especially in this case, care
should have been scrupulously observed by the police investigator that accused-appellant
was specifically asked these questions considering that he only finished the fourth grade of
the elementary school. Indeed, as stated inPeople v.
Januario: 17
Ideally, therefore, a lawyer engaged for an individual facing custodial
investigation (if the latter could not afford one) should be engaged by the
accused (himself), or by the latter's relative or person authorized by him to
engage an attorney or by the court, upon proper petition of the accused or
person authorized by the accused to file such petition. Lawyers engaged by
the police, whatever testimonials are given as proof of their probity and
supposed independence, are generally suspect, as in many areas, the
relationship between lawyers and law enforcement authorities can be
symbiotic.18
Moreover, Art. III, 12(1) requires that counsel assisting suspects in custodial interrogations
be competent and independent. Here, accused-appellant was assisted by Atty. De los
Reyes, who, though presumably competent, cannot be considered an "independent counsel"
as contemplated by the law for the reason that he was station commander of the WPD at the
time he assisted accused-appellant. On this point, he testified as follows:
Q Now, whenever there is a crime committed wherein the
member of police to which you belong or working but could
not solve the crime and then you were designated as counsel
to extend legal assistance to a suspect who is under a
custodial investigation and in that conference with the suspect
you may have inquired confidential information, what would
you do, will you keep it to yourself or you must have to
divulge that to your co-policeman because you know that?
A If I am the lawyer, then all the testimonies and declaration
is my preferential right, I can divulge it even to my fellow
officer.

Q Now, by the way, do you have authority to practice the law


profession, did you get approval or permit from the civil
A Previously, when I was at the JAGO, we are authorized
verbally [as long as] it will not hamper our time, we will not
work our time during the police duty, ma'am.
Q According to you, you were extending legal assistance to
your client who was charged of illegal recruitment, do you not
consider that conflict of duty because no less than your
organization was the one investigating that?
A I am extending my legal assistance to the client I am
handling the case because if it is true that he committed the
crime then I will back out, if I found suspicion and there is no
proof at all, I go to the litigation.
ATTY. ALISUAG:
That is all, Your Honor. 19
The trial court, agreeing with him, ruled:
As shown in Exhibit "O", accused consented to giving his extrajudicial
confession after he was informed of rights under custodial investigation, by
affixing his signature thereto (Exhibit "O-3"). And absent any showing that the
assisting lawyer, though a station commander but of another police station,
was remiss in his duty as a lawyer, this Court holds that the proceedings
were regularly conducted. In fact, he testified that he first asked the accused
if he is accepting his legal services (TSN, March 5, 1991, p. 4); that he
informed the accused of his Miranda rights and despite the warning, he
decided to give his confession just the same; that he was at all time present
when the accused was being interrogated with the accused giving his
answers voluntarily (Ibid, p. 4); that he read to the accused the questions and
answers before he signed his extrajudicial confession (Ibid, p. 8). Clearly
shown was the fact that Atty. De los Reyes was equal to his duties as a
lawyer than a member of the police force, when he lend his assistance to the
accused during his in-custody interrogation. 20
This is error. As observed in People v. Bandula, 21 the independent counsel required by Art.
III, 12(1) cannot be a special counsel, public or private prosecutor, municipal attorney, or
counsel of the police whose interest is admittedly adverse to the accused. In this case, Atty.
De los Reyes, as PC Captain and Station Commander of the WPD, was part of the police
force who could not be expected to have effectively and scrupulously assisted accusedappellant in the investigation, his claim to the contrary notwithstanding. To allow such a
happenstance would render illusory the protection given to the suspect during custodial
investigation. 22

For these reasons, we hold that accused-appellant's extrajudicial confession is inadmissible


in evidence.
Without the extrajudicial confession, the conviction of accused-appellant cannot stand. The
prosecution tried to introduce circumstantial evidence of accused-appellant's guilt consisting
of the sworn statements (Exhs. I and L) of Helen Moral, the househelp who said accusedappellant used to deliver dressed chickens to the Cabrera residence, and Anita de los Reyes
who said that on March 11, 1989 she was passing in front of the Gatlin Building where the
killing took place when she saw accused-appellant running down the stairs with blood in his
hands. These statements are likewise inadmissible for being hearsay. Consequently, there is
no identification of accused-appellant.
And while there is evidence of homicide consisting of the corpus delicti, there is no evidence
of the robbery except the confession (Exh. O) of accused-appellant which, as already stated,
is inadmissible. It does not matter that accused-appellant failed to object to the introduction
of these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy
burden of proof which rested on the prosecution. We cannot thus affirm the conviction of
accused-appellant because of the procedural irregularities committed during custodial
investigation and the trial of the case. It may be that by this decision a guilty person is set
free because the prosecution stumbled, but we are committed to the principle that it is far
better to acquit several guilty persons than to convict one single innocent person.
WHEREFORE, the decision in Criminal Case No. 90-82187 of the Regional Trial Court,
Branch 12, Manila, convicting accused-appellant Jimmy Obrero y Corla of the crime of
robbery with homicide is REVERSED and accused-appellant is hereby ACQUITTED on the
ground of reasonable doubt.
The Director of Prisons is hereby directed to forthwith cause the release of accusedappellant unless the latter is being lawfully held for another cause and to inform the Court
accordingly within ten (10) days from notice.
SO ORDERED.
on leave.

Bellosillo, Quisumbing and Buena, JJ., concur. De Leon, Jr., J.,

Footnotes
1
Per Judge Rosmari D. Carandang.
2
TSN (Pat. Benjamin Ines), pp. 2-4, Feb. 6,
1991; pp. 1-4, Feb. 26, 1991.
3
Id., pp. 5-6, Feb. 26, 1991.
4
Id., pp. 7-10.
5
RTC Records, pp. 179-181.
6
TSN (Atty. Bienvenido De los Reyes), pp.
2-10, March 5, 1991.
7
TSN, pp. 2-6, Aug. 29, 1990.
8
Id., pp. 7-9.
9
Id., pp. 10-12.
10
TSN, pp. 2-5, Dec. 8, 1993; pp. 3-22,
March 2, 1994.
11
People v. Villanueva, 266 SCRA 356
(1997).
12
People v. Elizaga, 23 SCRA 449 (1968).

People v. Duero, 104 SCRA 379


(1981); Cf. People v. Caguioa, 95 SCRA 2
(1980); People v. Nicandro, 141 SCRA 289
(1986).
14
TSN, pp. 6-7, Feb. 26, 1991.
15
TSN, pp. 3-4, March 5, 1991.
16
People v. Santos, 283 SCRA 443 (1997);
People v. Binamira, 277 SCRA 232 (1997);
People v. Basay, 219 SCRA 404 (1993).
17
267 SCRA 608, 632 (1997).
18
Citing People v. Deniega, 251 SCRA 626,
638 (1995).
19
TSN (Atty. Bienvenido delos Reyes), p. 9,
March 5, 1991 (emphasis added).
20
Rollo, p. 21.
21
232 SCRA 566 (1994).
13

People v. Matos-Viduya, 189 SCRA 403


(1990).
22

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 118435 June 20, 1997


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO SERZO, JR., accused-appellant.

PANGANIBAN, J.:
The right to counsel of an accused is guaranteed by our Constitution, our laws and our Rules
of Court. During custodial investigation, arraignment, trial and even on appeal, the accused
is given the option to be represented by a counsel of his choice. But when he neglects or
refuses to exercise this option during arraignment and trial, the court shall appoint one for
him. While the right to be represented by counsel is absolute, the accused's option to hire
one of his own choice is limited. Such option cannot be used to sanction reprehensible
dilatory tactics, to trifle with the Rules or to prejudice the equally important rights of the state
and the offended party to speedy and adequate justice.
This will be amplified in this appeal seeking the reversal of the August 23, 1994 Decision of
the Regional Trial Court of Antipolo, Rizal, Branch 72, 1 in Criminal Case No. 90-5997
convicting Appellant Mario Serzo, Jr. of murder under Article 248 of the Revised Penal Code.
Appellant was charged with murder in an Information dated September 4, 1990 filed by Rizal
Assistant Provincial Prosecutor Filipinas Z. Aguilar-Ata, worded as follows: 2
That on or about the 22nd day of August, 1990, in the Municipality of
Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with bladed weapon,
with intent to kill, with treachery, did then and there willfully, unlawfully and
feloniously attack, assault and stab one Alfredo Alcantara y Casabal at the
back, thereby inflicting upon him stab wounds which directly caused his
death.
Thereafter, pre-trial was waived and the case proceeded to trial on the merits. After
arraignment and trial, appellant was found guilty as charged and sentenced thus: 3

WHEREFORE, on the basis of the foregoing, the Court finds accused


GUILTY BEYOND REASONABLE DOUBT of having committed the crime of
MURDER and as prescribed under Article 248 of the Revised Penal Code,
hereby sentences accused to suffer the penalty of reclusion perpetua and to
indemnify the victim's wife in the amount of FIFTY THOUSAND PESOS
(P50,000.00) as actual damages and TWENTY FIVE THOUSAND PESOS
(P25,000.00) as moral damages and costs.
The Antecedents
Summarizing the testimonies of Adelaida Alcantara (the victim's widow), Medico-Legal
Officer Dario L. Gajardo and Epifania Andrade, the trial court found the following facts:

Alfredo Alcantara Y Casabal never knew that death was just around the
corner inevitably meeting his way. That fateful night of August 22, 1990,
Alfredo together with his wife Adelaida Alcantara were (sic) staying inside
their house comfortably watching television when at around 11:30 in the
evening, Susana Serzo, mother of the accused, and one Epifania Bentilacion
came knocking at their doorsteps and pleading for help to bring out her
grandchildren who were being held inside their house by her son, the
accused in this case. Unhesitatingly, the couple heeded their call and went
with them at (sic) their house, located just across the private complainant's
residence. The spouses were able to rescue the grandchildren and to bring
them to a safer place. When returning to their house, Alfredo Alcantara who
was walking just armslength ahead of his wife, was attacked by accused
Mario Serzo from behind. Accused stabbed Alfredo at his back forcing the
latter to scamper for his dear life. However, accused was able to overpower
him thereby causing his fall in the canal where he was repeatedly stabbed by
the accused. Adelaida Alcantara shouted for help but was likewise attacked
by the accused as she was only half-meter away from her husband.
However, Adelaida fortunately was able to hold the hand of the knifewielder
and persistently fought the accused. (p. 05 TSN June 3, 1991) At that
moment, the commotion had already caught the attention of the residents
within the vicinity who responded to help her thereby causing the accused to
flee. The victim Alfredo Alcantara, who remained lying and motionless in the
canal, was rushed to the hospital where he was confirmed dead. (p. 06 TSN
June 3, 1991) The Medico-legal Officer, Dr. Dario Gajardo, testified in Court
that the victim sustained three (3) stab wounds, two at the back and one in
his chest, which instantaneously caused the victim's death. (p. 04 TSN May
13, 1991)
In view of appellant's allegation that he was denied his right to counsel, a narration of the
proceedings before the trial court is now in order. Arraignment was set by the trial court on
January 8, 1991, during which appellant appeared without counsel. Consequently, the trial
court appointed Atty. Wilfredo Lina-ac as counsel de oficio for the arraignment only.
Appellant, however, moved that the arraignment be reset and that he be given time to
engage a counsel of his own choice, which the trial court granted. 5

On February 11, 1991, appellant appeared without a counsel de parte. He was nonetheless
arraigned with the assistance of Counsel de oficio Wilfredo Lina-ac. 6 He pleaded "not guilty."
Pre-trial was waived and trial was set on April 22, May 6 and 13, 1991 for the reception of the
prosecution evidence and June 3 and 17, 1991 for the defense.
The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on motion of
Public Prosecutor Robert H. Tobia. 7 On both dates, appellant appeared with Atty. Lina-ac. On
May 13 and June 3, 1991, trial proceeded with the testimonies of prosecution witnesses. On
behalf of appellant, Atty. Lina-ac cross-examined the said witnesses.
On June 17, 1991, trial was again cancelled as appellant appeared without counsel. 8 On
August 13, 1991, the prosecution rested its case. 9
On November 4 and 11, 1991, presentation of evidence for the defense was reset as
appellant was not ready to testify 10 and he manifested his intention to secure the services of a
counsel de parte. 11 On March 3, 1992, Atty. Lina-ac was relieved as counsel de oficio in view of
appellant's manifestation and refusal to cooperate with said counsel. 12 On April 6, 1992 appellant
appeared without counsel, forcing the trial court to appoint another counsel de oficio, Bella
Antonano. Counsels for both parties agreed to reset the trial, but appellant refused to sign the
minutes of the proceedings. 13
On April 27, 1992, 14 over vehement objection from the prosecution, hearing was reset for the
last time as appellant was still looking for a counsel de parte. 15 On August 25, 1992, appellant
appeared without counsel; thus, the trial court appointed Atty. Bonifacia Garcia of the Public
Attorney's Office (PAO) as appellant's counsel de oficio. Again, trial was postponed. 16 On
September 1 and October 19, 1992, trial was postponed on motion of Atty. Garcia. 17 Appellant
again refused to sign the minutes of the proceedings for both trial dates. On November 5, 1992,
appellant refused to cooperate with Atty. Garcia by declining to take the witness stand, forcing the
defense to rest its case. 18 Both parties were ordered to submit their respective memoranda in ten
days, after which the case would be submitted for decision. Atty. Garcia was further ordered to
manifest within the same period whether appellant would change his mind and cooperate with
her. No memorandum or manifestation was ever filed by appellant.
Appellant wrote Judge Angeles three times within the period beginning December 16, 1992
until April 2, 1993, seeking legal advice and the early resolution of the case. Branch Clerk of
Court Melchisedek A. Guan replied to him twice, informing him that Judge Angeles was
prohibited by law from giving legal advice to litigants in cases pending in his court and that a
decision was forthcoming. On July 13, 1994, appellant wrote Deputy Court Administrator
Reynaldo L. Suarez, asking for the early resolution of his case. 19 The latter referred said letter
to Judge Angeles for appropriate action.
Thereafter, the assailed Decision convicting appellant of murder was promulgated on August
23, 1994.
Ruling of the Trial Court
In its Decision, the trial court noted that appellant simply refused to secure the services of a
counsel de parte and to present evidence in his defense despite ample opportunity accorded
to him. Said the trial court:

The defense particularly the accused assisted by counsel however refused to


present any evidence despite several opportunities afforded by the Court. As
early as the arraignment stage, accused refused to be assisted by a
counsel de oficio from the Public Attorney's Office (PAO) insisting that he be
assisted by a counsel of his own choice. For several settings, accused and
her (sic) mother were allowed to secure the services of a counsel de parte.
However, they failed to present one. Hence, the Court, to avoid further delay
in the proceedings of the case, was constrained to assign a counsel de
oficio from the PAO.
During the presentation of evidence for the defense, accused and counsel
could not present any witness as accused refused to cooperate and to testify
in Court. Hence, the defense waived its right to present any evidence.
Considering that this case has been dragging for several years already . . .
the court . . . afforded the defense another opportunity to present its case by
submitting its memorandum simultaneously with the Prosecution. Thereafter,
the case was submitted for decision. 20
Consequently, the trial court convicted appellant on the basis of the evidence presented by
the prosecution. Appellant was positively identified as the assailant by the widow, Adelaida
Alcantara, who survived his attack. In her distinct and vivid narration of the sequence of
events leading to the murder, she showed that the attack was treacherous as the victim was
stabbed at the back and without warning.
Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L.
Arcilla 21 appealed to this Court.
Assignment of Errors
In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder based on the
following alleged errors on the part of the trial court: 22
I
The lower court erred in not giving the defendant-appellant time to engage
counsel of his own choice.
II
The lower court erred in not affording the defendant-appellant the chance to
present evidence for his defense.
III
The lower court erred in not acquitting the defendant-appellant.

Mainly, appellant alleges that he had been denied effective legal representation. His thesis is
that the trial court did not give him enough time to engage a counsel de parte, effectively
depriving him of the chance to present evidence in his defense. In fact, the scant five-page
Appellant's Brief was dedicated entirely to this argument without contesting the facts found
by the trial court.
The Court's Ruling
The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the
land. This right is granted to minimize the imbalance in the adversarial system where the
accused is pitted against the awesome prosecutory machinery of the state. In the words of
Justice Black, 23 this is a "recognition . . . that an average (accused) does not have the
professional skill to protect himself . . . before a tribunal with power to take his life or liberty,
wherein
the (prosecutor) is . . . an experienced and learned counsel." In Powell vs. Alabama, 24 Mr. Justice
Sutherland wrote at greater length on why an accused needs a competent counsel:
Even the intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without the aid of counsel he may
be put on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his defense, even
though he has a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it, though he be not guilty,
he faces the danger of conviction because he does not know how to
establish his innocence.
The right covers the period beginning from custodial investigation, well into the rendition of
judgment, 25 and even on appeal. Article III of the 1987 Constitution provides this right to an
accused not only during trial but even before an information is filed. It provides:
Sec. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
Sec. 14 (1) No person shall be held to answer for a criminal offense without
due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, . . .
With these precepts as springboard, the Rules of Court grants an accused the right to
counsel under the following provisions, viz.:

RULE 112
PRELIMINARY INVESTIGATION
xxx xxx xxx
Sec. 7. When accused lawfully arrested without warrant. . . .
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. . . . .
xxx xxx xxx
RULE 113
ARREST
Sec. 14. Right of attorney or relative to visit person arrested. Any member
of the bar shall, at the request of the person arrested or of another acting in
his behalf, have the right to visit and confer privately with such person, in the
jail or any other place of custody at any hour of the day or, in urgent cases, of
the night. This right shall also be exercised by any relative of the person
arrested subject to reasonable regulation.
Rule 115
RIGHTS OF ACCUSED
Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the
accused shall be entitled:
xxx xxx xxx
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from the arraignment to the promulgation of the judgment. . . . .
xxx xxx xxx
Rule 116 of the Rules of Court makes it compulsory that the trial court inform the accused of
his right to counsel prior to arraignment, thus:
Sec. 6. Duty of court to inform accused of his right to counsel. Before
arraignment, the court shall inform the accused of his right to counsel and
shall ask him if he desires to have one. Unless the accused is allowed to

defend himself in person, or he has employed counsel of his choice, the court
must assign a counsel de oficio to defend him.
Sec. 7. Appointment of counsel de oficio. The court, considering the
gravity of the offense and the difficulty of the questions that may arise, shall
appoint as counsel de oficio only such members of the bar in good standing
who, by reason of their experience and ability may adequately defend the
accused. But in localities where such members of the bar are not available,
the court may appoint any person, resident of the province and of good
repute for probity and ability, to defend the accused.
Even on appeal, the accused is still afforded the right to counsel under Rule 122:

26

Sec. 13. Appointment of counsel de oficio for accused on appeal. It shall


be the duty of the clerk of the trial court upon the presentation of a notice of
appeal in a criminal case, to ascertain from the appellant, if he be confined in
prison, whether he desires the Court of Appeals or the Supreme Court to
appoint a counsel to defend him de oficio and to transmit with the record,
upon a form to be prepared by the clerk of the appellate court, a certificate of
compliance with this duty and of the response of the appellant to his inquiry.
The foregoing is buttressed by another provision in Rule 124:
Sec. 2. Appointment of counsel de oficio for the accused. If it appears
from the record of the case as transmitted: (a) that the accused is confined in
prison, (b) without counsel de parte on appeal, and (c) signed the notice of
appeal himself, then the clerk of the Court of Appeals shall designate a
member of the bar to defend him, such designation to be made by rotation,
unless otherwise directed by order of the court.
An accused-appellant not confined in prison shall not be entitled to a
counsel de oficio, unless the appointment of such counsel is requested in the
appellate court within ten (10) days from receipt of the notice to file brief and
the right thereto is established by affidavit.
Recently, Republic Act No. 7438 was enacted providing, inter alia, that any person arrested,
detained or under custodial investigation shall at all times be assisted by counsel.
A deprivation of the right to counsel divests the accused of an equality in arms resulting in
the denial of a level playing field, so to speak. In a previous case, this Court held that an
accused was deprived of his right to counsel when he retained the services of a person who
misrepresented himself as a lawyer. 27 In People vs. Malunsing, 28retrial was ordered on the
ground that petitioner was denied his constitutional right to counsel. Very old and unlettered, he
was shown not to have understood what was going on during the trial. In said case, although the
lawyer of his co-accused was appointed as his counsel, petitioner was not properly apprised by
said court of his right to be assisted by counsel. No evidence was presented for and on his behalf
and the trial court did not even bother to inquire why he did not take the witness stand when all
the other defendants were presented as witnesses.

This is the legal backdrop against which appellant's allegation of deprivation of his right to
counsel shall be measured.
Right to Counsel De Parte Is Not Absolute
Accordingly, an accused may exercise his right to counsel by electing to be represented
either by a court-appointed lawyer or by one of his own choice. While his right to be
represented by counsel is immutable, his option to secure the services of counsel de parte,
however, is not absolute. The court is obliged to balance the privilege to retain a counsel of
choice against the states's and the offended party's equally important right to speedy and
adequate justice. Thus, the court may restrict the accused's option to retain a counsel de
parte if the accused insists on an attorney he cannot afford, or the chosen counsel is not a
member of the bar, or the attorney declines to represent the accused for a valid reason, e.g.
conflict of interest and the like. 29
Also, the right to counsel de parte is, like other personal rights,
waivable 30 so long as (1) the waiver is not contrary to law, public order, public policy, morals or
good customs; or prejudicial to a third person with a right recognized by law 31 and (2) the waiver
is unequivocally, knowingly and intelligently made. 32
In Sayson vs. People, 33 this Court held that the duty of the court to appoint a counsel de oficio is
not mandatory where the accused has proceeded with the arraignment and the trial with a
counsel of his choice but, when the time for the presentation of the evidence for the defense was
due, he appears by himself alone because of the inexcusable absence of his counsel. In another
case, this Court held that the right to be heard and to reopen the case (and send it to trial anew)
could not be allowed if doing so would sanction a plainly dilatory tactic and a reprehensible trifling
with the orderly administration of justice. 34
In the present case, appellant claims that he was not given sufficient time to engage a
counsel de parte, thereby preventing him from presenting evidence in his defense. In his
Brief he adds, but without giving particulars or proof, that allegedly his counsels de oficio did
not exert their "utmost efforts" in representing him, thus: 35
. . . (T)he lower court afforded the accused the assistance of counsel de
oficio as early as the arraignment stage but failed to show that utmost efforts
were exerted by said counsel to defend the life and liberty of the accused.
The duty of the court is not ended with such appointment, however, as it
should also see to it that the counsel does his duty by the defendant.
Counsel de oficio should not merely make the motions of defending the
accused but exert his utmost efforts as if he were representing a paying
client.
The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that appellant's actions
during the trial showed instead a "lackadaisical stance on his own defense."
Appellant had been given ample time to secure the services of a counsel de parte, but his
subsequent appearances in court without such counsel and his act of allowing this situation
to continue until the presentation of his evidence betrays his lack of intention to do so. It

even appears that he was merely delaying his own presentation of evidence on purpose to
the prejudice of the offended party, the trial court and the orderly administration of justice.
Furthermore, appellant did not demonstrate in what way the services of his counsels de
oficio were unsatisfactory. He did not cite any instance substantiating his claim that he was
not effectively represented. In short, he was afforded a chance to be heard by counsel of his
own choice, but by his own neglect or mischief, he effectively waived such right. It taxes the
mind to think that, almost two years 37 since appellant first invoked his right to be represented by
counsel de parte, he still could not find one who would suit his needs and desires. Neither did he
cooperate with his court-named lawyers.
The facts of this case do not constitute a deprivation of appellant's constitutional right to
counsel because he was adequately represented by three court-appointed lawyers: Atty.
Lina-ac, Atty. Antonano and Atty. Garcia. Courts are not required to await indefinitely the
pleasure and convenience of the accused as they are also mandated to promote the speedy
and orderly administration of justice. Nor should they countenance such an obvious trifling
with the rules. Indeed, public policy requires that the trial continue as scheduled, considering
that appellant was adequately represented by counsels who were not shown to be negligent,
incompetent or otherwise unable to represent him.
Crime and Punishment
In spite of appellant's failure, either through negligence or unreasonable refusal, to impute
errors to the assailed Decision other than the alleged violation of his right to counsel
this Court nonetheless scoured the records of the trial, perused the transcripts of the
testimony of the witnesses for the prosecution, evaluated the evidence and examined the
applicable laws and jurisprudence to determine the correctness of the trial court's Decision.
We, however, find no cogent reason to reverse the conviction of appellant. In a case of
murder or homicide, it is enough that the death of the victim and the responsibility of the
person who caused such death are proven 38beyond reasonable doubt. Both elements were
duly established by the prosecution witnesses. Dr. Gajardo testified to the fact of death while
Widow Adelaida Alcantara positively identified the appellant as the assailant.
Based on the facts established by the prosecution which remain uncontested, the Court
affirms the trial court's appreciation of the qualifying circumstance of treachery. To constitute
treachery, two conditions must concur: (1) the employment of means of execution that gives
the person attacked no opportunity to defend himself or to retaliate and (2) deliberate or
conscious adoption of the means of execution. 39 The manner of the attack itself is proof
enough of alevosia. Widow Adelaida vividly described the stabbing as
follows: 40
Q: And you said a certain Suzana Serzo together with one
Epifania Bentilacion came to your house and asked for help
from you, is that right?
A: Yes, sir.
Q: And that you responded for help Mrs. witness?

A: Yes, sir.
Q: And you are together with your husband in helping Suzana
Serzo?
A: Yes, sir.
Q: What was the help she was asking Mrs. witness?
xxx xxx xxx
A: She was asking to help her children being held by Mario
Serzo by not letting them go out of the house.
xxx xxx xxx
Q: Were you able to help the grandchildren of Suzana Serzo?
A: Yes, sir.
Q: And after you help (sic) them what happened next?
A: We brought them to where they could hide and then we
went home.
Q: You said you heard somebody approaching you at the
back through the sound of his footsteps is that right?
A: Yes, sir.
xxx xxx xxx
Q: What happened next after you hear (sic) those footsteps at
your back?
A: My husband was just beside me.
Q: And immediately your husband was stabbed by the
accused?
A: Yes, sir.
From this testimony, it appears that appellant waited for the victim and his wife and pounced
on them swiftly and without warning. The victim and his wife were already on their way home
after transferring appellant's children to a safe place. They were unarmed as they had
absolutely no idea that appellant would attack them right then and from behind. The manner
of the attack tended directly and especially to insure the execution of the crime without risk to

appellant and virtually no chance for the victim to defend himself. 41 Even Adelaida's life would
have been mortally threatened were it not for the timely intervention of her neighbors.
Damages and Indemnity
Actual and moral damages require the presentation of proof before they can be awarded by
the trial court. 42According to Adelaida, burial expenses in the amount of P2,000.00 were
incurred. 43 This is separate and distinct from civil indemnity awarded under prevailing
jurisprudence, which is granted without further proof beyond the fact of death and the accused's
responsibility therefor. Moral damages were not discussed at all in Adelaida's testimony. Hence,
without any factual basis, the award of moral damages is not justified.
WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of moral damages
is DELETED. Instead, appellant is ORDERED TO PAY the amount of P50,000.00 as civil
indemnity and actual damages of P2,000.00 as burial expenses.
SO ORDERED.
Narvasa, C.J., Davide, Jr. and Melo, JJ., concur.
Francisco, J., is on leave.
Footnotes
1 Presided by Executive Judge Rogelio L. Angeles.
2 Rollo, p. 1.
3 Rollo, p. 11.
4 RTC Decision, pp. 1-2; rollo, pp. 9-10.
5 Minutes of the Proceedings and Order dated January 8, 1991, Records, pp. 11- 12.
6 Ibid., pp. 14 & 16.
7 Id., pp. 20-21 & 22-23.
8 Id., pp. 30 & 31.
9 Id., pp. 34 & 35.
10 Id., pp. 38 & 39.
11 Id., pp. 40 & 41.
12 Id., pp. 43 & 44.
13 Ids., pp. 46-47.
14 This date appears to be incorrect as, in the RTC's Order of that day, trial was reset on
August 25 and September 1, 1992.
15 Order dated August 27, 1992, Records, p. 50; Minutes of the Proceedings, Records, p. 49.
16 Ibid., pp. 52-53.
17 Id., pp. 54-55 & 57-58.
18 Id., pp. 60-61.
19 Rollo, p. 78.
20 RTC Decision, p. 10; rollo, p. 83.
21 Atty. Arcilla, who was/is employed in the Provincial Legal Office of the Province of Rizal, was
"tasked by the Provincial Governor (of Rizal) to render legal assistance to one of his
improverished constituents, Accused Mario Serzo, Jr." (Arcilla's "Explanation" dated April 11,
1996, p. 1; rollo, p. 37.)
22 Rollo, pp. 48 b-c.
23 Johnson vs. Zerbst, 304 U.S. 458, 462-3 (1938) which was cited in Abriol vs. Homeres, 84
Phil. 534, 533 (1949).
24 287 U.S. 45, 69 (1932). See also People vs. Holgado, 85 Phil. 752, 756-757 (1950).
25 People vs. Jose, 37 SCRA 450, 472-473, February 6, 1971.

26 Rule 122, Section 13, Rules of Court.


27 Telan vs. Court of Appeals, 202 SCRA 534, 542, October 4, 1991; and Delgado vs. Court of
Appeals, 145 SCRA 357, 360, November 10, 1986.
28 63 SCRA 493, 496, April 29, 1975.
29 "Twenty-Fourth Annual Review of Criminal Procedure: United States Supreme Court and
Courts of Appeals 1993-1994," Georgetown Law Journal, Vol. 83, No. 3, March-April 1995, pp.
1086-1087.
30 U.S. vs. Go-Leng, 21 Phil. 426, 427-479 (1912); U.S, vs. Kilayko, 31 Phil. 371, 372-373
(1915); People vs. Sim Ben, 98 Phil 138, 139 (1955); and People vs. Holgado, supra.
31 Article 6, Civil Code.
32 People vs. Nicandro, 141 SCRA 289, 299, February 11, 1986; and Chavez vs. Court of
Appeals, 24 SCRA 663, 683, August 19, 1968.
33 166 SCRA 680, 690 692, October 28, 1988.
34 People vs. Mendez, 28 SCRA 880, 887-889, July 29, 1969.
35 Rollo, p. 48-e.
36 Appellee's Brief, Rollo, pp. 66-76.
37 The trial court patiently waited for the appearance of appellant's counsel de parte from
January 8, 1991 until November 5, 1992.
38 People vs. Roluna, 231 SCRA 446, 453, March 24, 1994; People vs. Sasota, 91 Phil. 111, 116
(1952).
39 People vs. Mallari, 212 SCRA 777, 784, August 21, 1992; and People vs. Mabuhay, 185 SCRA
675, 680, May 24, 1990; and People vs. Samonte, 64 SCRA 319, 325-326, June 11, 1975.
40 TSN, June 3, 1991, pp. 7-8.
41 People vs. Isleta, G.R. No. 114971, November 19, 1996, pp. 11-17; People vs. Layno, G.R.
No. 110833, November 21, 1996, pp. 19-20; and People vs. Dinglasan, G.R. No. 101312,
January 28, 1997, pp. 23-24.
42 People vs. Arguelles, 222 SCRA 166, 172, May 17, 1993; and People vs. Rosario, 246 SCRA
658, 671, July 18, 1995.
43 TSN, June 3, 1991, p. 7.

U.S. Supreme Court


Nardone v. United States, 308 U.S. 338 (1939)
Nardone v. United States
No. 240
Argued November 14, 1939
Decided December 11, 1939
308 U.S. 338

CERTIORARI TO THE CIRCUIT COURT OF APPEALS


FOR THE SECOND CIRCUIT
Syllabus
1. In a prosecution in a federal court, evidence procured by tapping wires in violation
of the Communications Act of 1934 is inadmissible. This applies not only to the
intercepted conversations themselves, but also, by implication, to evidence procured
through the use of knowledge gained from such conversations. P. 308 U. S. 339.
2. The burden is on the accused in the first instance to prove to the trial court's
satisfaction that wiretapping was unlawfully employed. P. 308 U. S. 341.
3. Once that is established, the trial judge must give opportunity to the accused to
prove that a substantial portion of the case against him was the result of the illicit
wiretapping. Id.
4. Claims that this taint attaches to any portion of the Government's case must
satisfy the trial court with their solidity, and not be merely a means of eliciting what
is in the Government's possession before its submission to the jury. And if such a
claim is made after the trial is under way, the judge must likewise be satisfied that

the accused could not at an earlier stage have had adequate knowledge to make his
claim. P. 308 U. S. 342.
106 F.2d 41, reversed.
CERTIORARI, post, p. 539, to review the affirmance of convictions in the District
Court under an indictment for frauds on revenue. chanroblesvirtualawlibrary
Page 308 U. S. 339
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
We are called upon for the second time to review affirmance by the Circuit Court of
Appeals for the Second Circuit of petitioners' convictions under an indictment for
frauds on the revenue. In Nardone v. United States, 302 U. S. 379, this Court
reversed the convictions on the first trial because they were procured by evidence
secured in violation of 605 of the Communications Act of 1934 (c. 652, 48 Stat.
1064, 1103; 47 U.S.C. 605). For details of the facts reference is made to that case.
Suffice it here to say that this evidence consisted of intercepted telephone messages,
constituting "a vital part of the prosecution's proof."
Conviction followed a new trial, and "the main question" on the appeal below is the
only question open here -- namely, "whether the [trial] judge improperly refused to
allow the accused to examine the prosecution as to the uses to which it had put the
information" which Nardone v. United States, supra, found to have vitiated the
original conviction. Though candidly doubtful of the result it reached, the Circuit
Court of Appeals limited the scope of 605 to the precise circumstances before this
Court in the first Nardone case, and ruled that
"Congress had not also made incompetent testimony which had become accessible
by the use of unlawful 'taps,' for to divulge that information was not to divulge an
intercepted telephone talk."
106 F.2d 41.
The issue thus tendered by the Circuit Court of Appeals is the broad one whether or
no 605 merely interdicts the introduction into evidence in a federal trial of
intercepted telephone conversations, leaving the prosecution free to make every
other use of the proscribed evidence. Plainly, this presents a far-reaching problem
in chanroblesvirtualawlibrary
Page 308 U. S. 340
the administration of federal criminal justice, and we therefore brought the case here
for disposition.
Any claim for the exclusion of evidence logically relevant in criminal prosecutions is
heavily handicapped. It must be justified by an overriding public policy expressed in

the Constitution or the law of the land. In a problem such as that before us now, two
opposing concerns must be harmonized: on the one hand, the stern enforcement of
the criminal law; on the other, protection of that realm of privacy left free by
Constitution and laws but capable of infringement either through zeal or design. In
accommodating both these concerns, meaning must be given to what Congress has
written, even if not in explicit language, so as to effectuate the policy which Congress
has formulated.
We are here dealing with specific prohibition of particular methods in obtaining
evidence. The result of the holding below is to reduce the scope of 605 to exclusion
of the exact words heard through forbidden interceptions, allowing these
interceptions every derivative use that they may serve. Such a reading of 605
would largely stultify the policy which compelled our decision in Nardone v. United
States, supra. That decision was not the product of a merely meticulous reading of
technical language. It was the translation into practicality of broad considerations of
morality and public wellbeing. This Court found that the logically relevant proof which
Congress had outlawed, it outlawed because "inconsistent with ethical standards and
destructive of personal liberty." 302 U. S. 302 U.S. 379,302 U. S. 383. To forbid the
direct use of methods thus characterized, but to put no curb on their full indirect use,
would only invite the very methods deemed "inconsistent with ethical standards and
destructive of personal liberty." What was said in a different context in Silverthorne
Lumber Co. v. United States, 251 U. S. 385, 251 U. S. 392, is pertinent here:
"The essence of a provision
Page 308 U. S. 341
forbidding the acquisition of evidence in a certain way is that not merely evidence so
acquired shall not be used before the court, but that it shall not be used at all."
See Gouled v. United States, 255 U. S. 298, 255 U. S. 307. A decent respect for the
policy of Congress must save us from imputing to it a self-defeating, if not
disingenuous, purpose.
Here, as in the Silverthorne case, the facts improperly obtained do not
"become sacred and inaccessible. If knowledge of them is gained from an
independent source, they may be proved like any others, but the knowledge gained
by the Government's own wrong cannot be used by it"
simply because it is used derivatively. 251 U. S. 385, 251 U. S. 392.
In practice, this generalized statement may conceal concrete complexities.
Sophisticated argument may prove a causal connection between information
obtained through illicit wiretapping and the Government's proof. As a matter of good
sense, however, such connection may have become so attenuated as to dissipate the
taint. A sensible way of dealing with such a situation -- fair to the intendment of 605,
but fair also to the purposes of the criminal law -- ought to be within the reach of
experienced trial judges. The burden is, of course, on the accused in the first

instance to prove to the trial court's satisfaction that wiretapping was unlawfully
employed. Once that is established -- as was plainly done here -- the trial judge
must give opportunity, however closely confined, to the accused to prove that a
substantial portion of the case against him was a fruit of the poisonous tree. This
leaves ample opportunity to the Government to convince the trial court that its proof
had an independent origin.
Dispatch in the trial of criminal causes is essential in bringing crime to book.
Therefore, timely steps must be taken to secure judicial determination of claims of
illegality on the part of agents of the Government in
obtaining chanroblesvirtualawlibrary
Page 308 U. S. 342
testimony. To interrupt the course of the trial for such auxiliary inquiries impedes the
momentum of the main proceeding and breaks the continuity of the jury's attention.
Like mischief would result were tenuous claims sufficient to justify the trial court's
indulgence of inquiry into the legitimacy of evidence in the Government's possession.
So to read a Congressional prohibition against the availability of certain evidence
would be to subordinate the need for rigorous administration of justice to undue
solicitude for potential and, it is to be hoped, abnormal disobedience of the law by
the law's officers. Therefore, claims that taint attaches to any portion of the
Government's case must satisfy the trial court with their solidity, and not be merely a
means of eliciting what is in the Government's possession before its submission to
the jury. And if such a claim is made after the trial is under way, the judge must
likewise be satisfied that the accused could not at an earlier stage have had
adequate knowledge to make his claim. The civilized conduct of criminal trials cannot
be confined within mechanical rules. It necessarily demands the authority of limited
direction entrusted to the judge presiding in federal trials, including a well
established range of judicial discretion, subject to appropriate review on appeal, in
ruling upon preliminary questions of fact. Such a system as ours must, within the
limits here indicated, rely on the learning, good sense, fairness and courage of
federal trial judges.
We have dealt with this case on the basic issue tendered by the Circuit Court of
Appeals, and have not indulged in a finicking appraisal of the record, either as to the
issue of the time limit of the proposed inquiry into the use to which the Government
had put its illicit practices or as to the existence of independent sources for the
Government's proof. Since the Circuit Court of Appeals did chanroblesvirtualawlibrary
Page 308 U. S. 343
not question its timeliness, we shall not. And the hostility of the trial court to the
whole scope of the inquiry reflected his own accord with the rule of law by which the
Circuit Court of Appeals sustained him, and which we find erroneous.
The judgment must be reversed and remanded to the District Court for further
proceedings in conformity with this opinion.

Reversed.
MR. JUSTICE McREYNOLDS is of opinion that the Circuit Court of Appeals reached the
proper conclusion upon reasons there adequately stated, and its judgment should be
affirmed.
MR. JUSTICE REED took no part in the consideration or decision of this case.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 117487 December 12, 1995


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARNEL ALICANDO y BRIONES, accused-appellant.

PUNO, J.:
The case at bar involves the imposition of the death penalty. With all our frailties, we are
asked to play the role of an infallible God by exercising the divine right to give or take away
life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse,
our error can result in the worst of crimes murder by the judiciary.
The records reveal that appellant Arnel Alicando was charged with the crime of rape with
homicide 1 in an Information which reads:
That on or about the 12th day of June 1994 in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force, violence and
intimidation to wit: by then and there pinning down one KHAZIE MAE
PENECILLA, a minor, four years of age, choking her with his right hand,
succeeded in having carnal knowledge with her and as a result thereof she
suffered asphyxia by strangulation fractured cervical vertebra and lacerations
of the vaginal and rectal openings causing profuse hemorrhages and other
injuries which are necessarily fatal and which were the direct cause of her
death.
CONTRARY TO LAW.

On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of
the PAO, Department of Justice. Appellant pleaded guilty.
After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It
also set the case for reception of evidence for the appellant, if he so desired. 2
The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla,
father of the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and
Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo.
Appellant joined them but every now and then would take leave and return. Appellant was
living in his uncle's house some five (5) arm's length from Penecilla's house. At about 4:30
p.m., Penecilla's group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's
length from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the
window of appellant's house. She offered to buy her "yemas" but appellant closed the
window. Soon she heard the victim crying. She approached appellant's house and peeped
through an opening between its floor and door. The sight shocked her appellant was naked,
on top of the victim, his left hand choking her neck. She retreated to her house in fright. She
gathered her children together and informed her compadre, Ricardo Lagrana, then in her
house, about what she saw. Lagrana was also overcome with fear and hastily left.
Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie
Mae. He and his wife searched for her until 1 o'clock in the morning. Their effort was
fruitless. Rebada was aware that the Penecillas were looking for their daughter but did not
tell them what she knew. Instead, Relada called out appellant from her window and asked
him the time Khazie Mae left his house. Appellant replied he was drunk and did not know.
As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to
answer the call of nature. He discovered the lifeless body of Khazie Mae under his house.
Her parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of
heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed the
crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally
confessed his guilt without the assistance of counsel. On the basis of his uncounselled
verbal confession and follow up interrogations, the police came to know and recovered from
appellant's house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained
pillow and a stained T-shirt all of which were presented as evidence for the prosecution.
The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His
autopsy report reveals the following injuries sustained by the victim:
HEAD & NECK/THORACO-ABDOMINAL REGIONS:
1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right infraclavicular
area.
2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest
wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right anteroinferior chest wall.
4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.
5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac
crest.
ON OPENING THE SKULL 7 THORACO-ABDOMINAL
CAVITIES:
a) Fractured, 2nd cervical vertebra.
b) Fractured, crecoid cartilage.
c) Both lungs, expanded with multiple petechial hemorrhages.
d) Other internal organs, congested.
EXTREMITIES:
1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect,
lower 3rd, left forearm.
2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left
forearm.
3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect,
middle 3rd, right forearm.
VAGINAL FINDINGS/ANAL FINDINGS:
a) Lacerated wound, from the fourchette up to the dome of
the rectum..
b) Hematoma, from the fourchette up to the rectum.
c) Lacerated wound, lateral wall of the vagina up to the level
of the promontory of the sacrum with a length of 8
centimeters.
d) A cylinder with a diameter of 2 cms., easily passes the
vaginal and anal openings.
CAUSE OF DEATH:
A) ASPHYXIA BY STRANGULATION.

B) FRACTURED, 2nd CERVICAL VERTEBRA.


C) HEMORRHAGE, 2nd DEGREE TO LACERATED
VAGINAL & RECTAL OPENINGS.
Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove
that the proximate cause of Khazie Mae's death was asphyxia by strangulation.
On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz:
WHEREFORE, the court hereby finds the accused, Arnel Alicando,
GUILTY beyond reasonable doubt for (sic) the Crime of Rape with Homicide
penalized under Article 335 of the Revised Penal Code as amended by
paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No. 7659. Arnel
Alicando is hereby sentenced to suffer a (sic) penalty of death and to
indemnify the heirs of the offended party, Khazie Mae D. Penecilla, the sum
of P50,000.00.
The death sentence shall be executed by putting the person under sentence
to death by electrocution (electric chair). As soon as facilities are provided by
the Bureau of Prisons, the method of carrying out his sentence shall be
changed by gas poisoning (sic).
Here ends Khazie Mae's quest for justice. Her tormentor must suffer for the
grievous offense he had committed. He deserves no mercy.
Cost against the accused.
SO ORDERED.
The case is before us on automatic review considering the death penalty imposed by the trial
court. A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant
assails the decision of the trial court as a travesty of justice.
We find that the Decision of the trial court sentencing the appellant to death is shot full of
errors, both substantive and procedural. The conviction is on an amalgam of inadmissible
and incredible evidence and supported by scoliotic logic.
First. The arraignment of the appellant is null and void. The trial judge failed to follow section
(1) (a) of Rule 116 on arraignment. Said section provides:
xxx xxx xxx
Sec. 1. Arraignment and plea; how made.
(a) The accused must be arraigned before the court where the complaint or
information has been filed or assigned for trial. The arraignment must be
made in open court by the judge or clerk by furnishing the accused a copy of

the complaint or information with the list of witnesses, reading the same in
the language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecutor may, however, call at the trial witnesses
other than those named in the complaint or information.
The reading of the complaint or information to the appellant in the language or
dialect known to him is a new requirement imposed by the 1985 Rules on Criminal
Procedure. It implements the constitutional right of an appellant ". . . to be informed
of the nature and cause of the accusation against him." 3 The new rule also responds
to the reality that the Philippines is a country divided by dialects and Pilipino as a national
language is still in the process of evolution. 4 Judicial notice can be taken of the fact that
many Filipinos have limited understanding either of the Pilipino or English language, our
official languages for purposes of communication and instruction. 5 The importance of
reading the complaint or information to the appellant in the language or dialect known to
him cannot thus be understated.
In the case at bar, the records do not reveal that the Information against the appellant was
read in the language or dialect known to him. The Information against the appellant is written
in the English language. It is unbeknown whether the appellant knows the English language.
Neither is it known what dialect is understood by the appellant. Nor is there any showing that
the Information couched in English was translated to the appellant in his own dialect before
his plea of guilt. The scanty transcript during his arraignment, reads: 6
xxx xxx xxx
Prosecutor Edwin Fama Appearing as public prosecutor
Atty. Rogelio Antiquiera For the accused, Your Honor. Ready for
arraignment.
Interpreter (Reading the information to the accused for arraignment and
pre-trial.)
Note: (After reading the information to the accused, accused pleads guilty)
One need not draw a picture to show that the arraignment of the appellant is a nullity.
It violated section 1(a) of Rule 116, the rule implementing the constitutional right of
the appellant to be informed of the nature and cause of the accusation against him. It
also denied appellant his constitutional right to due process of law. 7It is urged that we
must presume that the arraignment of the appellant was regularly conducted. When life is
at stake, we cannot lean on this rebuttable presumption. We cannot assume. We must be
sure.
Second. The plea of guilt made by the appellant is likewise null and void. The trial court
violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section
provides:
Sec. 3. Plea of guilty to capital offense; reception of evidence.

When the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his guilt and
the precise degree of culpability. The accused may also present evidence in
his behalf.
The records reveal how the trial judge inadequately discharged this duty of
conducting a "searching inquiry." In the hearing of June 28, 1994, the transcripts
reveal the following: 8
Note (After reading the information to the
accused, accused pleads guilty.)
Court Question (sic) of the court to the
accused.
Q Considering that this is a crime and under
the amended law is a heinous crime, because
of your plea of guilty without the consent or
even against the discretion of the court, the
court will give you a mandatory death penalty
because of the crime charged, do you
understand?
Accused Yes, Your Honor.
Q Did you enter a plea of guilty on your own
voluntary will or without any force or
intimidation from any one or whatever?
Accused None, Your Honor.
Q Are you sure?
Accused Yes, Your Honor.
Q Or maybe because you were manhandled
or maltreated by anyone and that will just be
the consideration for you to plead guilty?
Accused No, Your Honor.
Court Were you not manhandled, please let
us see your body?
Note (Accused raised his prison uniform or
shirt and showed to the court his body from
waist up.)

Accused No, Your Honor.


Court You were not maltreated in the jail?
Accused No, Your Honor.
Court Please let us see whether you have
bruises so that you will be examined by a
physician to the order of the court?
Accused No, Your Honor.
Court If you will plead guilty, that plea of guilty
has no use because there will be a mandatory
death penalty, do you still insist on your plea
of guilty?
Accused Yes, Your Honor.
Court If you plead guilty to the crime charged
there will be some effects on your civil rights
hut not until the decision will be affirmed by
the Supreme Court.
Accused Yes, Your Honor.
Note (See Order dated June 28, 1994
attached to the records of this case.)
In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9
xxx xxx xxx

Fiscal Fama: Appearing as the public


prosecutor, ready, Your Honor.
Our first witness is Dr. Tito Doromal, Your
Honor.
Atty. Antiquiera: For the accused, Your Honor.
Court Before the court will proceed with the
reception of evidence by the prosecution Arnel
Alicando, please come here. (at this juncture,
Arnel Alicando, come near to the court)
The court is warning you again that this is
reception of evidence by the prosecution after

you plead guilty to the crime charged at, do


you understand?
A Yes.
Q Do you still affirm and confirm to your plea
of guilty of rape with homicide?
A Yes, Your Honor.
Q Do you still insist that your plea of guilty is
voluntary without force, intimidation or
whatsoever?
A Yes.
Q The court is warning you that after reception
of evidence, the imposable penalty is
mandatory death?
A Yes, Your Honor.
Q Despite of that, you still insist on your plea
of guilty?
A Yes, Your Honor.
Court Okey, proceed.
Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated
the decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of
cases. 11 The bottom line of the rule is that the plea of guilt must be based on a free and informed
judgment. Thus, the searching inquiry of the trial court must be focused on: (1) the voluntariness
of the plea, and (2) the full comprehension of the consequences of the plea. The questions of the
trial court failed to show the voluntariness of the plea of guilt of the appellant nor did the questions
demonstrate appellant's full comprehension of the consequences of his plea. The records do not
reveal any information about the personality profile of the appellant which can serve as a
trustworthy index of his capacity to give a free and informed plea of guilt. The age, socioeconomic status, and educational background of the appellant were not plumbed by the trial
court. The questions were framed in English yet there is no inkling that appellant has a nodding
acquaintance of English. It will be noted too that the trial court did not bother to explain to the
appellant the essential elements of the crime of rape with homicide.
A cursory examination of the questions of the trial court to establish the voluntariness of
appellant's plea of guilt will show their utter insufficiency. The trial court simply inquired if
appellant had physical marks of maltreatment. It did not ask the appellant when he was
arrested, who arrested him, how and where he was interrogated, whether he was medically
examined before and after his interrogation, etc. It limited its efforts trying to discover late
body marks of maltreatment as if involuntariness is caused by physical abuse alone.

Regretfully, it even turned a blind eye on the following damning entry on the June 13, 1994
Record of Events of the Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was
mobbed by inmates while in jail and had suffered hematoma, viz:
c-0262-94
INFORMATION
2:50 PM, P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC,
informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this
date when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old,
residence of Rizal, Palapala Zone I, CP, been arrested and mobbed by the
irrate residents of Zone II Rizal, Palapala, GP, in connection of the Rape with
Homicide case wherein the victim KHAZIE MAE PENECILLA Y DRILON, 4
yrs, old, residence of same place who was discovered dead under the house
thereat. Suspect when turned over to this office and put on lock up cell was
also mobbed by the angry inmates thus causing upon him hematoma
contusion on different parts of his body.
Likewise, the trial court's effort to determine whether appellant had full comprehension of the
consequences of his plea is fatally flawed. It warned the appellant he would get the
mandatory death penalty without explaining the meaning of "mandatory" It did not inform the
appellant of the indemnity he has to pay for the death of the victim. It cautioned appellant
there ". . . will be some effects on your civil rights" without telling the appellant what those
"effects" are and what "civil rights" of his are involved.
Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death.
We stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses
cannot rest alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and
intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the
appellant and the precise degree of his culpability beyond reasonable doubt. This rule
modifies prior jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain
a conviction charged in the information without need of further proof. The change is salutary
for it enhances one of the goals of the criminal process which is to minimize erroneous
conviction. We share the stance that "it is a fundamental value determination of our system
that it is far worse to convict an innocent person than let a guilty man go free. 12
Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant,
were inadmissible, yet, were considered by the trial court in convicting the appellant.
Thus, the trial court gave full faith and credit to the physical evidence presented by the
prosecution. To quote its Decision, 13 viz:
xxx xxx xxx
Further, there are physical evidence to prove Khazie was raped. These
consists of a pillow with bloodstains in its center 14 and the T-shirt 15 of the
accused colored white with bloodstains on its bottom. These physical evidence

are evidence of the highest order. They strongly corroborate the testimony of
Luisa Rebada that the victim was raped.

These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the
Iloilo City PNP as a result of custodial interrogation
where appellant verbally confessed to the crime without the benefit of counsel. PO3
Tan admitted under cross-examination, viz: 16
xxx xxx xxx

CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:
Q Mr. Witness, when for the first time did you
see Arnel Alicando?
A June 13, 1994, when I arrested him.
Q Previous to that you have never seen him?
A Yes, sir.
Q When for the first time did you start
investigating Arnel Alicando?
A After I finished investigating the body of the
victim, Khazie Mae Penecilla.
Q And that was also after you were informed
that Arnel Alicando was a suspect in the
raping of Khazie Mae Penecilla?
A Yes, sir
Atty. Antiquiera:
Q And who was that person who informed you
of the suspect?
A Luisa Rebada.
Q Mrs. Rebada who is the witness in this
case?
A Yes, sir.
Q And you started investigating Arnel Alicando
in the morning of June 13, 1994?

A Yes, sir.
Q How long did you interrogate Arnel Alicando
in the morning of June 13, 1994?
A I cannot remember the length of time I
investigated him.
Q Did it take you the whole morning of June
13, 1994 in interrogating and investigating
Arnel Alicando?
A Yes, sir.
Q And the investigation you conducted
continued in the afternoon of the same date?
A Yes, sir.
Q The following day, June 14, 1994, you still
investigated and interrogated Arnel Alicando.
A Yes, sir.
Q And when did you stop, finally, investigating
and interrogating Arnel Alicando?
A After I finished recovering all the exhibits in
relation to this case.
Q What date did you stop your investigation?
A June 14, 1994, when I finished recovering
the white T-shirt and pair of earring.
Atty. Antiquiera:
Q You testified in this case, Mr. Witness, you
never informed the court that you apprised the
accused of his constitutional rights, is that
correct?
A I apprised him.
Q My question is, during your testimony
before this court under the direct examination
of the prosecution you never informed the

court that you apprised the accused of his


constitutional rights?
Pros. Fama:
I did not ask him that question. How will he
answer?
Court:
Sustained.
Atty. Antiquiera:
Q When did you inform, the date when you
informed Alicando of his Constitutional rights?
A On June 13.
Q On what hour did you inform him?
A After the witness identified him.
Q What constitutional rights did you inform
Alicando of?
A The right to remain silent, and right to get
his lawyer and I have interpreted in Visayan
language.
Q And during your investigation for almost two
(2) days the accused was never represented
by counsel, is that correct?
A Yes, sir.
Atty. Antiquiera:
Q Are you aware of the law that enjoins a
public officer to inform the person of his
constitutional rights?
A Yes, sir.
That is all, Your Honor.

It is now familiar learning that the Constitution has stigmatized


as inadmissible evidence uncounselledconfession or admission. Section 12
paragraphs (1) and (3) of Article III of the Constitution provides:
xxx xxx xxx
Sec. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one.These rights cannot be waived except in writing and in the presence of
counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or the preceding
section shall be inadmissible against him.
In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important
confession of the appellant in writing. Neither did he present any writing showing that
appellant waived his right to silence and to have competent and independent counsel
despite the blatant violation of appellant's constitutional right, the trial court allowed his
uncounselled confession to flow into the records and illicitly used it in sentencing him to
death.
It is not only the uncounselled confession that is condemned as inadmissible, but also
evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were
evidence derived from the uncounselled confession illegally extracted by the police from the
appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17
xxx xxx xxx
Q Did the accused Arnel Alicando accompany you to the
place of the incident?
A Yes, sir.
Q When you arrived at the place of the incident what did you
do?
A He pointed to the fish basin.
Q Can you identify this fish basin which you said pointed to
you by Arnel Alicando?
A Yes, sir.
Q Please point?

A (Witness pointing to the fish basin already marked as


Exhibit "H".)
Q Did you ask the accused what he did with this fish basin?
A I asked the accused what he did with the fish basin and he
answered that he used the fish basin to cover Khazie Mae
Penecilla when she was already dead.
Pros. Fama:
Q You mean to say to conceal the crime?
A Yes, sir.
Q What else aside from this fish basin, what else did you
recover?
A At around 7 o'clock in the evening he further pointed to us
the old mat and the pillowwherein he layed the victim Khazie
Mae Penecilla
Q You mean to say that you returned back to the scene of the
incident that time?
A It was already night time and it was only Kagawad Rodolfo
Ignacio, my companion, who went to the place of the incident.
Q You mean to say you were verbally instructed by the
accused?
A Yes, sir.
Q In what particular place did you recover those things?
A Inside the room where he raped the child.
Q Whose house is that?
A The house of Imelda Alicando.
Q The wife of Romeo Alicando?
A Yes, sir.
Q In what particular place is that situated?

A Inside the room where the accused was sleeping at RizalPalapala.


Pros. Fama:
Q You mean to say inside that room the victim was raped by
the accused?
A Yes, sir.
Q Can you point that pillow which you said you recovered
inside the room of Imelda Alicando?
A Yes, sir.
Q And the mat?
A (Witness taking out from the fish basin the mat and pillow.)
Q Did you find something on the pillow?
A The pillow have bloodstain in the middle.
. . This was already marked as Exhibit "J", Your Honor and
the mat as Exhibit "I".
Q Aside from this what did you recover from the place of
incident?
A On June 14, 1994, at about 10:00 o'clock in the morning the
accused Arnel Alicando further informed me that he kept the
gold earring of the victim and her clothes inside the room of
the house of Imelda Alicando.
Q Where?
A I saw the clothes of Khazie Mae Penecilla inside the room
where the rape took place hanged on the clothes line. And I
found the pair of earring at the bamboo post of the fence.
Court:
Q Where is that bamboo post of the fence situated?
A Around the fence of Imelda Alicando situated at the from
gate on the right side.

Pros. Fama:
Q You mean to say you returned back on June 14, you
recovered the items accompanied by the accused?
A No more, I only followed his direction.
Q He made verbal direction to you?
A Yes, sir.
Q Can you please show us the white t-shirt?
A (Witness taking out a white t-shirt from the fish basin.)
Q Please examine that white t-shirt?
A The t-shirt have a bloodstain.
We have not only constitutionalized the Miranda warnings in our jurisdiction. We
have also adopted the libertarian exclusionary rule known as the "fruit of the
poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated
case of Nardone v. United States. 18 According to this rule, once the primary source (the
"tree") is shown to have been unlawfully obtained, any secondary or derivative
evidence (the " fruit " ) derived from it is also inadmissible. 19 Stated otherwise, illegally
seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the
poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous
tree" is at least once removed from the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that evidence illegally obtained by the
State should not be used to gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained. 20 We applied this exclusionary rule in
the recent case of People vs. Salanga, et al., 21 a ponencia of Mr. Justice Regalado.
Salanga was the appellant in the rape and killing of a 15-year old barrio lass. He was,
however, illegally arrested. Soldiers took him into custody. They gave him a body search
which yielded a lady's underwear. The underwear was later identified as that of the victim.
We acquitted Salanga. Among other reasons , we ruled that "the underwear allegedly
taken from the appellant is inadmissible in evidence, being a so-called "fruit of the
poisonous tree." 22
But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still,
the trial court erred in holding that they "strongly corroborated the testimony of Luisa Rebada
that the victim was raped." For one, there was no basis for the trial court to conclude that the
stains on the pillow and t-shirt were human bloodstains. The pillow and the t-shirt were not
examined by any expert. To hold that they were human bloodstains is guesswork. For
another, there was no testimony that the stains were caused by either the blood of the
appellant or the victim. In addition, there was no testimony that the t-shirt was the one worn
by the appellant when he allegedly committed the crime. It must also be noted that it is not
unnatural for appellant to have bloodstains on his shirt. He is a butcher by occupation.

Romeo Penecilla himself, the father of the victim, testified he knows the appellant
"becausehe used to accompany me during butchering of animals." 23
The burden to prove that an accused waived his right to remain silent and the right to
counsel before making a confession under custodial interrogation rests with the prosecution.
It is also the burden of the prosecution to show that the evidence derived from confession is
not tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and
convincing evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides
only one mode of waiver the waiver must be in writing and in the presence of counsel. In
the case at bar, the records show that the prosecution utterly failed to discharge this burden.
It matters not that in the course of the hearing, the appellant failed to make a timely objection
to the introduction of these constitutionally proscribed evidence. The lack of objection did not
satisfy the heavy burden of proof that rested on the prosecution.
There is no and there ought not to be any disagreement on basic principles. The Court
should be concerned with the heinousness of the crime at bar and its despicable
perpetration against a 4-year old girl, an impersonation of innocence itself. The Court should
also be concerned with the multiplication of malevolence in our midst for there is no right to
be evil, and there are no ifs and buts about the imposition of the death penalty as long as it
remains unchallenged as part of the laws of our land. These concerns are permanent, norms
hewn in stone, and they transcend the transitoriness of time.
Be that as it may, our commitment to the criminal justice system is not only to convict and
punish violators of our laws. We are equally committed to the ideal that the process of
detection, apprehension, conviction and incarceration of criminals should be accomplished
with fairness, and without impinging on the dignity of the individual. In a death penalty case,
the Court cannot rush to judgment even when a lowlife is involved for an erroneous
conviction will leave a lasting stain in our escutcheon of justice.
In sum, the Court cannot send the appellant to die in the electric chair on the basis of the
procedural irregularities committed by, and the inadmissible evidence considered by the trial
court. In Binabay vs. People, et al., 24ponencia of Mr. Chief Justice R. Concepcion, this Court
held that no valid judgment can be rendered upon an invalid arraignment. Since in the case at
bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness to
the appellant, and in justice to the victim, the case has to be remanded to the trial court. for
further proceedings. There is no philosophy of punishment that allows the State to kill without any
semblance of fairness and justice.
IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel
Alicando of the crime of Rape with Homicide and sentencing him to suffer the penalty of
death is annulled and set aside and the case is remanded to the trial court for further
proceedings. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug, Francisco and
Panganiban, JJ., concur.

Separate Opinions

KAPUNAN, J., dissenting:


The civilized mind normally recoils at the idea of taking a man's life by way of retribution for
the commission of a crime. However, every so often, a crime so dastardly and repulsive
comes along that even an individual usually predisposed towards rehabilitating the hard-core
criminal would no longer wish to suffer in silent rage at society's kid-glove treatment of such
offender, but would readily opt to exact a commensurate requital in the form of capital
punishment where circumstances so demand.
Sociological theory at least since Emile Durkheim (1858-1917) has posited the idea that
setting absolute outer limits on deviance is a necessary component of group identification
and survival. Justice Oliver Wendell Holmes may have sensed this truth when he wrote,
in The Common Law (1881), "The first requirement of a sound body of law is that it should
correspond with the actual feelings and demands of the community, whether right or wrong
(1938 ed:, p. 41)." 1
Thus, impelled by the alarming upsurge of crime resulting in the loss of human lives and
wanton destruction of property affecting the nation's efforts towards sustainable development
and prosperity while at the same time undermining the people's faith in the Government,
Congress enacted Republic Act 7659, 2 imposing capital punishment on certain heinous crimes.
The early Spartans had word for such crimes: haineus, hateful, abominable, from the Greek
prefix haton, denoting acts so hatefully or shockingly evil. The acts charged in the case at
bench belong to this genre.
A totally innocent child was forever denied the opportunity to enjoy life beyond the age of
four by the gruesome and hideous acts allegedly committed by the appellant who, according
to the prosecution, was not content merely with satisfying his beastly desires on her, but also
strangled her to death. Whether or not the circumstances of the present case require the
imposition of the death penalty is the ultimate issue before us. After a thorough review of the
facts and the evidence, I am afraid, I have to dissent from the majority. The legal
evidence available to us overwhelmingly supports the lower court's conclusions. We should
not shirk from our legal duty to impose the death penalty.

I
In the afternoon of June 12, 1994, Romeo Penecilla, father of four-year-old Khazi Mae, was
having a drinking spree with Ramil Rodriguez, Remus Goddi and the appellant at his
(Romeo's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody
left, except for the appellant. Appellant was residing at his uncle's house about five (5) arm's
length away from the Penecilla's house.
When Romeo Penecilla arrived home at 8:00 that evening, he could not find Khazi Mae. He
and his wife looked for her until 1:00 in the morning to no avail.
The next morning, Leopoldo Santiago, a neighbor, got the shock of his life when, answering
the call of nature outside his house, he chanced the dead body of Khazi Mae. Immediately,
the girl's parents were informed. The small, lifeless body was brought to their house.
The matter was reported to the police at once. At this point, Luisa Rebada, who lived about
1-1/2 arm's length away from the house of appellant related to the girl's distraught parents
what she knew. 3
Rebada recounted that at about 5:30 of the afternoon before, she saw Khazi Mae at the
window of appellant's house. She called out to her and offered to buy "yemas," for her.
Appellant suddenly closed the window. Later on, Luisa heard Khazi Mae cry and then
squeal. Her curiosity aroused, she crept two steps up the appellant's house, peeped through
an opening between the floor and the door, and saw appellant naked on top of Khazi Mae,
his right hand choking the girl's neck. Rebada became frightened and went back to her
house to gather her children. She told her compadre, Ricardo Lagranai who was in her
house at that time, of what she saw. The latter got nervous and left. That evening when she
heard that Khazi Mae's parents were looking for the little child, she called out from her
window and asked appellant what time Khazi Mae left his house. Appellant replied that he
did not know since he was drunk. 4 With Luisa Rebada's revelation, appellant was arrested.
During the investigation conducted by PO3 Danilo Tan, appellant readily admitted raping and
killing Khazi Mae. 5The police were able to recover from appellant's house Khazi Mae's green
slippers, a pair of gold earrings placed on top of a bamboo post, a bloodied buri mat, a pillow with
a blood stain in the middle, and a stained T-shirt owned by appellant.
An autopsy conducted and Dr. Tito Doromal, the medico-legal officer, revealed the following
findings:
BEAD & NECK/THORACO-ABDOMINAL REGIONS:
1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left
and right anterior neck, down to the medial portion of the left
and right infra-clavicular area.
2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., anterolateral left chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in


dia., right antero-inferior chest wall.
4) Contusion, purple in color, 4 x 3.2 cm., in dia., left subcostal arch.
5) Contusion, purple in color, 4.5 x 5 cm., in dia., superolateral, left iliac crest.
ON OPENING THE SKULL & THORACO-ABDOMINAL
CAVITIES:
a) Fractured, 2nd cervical vertebra.
b) Fractured, crecoid cartilage.
c) Both lungs, expanded with multiple petechial hemorrhages.
d) Other internal organs, congested.
EXTREMITIES:
1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect,
lower 3rd, left forearm.
2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left
forearm.
3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect,
middle 3rd, right forearm.
VAGINAL FINDINGS/ANAL FINDINGS:
a) Lacerated wound, from the fourchette up to the dome of
the rectum.
b) Hematoma, from the fourchette up to the rectum.
c) Lacerated wound, lateral wall of the vagina up to the level
of the promontory of the sacrum with a length of 8
centimeters.
d) A cylinder with a diameter of 2 cms., easily passes the
vaginal and anal openings.
CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION
B) FRACTURED, 2nd CERVICAL VERTEBRA.
C) HEMORRHAGE, 2nd DEGREE TO LACERATED
VAGINAL & RECTAL OPENINGS. 6
Consequently, an information was filed with the Regional Trial Court of Iloilo City, Branch 38,
docketed as Criminal Case No. 43663, charging Arnel Alicando with the crime of rape with
homicide, committed as follows:
That on or about the 12th day of June, 1994 in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force, violence and
intimidation to wit: by then and there pinning down one KHAZIE MAE
PENECILLA, a minor, four years of age, choking her with his right hand,
succeeded in having carnal knowledge with her and as a result thereof she
suffered asphyxia by strangulation, fractured cervical vertebra and
lacerations of the vaginal and rectal openings causing profuse hemorrhages
and other injuries which are necessarily fatal and which were the direct cause
of her death thereafter.
CONTRARY TO LAW. 7
On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the Public Attorney's
Office (PAO), pleaded guilty to the crime charged.
The trial court ordered the prosecution to present evidence to prove the guilt of the accused
and the precise degree of his culpability. It likewise set the case for reception of evidence for
the accused, if he wished to. 8
In the course of the trial, the prosecution presented (1) Luisa Rebada; (2) Dr. Tito Doromal,
the medico-legal officer; (3) SPO1 Manuel Artuz, the exhibit custodian of Iloilo City Police
Station; (4) PO3 Danilo Tan; (5) SPO3 Rollie Luz, police investigators; and (6) Romeo
Penecilla, the victim's father.
The defense, for its part, merely presented the autopsy report of Dr. Tito Doromal to show
that the proximate cause of death was asphyxia by strangulation.
On July 20, 1994, the trial judge rendered a decision imposing the death penalty on Arnel
Alicando.
The case is now before us on automatic review. Disagreeing with the trial court's conviction
of the accused for the crime of Rape with Homicide and the said court's imposition of the
death penalty the Court's majority has decided to overturn the conviction and remand the
case to the trial court on the basis of the following alleged procedural irregularities:
First, that the arraignment of the appellant is null, and void;

Second, that the plea of guilt made by the appellant is likewise null and void;
Third, some prosecution evidence, offered independently of the plea of guilt of the appellant,
were inadmissible, yet were considered by the trial court in convicting the appellant.
I strongly disagree.
II
THERE WAS SUBSTANTIAL, IF NOT FULL COMPLIANCE WITH EXISTING
RULES ON ARRAIGNMENT AND PLEA.
A thorough review of the record reveals that there was full compliance with existing rules on
arraignment and plea.
It is plainly obvious from an examination of the appropriate rules and the record of the case
that: 1) there is absolutely nothing on the record which would warrant a finding the
information was not read in the language or dialect known to the appellant; 2) the rule on
arraignment and plea does not absolutely require that the same be indicated in the record of
every criminal case; 3) Rule 116 Section 1 contains nothing requiring trial courts to indicate
in the record the fact that the information was read in the language or dialect known to the
defendant, even if the same was in fact actually complied with by the lower court.
The rule on arraignment, Rule 116 provides the following:
Sec. 1: Arraignment and plea; how made. (a) The accused must be
arraigned before the court where the complaint or information has been filed
or assigned for trial. The arraignment must be made in open court by the
judge or clerk by furnishing the accused a copy of the complaint or
information with the list of witnesses, reading the same in the language or
dialect known to him and asking him whether he pleads guilty or not guilty.
The prosecution may, however, call at the trial witnesses other than those
named in the complaint or information.
(b) The accused must be present at the arraignment and must personally
enter his plea. Both arraignment and plea shall be made of record, but a
failure to enter of record shall not affect the validity of the proceedings.
(c) If the accused refuses to plead, or makes a conditional plea of guilty, a
plea of not guilty shall be entered for him.
xxx xxx xxx
Sec. 3: Plea of guilty to capital offense; reception of evidence. When the
accused pleads guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of
his plea and require the prosecution to prove his guilt and the precise degree
of culpability. the accused may also present evidence in his behalf.

When an accused is arraigned in connection with a criminal charge, it is the duty of the court
to inform him of its nature and cause so that he may be able to comprehend the charges
against him as well as the circumstances attendant thereto. When the charge is of a serious
nature, it becomes the imperative duty of the lawyer present not only to assist the accused
during the reading of the information but also to explain to him the gravity and consequence
of his plea. 9
Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty.
While justice demands speedy administration, judges are duty bound to be extra solicitous in
seeing to it that when an accused pleads guilty, he fully understands the meaning of his plea
and the import of an inevitable conviction. 10
Consequently, three things need to be accomplished after the accused in a criminal case
enters a plea of guilty to a capital offense:
(1) the court should conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of the accused's plea;
(2) the lower court should require the prosecution to prove the guilt of the accused and the
precise degree of his culpability; and
(3) the court should inquire whether or not the accused wishes to present evidence on his
behalf and should allow him to do so if he so desires. A judge who fails to observe this
requirement commits a grave abuse of discretion.
These requirements have been complied with in this case, which the following pertinent
portions of the appellant's arraignment, quoted from the record support:
Prosecutor Edwin Fama
Appearing as public prosecutor.
Atty. Rogelio Antiquiera
For the accused, Your Honor. Ready for arraignment.
Interpreter:
(Reading the information to the accused for arraignment and
pre-trial.)
Note:
(After reading the information to the accused, accused pleads
guilty.)
Court:

Question of the court to the accused.


Q Considering that this is a crime and under the amended law
is a heinous crime, because of your plea of guilty without the
consent or even against the discretion of the court, the court
will give you a mandatory death penalty because of the crime
charged, do you understand that?
Accused:
Yes, Your Honor.
Q Did you enter a plea of guilty on your own voluntary will or
without any force or intimidation from any one or whatever.
Accused:
None, Your Honor.
Q Are you sure?
Accused:
Yes, Your Honor.
Q Or maybe because you the were manhandled or
maltreated by anyone and that will just be consideration for
you to plead guilty?
Accused:
No, Your Honor.
Court:
Were you not manhandled, please let us see your body?
Note:
(Accused raised his prison uniform or shirt and showed to the
court his body from waist up).
Accused:
No, Your Honor.
Court:

You were not maltreated in the jail?


Accused:
No, Your Honor.
Court:
Please let us see whether you have bruises so that you will
be examined by a physician to the order of the court?
Accused:
No, Your Honor.
Court:
If you plead guilty to the crime charged there will be some
effects on your civil rights but not until the decision will be
affirmed by the Supreme Court.
Accused:
Yes, Your Honor. 11
Again, before the prosecution presented its evidence on July 11, 1994, the trial judge once more
asked appellant if he was sure of his plea.

Fiscal Fama:
Appearing as the public prosecutor, ready, Your Honor.
Our first witness is Dr. Tito Doromal, Your Honor.
Atty. Antiquiera:
For the accused, Your Honor.
Court:
Before the court will proceed with the reception of evidence
by the prosecution, Arnel Alicando, please come here. (At this
juncture, Arnel Alicando, come near to the court)
The court is warning you again that this is reception of
evidence by the prosecution after you plead guilty to the
crime charged at, do you understand?

A Yes.
Q Do you still affirm and confirm to your plea of guilty of your
rape with homicide?
A Yes, Your Honor.
Q Do you still insist that your plead of guilty is voluntary
without force, intimidation or whatsoever?
A Yes.
Q The court is warning you that after reception of evidence,
the imposable penalty is mandatory death?
A Yes, Your Honor.
Q Despite of that, you still insist of your plea of guilty?
A Yes, Your Honor.
Court:
Okey, proceed. 12
It is crystal clear, from the above-quoted portions of the transcript of the appellant's
arraignment that the trial judge made every effort to ascertain the voluntariness of the plea,
and that he repeatedly warned the defendant of the consequences of his plea. In other
words
A) The above-quoted proceedings satisfy the requirement of a searching inquiry.
There is no hard and fast rule requiring judges to conduct their searching inquiry in the
detailed manner suggested by the majority opinion, although judges should ideally strive to
conduct as detailed an inquiry as would be reasonable under the circumstances. In People
v. Dayot 13 we held that:
A searching inquiry . . . compels the judge to content himself reasonably that
the accused has not been coerced or placed under a state
of duress and that his guilty plea has not therefore been given
improvidently other by actual threats of physical harm from malevolent
quarters or simply because of his, the judge's, intimidating robes.
xxx xxx xxx
While there can be no hard and fast rule as to how a judge may conduct
searching inquiry, as to the number and character of questions he may put to
the accused, or as to the earnestness with which he may conduct it, since

each case must be measured according to its individual merit, taking into
consideration the age, educational attainment, and social status of the
accused confessing guilt, among other things, the singular barometer is that
the judge must in all cases, fully convince himself that: (1) the accused, in
pleading guilty, is doing so voluntarily, and (2) he, in so doing, is truly guilty,
and that there exists a rational basis for a finding of guilt, based on his
testimony. This Court leaves to judges, considering their training, ample
discretion, but expects them at the same time, that they will be true to their
calling and be worthy ministers of the law.
The purpose of a searching inquiry is to satisfy the judge that the defendant's plea was
entered into voluntarily and that the defendant understood the consequences of his plea.
There is no hard and fast rule, as the Dayotcase states, as to the number and character of
the questions propounded. Judges are not required to go into obsessive detail about the
psychological, educational and sociological background of the accused if from a reasonable
inquiry conducted through a reasonable number of questions he is fully convinced a
searching inquiry has been met. There is a world of difference between a fastidious attention
to detail which furthers the end of justice and an attention to detail and minutae bordering on
obsessiveness which ultimately obstructs justice and defeats the purpose of the
law. Apropos to this there is
B) No evidence that the information was not read in a language or dialect known to
the appellant.
The records in an overwhelming number of criminal cases brought before us contain
informations written in the English language without any indication, whatsoever, that the
same was translated from a language or dialect known to the defendant. And yet, even in
Metro Manila alone, one observes that the bulk of proceedings in our trial courts, including
the process of arraignment, is conducted in the vernacular. On the record of these cases
normally printed in English, courts hardly bother to point out those sections of the trial
conducted in the vernacular and translated into English. Because of this widespread
practice, which the section on arraignment in the Rules of Court does not proscribe the
presumption of regularity ought to apply. Otherwise, we should compel ourselves to review
the criminal cases decided by this Court since the imposition of the 1985 Revised Rules on
Criminal Procedure and see whether there was any indication that the arraignment of these
criminal cases were, the records therein then ought to show, conducted in a language known
to the defendants. The absurdity of this argument by the defense then becomes apparent,
because it would be fairly obvious to all of us that most of these proceedings were actually
conducted in the vernacular, but the fact was never put on record. In fact, Section 1 (b) of
Rule 116 even states that while the arraignment and plea be made of record failure to enter
(the same) of record shall not affect the validity of the proceedings. Even the rule on placing
the arraignment and plea on record is not absolute, and I cannot see how we can be too
strict about indicating on record whether proceedings were made in the vernacular in cases
where in fact the proceedings were so conducted. The argument that the information was not
read in the language or dialect known to appellant merely grasps on straws and ought to be
dismissed for being so inconsequential as to be bereft of merit.
Moreover, it is a matter of common practice that in every court, especially in the provinces,
an interpreter is always at hand to translate to the parties all questions propounded to them

in the language or dialect known to them. It is also common practice that the transcript of
stenographic notes submitted to the court only reflect the court proceedings conducted in the
English language. While again, the records do not categorically indicate that the information
was read in the language or dialect known to the defendant or that the questions asked were
mandated in the vernacular or dialect understood by him it is presumed, as we have actually
done in many cases before this, that such duty was regularly performed in the absence of
any evidence to the contrary. 14 In the face of this common practice, the burden now lies on the
defense to prove the contrary. Under the principle of equal application of laws, we cannot have
varying degrees of fastidiousness in the enforcement of procedural rules based on the gravity of
the penalty.
THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY NOT
IMPROVIDENT
In the case before us, when the appellant pleaded guilty in open court on June 28, 1994,
appellant was clearly assisted by counsel. The court took pains to repeatedly remind him of
the grave consequences of a plea of guilty, which appellant said he understood. One very
such occasion, he had every opportunity, through his counsel, to ask the court for
clarification.
The trial court, on its own, in fact went out of its way to repeatedly inform the defendant of
the nature of his plea and the implications of the plea he was making. On July 11, 1994,
before the presentation of evidence for the prosecution, he was once again asked by the
court if he was sure of his plea. At this time, appellant had more than sufficient time or about
thirteen days to reflect on all the possible consequences of his plea. If indeed it was not
voluntarily made during his arraignment, he had enough time and opportunity with the
assistance of his lawyer to recant or at least express reservations about the same. However,
in spite of several warnings given by the trial court on different occasions, appellant stood pat
with his judicial admission.
Significantly, the records fail to indicate that appellant questioned his plea of guilty at any
stage of the trial. He had the opportunity to cross-examine the witnesses for the prosecution.
He did not put up any defense nor denied the inculpatory testimonies, documents and real
evidence presented against him (in fact, it was appellant himself who directed the police
investigators to the location of the various physical evidence, e.g. green slippers, earrings 15).
Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the
context of the majority's insistence that herein appellant's plea of guilty was improvident and
therefore void. In the face of the seriousness of the accusations against him, his reticence
was eloquent. As the Court held in People vs. Pillones:
Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a
quasi- confession. An innocent person will at once naturally and emphatically
repel an accusation of crime, as a matter of self-preservation and selfdefense, and as a precaution against prejudicing himself. A person's silence,
therefore, particularly when it is persistent, will justify an inference that he is
not innocent. (Underhill's Criminal Evidence, 4th Ed., p. 401.) 16

The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to
prove the guilt of the accused and the precise degree of his culpability. No where in the rules
does it state that an extrajudicial confession is a prerequisite for a conviction based on a plea
of guilty. While the constitutional infirmities that attended the custodial investigation of the
appellant were serious and should not be glossed over, his conviction was based mainly on
his plea of guilt made in open court and not on the extrajudicial confession, which formed but
a small aspect of the prosecution's case. An extrajudicial confession only serves to confirm
or substantiate a plea of guilty entered in open court. As between an extrajudicial confession
and a judicial admission, the latter significantly is given evidentiary weight. Even assuming
the extrajudicial confession in this case could not be given evidentiary weight because of
mistakes committed by authorities in conducting their custodial investigation and in their
gathering evidence, his plea of guilty on arraignment, his repeated admissions to the same in
spite of repeated warnings of the trial judge of the consequences of his plea and the
presence of ample corroborating testimony from a credible eyewitness to the crime establish
appellant's guilt beyond reasonable doubt.
The essence of the plea of guilty in a trial is that the accused admits his guilt freely,
voluntarily and with full knowledge of the consequences and meaning of his act, and with a
clear understanding of the precise nature of the crime charged in the complaint or
information. 17 A plea of guilty, when formally entered on arraignment is sufficient to sustain a
conviction charged in the information without need of further proof. 18 This, notwithstanding, (in
line with the pronouncement of the Court in several cases 19) the trial court received evidence to
determine if the appellant erred in admitting his guilt. Independent of such plea, there was more
than sufficient evidence adduced to prove that appellant indeed committed the acts charged.
THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE
EXCEPTIONS TO THE EXCLUSIONARY RULE
Objections were vigorously raised by the defense regarding certain pieces of evidence
obtained by law enforcement authorities following the uncounseled custodial investigation of
the accused in the case at bench. These objections have been thoroughly threshed out and
weighed against the other factual material obtained at trial in order to determine whether or
not, on the balance, the accused's conviction ought to be sustained, modified in favor of a
lesser penalty, or altogether thrown out. I shall discuss them in the interest of thoroughness.
Central to these objections were the pieces of physical evidence allegedly obtained by law
enforcement officers as a result of information volunteered by the accused during his
uncounseled custodial investigation. Since the information obtained, it has been pointed out,
was taken supposedly in violation of the Constitution, the pieces of evidence derivatively
gathered should have been excluded by the court below, following the fruit of the poisonous
tree doctrine.
The 1987 Constitution's exclusionary rules absolutely forbid evidence obtained from illegal
searches and seizures or evidence resulting from uncounseled custodial investigations of
accused individuals. The fruit of the poisonous tree doctrine extends these prohibitions to
pieces of evidence derivatively flowing from illegal searches and seizures or from admissions
made by accused individuals under conditions proscribed by the Constitution. However, the

doctrine is not without its exceptions, and the evidence in dispute in the instant case falls
within those exceptions.
The discovery of the victim's body near the house of the accused would have naturally led
law enforcement authorities to undertake a more thorough investigation of the site,
particularly in those areas where the victim was last seen. Assuming local police had enough
logistical capabilities to form two teams to undertake two separate searches, one for physical
evidence and other clues and one for the possible suspects, the evidence objected to would
have been inevitably discovered with a thorough search of the site. Under the circumstances
of this case where only one search was initially conducted (obviously because of logistical
reasons), primarily for a suspect, it would have logically followed had a suspect not been
found at the time, or, had the accused not made his voluntary, though uncounselled
confession, that a search for evidence would have been undertaken, under conditions which
would have validated a warrantless search, where the same physical evidence would have
been inevitably discovered. In other words, with or without appellant's volunteered
information, the pieces of evidence objected to the blood-stained pillow, the T-shirt and
the victim's earring would have fallen into police hands by legal means which would have
normally been undertaken by the authorities in any case.
Courts have generally approved the view that it is not necessary to hold that all evidence is
fruit of the poisonous tree. Under one of the recognized exceptions, the more appropriate
question in such cases is whether the evidence to which the objection is made would not
have been discovered at all but for the illegality or would have been discovered anyway by
sources or procedures independent of the illegality. Another exception refuses to treat the
doctrine as absolutely sacred if the evidence in question would have been inevitably
discovered under normal conditions.
I submit, that under the peculiar circumstances of this case, the evidence objected to would
have been inevitably discovered anyway. In a long line of cases, courts have recognized that
evidence derived from information obtained illegally is not absolutely inadmissible under the
fruit of the poisonous tree doctrine where it is shown that such evidence would have been
inevitably gained even without the unlawful act. 20 The case of U.S. vs. Seohnlein, for instance,
held the view that a confession by the accused in a bank robbery case was not fruit of the
poisonous tree for the reason that the information which led to his confession, though the product
of an illegal search would have been discovered in the absence of such illegality. 21 The Court
in Lockridge vs. Superior Court was of the opinion that where a witness is discovered as a result
of illegal police conduct, his testimony is admissible is he would have been discovered in the
normal course of a normally conducted investigation. 22 These and other recognized limitations to
the fruit of the poisonous tree doctrine do not have the effect of diluting the effect of our
exclusionary rules. Rather, they serve the purpose of the rule well by maintaining a reasonable
balance between the need to deny evidence come by through the exploitation of an illegality on
one hand and the need to minimize opportunity for the defendant in a criminal case to reap an
undeserved and socially undesirable bonanza. 23 Certainly it could not be argued that with nothing
in their hands, the police would not have gone back to the site for a better inspection.
THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL COURT'S
CONVICTION OF THE ACCUSED WITH MORAL CERTAINTY
Assuming arguendo the validity of the defense's arguments over the pieces of evidence
recovered by the police in the case at bench above-mentioned, a thorough review of the

evidence utilized by the trial court leads us to the conclusion that the defendant's conviction
would have been sustained, in any case, without the pieces of evidence objected to. 24 Lest
we mistake the trees for the forest, a shifting of the pieces of evidence, and a separation
therefrom of the physical evidence objected to would nevertheless still leave the prosecution with
enough legal evidence to convict the accused with moral certainty. These include:
1. The defendant's own repeated admissions, in the presence of counsel and in open court
that he committed the acts charged;
2. The essentially uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada.
Having discussed the first point, I shall go directly to Rebada's testimony, which the majority
opinion let pass without comment. For a better perspective of Rebada's testimony, allow me
once again to quote from the transcript:
Q Can you recall where were you on June 12, 1994, at
around 5:30 P.M.?
A Yes, Sir.
Q Where were you?
A I was at home.
Q Where is your house situated?
A Brgy. Rizal, Pala-pala, Zone I, Iloilo City.
Q Do you have any neighbor in that residence of yours at
Rizal Pala-pala?
A Yes, Sir, Arnel Alicando.
Q How far is the house of Arnel Alicando from your house?
A One and a half (1 1/2) arm's length.
Q On that time at 5:30 P.M. have you seen Arnel Alicando?
A Yes, Sir.
Q Where was Arnel Alicando at that time?
A He was upstairs, inside the house of Romeo Alicando.
Q What is the relation of Romeo Alicando to Arnel Alicando if
you know?

A Romeo is the uncle of Arnel.


Q Did Arnel Alicando have any companion while he was in the
house of his uncle, Romeo Alicando?
A Khazie Mae was his companion.
Q You are referring to Khazie Mae Penecilla, the victim in this
case?
A Yes, Sir.
Q Aside from them, the two of them, Arnel Alicando and
Khazie Mae Penecilla, are there any person inside the house
of Romeo Alicando at that time?
A No more, only the two of them.
Q Now, at that precise time at 5:30 of June 12, 1994, what
have you observed if you observed any in the house of
Romeo Alicando wherein Arnel Alicando and Khazie Mae
Penecilla was at that time?
A I saw the child looking out in the window and I invited her
for a yemas candy, and Arnel Alicando suddenly closed the
window.
Q When Arnel Alicando you said closed the window, what did
you observe after that if there is any?
A The child cried.
Q You are referring to the victim, Khazie Mae Penecilla when
you said the child was crying?
A Yes, Sir.
Q And after that, after the child was crying, what have you
observed at that time?
A And then she squealed.
Q After that, what did you do after hearing that and she, the
child squealed, what did you do if there was any?
A So, I went down from the house to the house of Romeo
Alicando, where I saw between an opening between the two
slots. I went up two steps.

Q And then what did you do?


A And so, I peeped between the floor and the door because
there was an opening.
Q Have you seen anything inside that house?
A Yes, Sir.
Q What have you seen if there is any?
A I saw Arnel Alicando who was naked/nude at that time lying
on top of the child wherein his left hand was holding the neck
of the child.
Q When you said child, you are referring to the victim, Khazie
Mae Penecilla?
A Yes, Sir.
Q What did you do after seeing that?
A Because I was afraid at that time and I got nervous, so I
went down from that house and went to my own house and
gathered my . . . . . . .
Q When you went to your house, was there any person inside
your house?
A My friend.
Q Who is the name of your friend?
A Ricardo Lagrana (Compare).
Q Have you talked to our compare, Ricardo Lagrana who was
in your house? Have you told about the incident that you have
seen in the house of Romeo Alicando wherein Arnel Alicando
was at the top of the victim, Khazie Mae Penecilla, without
clothes at all?
A Yes, Sir.
Q What action did your compare do if there was any?
A When I told the incident to my compare he also felt nervous
and he went home.

Q How about on the same day of June 12, 1994, at around


6:00 P.M., where were you?
A I was inside the house.
Q And you have observed what is happening in your
barangay at that time?
A Yes, Sir.
Q What have you observed?
A The parents of Khazie Mae Penecilla were looking for her.
Q When you have observed, have you known that the parents
of Khazie Mae Penecilla were looking for her, it did not occur
to your mind to report the incident to the parents of Khazie
Mae Penecilla on what you have seen at that time?
A I did not go out of the house because I was afraid of Arnel
Alicando.
Q Have you seen on the same day after that incident of 5:30
in the evening, have you seen again Arnel Alicando?
A Yes, Sir.
Q Where?
A I saw Arnel Alicando inside the house going around.
Q Did you talk to him?
A One June 12, 1994, at 10:45 in the evening, I told Arnel
Alicando and asked him, what time did the child go down from
the house.
Q Where were you at that time when you asked Arnel
Alicando?
A I was inside my house.
Q Because you are very near neighbor to each other?
A Yes, Sir.

Q And it is one and a half (1 1/2) arm's length your house


from Arnel Alicando's house?
A Yes, Sir.
Q Did Arnel Alicando answer you?
A He answered, I do not know because I was drank at that
time.
Q How about one June 13, 1994 in the morning at around
8:00 o'clock, what did you observe in your barangay?
A None.
Q You have not observed anything?
A None.
Q Do you know when the parents of the victim, Khazie Mae
Penecilla found their daughter?
A Khazie Mae Penecilla was found at around 8:00 A.M.
Q Of what day?
A June 13, 1994.
Q Why do you know that this Khazie Mae Penecilla was only
found by their parents?
A Because Leopoldo (Torong) Santiago, when he went down
from their house and answered the call of nature, he found
the child under their house. 25
It is well-settled in this jurisdiction that the testimony of a lone witness, free from signs of
impropriety or falsehood, is sufficient to convict an accused even if uncorroborated. In this
case, Rebada's testimony was positive and straightforward. I see no reason why the same
should not be given the credence and the weight that it deserves, without our ignoring
established principles in the law on evidence. Such factual findings of the trial court on the
issue of credibility of a witness are accorded great weight and respect on appeal, as it should
have been in the instant case, because the trial court had the every available opportunity to
observe the demeanor of the lone witness during the trial. Her belated reporting of the
incident the next morning, to which the defense urged the lower court to accord great weight,
is hardly out of the ordinary.
Individual reactions are motivated by varied and varying environmental factors. There is no
standard norm of human behavioral response when one is confronted with a strange,

startling or frightful experience. 26 Fear and self preservation are strong motivating factors. It is
common for people to choose not to get involved when a crime is committed, otherwise there
should only be a few unsolved crimes. 27 Rebada, in this case, was obviously terrified with what
she saw. Self-preservation and fear of possible reprisals from the appellant would have initially
overwhelmed any desire on her part to reveal what she had seen during the incident. She tried
her best to remain as calm and casual as possible, and pretend that she did not see anything the
instant she saw Alicando, when she asked appellant what time Khazi Mae got down from his
house following the incident. 28 Given these factors, it would have been too much to expect
Rebada in her mixed state of dread, fear, revulsion and instinctive self-preservation to harness
superhuman reserves of courage to stop appellant when she saw him
in that compromising position. Man's actions and reactions cannot be stereotyped. 29 Some
individuals flee from an adverse stimulus, others confront it. Upon seeing the dead girl's
distraught parents, and overcoming her fear with some prodding from her husband, Luisa Rebada
was finally driven by conscience to reveal what she knew the following morning.
The minor inconsistencies in Rebada's testimony are understandable under these
circumstances. However, it should be stressed here that the trial court's conclusions were
founded principally on the direct, positive and categorical assertions made by Rebada as
regards material events in the crime. It is worthy to stress, moreover, that Rebada never
wavered in her oral testimony even on intense cross-examination from the defense. In her
affidavit, she declared that she saw Khazi Mae at appellant's house; that appellant closed
the window; and after hearing the child's cry and squeal, peeped into the opening and saw
appellant on top of the victim. These were the very same declarations she made when she
took the witness stand. While she may have wavered on a minor detail (as to whether it was
the right or the left hand of the appellant which was used in choking the victim) these should
not be sufficient to debunk her credibility. 30 She had no reason to falsely testify against the
appellant and there were no possible motives alleged for her to do so. She is not in any way
related to the Penecillas, and there was no evidence adduced to show that she harbored any illfeelings towards the appellant. In a sense, her credibility is even enhanced by the absence any
improper motive. 31
Together with the direct testimony of the eyewitness, Rebada, there is, I repeat, sufficient
evidence corroborating and unmistakably pointing to the appellant as the author of the crime.
Khazi Mae was last seen in the company of the appellant. Rebada testified that she saw
appellant naked on top of Khazi Mae. Recovered from the latter's house were Khazi Mae's
green slippers, pair of gold earrings, her dress, bloodied buri mat and pillow. The fact of
shoddy police work in the recovery of these pieces of evidence does not escape us. But
whether on not these pieces should have been admissible is on hindsight hardly relevant in
the face of ample legally admissible evidence justifying the trial court's guilty verdict.
As a last resort, appellant would want to drive home the point that rape was not committed.
He argues that 1) while Rebada saw him on top of Khazi Mae, she did not see him in a push
and pull movement 2) the requested NBI report on the examination of Khazi Mae's
underwear to show the presence or absence of the male semen was not presented; and 3)
the autopsy report revealed that the proximate cause of death was asphyxiation by
strangulation.
In the first place, witness PO3 Danilo Tan testified that when he arrived at the Pencilla's
house to take a look at the dead body, he looked at Khazi Mae's underwear and saw that it
was bloodied. The underwear was sent to the NBI Laboratory for examination. Considering,

however, the inadequate facilities of the NBI Laboratory at Iloilo, the underwear was referred
to Manila for examination. Since it will take time for the court to wait for the results from
Manila, the trial court dispensed with it as this would only serve as corroborating evidence to
the fact of rape. 32
Moreover, rape is committed whenever there is penetration, no matter how slight into the
genital organ of the victim. 33 The vaginal and anal findings of Dr. Tito Doromal revealed that the
lacerated wound from the fourchette up to the dome of the rectum was caused by a forcible entry
of an object. In view of settled jurisprudence to the effect that rape is committed by the mere
touching of the male genital organ on the vagina, it hardly is relevant whether or not semen or
sperm are present or absent. Absence of emission does not negate rape. Rebada's testimony
that she saw appellant naked on top of the victim when she peeped through an opening between
the floor and the door of appellant's house and the autopsy report revealing the laceration of the
vagina eloquently testify to the crime committed and its authorship in the case at bench. As
correctly observed by the Solicitor General, the corpus delicti was there for all to see. The trial
court, therefore, did not err in dispensing with the results of the NBI laboratory examination of
Khazi Mae's underwear to determine the presence of male semen, a fact of little relevance after
the rape was established by definitive legal evidence.
Finally, notwithstanding the fact that the proximate cause of death was asphyxiation by
strangulation, it cannot be denied that Khazi Mae was raped and killed on the same
occasion. As we observed in People v. Yu, 34 unity of thought and action in the criminal purpose
of the accused cannot be altered by the circumstances that both the crime of rape and the crime
of murder resulted. The accused had to choke and strangle the girl at the same time that he was
satisfying his lust on her. 35
Based on all of the foregoing, it is clear and inescapable that appellant committed the
heinous crime or Rape with Homicide under Sec. 11 of R.A. 7659 which provides:
Art. 335 of the same Code is hereby amended to read as follows:
Art. 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed, the
penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following circumstances:
xxx xxx xxx
(4) When the victim is a religious or a child below seven (7) years old.
xxx xxx xxx

Having thoroughly evaluated the evidence utilized by the trial court in convicting the accused
with the crime of subject to our automatic review, it is painfully clear even to those who
have reservations about imposing the death penalty among us that we have reached the
point of moral certainty necessary to the imposition of the supreme punishment of death in
this case.
Convictions for the crime of rape have been sustained by this Court in an overwhelming
number of cases on uncorroborated evidence given almost exclusively by the complainant
alone. Against this backdrop (of most cases of rape where reliance is placed solely on the
victims allegations) the trial Court in the case at bench, arrived at its conclusions principally
on the basis of two key pieces of testimonial evidence: 1) the accused's admission of guilt in
not one but two occasions in open court (in the presence of his lawyer) even after being
warned on both occasions by the judge of all the possible consequences of his admission
the accused's admission of guilt; and 2) the essentially uncontradicted testimony of an
eyewitness to the crime itself. Even with the relatively minor inconsistencies of the latter's
testimony which the defense spiritedly tried to magnify the net effect of the same was
to enhance, not diminish, the testimony of the lone eyewitness because minor
incongruencies are on the whole indicative of honest and unrehearsed declarations and
often amplify the credibility of such declarations.36 Ordinarily, as stated earlier, convictions for
rape have been obtained on the basis far less evidence. Parenthetically, either one of these
testimonies, standing alone, would have been adequate to obtain the accused's conviction.
In fine, let me reiterate my position in People vs. Veneracion, that the reimposition of the
death penalty for specific offenses under Republic Act 7659 has left our courts with no choice
but to impose the penalty for crimes clearly enumerated in the said law. If a court, after
leaving no stone unturned, finds it necessary to impose the penalty, I believe that it does not
do so as an infallible God exercising a divine right to give or take away human life, but as a
fallible human institution recognizing the importance of according majesty to laws so
indispensable to maintaining social order. In the instant case, after a thorough and searching
review of the evidence and an evaluation of the procedural and constitutional objections
adduced either in support of an acquittal or of imposing a less severe penalty it should be
fairly obvious to us that the trial court committed no error in finding the accused guilty as
charged. Recognizing our fallible nature, the quantum of evidence necessary to convict has
never been absolute proof beyond any doubt but merely proof beyond reasonable doubt.
The death penalty in the instant case was clearly imposed in conformity with the mandate of
law and the Constitution.
Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ., concur.

Separate Opinions
KAPUNAN, J., dissenting:
The civilized mind normally recoils at the idea of taking a man's life by way of retribution for
the commission of a crime. However, every so often, a crime so dastardly and repulsive
comes along that even an individual usually predisposed towards rehabilitating the hard-core
criminal would no longer wish to suffer in silent rage at society's kid-glove treatment of such

offender, but would readily opt to exact a commensurate requital in the form of capital
punishment where circumstances so demand.
Sociological theory at least since Emile Durkheim (1858-1917) has posited the idea that
setting absolute outer limits on deviance is a necessary component of group identification
and survival. Justice Oliver Wendell Holmes may have sensed this truth when he wrote,
in The Common Law (1881), "The first requirement of a sound body of law is that it should
correspond with the actual feelings and demands of the community, whether right or wrong
(1938 ed:, p. 41)." 1
Thus, impelled by the alarming upsurge of crime resulting in the loss of human lives and
wanton destruction of property affecting the nation's efforts towards sustainable development
and prosperity while at the same time undermining the people's faith in the Government,
Congress enacted Republic Act 7659, 2 imposing capital punishment on certain heinous crimes.
The early Spartans had word for such crimes: haineus, hateful, abominable, from the Greek
prefix haton, denoting acts so hatefully or shockingly evil. The acts charged in the case at
bench belong to this genre.
A totally innocent child was forever denied the opportunity to enjoy life beyond the age of
four by the gruesome and hideous acts allegedly committed by the appellant who, according
to the prosecution, was not content merely with satisfying his beastly desires on her, but also
strangled her to death. Whether or not the circumstances of the present case require the
imposition of the death penalty is the ultimate issue before us. After a thorough review of the
facts and the evidence, I am afraid, I have to dissent from the majority. The legal
evidence available to us overwhelmingly supports the lower court's conclusions. We should
not shirk from our legal duty to impose the death penalty.
I
In the afternoon of June 12, 1994, Romeo Penecilla, father of four-year-old Khazi Mae, was
having a drinking spree with Ramil Rodriguez, Remus Goddi and the appellant at his
(Romeo's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody
left, except for the appellant. Appellant was residing at his uncle's house about five (5) arm's
length away from the Penecilla's house.
When Romeo Penecilla arrived home at 8:00 that evening, he could not find Khazi Mae. He
and his wife looked for her until 1:00 in the morning to no avail.
The next morning, Leopoldo Santiago, a neighbor, got the shock of his life when, answering
the call of nature outside his house, he chanced the dead body of Khazi Mae. Immediately,
the girl's parents were informed. The small, lifeless body was brought to their house.
The matter was reported to the police at once. At this point, Luisa Rebada, who lived about
1-1/2 arm's length away from the house of appellant related to the girl's distraught parents
what she knew. 3
Rebada recounted that at about 5:30 of the afternoon before, she saw Khazi Mae at the
window of appellant's house. She called out to her and offered to buy "yemas," for her.

Appellant suddenly closed the window. Later on, Luisa heard Khazi Mae cry and then
squeal. Her curiosity aroused, she crept two steps up the appellant's house, peeped through
an opening between the floor and the door, and saw appellant naked on top of Khazi Mae,
his right hand choking the girl's neck. Rebada became frightened and went back to her
house to gather her children. She told her compadre, Ricardo Lagranai who was in her
house at that time, of what she saw. The latter got nervous and left. That evening when she
heard that Khazi Mae's parents were looking for the little child, she called out from her
window and asked appellant what time Khazi Mae left his house. Appellant replied that he
did not know since he was drunk. 4 With Luisa Rebada's revelation, appellant was arrested.
During the investigation conducted by PO3 Danilo Tan, appellant readily admitted raping and
killing Khazi Mae. 5The police were able to recover from appellant's house Khazi Mae's green
slippers, a pair of gold earrings placed on top of a bamboo post, a bloodied buri mat, a pillow with
a blood stain in the middle, and a stained T-shirt owned by appellant.
An autopsy conducted and Dr. Tito Doromal, the medico-legal officer, revealed the following
findings:
BEAD & NECK/THORACO-ABDOMINAL REGIONS:
1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left
and right anterior neck, down to the medial portion of the left
and right infra-clavicular area.
2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., anterolateral left chest wall.
3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in
dia., right antero-inferior chest wall.
4) Contusion, purple in color, 4 x 3.2 cm., in dia., left subcostal arch.
5) Contusion, purple in color, 4.5 x 5 cm., in dia., superolateral, left iliac crest.
ON OPENING THE SKULL & THORACO-ABDOMINAL
CAVITIES:
a) Fractured, 2nd cervical vertebra.
b) Fractured, crecoid cartilage.
c) Both lungs, expanded with multiple petechial hemorrhages.
d) Other internal organs, congested.
EXTREMITIES:

1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect,


lower 3rd, left forearm.
2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left
forearm.
3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect,
middle 3rd, right forearm.
VAGINAL FINDINGS/ANAL FINDINGS:
a) Lacerated wound, from the fourchette up to the dome of
the rectum.
b) Hematoma, from the fourchette up to the rectum.
c) Lacerated wound, lateral wall of the vagina up to the level
of the promontory of the sacrum with a length of 8
centimeters.
d) A cylinder with a diameter of 2 cms., easily passes the
vaginal and anal openings.
CAUSE OF DEATH:
A) ASPHYXIA BY STRANGULATION
B) FRACTURED, 2nd CERVICAL VERTEBRA.
C) HEMORRHAGE, 2nd DEGREE TO LACERATED
VAGINAL & RECTAL OPENINGS. 6
Consequently, an information was filed with the Regional Trial Court of Iloilo City, Branch 38,
docketed as Criminal Case No. 43663, charging Arnel Alicando with the crime of rape with
homicide, committed as follows:
That on or about the 12th day of June, 1994 in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force, violence and
intimidation to wit: by then and there pinning down one KHAZIE MAE
PENECILLA, a minor, four years of age, choking her with his right hand,
succeeded in having carnal knowledge with her and as a result thereof she
suffered asphyxia by strangulation, fractured cervical vertebra and
lacerations of the vaginal and rectal openings causing profuse hemorrhages
and other injuries which are necessarily fatal and which were the direct cause
of her death thereafter.
CONTRARY TO LAW. 7

On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the Public Attorney's
Office (PAO), pleaded guilty to the crime charged.
The trial court ordered the prosecution to present evidence to prove the guilt of the accused
and the precise degree of his culpability. It likewise set the case for reception of evidence for
the accused, if he wished to. 8
In the course of the trial, the prosecution presented (1) Luisa Rebada; (2) Dr. Tito Doromal,
the medico-legal officer; (3) SPO1 Manuel Artuz, the exhibit custodian of Iloilo City Police
Station; (4) PO3 Danilo Tan; (5) SPO3 Rollie Luz, police investigators; and (6) Romeo
Penecilla, the victim's father.
The defense, for its part, merely presented the autopsy report of Dr. Tito Doromal to show
that the proximate cause of death was asphyxia by strangulation.
On July 20, 1994, the trial judge rendered a decision imposing the death penalty on Arnel
Alicando.
The case is now before us on automatic review. Disagreeing with the trial court's conviction
of the accused for the crime of Rape with Homicide and the said court's imposition of the
death penalty the Court's majority has decided to overturn the conviction and remand the
case to the trial court on the basis of the following alleged procedural irregularities:
First, that the arraignment of the appellant is null, and void;
Second, that the plea of guilt made by the appellant is likewise null and void;
Third, some prosecution evidence, offered independently of the plea of guilt of the appellant,
were inadmissible, yet were considered by the trial court in convicting the appellant.
I strongly disagree.
II
THERE WAS SUBSTANTIAL, IF NOT FULL COMPLIANCE WITH EXISTING
RULES ON ARRAIGNMENT AND PLEA.
A thorough review of the record reveals that there was full compliance with existing rules on
arraignment and plea.
It is plainly obvious from an examination of the appropriate rules and the record of the case
that: 1) there is absolutely nothing on the record which would warrant a finding the
information was not read in the language or dialect known to the appellant; 2) the rule on
arraignment and plea does not absolutely require that the same be indicated in the record of
every criminal case; 3) Rule 116 Section 1 contains nothing requiring trial courts to indicate
in the record the fact that the information was read in the language or dialect known to the
defendant, even if the same was in fact actually complied with by the lower court.

The rule on arraignment, Rule 116 provides the following:


Sec. 1: Arraignment and plea; how made. (a) The accused must be
arraigned before the court where the complaint or information has been filed
or assigned for trial. The arraignment must be made in open court by the
judge or clerk by furnishing the accused a copy of the complaint or
information with the list of witnesses, reading the same in the language or
dialect known to him and asking him whether he pleads guilty or not guilty.
The prosecution may, however, call at the trial witnesses other than those
named in the complaint or information.
(b) The accused must be present at the arraignment and must personally
enter his plea. Both arraignment and plea shall be made of record, but a
failure to enter of record shall not affect the validity of the proceedings.
(c) If the accused refuses to plead, or makes a conditional plea of guilty, a
plea of not guilty shall be entered for him.
xxx xxx xxx
Sec. 3: Plea of guilty to capital offense; reception of evidence. When the
accused pleads guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of
his plea and require the prosecution to prove his guilt and the precise degree
of culpability. the accused may also present evidence in his behalf.
When an accused is arraigned in connection with a criminal charge, it is the duty of the court
to inform him of its nature and cause so that he may be able to comprehend the charges
against him as well as the circumstances attendant thereto. When the charge is of a serious
nature, it becomes the imperative duty of the lawyer present not only to assist the accused
during the reading of the information but also to explain to him the gravity and consequence
of his plea. 9
Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty.
While justice demands speedy administration, judges are duty bound to be extra solicitous in
seeing to it that when an accused pleads guilty, he fully understands the meaning of his plea
and the import of an inevitable conviction. 10
Consequently, three things need to be accomplished after the accused in a criminal case
enters a plea of guilty to a capital offense:
(1) the court should conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of the accused's plea;
(2) the lower court should require the prosecution to prove the guilt of the accused and the
precise degree of his culpability; and

(3) the court should inquire whether or not the accused wishes to present evidence on his
behalf and should allow him to do so if he so desires. A judge who fails to observe this
requirement commits a grave abuse of discretion.
These requirements have been complied with in this case, which the following pertinent
portions of the appellant's arraignment, quoted from the record support:
Prosecutor Edwin Fama
Appearing as public prosecutor.
Atty. Rogelio Antiquiera
For the accused, Your Honor. Ready for arraignment.
Interpreter:
(Reading the information to the accused for arraignment and
pre-trial.)
Note:
(After reading the information to the accused, accused pleads
guilty.)
Court:
Question of the court to the accused.
Q Considering that this is a crime and under the amended law
is a heinous crime, because of your plea of guilty without the
consent or even against the discretion of the court, the court
will give you a mandatory death penalty because of the crime
charged, do you understand that?
Accused:
Yes, Your Honor.
Q Did you enter a plea of guilty on your own voluntary will or
without any force or intimidation from any one or whatever.
Accused:
None, Your Honor.
Q Are you sure?

Accused:
Yes, Your Honor.
Q Or maybe because you the were manhandled or
maltreated by anyone and that will just be consideration for
you to plead guilty?
Accused:
No, Your Honor.
Court:
Were you not manhandled, please let us see your body?
Note:
(Accused raised his prison uniform or shirt and showed to the
court his body from waist up).
Accused:
No, Your Honor.
Court:
You were not maltreated in the jail?
Accused:
No, Your Honor.
Court:
Please let us see whether you have bruises so that you will
be examined by a physician to the order of the court?
Accused:
No, Your Honor.
Court:
If you plead guilty to the crime charged there will be some
effects on your civil rights but not until the decision will be
affirmed by the Supreme Court.

Accused:
Yes, Your Honor. 11
Again, before the prosecution presented its evidence on July 11, 1994, the trial judge once more
asked appellant if he was sure of his plea.

Fiscal Fama:
Appearing as the public prosecutor, ready, Your Honor.
Our first witness is Dr. Tito Doromal, Your Honor.
Atty. Antiquiera:
For the accused, Your Honor.
Court:
Before the court will proceed with the reception of evidence
by the prosecution, Arnel Alicando, please come here. (At this
juncture, Arnel Alicando, come near to the court)
The court is warning you again that this is reception of
evidence by the prosecution after you plead guilty to the
crime charged at, do you understand?
A Yes.
Q Do you still affirm and confirm to your plea of guilty of your
rape with homicide?
A Yes, Your Honor.
Q Do you still insist that your plead of guilty is voluntary
without force, intimidation or whatsoever?
A Yes.
Q The court is warning you that after reception of evidence,
the imposable penalty is mandatory death?
A Yes, Your Honor.
Q Despite of that, you still insist of your plea of guilty?
A Yes, Your Honor.

Court:
Okey, proceed. 12
It is crystal clear, from the above-quoted portions of the transcript of the appellant's
arraignment that the trial judge made every effort to ascertain the voluntariness of the plea,
and that he repeatedly warned the defendant of the consequences of his plea. In other
words
A) The above-quoted proceedings satisfy the requirement of a searching inquiry.
There is no hard and fast rule requiring judges to conduct their searching inquiry in the
detailed manner suggested by the majority opinion, although judges should ideally strive to
conduct as detailed an inquiry as would be reasonable under the circumstances. In People
v. Dayot 13 we held that:
A searching inquiry . . . compels the judge to content himself reasonably that
the accused has not been coerced or placed under a state
of duress and that his guilty plea has not therefore been given
improvidently other by actual threats of physical harm from malevolent
quarters or simply because of his, the judge's, intimidating robes.
xxx xxx xxx
While there can be no hard and fast rule as to how a judge may conduct
searching inquiry, as to the number and character of questions he may put to
the accused, or as to the earnestness with which he may conduct it, since
each case must be measured according to its individual merit, taking into
consideration the age, educational attainment, and social status of the
accused confessing guilt, among other things, the singular barometer is that
the judge must in all cases, fully convince himself that: (1) the accused, in
pleading guilty, is doing so voluntarily, and (2) he, in so doing, is truly guilty,
and that there exists a rational basis for a finding of guilt, based on his
testimony. This Court leaves to judges, considering their training, ample
discretion, but expects them at the same time, that they will be true to their
calling and be worthy ministers of the law.
The purpose of a searching inquiry is to satisfy the judge that the defendant's plea was
entered into voluntarily and that the defendant understood the consequences of his plea.
There is no hard and fast rule, as the Dayotcase states, as to the number and character of
the questions propounded. Judges are not required to go into obsessive detail about the
psychological, educational and sociological background of the accused if from a reasonable
inquiry conducted through a reasonable number of questions he is fully convinced a
searching inquiry has been met. There is a world of difference between a fastidious attention
to detail which furthers the end of justice and an attention to detail and minutae bordering on
obsessiveness which ultimately obstructs justice and defeats the purpose of the
law. Apropos to this there is

B) No evidence that the information was not read in a language or dialect known to
the appellant.
The records in an overwhelming number of criminal cases brought before us contain
informations written in the English language without any indication, whatsoever, that the
same was translated from a language or dialect known to the defendant. And yet, even in
Metro Manila alone, one observes that the bulk of proceedings in our trial courts, including
the process of arraignment, is conducted in the vernacular. On the record of these cases
normally printed in English, courts hardly bother to point out those sections of the trial
conducted in the vernacular and translated into English. Because of this widespread
practice, which the section on arraignment in the Rules of Court does not proscribe the
presumption of regularity ought to apply. Otherwise, we should compel ourselves to review
the criminal cases decided by this Court since the imposition of the 1985 Revised Rules on
Criminal Procedure and see whether there was any indication that the arraignment of these
criminal cases were, the records therein then ought to show, conducted in a language known
to the defendants. The absurdity of this argument by the defense then becomes apparent,
because it would be fairly obvious to all of us that most of these proceedings were actually
conducted in the vernacular, but the fact was never put on record. In fact, Section 1 (b) of
Rule 116 even states that while the arraignment and plea be made of record failure to enter
(the same) of record shall not affect the validity of the proceedings. Even the rule on placing
the arraignment and plea on record is not absolute, and I cannot see how we can be too
strict about indicating on record whether proceedings were made in the vernacular in cases
where in fact the proceedings were so conducted. The argument that the information was not
read in the language or dialect known to appellant merely grasps on straws and ought to be
dismissed for being so inconsequential as to be bereft of merit.
Moreover, it is a matter of common practice that in every court, especially in the provinces,
an interpreter is always at hand to translate to the parties all questions propounded to them
in the language or dialect known to them. It is also common practice that the transcript of
stenographic notes submitted to the court only reflect the court proceedings conducted in the
English language. While again, the records do not categorically indicate that the information
was read in the language or dialect known to the defendant or that the questions asked were
mandated in the vernacular or dialect understood by him it is presumed, as we have actually
done in many cases before this, that such duty was regularly performed in the absence of
any evidence to the contrary. 14 In the face of this common practice, the burden now lies on the
defense to prove the contrary. Under the principle of equal application of laws, we cannot have
varying degrees of fastidiousness in the enforcement of procedural rules based on the gravity of
the penalty.
THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY NOT
IMPROVIDENT
In the case before us, when the appellant pleaded guilty in open court on June 28, 1994,
appellant was clearly assisted by counsel. The court took pains to repeatedly remind him of
the grave consequences of a plea of guilty, which appellant said he understood. One very
such occasion, he had every opportunity, through his counsel, to ask the court for
clarification.

The trial court, on its own, in fact went out of its way to repeatedly inform the defendant of
the nature of his plea and the implications of the plea he was making. On July 11, 1994,
before the presentation of evidence for the prosecution, he was once again asked by the
court if he was sure of his plea. At this time, appellant had more than sufficient time or about
thirteen days to reflect on all the possible consequences of his plea. If indeed it was not
voluntarily made during his arraignment, he had enough time and opportunity with the
assistance of his lawyer to recant or at least express reservations about the same. However,
in spite of several warnings given by the trial court on different occasions, appellant stood pat
with his judicial admission.
Significantly, the records fail to indicate that appellant questioned his plea of guilty at any
stage of the trial. He had the opportunity to cross-examine the witnesses for the prosecution.
He did not put up any defense nor denied the inculpatory testimonies, documents and real
evidence presented against him (in fact, it was appellant himself who directed the police
investigators to the location of the various physical evidence, e.g. green slippers, earrings 15).
Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the
context of the majority's insistence that herein appellant's plea of guilty was improvident and
therefore void. In the face of the seriousness of the accusations against him, his reticence
was eloquent. As the Court held in People vs. Pillones:
Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a
quasi- confession. An innocent person will at once naturally and emphatically
repel an accusation of crime, as a matter of self-preservation and selfdefense, and as a precaution against prejudicing himself. A person's silence,
therefore, particularly when it is persistent, will justify an inference that he is
not innocent. (Underhill's Criminal Evidence, 4th Ed., p. 401.) 16
The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to
prove the guilt of the accused and the precise degree of his culpability. No where in the rules
does it state that an extrajudicial confession is a prerequisite for a conviction based on a plea
of guilty. While the constitutional infirmities that attended the custodial investigation of the
appellant were serious and should not be glossed over, his conviction was based mainly on
his plea of guilt made in open court and not on the extrajudicial confession, which formed but
a small aspect of the prosecution's case. An extrajudicial confession only serves to confirm
or substantiate a plea of guilty entered in open court. As between an extrajudicial confession
and a judicial admission, the latter significantly is given evidentiary weight. Even assuming
the extrajudicial confession in this case could not be given evidentiary weight because of
mistakes committed by authorities in conducting their custodial investigation and in their
gathering evidence, his plea of guilty on arraignment, his repeated admissions to the same in
spite of repeated warnings of the trial judge of the consequences of his plea and the
presence of ample corroborating testimony from a credible eyewitness to the crime establish
appellant's guilt beyond reasonable doubt.
The essence of the plea of guilty in a trial is that the accused admits his guilt freely,
voluntarily and with full knowledge of the consequences and meaning of his act, and with a

clear understanding of the precise nature of the crime charged in the complaint or
information. 17 A plea of guilty, when formally entered on arraignment is sufficient to sustain a
conviction charged in the information without need of further proof. 18 This, notwithstanding, (in
line with the pronouncement of the Court in several cases 19) the trial court received evidence to
determine if the appellant erred in admitting his guilt. Independent of such plea, there was more
than sufficient evidence adduced to prove that appellant indeed committed the acts charged.
THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE
EXCEPTIONS TO THE EXCLUSIONARY RULE
Objections were vigorously raised by the defense regarding certain pieces of evidence
obtained by law enforcement authorities following the uncounseled custodial investigation of
the accused in the case at bench. These objections have been thoroughly threshed out and
weighed against the other factual material obtained at trial in order to determine whether or
not, on the balance, the accused's conviction ought to be sustained, modified in favor of a
lesser penalty, or altogether thrown out. I shall discuss them in the interest of thoroughness.
Central to these objections were the pieces of physical evidence allegedly obtained by law
enforcement officers as a result of information volunteered by the accused during his
uncounseled custodial investigation. Since the information obtained, it has been pointed out,
was taken supposedly in violation of the Constitution, the pieces of evidence derivatively
gathered should have been excluded by the court below, following the fruit of the poisonous
tree doctrine.
The 1987 Constitution's exclusionary rules absolutely forbid evidence obtained from illegal
searches and seizures or evidence resulting from uncounseled custodial investigations of
accused individuals. The fruit of the poisonous tree doctrine extends these prohibitions to
pieces of evidence derivatively flowing from illegal searches and seizures or from admissions
made by accused individuals under conditions proscribed by the Constitution. However, the
doctrine is not without its exceptions, and the evidence in dispute in the instant case falls
within those exceptions.
The discovery of the victim's body near the house of the accused would have naturally led
law enforcement authorities to undertake a more thorough investigation of the site,
particularly in those areas where the victim was last seen. Assuming local police had enough
logistical capabilities to form two teams to undertake two separate searches, one for physical
evidence and other clues and one for the possible suspects, the evidence objected to would
have been inevitably discovered with a thorough search of the site. Under the circumstances
of this case where only one search was initially conducted (obviously because of logistical
reasons), primarily for a suspect, it would have logically followed had a suspect not been
found at the time, or, had the accused not made his voluntary, though uncounselled
confession, that a search for evidence would have been undertaken, under conditions which
would have validated a warrantless search, where the same physical evidence would have
been inevitably discovered. In other words, with or without appellant's volunteered
information, the pieces of evidence objected to the blood-stained pillow, the T-shirt and
the victim's earring would have fallen into police hands by legal means which would have
normally been undertaken by the authorities in any case.

Courts have generally approved the view that it is not necessary to hold that all evidence is
fruit of the poisonous tree. Under one of the recognized exceptions, the more appropriate
question in such cases is whether the evidence to which the objection is made would not
have been discovered at all but for the illegality or would have been discovered anyway by
sources or procedures independent of the illegality. Another exception refuses to treat the
doctrine as absolutely sacred if the evidence in question would have been inevitably
discovered under normal conditions.
I submit, that under the peculiar circumstances of this case, the evidence objected to would
have been inevitably discovered anyway. In a long line of cases, courts have recognized that
evidence derived from information obtained illegally is not absolutely inadmissible under the
fruit of the poisonous tree doctrine where it is shown that such evidence would have been
inevitably gained even without the unlawful act. 20 The case of U.S. vs. Seohnlein, for instance,
held the view that a confession by the accused in a bank robbery case was not fruit of the
poisonous tree for the reason that the information which led to his confession, though the product
of an illegal search would have been discovered in the absence of such illegality. 21 The Court
in Lockridge vs. Superior Court was of the opinion that where a witness is discovered as a result
of illegal police conduct, his testimony is admissible is he would have been discovered in the
normal course of a normally conducted investigation. 22 These and other recognized limitations to
the fruit of the poisonous tree doctrine do not have the effect of diluting the effect of our
exclusionary rules. Rather, they serve the purpose of the rule well by maintaining a reasonable
balance between the need to deny evidence come by through the exploitation of an illegality on
one hand and the need to minimize opportunity for the defendant in a criminal case to reap an
undeserved and socially undesirable bonanza. 23 Certainly it could not be argued that with nothing
in their hands, the police would not have gone back to the site for a better inspection.
THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL COURT'S
CONVICTION OF THE ACCUSED WITH MORAL CERTAINTY
Assuming arguendo the validity of the defense's arguments over the pieces of evidence
recovered by the police in the case at bench above-mentioned, a thorough review of the
evidence utilized by the trial court leads us to the conclusion that the defendant's conviction
would have been sustained, in any case, without the pieces of evidence objected to. 24 Lest
we mistake the trees for the forest, a shifting of the pieces of evidence, and a separation
therefrom of the physical evidence objected to would nevertheless still leave the prosecution with
enough legal evidence to convict the accused with moral certainty. These include:
1. The defendant's own repeated admissions, in the presence of counsel and in open court
that he committed the acts charged;
2. The essentially uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada.
Having discussed the first point, I shall go directly to Rebada's testimony, which the majority
opinion let pass without comment. For a better perspective of Rebada's testimony, allow me
once again to quote from the transcript:
Q Can you recall where were you on June 12, 1994, at
around 5:30 P.M.?
A Yes, Sir.

Q Where were you?


A I was at home.
Q Where is your house situated?
A Brgy. Rizal, Pala-pala, Zone I, Iloilo City.
Q Do you have any neighbor in that residence of yours at
Rizal Pala-pala?
A Yes, Sir, Arnel Alicando.
Q How far is the house of Arnel Alicando from your house?
A One and a half (1 1/2) arm's length.
Q On that time at 5:30 P.M. have you seen Arnel Alicando?
A Yes, Sir.
Q Where was Arnel Alicando at that time?
A He was upstairs, inside the house of Romeo Alicando.
Q What is the relation of Romeo Alicando to Arnel Alicando if
you know?
A Romeo is the uncle of Arnel.
Q Did Arnel Alicando have any companion while he was in the
house of his uncle, Romeo Alicando?
A Khazie Mae was his companion.
Q You are referring to Khazie Mae Penecilla, the victim in this
case?
A Yes, Sir.
Q Aside from them, the two of them, Arnel Alicando and
Khazie Mae Penecilla, are there any person inside the house
of Romeo Alicando at that time?
A No more, only the two of them.

Q Now, at that precise time at 5:30 of June 12, 1994, what


have you observed if you observed any in the house of
Romeo Alicando wherein Arnel Alicando and Khazie Mae
Penecilla was at that time?
A I saw the child looking out in the window and I invited her
for a yemas candy, and Arnel Alicando suddenly closed the
window.
Q When Arnel Alicando you said closed the window, what did
you observe after that if there is any?
A The child cried.
Q You are referring to the victim, Khazie Mae Penecilla when
you said the child was crying?
A Yes, Sir.
Q And after that, after the child was crying, what have you
observed at that time?
A And then she squealed.
Q After that, what did you do after hearing that and she, the
child squealed, what did you do if there was any?
A So, I went down from the house to the house of Romeo
Alicando, where I saw between an opening between the two
slots. I went up two steps.
Q And then what did you do?
A And so, I peeped between the floor and the door because
there was an opening.
Q Have you seen anything inside that house?
A Yes, Sir.
Q What have you seen if there is any?
A I saw Arnel Alicando who was naked/nude at that time lying
on top of the child wherein his left hand was holding the neck
of the child.
Q When you said child, you are referring to the victim, Khazie
Mae Penecilla?

A Yes, Sir.
Q What did you do after seeing that?
A Because I was afraid at that time and I got nervous, so I
went down from that house and went to my own house and
gathered my . . . . . . .
Q When you went to your house, was there any person inside
your house?
A My friend.
Q Who is the name of your friend?
A Ricardo Lagrana (Compare).
Q Have you talked to our compare, Ricardo Lagrana who was
in your house? Have you told about the incident that you have
seen in the house of Romeo Alicando wherein Arnel Alicando
was at the top of the victim, Khazie Mae Penecilla, without
clothes at all?
A Yes, Sir.
Q What action did your compare do if there was any?
A When I told the incident to my compare he also felt nervous
and he went home.
Q How about on the same day of June 12, 1994, at around
6:00 P.M., where were you?
A I was inside the house.
Q And you have observed what is happening in your
barangay at that time?
A Yes, Sir.
Q What have you observed?
A The parents of Khazie Mae Penecilla were looking for her.
Q When you have observed, have you known that the parents
of Khazie Mae Penecilla were looking for her, it did not occur

to your mind to report the incident to the parents of Khazie


Mae Penecilla on what you have seen at that time?
A I did not go out of the house because I was afraid of Arnel
Alicando.
Q Have you seen on the same day after that incident of 5:30
in the evening, have you seen again Arnel Alicando?
A Yes, Sir.
Q Where?
A I saw Arnel Alicando inside the house going around.
Q Did you talk to him?
A One June 12, 1994, at 10:45 in the evening, I told Arnel
Alicando and asked him, what time did the child go down from
the house.
Q Where were you at that time when you asked Arnel
Alicando?
A I was inside my house.
Q Because you are very near neighbor to each other?
A Yes, Sir.
Q And it is one and a half (1 1/2) arm's length your house
from Arnel Alicando's house?
A Yes, Sir.
Q Did Arnel Alicando answer you?
A He answered, I do not know because I was drank at that
time.
Q How about one June 13, 1994 in the morning at around
8:00 o'clock, what did you observe in your barangay?
A None.
Q You have not observed anything?

A None.
Q Do you know when the parents of the victim, Khazie Mae
Penecilla found their daughter?
A Khazie Mae Penecilla was found at around 8:00 A.M.
Q Of what day?
A June 13, 1994.
Q Why do you know that this Khazie Mae Penecilla was only
found by their parents?
A Because Leopoldo (Torong) Santiago, when he went down
from their house and answered the call of nature, he found
the child under their house. 25
It is well-settled in this jurisdiction that the testimony of a lone witness, free from signs of
impropriety or falsehood, is sufficient to convict an accused even if uncorroborated. In this
case, Rebada's testimony was positive and straightforward. I see no reason why the same
should not be given the credence and the weight that it deserves, without our ignoring
established principles in the law on evidence. Such factual findings of the trial court on the
issue of credibility of a witness are accorded great weight and respect on appeal, as it should
have been in the instant case, because the trial court had the every available opportunity to
observe the demeanor of the lone witness during the trial. Her belated reporting of the
incident the next morning, to which the defense urged the lower court to accord great weight,
is hardly out of the ordinary.
Individual reactions are motivated by varied and varying environmental factors. There is no
standard norm of human behavioral response when one is confronted with a strange,
startling or frightful experience. 26 Fear and self preservation are strong motivating factors. It is
common for people to choose not to get involved when a crime is committed, otherwise there
should only be a few unsolved crimes. 27 Rebada, in this case, was obviously terrified with what
she saw. Self-preservation and fear of possible reprisals from the appellant would have initially
overwhelmed any desire on her part to reveal what she had seen during the incident. She tried
her best to remain as calm and casual as possible, and pretend that she did not see anything the
instant she saw Alicando, when she asked appellant what time Khazi Mae got down from his
house following the incident. 28 Given these factors, it would have been too much to expect
Rebada in her mixed state of dread, fear, revulsion and instinctive self-preservation to harness
superhuman reserves of courage to stop appellant when she saw him
in that compromising position. Man's actions and reactions cannot be stereotyped. 29 Some
individuals flee from an adverse stimulus, others confront it. Upon seeing the dead girl's
distraught parents, and overcoming her fear with some prodding from her husband, Luisa Rebada
was finally driven by conscience to reveal what she knew the following morning.
The minor inconsistencies in Rebada's testimony are understandable under these
circumstances. However, it should be stressed here that the trial court's conclusions were
founded principally on the direct, positive and categorical assertions made by Rebada as

regards material events in the crime. It is worthy to stress, moreover, that Rebada never
wavered in her oral testimony even on intense cross-examination from the defense. In her
affidavit, she declared that she saw Khazi Mae at appellant's house; that appellant closed
the window; and after hearing the child's cry and squeal, peeped into the opening and saw
appellant on top of the victim. These were the very same declarations she made when she
took the witness stand. While she may have wavered on a minor detail (as to whether it was
the right or the left hand of the appellant which was used in choking the victim) these should
not be sufficient to debunk her credibility. 30 She had no reason to falsely testify against the
appellant and there were no possible motives alleged for her to do so. She is not in any way
related to the Penecillas, and there was no evidence adduced to show that she harbored any illfeelings towards the appellant. In a sense, her credibility is even enhanced by the absence any
improper motive. 31
Together with the direct testimony of the eyewitness, Rebada, there is, I repeat, sufficient
evidence corroborating and unmistakably pointing to the appellant as the author of the crime.
Khazi Mae was last seen in the company of the appellant. Rebada testified that she saw
appellant naked on top of Khazi Mae. Recovered from the latter's house were Khazi Mae's
green slippers, pair of gold earrings, her dress, bloodied buri mat and pillow. The fact of
shoddy police work in the recovery of these pieces of evidence does not escape us. But
whether on not these pieces should have been admissible is on hindsight hardly relevant in
the face of ample legally admissible evidence justifying the trial court's guilty verdict.
As a last resort, appellant would want to drive home the point that rape was not committed.
He argues that 1) while Rebada saw him on top of Khazi Mae, she did not see him in a push
and pull movement 2) the requested NBI report on the examination of Khazi Mae's
underwear to show the presence or absence of the male semen was not presented; and 3)
the autopsy report revealed that the proximate cause of death was asphyxiation by
strangulation.
In the first place, witness PO3 Danilo Tan testified that when he arrived at the Pencilla's
house to take a look at the dead body, he looked at Khazi Mae's underwear and saw that it
was bloodied. The underwear was sent to the NBI Laboratory for examination. Considering,
however, the inadequate facilities of the NBI Laboratory at Iloilo, the underwear was referred
to Manila for examination. Since it will take time for the court to wait for the results from
Manila, the trial court dispensed with it as this would only serve as corroborating evidence to
the fact of rape. 32
Moreover, rape is committed whenever there is penetration, no matter how slight into the
genital organ of the victim. 33 The vaginal and anal findings of Dr. Tito Doromal revealed that the
lacerated wound from the fourchette up to the dome of the rectum was caused by a forcible entry
of an object. In view of settled jurisprudence to the effect that rape is committed by the mere
touching of the male genital organ on the vagina, it hardly is relevant whether or not semen or
sperm are present or absent. Absence of emission does not negate rape. Rebada's testimony
that she saw appellant naked on top of the victim when she peeped through an opening between
the floor and the door of appellant's house and the autopsy report revealing the laceration of the
vagina eloquently testify to the crime committed and its authorship in the case at bench. As
correctly observed by the Solicitor General, the corpus delicti was there for all to see. The trial
court, therefore, did not err in dispensing with the results of the NBI laboratory examination of
Khazi Mae's underwear to determine the presence of male semen, a fact of little relevance after
the rape was established by definitive legal evidence.

Finally, notwithstanding the fact that the proximate cause of death was asphyxiation by
strangulation, it cannot be denied that Khazi Mae was raped and killed on the same
occasion. As we observed in People v. Yu, 34 unity of thought and action in the criminal purpose
of the accused cannot be altered by the circumstances that both the crime of rape and the crime
of murder resulted. The accused had to choke and strangle the girl at the same time that he was
satisfying his lust on her. 35
Based on all of the foregoing, it is clear and inescapable that appellant committed the
heinous crime or Rape with Homicide under Sec. 11 of R.A. 7659 which provides:
Art. 335 of the same Code is hereby amended to read as follows:
Art. 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed, the
penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following circumstances:
xxx xxx xxx
(4) When the victim is a religious or a child below seven (7) years old.
xxx xxx xxx
Having thoroughly evaluated the evidence utilized by the trial court in convicting the accused
with the crime of subject to our automatic review, it is painfully clear even to those who
have reservations about imposing the death penalty among us that we have reached the
point of moral certainty necessary to the imposition of the supreme punishment of death in
this case.
Convictions for the crime of rape have been sustained by this Court in an overwhelming
number of cases on uncorroborated evidence given almost exclusively by the complainant
alone. Against this backdrop (of most cases of rape where reliance is placed solely on the
victims allegations) the trial Court in the case at bench, arrived at its conclusions principally
on the basis of two key pieces of testimonial evidence: 1) the accused's admission of guilt in
not one but two occasions in open court (in the presence of his lawyer) even after being
warned on both occasions by the judge of all the possible consequences of his admission
the accused's admission of guilt; and 2) the essentially uncontradicted testimony of an
eyewitness to the crime itself. Even with the relatively minor inconsistencies of the latter's
testimony which the defense spiritedly tried to magnify the net effect of the same was
to enhance, not diminish, the testimony of the lone eyewitness because minor
incongruencies are on the whole indicative of honest and unrehearsed declarations and
often amplify the credibility of such declarations.36 Ordinarily, as stated earlier, convictions for

rape have been obtained on the basis far less evidence. Parenthetically, either one of these
testimonies, standing alone, would have been adequate to obtain the accused's conviction.

In fine, let me reiterate my position in People vs. Veneracion, that the reimposition of the
death penalty for specific offenses under Republic Act 7659 has left our courts with no choice
but to impose the penalty for crimes clearly enumerated in the said law. If a court, after
leaving no stone unturned, finds it necessary to impose the penalty, I believe that it does not
do so as an infallible God exercising a divine right to give or take away human life, but as a
fallible human institution recognizing the importance of according majesty to laws so
indispensable to maintaining social order. In the instant case, after a thorough and searching
review of the evidence and an evaluation of the procedural and constitutional objections
adduced either in support of an acquittal or of imposing a less severe penalty it should be
fairly obvious to us that the trial court committed no error in finding the accused guilty as
charged. Recognizing our fallible nature, the quantum of evidence necessary to convict has
never been absolute proof beyond any doubt but merely proof beyond reasonable doubt.
The death penalty in the instant case was clearly imposed in conformity with the mandate of
law and the Constitution.
Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ., concur.
Footnotes
1 Criminal Case No. 43663, RTC of Iloilo City, Br. 38.
2 Order of June 28, 1994.
3 Section 14 (2) of Article III of the Constitution.
4 See section 6, Article XIV of the Constitution.
5 See section 7, Article XIV of the Constitution.
6 TSN, June 28, 1994, p. 2.
7 Section 1, Article III of the Constitution provides: "No person shall be deprived of life, liberty,
or property without due process of law . . . "
8 TSN, June 28, 1994, pp. 2-3.
9 TSN, July 11, 1994, p. 2.
10 24 SCRA 798, [1968].
11 E.g., People vs. Abrea, 112 SCRA 83 [1982]; People vs. Alibasa, 118 SCRA 183 [1982];
People vs. Havana, 1199 SCRA 805; People vs. Petalcorin, et al., 180.
12 In re: Winship, 397, US358, 90 S.ct., 1068, 25 L. Ed. 2d 368 [1970].
13 Decision, page 7; Records, p. 96.
14 Exh. "J".
15 Exh. "F".
16 TSN, July 12, 1994, pp. 18-21.
17 TSN, July 12, 1994, pp. 14-17.
18 308 US 388, 60 S.Ct. 266, 84 L ed. 307 [1939].
19 The genesis of the doctrine was laid down in Silverthorne Lumber Co. v. US, 251 US 385, 40
S.Ct. 182, 64 L. Ed. 319 [1920].
20 Del Carmen, Criminal Procedure, Law and Practice, 3rd Ed., pp. 64-65.
21 G.R. No. 100910, July 25, 1994, 234 SCRA 407.
22 Ibid, p. 416.
23 TSN, July 12, 1994, p. 28.
24 No. L-31008, January 10, 1971, 37 SCRA 445.
KAPUNAN, J., dissenting opinion:
1 The Oxford Companion to the Supreme Court of the United States, pp. 125-126, 1992 ed.
2 RA 7659 Enacted on December 13, 1994.
An Act to Impose the Death Penalty on Certain Heinous Crimes, amending for that purpose the
Revised Penal Code, as amended, other special penal laws, and for other purposes.

WHEREAS, the Constitution, specifically Article III, Section 19 paragraph (1) thereof, states
"Excessive fines shall not be imposed nor cruel, degrading or inhuman punishment inflicted.
Neither shall death penalty imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. . . .";
WHEREAS, the crimes punishable by death under this Act are heinous for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest wickdness,
viciousness, atrocity ad perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered society;
WHEREAS, due to the alarming upsurge of such crimes which has resulted not only in the loss
of human lives and wanton destruction of property but has also affected the nation's efforts
towards sustainable economic development and prosperity while at the same time has
undermined the people's faith in the Government and the latter's ability to maintain peace and
order in the country.
WHEREAS, the Congress, in the interest of justice, public order and the rule of law, and the
need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling
reasons to impose the death penalty for said crimes.
3 TSN, July 12, 1994, pp. 28-32.
4 TSN, July 11, 1994, pp. 14-19.
Q: After you received that information, what did you do?
A: We invited Arnel Alicando to the headquarters.
xxx xxx xxx
Q: When you invited him to go with you to the Police Station and when you arrived there,what
did you do?
A: I let the witness identify the suspect and the witness pointed to him.
Pros. Fama:
Q: Do you know who is that witness?
A: Yes, sir.
Q: Who is that witness?
A: Luisa Rebada.
xxx xxx xxx
Q: After the witness positively identified the suspect what action did you do?
A: I immediately arrested him and then placed him on the police blotter.
Q: You mean you arrested him at the Super Market at the meat section?
A: Yes, sir, at Rizal-Palapala.
Q: When you arrested him where did you bring him?
A: I brought him to the Iloilo City Proper Police Station.
Q: What did you do there?
A: I entered the matter at the police blotter and I asked him further. I asked him who raped the
child.
Q: Did the suspect answer?
A: Yes, sir.
Q: What did he answer?
A: He answered that he was the one.
Q: Did you ask him what he did with the victim after raping?
A: I further asked him why the child died and he answered that, killed her. (TSN, July 12, 1994,
pp. 11-13.)
6 Records, p. 79.
7 Rollo, p. 5.
8 Order dated June 28, 1994; Records, p. 12.
9 People v. Perete, 1 SCRA 1290; People v. Camay, 152 SCRA 401 (1987).
10 People v. Saligan, 54 SCRA 190 (1973); People v. Aguilar, 37 SCRA 115 (1971); People v.
Simeon, 47 SCRA 129 (1972).
11 TSN, pp. 2-3, June 28, 1994.
12 TSN, p. 2, July 11, 1994.
13 187 SCRA 637 (1990).
14 People v. Evangelista, 235 SCRA 247 (1994); People v. Vivar, 235 SCRA 257 (1994); People
v. de Guzman, 229 SCRA 795 (1994).
17 People v. Ariola, 100 SCRA 523 (1980); People v. Gabierrez, Jr., 113 SCRA 155 (1982).

18 People v. Laspardas, 93 SCRA 638 (1979); People v. Formentera, 130 SCRA 114; People v.
Gonzaga, 127 SCRA 158 (1984).
19 People v. Dayot, 187 SCRA 637 (1890), People v. Camay, 152 SCRA 401 (1987); People v.
Domingo, 68 SCRA 50 (1975); People v. Serna, 130 SCRA 550 (1984).
20 Somer vs. U.S. 138 F2d 790 (1943); Wayne vs. U.S. 318 F2d 205 (1963); Lockridge vs.
Superior Court, 402 U.S. 910 (1970).
21 U.S. vs. Seohnlein, 399 U.S. 913 (1970).
22 See, Lockridge, supra, note 19.
23 Maguire, How to Unpoison the Fruit the Fourth Amendment and the Exclusionary Rule. 55
J Crim Law, Crim and Pol Sci 307 (1964) cited in Spivey, "Fruit of the Poisonous Tree"
Doctrine Excluding Evidence Derived from Information Gained in Illegal Search. 43 ALR 36,
385.
24 Moreover, it would have been inevitable for police authorities to go back to the scene of the
crime and ultimately discover the evidence, even without the accused's volunteered
information. This "inevitable discovery" is one of the recognized limitations to the "fruit of the
poisonous tree doctrine."See Crispin Nix v. Robert Anthony Williams, 467 U.S. 431.
25 TSN, July 11, 1994, pp. 14-18.
26 People v. Arman, 224 SCRA 37 (1993); People v. Danico, 208 SCRA 472 (1992).
27 People v. Lase, 219 SCRA 584 (1993).
28 TSN, July 11, 1994, p. 17.
29 People v. Salazar, 221 SCRA 170 (1994).
30 People v. Bautista, 147 SCRA 500 (1987); People v. Ancheta, 148 SCRA 178 (1987).
31 People v. Castor, 216 SCRA 410 (1992); People v. Ladrera, 150 SCRA 113 (1987).
32 TSN, July 15, 1994, p. 2.
33 People v. Palicte, 229 SCRA 543 (1994).
34 1 SCRA 199 (1961).
35 Id.
36 People vs. Reyes, G.R. No. 79896, January 12, 1995.

THIRD DIVISION
[G.R. No. 98060. January 27, 1997.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SATURNINA SALAZAR y
PALANAS,Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Public Attorneys Office for Accused-Appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; THE SEARCH BEING AN INCIDENT OF A
LAWFUL ARREST, NEEDS NO WARRANT FOR ITS VALIDITY; CASE AT BENCH.
Because the drug pusher had been caught in flagrante delicto, the arresting officers
were duty-bound to apprehend the culprit immediately and to search her for
anything which may be used as proof of the commission of the crime. The search,
being an incident of a lawful arrest, needed no warrant for its validity. . . . Appellant
may not successfully claim the right against a warrantless search, even as regards
the plastic container with dried marijuana leaves which was found on the table in her
house/store. Contrary to appellants contention, the contraband seized from her,
having been obtained as a result of the buy-bust operation to which the defense
failed to impute any irregularity, was correctly admitted in evidence. chanrobles
virtual lawlibrary
2. ID.; ID.; RIGHTS OF THE ACCUSED; FAILURE TO PRESENT INFORMER, NOT A
VIOLATION OF THE ACCUSEDS RIGHT TO CONFRONT WITNESSES. Neither is her
right to confront witnesses against her affected by the prosecutions failure to
present the informer who pointed to her as a drug pusher. The presentation of an
informant in an illegal drugs case is not essential for conviction nor is it indispensable
for a successful prosecution because his testimony would be merely corroborative
and cumulative.
3. ID.; ID.; ID.; NARCOM AGENT ACT OF MAKING THE ACCUSED SIGN AND

THUMBMARK THE BOND PAPER WHICH USED TO WRAP MARIJUANA FOUND IN HER
POSSESSION, VIOLATIVE OF HER CONSTITUTIONAL RIGHT TO COUNSEL. We find
appellants claim that she was not informed of her right to counsel during custodial
investigation to be correct. Moreover, the NARCOM agents admission that they made
her sign and thumbmark the bond paper which they used to wrap the marijuana
found in her possession was violative of her constitutional right to counsel. While the
bond paper does not appear to have been considered as a pivotal piece of evidence
against appellant, such act of the NARCOM agents is worth noting if only to provide
guidance to law enforcement operatives. In People v. Simon, where the accused was
made to sign the booking sheet and arrest report stating that he was arrested for
selling two tea bags of suspected marijuana and the receipt for the seized property,
the Court said: ". . . Appellants conformance to these documents are declarations
against interest and tacit admissions of the crime charged. They were obtained in
violation of his right as a person under custodial investigation for the commission of
an offense, there being nothing in the records to show that he was assisted by
counsel. Although appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing and in the presence
of counsel, hence whatever incriminatory admission or confession may be extracted
from him, either verbally or in writing, is not allowable in evidence. Besides, the
arrest report is self- serving and hearsay and can easily be concocted to implicate a
suspect." chanrobles.com.ph : virtual law library
4. ID.; ID.; NON-PRESENTATION OF INFORMER DOES NOT CREATE A HIATUS IN THE
PROSECUTIONS EVIDENCE. In a case involving the sale of illegal drugs, what
should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like
the non-presentation of the marked money used in buying the contraband, the nonpresentation of the informer on the witness stand would not necessarily create a
hiatus in the prosecutions evidence.
5. CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972 AS AMENDED BY RA. 7659;
THE ELEMENT OF SALE MUST BE UNEQUIVOCALLY ESTABLISHED IN ORDER TO
SUSTAIN CONVICTION OF ILLEGAL SALE OF PROHIBITED DRUGS. Indispensable
in every prosecution for illegal sale of marijuana, a prohibited drug, is the submission
of proof that the sale of the illicit drug took place between the poseur-buyer and the
seller thereof, coupled with the presentation of the corpus delicti as evidence in
court. The element of sale must be unequivocally established in order to sustain a
conviction. chanrobles virtual lawlibrary
6. ID; REVISED PENAL CODE; SPECIAL AGGRAVATING CIRCUMSTANCES; QUASIRECIDIVISM; TO BE APPRECIATED AS AN AGGRAVATING CIRCUMSTANCE, MUST BE
PROVEN BY RECORDS OF PREVIOUS SENTENCE; CASE AT BENCH. The
circumstance of quasi-recidivism should ideally aggravate her offense considering
that she committed the felony after having been convicted by final judgment and
before serving sentence. That she was on probation would not erase the fact of her
conviction even though service of her sentence was suspended. However, for its
appreciation as an aggravating circumstance, quasi-recidivism must be proven by
records of the previous sentence. As this Court stated in People v. Capillas, the
evidence (or the lack of it) must prevail over appellants admission that she was a
probationer when she committed the crime.

7. ID.; ID.; PROPER PENALTY; CONSIDERING THAT THE MARIJUANA INVOLVED WAS
LESS THAN 250 GRAMS AND THERE WAS ABSENCE OF MITIGATING AND
AGGRAVATING CIRCUMSTANCES, THE PENALTY IS THE MEDIUM PERIOD OF PRISION
CORRECCIONAL. As in all other cases decided by the Court after the effectivity of
Republic Act. No. 7659 on December 31, 1993, the beneficial provisions of said law
shall be applied to this case although the offense was committed prior thereto.
Because the marijuana recovered from appellant was less that 750 grams, the
penalty imposable upon her shall, under the ruling in the Simon case, range from
prision correccional to reclusion temporal or more specifically the penalty of prision
correccional, considering that the marijuana involved was less that 250 grams. . .
Consequently, under Art. 64(1) of the Revised Penal Code which provides that in the
absence of mitigating and aggravating circumstances the medium period of the
penalty shall be imposed, the penalty should be the medium period of prision
correccional. There being no circumstance to disqualify appellant from availment of
the benefits of the Indeterminate Sentence law, the same must be applied.
DECISION
PANGANIBAN, J.:
As her defense in this appeal, appellant alleges violation of her constitutional rights
against warrantless search and seizure, and to counsel during custodial
investigations. However, the search, being merely an incident of a legitimate buybust operation against illegal drugs, needed no warrant. And while her right to
counsel during the custodial investigation was indeed violated, there were other
evidence sufficient to warrant her conviction beyond reasonable doubt.
This appeal seeks the reversal of the Decision 1 in Criminal Case No. 925 of the
Regional Trial Court of Oroquieta City, Branch 13, finding appellant Saturnina Salazar
y Palanas guilty beyond reasonable doubt of violation of Section 4, Article II of
Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended by Presidential
Decree No. 1675, and imposing upon her the penalty of life imprisonment and
payment of P20,000.00 as fine, with costs.
The Facts
According to the Prosecution
Appellant was tried under an Information 2 the accusatory portion of which reads: 3
"That on or about the 23rd day of August 1988, at 1:35 oclock in the afternoon,
more or less, in Barangay Poblacion II, Oroquieta City, Philippines, and within the
jurisdiction of this Honorable Court, the said accused did then and there and without
authority of law, wilfully, unlawfully and feloniously sell, deliver and give away five
(5) marijuana sticks to a NARCOM Agent posing as a buyer in consideration of the
amount of Five Peso (P25.00) marked bill with Serial No. FJ526501; and, as a result
of the said Buy-Bust operation, confiscated from the control and possession of the

accused were six (6) marijuana sticks and five (5) grams, more or less, of dried
marijuana leaves in addition to the five (5) marijuana sticks aforestated.
Contrary to law."cralaw virtua1aw library
On arraignment, appellant, assisted by counsel pleaded not guilty to the crime
charged. 4 The prosecution presented Sgt. Jim Cubillan, Cpl. Emilio de Guzman, and
Forensic Chemist Bernabe Arenga and various evidence proving the following
facts:chanrob1es virtual 1aw library
After being informed of the activities of drug pushers in Oroquieta City, Sgt. Cubillan
and Cpl. de Guzman of the Narcotics Command (NARCOM) of the Philippine
Constabulary (PC), left Ozamis City on August 23, 1988, for the former city. Upon
their arrival at noon, they were met by the police informer who accompanied them to
the place where a pusher operated. Near the City Hall, the informer pointed to them
the residence-cum-store of appellant and thereafter left the two constabulary
operatives.
Right then and there, Sgt. Cubillan took a five-peso bill with Serial No. FJ526501
from his billfold, marked it with his initials and handed it to Cpl. de Guzman. The
latter then went to the store and told the woman seated on the windowsill that he
wanted "to score" 5 ("mag-score nga ako"). 6 The woman nodded. After indicating
that he wanted five (5) sticks of marijuana, Cpl. de Guzman asked her if what she
was about to give him was "genuine" and gave her the five-peso bill. After the
woman gave him five sticks of marijuana, Cpl. de Guzman unwrapped one stick. He
smelled its contents and at the same time noticed the seeds therein. He then placed
the contraband in his pocket, showed his identification card to the woman and told
her that he was a NARCOM agent. 7
At that moment, Sgt. Cubillan approached the two. He had positioned himself at the
back of the store, around four or five meters away from Cpl. de Guzman and the
woman. 8 He and Cpl. de Guzman arrested the woman, whom they later learned to
be Saturnina "Nena" Salazar. They recovered from appellant the P5.00-bill. Upon
being informed by Cpl. de Guzman that appellant had taken the five marijuana sticks
from a plastic container on the table inside the store, Sgt. Cubillan took the container
which had six (6) more marijuana sticks and around five (5) grams of dried
marijuana leaves. 9
The NARCOM agents took appellant to the local PC headquarters. On board a
motorcar, Sgt. Cubillan asked her if she knew of other pushers in the vicinity. She
pointed to the place of Josephine Bayotas. When they passed by Bayotas residence,
the two PC operatives also arrested her. 10
At the PC headquarters in Camp Naranjo, Sgt. Cubillan interrogated appellant while
Cpl. de Guzman took her bio-data. 11 Her fingerprints were also taken. 12
Thereafter, Cpl. de Guzman made her sign her bio-data and the paper containing her
fingerprints. It was Sgt. Cubillan who instructed her to sign the piece of bond paper
which was used to wrap the marijuana sticks before they were submitted to the
laboratory for examination. 13

For their part, Sgt. Cubillan and Cpl. de Guzman executed a joint affidavit to support
the complaint that was to be filed against appellant. 14
The confiscated and dried leaves were turned over to Sgt. Dominador Berjuega who
sent the specimen to the National Bureau of Investigation (NBI in Cagayan de Oro
City. NBI Forensic Chemist Bernabe Arenga, who conducted the examination,
executed a Certification, dated August 29, 1988, (Exh. D) 15 stating that the
laboratory examinations conducted on the eleven (11) confiscated cigarette sticks
and the "crushed dried stalks and flowering tops suspected to be marijuana" yielded
"positive results for marijuana." 16 He also submitted Dangerous Drugs Report No.
DDM-88-107 (Exh. E) finding: 17
"Cross weight of specimens . . . 15.3280 grams
Microscopic, chemical and chromatographic examinations conducted on the abovementioned specimens gave POSITIVE RESULTS for MARIJUANA."cralaw virtua1aw
library
According to the Defense
The defense presented Jeanife Mission, appellants 12-year-old daughter, to testify on
the manner by which the arrest was conducted by the NARCOM agents. According to
Jeanife, at around 1:35 p.m. on August 23, 1988, she was at home with her mother.
Jeanife was watching their sari-sari store in front of their house as her mother took a
nap. Two persons arrived and went inside their house. One of them ransacked their
things. When her mother woke up, she was held by one of the two persons and
taken to the sala. Jeanife failed to hear their conversation, but she saw the two
persons take her mother away. It was at the jail when she next saw her mother. 18
In her own defense, Nena Salazar testified that at around 1:30 p.m. of August 23,
1988, she was sleeping in the only bedroom of their house which was separated from
the sala by a bamboo divider. When she heard someone "doing something" in the
sala, she stood up to see what the matter was, but she was met by a big fellow who,
by the identification card he showed her, was named Jimmy Cubillan. She also
identified the other person as de Guzman by his ID card.
Cubillan held her left hand. She tried to untangle herself from Cubillans hold and
asked him, "why do you hold my hand, sir?" Cubillan said, "This is (a) raid, we are
looking for something." He did not, however, show any search warrant, but he asked
her where she had placed the marijuana that she was allegedly selling. She denied
selling the contraband as she was still on probation after she had been convicted of
selling marijuana in 1986. 19
Because Cubillan could not find marijuana in her house, he pulled out his pistol and
told her threateningly that should she refuse to tell him where the marijuana was, he
would "salvage" her. The two persons brought her to the PC headquarters where she
was investigated by Cubillan. She was not informed of her right to counsel nor her
right to remain silent. However, she kept silent, not answering any of Cubillans
questions. Later, they held her right hand and forced her to sign something. They
also asked her to affix her thumbmark to a piece of paper, telling her that she could

refuse to do so only if she would divulge to them the names of drug pushers in the
area. She just signed and affixed her thumbmark to a piece of paper the contents of
which she was not even allowed to read. By then, it was almost midnight. The
following day, she was brought to the city jail. Bayotas was also arrested, but she
was already in the PC headquarters when she (appellant) was brought there. 20
As stated earlier, Saturnina "Nena" Salazar was convicted of the crime charged.
Thus, the case was disposed in this wise: 21
"WHEREFORE, finding the accused Saturnina Salazar guilty beyond reasonable doubt
of selling a prohibited drug without being authorized by law, she is hereby sentenced
to life imprisonment and to pay a fine of P20,000.00.
Costs against accused.
SO ORDERED."cralaw virtua1aw library
Through her counsel, she interposed the instant appeal. 22
After the parties had filed their respective briefs, appellant, through the Public
Attorneys Office, filed an urgent manifestation and motion stating that since she was
found in possession of five (5) grams of dried marijuana leaves and eleven (11)
sticks of marijuana which, at .02 gram per stick, would all sum up to less than 6
grams only and therefore would involve a penalty of only six (6) years, her appeal
should be referred to the Court of Appeals for review. As legal basis therefor, she
cited the Decision in People v. Simon 23 and the August 15, 1994 Resolution in G.R.
No. 113360, People v. Margarita Joseco y Magbanua, where the total weight of the
subject illegal drugs was 400 grams. 24 However, in the Resolution of March 27,
1995, the Court merely noted the said urgent manifestation and motion. 25 Hence,
notwithstanding the insignificant amount of marijuana involved, the Court itself shall
consider this case. 26 After all, the penalty actually imposed by the trial court was
life imprisonment. chanrobles.com : virtual lawlibrary
Ruling of the Trial Court
The trial court gave full faith and credence to the testimonies of the prosecution
witnesses. On the other hand, it found that the defense was unable to sufficiently
rebut the presumption of regularity in the government witnesses performance of
their duty, finding it hard to believe that the NARCOM agents brought her to their
headquarters to force her into divulging the identity of other drugs pushers in the
area and that the case against her was only a "trumped-up charge". Appellants
defense consisting of denials did not overcome the positive testimony of the
prosecution witnesses.
Assignment of Errors
Appellant alleges in this appeal that the trial court gravely erred in(a) convicting her
of the crime charged despite the unreasonable and unlawful search and seizure
conducted by the NARCOM agents; (b) disregarding her constitutional right to

presumption of innocence, and (c) finding her guilty beyond reasonable doubt of the
offense charged.
The Courts Ruling
Appellants Guilt Sufficiently Proven
"Section 4, Article II of R.A. 6425 provides:jgc:chanrobles.com.ph
"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited
Drugs. The penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions.
x

"
Indispensable in every prosecution for illegal sale of marijuana, a prohibited drug, is
the submission of proof that the sale of the illicit drug took place between the
poseur-buyer and the seller thereof, coupled with the presentation of the corpus
delicti as evidence in court. 27 The element of sale must be unequivocally
established in order to sustain a conviction.
This is precisely the import of the testimony of Cpl. de Guzman when he said: 28
"Q And what was your purpose in coming to Oroquieta City?
A We came here because we were informed by our informant that there were drung
(sic) pushers here.
x

Q And after you met your informant in Oroquieta City what happened next?
A He accompanied us to the store of the pusher.
x

Q And what happened when you reached the place where the pusher was?
A When he pointed to us the alleged drug pusher we talked with Sgt. Cubillan who
got a marked money and I posed as a buyer.
Q Did you approach the store pointed to you by your informant?

A Yes.
Q And what happened at the staore (sic) of the alleged pusher?
A I went to the store and talked to the owner that I wanted to buy marijuana.
Q How exactly did you tell the owner of the store?
A I said I wanted to score.
COURT:chanrob1es virtual 1aw library
Q Do you know what is the meaning of score?
A That is the term used by the users so that they will not be identified.
Q And what did the suspected pusher say?
A She nodded.
x

FISCAL RAMOS:chanrob1es virtual 1aw library


Q What happened after she gave you the five sticks of marijuana?
A I bought five sticks of marijuana and asked her if this is genuine and I gave the
money. I opened one stick, I smelled and saw that there were seeds inside. I placed
it in my pocket and then I showed my ID and Identified (sic) myself as a NARCOM
agent.
Q What made you conclude that the 5 cigarette sticks which the alleged pusher gave
you were marijuana cigarettes?
A I learned that from my training and schooling.
Q What happened after you identified yourself as a NARCOM agent?
A Sgt. Cubillan came near and he arrested her.
Q What happened after that?
A I informed Sgt. Cubillan that the container from where the marijuana was (sic)
taken is on the table and in it were 6 sticks and 5 grams of dried leaves.
Q What did Sgt. Cubillan do when you pointed to the container?
A He took it and looked inside.

Q And what happened after that?


A We brought her to the PC."cralaw virtua1aw library
Sgt. Cubillan corroborated Cpl. de Guzmans account testifying
that:jgc:chanrobles.com.ph
"Q And what did you do upon (sic) being informed that there is a pusher in Oroquieta
City?
A I asked him to accompany me to where is (sic) pusher is.
Q Did your informant lead you to where the pusher was?
A Yes.
Q And what happened thereat?
A He led us and pointed to a woman inside a store and said that she is a pusher.
x

Q And after your informant pointed to you a particular woman inside a store as a
pusher what step if any did you take?
A I and Cpl. de Guzman decided to conduct a buy bust operation.
Q Please explain who (sic) that is done?
A That is entrapment by the use of marked money.
Q And from whom will this marked money come from?
A From me.
Q And who will be the buyer in that buy bust operation?
A Cpl. de Guzman.
Q And so you conducted a buy bust operation against the woman with Cpl. de
Guzman as the buyer, what happened next?
A I got a P5.00 bill in my folder and signed my signature thereon and gave it to Cpl.
de Guzman to buy marijuana.
Q How much was the money?
A P5.00.

FISCAL RAMOS:chanrob1es virtual 1aw library


Q What happened next after you gave this P5.00 bill to Cpl. de Guzman?
A He went to the store.
Q And how about you, where were you?
A I was just outside at the back of the store.
Q And did you see what happened after Cpl. de Guzman went to the store?
A Cpl. de Guzman talked to the woman.
Q Did you hear their conversation?
A No, because she has a low voice.
Q What else did you see?
A I saw that the woman gave something to Cpl. de Guzman.
Q And what did Cpl. de Guzman do after receiving that something given by the
woman?
A He looked at it and examined it and smelled it.
Q And what happened next after Cpl. de Guzman examined and smelled that
something given by the woman?
A Cpl. de Guzman showed an ID and when I saw him do that I went near him.
Q What happened after you went near him?
A We arrested her.
Q And will you please tell us why you arrested that woman?
A We arrested her because our Narcom agent bought marijuana from her (sic) and
after that we arrested her.
x

A We arrested her because she sold a suspected marijuana cigarette.


Q How many suspected marijuana cigarettes were sold to Cpl. de Guzman?

A Five sticks.
Q Were you able to recover those five sticks of suspected marijuana cigarettes?
A These were delivered to Cpl. de Guzman and those five suspected sticks of
marijuana were in the possession of Cpl. de Guzman.
Q What else if any were you able to recover from the woman?
A The marked money, P25.00 bill, and also Cpt. de Guzman told me that the
marijuana was taken by the woman from the table in a plastic container.
Q And this table were (sic) the plastic container was placed from where the five
suspected marijuana cigarettes were taken, where was it located?
A Inside the store.
Q And what did you do after you were informed by de Guzman that the five
suspected marijuana cigarettes were taken from the plastic container?
A I got the plastic container and I saw six sticks of suspected marijuana cigarettes
and five grams of dried marijuana leaves.
x

Q What did you do after confiscating from the woman the 6 suspected marijuana
cigarettes and 5 grams more or less dried marijuana leaves in addition to the five
rolled suspected marijuana cigarettes, what happened next?
A I brought the suspect to the PC headquarters at Camp Naranjo." 29
Combined with the findings of Forensic Chemist Arenga that the cigarette sticks
confiscated from appellant were marijuana, the corpus delicti of the crime had thus
been established with certainty and conclusiveness.
Search Warrant Unnecessary
In alleging that the NARCOM agents conducted an unlawful search and seizure in her
house, appellant contends that, because said agents had known of alleged drugpushing activities in Oroquieta City, they should have obtained a search warrant
before intruding into her residence. Appellants contention is devoid of merit as the
necessity of acquiring a search warrant has not been proven in this case.
In going to Oroquieta City on the strength of reports of drug-pushing activities, the
NARCOM agents did not know of the identity of the alleged pushers. 30 When they
conducted the buy-bust operation, it was precisely for the purpose of entrapping and
identifying the culprit. A buy-bust operation has been considered as an effective
mode of apprehending drug pushers. If carried out with due regard to constitutional

and legal safeguards, a buy-bust operation deserves judicial sanction. 31


Because the drug pusher had been caught in flagrante delicto, the arresting officers
were duty-bound to apprehend the culprit immediately and to search her for
anything which may be used as proof of the commission of the crime. 32 The search,
being an incident of a lawful arrest, needed no warrant for its validity. In fact, in
People v. Figueroa, 33 this Court said:jgc:chanrobles.com.ph
"The warrantless search and seizure, as an incident to a suspects lawful arrest, may
extend beyond the person of the one arrested to include the premises or surrounding
under his immediate control. Objects in the plain view of an officer who has the
right to be in the position to have that view are subject to seizure and may be
presented as evidence."cralaw virtua1aw library
Hence, appellant may not successfully claim the right against a warrantless search,
34 even as regards the plastic container with dried marijuana leaves which was
found on the table in her house/store. Contrary to appellants contention, the
contraband seized from her, having been obtained as a result of the buy-bust
operation to which the defense failed to impute any irregularity, was correctly
admitted in evidence.
Informers Testimony Merely Corroborative
Neither is her right to confront witnesses against her affected by the prosecutions
failure to present the informer who pointed to her as a drug pusher. The presentation
of an informant in an illegal drugs case is not essential for conviction nor is it
indispensable for a successful prosecution because his testimony would be merely
corroborative and cumulative. 35 In a case involving the sale of illegal drugs, what
should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like
the non-presentation of the marked money used in buying the contraband, the nonpresentation of the informer on the witness stand would not necessarily create a
hiatus in the prosecutions evidence. 36
Appellants claim that she was threatened by the NARCOM agents is self-serving.
That her daughter corroborated that portion of appellants account did not make her
claim credible. The trial court, which was in a better position than this Court in
determining the issue of credibility, unequivocally said: 37
"The Court finds that the defense has not sufficiently rebutted the presumption of
regularity in the government witnesses performance of duty. Jennife (sic) Mission,
for the defense, sought refuge from cross-examination by resorting to evasive I
dont knows and her demeanor on the stand did not inspire this Courts faith in her
testimony. Accused herself claimed that she has stopped selling marijuana after
being charged in 1986, for which she is now under probation, but she had no
satisfactory explanation as to why she was brought to PC headquarters despite the
fact that the Narcom agents did not find any contraband in her house. The Court
finds it hard to believe that the Narcom agents brought her to headquarters only for
the purpose of forcing her to divulge the names of drug pushers in the city, failing in
which they would hie her off to court on trumped-up charges."cralaw virtua1aw
library

It should be added that, according to appellant, she recognized the NARCOM agents
by the 5" x 7" identification cards they pulled from their shirts, which they showed
her. 38 It is simply contrary to human experience for an officer of the law to exhibit
his identification card if his intention in arresting an offender is to commit mischief.
Violation of Appellants Right to Counsel
We find appellants claim that she was not informed of her right to counsel during
custodial investigation to be correct. Moreover, the NARCOM agents admission that
they made her sign and thumbmark the bond paper which they used to wrap the
marijuana found in her possession was violative of her constitutional right to counsel.
While the bond paper does not appear to have been considered as a pivotal piece of
evidence against appellant, such act of the NARCOM agents is worth noting if only to
provide guidance to law enforcement operatives. In People v. Simon, 39 where the
accused was made to sign the booking sheet and arrest report stating that he was
arrested for selling two tea bags of suspected marijuana and the receipt for the
seized property, the Court said:jgc:chanrobles.com.ph
". . . Appellants conformance to these documents are declarations against interest
and tacit admissions of the crime charged. They were obtained in violation of his
right as a person under custodial investigation for the commission of an offense,
there being nothing in the records to show that he was assisted by counsel. Although
appellant manifested during the custodial investigation that he waived his right to
counsel, the waiver was not made in writing and in the presence of counsel, hence
whatever incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence. Besides, the arrest report is selfserving and hearsay and can easily be concocted to implicate a suspect."cralaw
virtua1aw library
Prosecutions Other Evidence
Sufficient for Conviction
As in the Simon case, where the non-admission of certain pieces of evidence did not
weaken the prosecutions case, there is proof beyond reasonable doubt of the
consummation of the sale of marijuana by appellant to a NARCOM agent. Hence, the
presumption of innocence in her favor has been sufficiently overturned in accordance
with law. Her contention that a mother-of-five like her would not resort to selling
illegal drugs in such a small amount as the marijuana involved in this case, is belied
by her own admission that when she committed the crime, she was still on probation
for having been caught in another occasion selling marijuana in 1986. 40
Neither could the location of her residence and store behind the DSWD office and
near the city jail as well as the fact that she did not know Cpl. de Guzman deter her
from committing the offense. In People v. Simon, 41 the Court noted that
. . . (D)rug-pushing, when done on a small scale as in this case, belongs to that class
of crimes that may be committed at any time and in any place. It is not contrary to
human experience for a drug pusher to sell to a total stranger, for what matters is

not an existing familiarity between the buyer and seller but their agreement and the
acts constituting the sale and delivery of the marijuana leaves. . . ."cralaw virtua1aw
library
Appellants contention that she could not have taken the risk of selling the five (5)
marijuana sticks for only five pesos and therefore the contraband was "planted," is
totally baseless. She herself did not bring out this alleged irregularity in the
performance of the NARCOM agents duty at the witness stand. On the other hand,
the testimony of the two (2) peace officers carried with it the presumption of
regularity in the performance of official functions. 42
Appellant claims that the prosecution evidence is weak because Sgt. Cubillan was
allegedly caught lying on the witness stand. She alleges that the prevarication of said
witness was reflected by his testimony that after arresting appellant, they proceeded
to the PC headquarters. Later, he testified that they still dropped by Bayotas
residence to arrest her. This alleged change in testimony which was explained by the
witness himself, 43 is too inconsequential to dent the prosecutions compelling
evidence on the fact of sale of illegal drugs.chanroblesvirtuallawlibrary:red
The Court also finds too preposterous to merit scrutiny appellants contention that in
convicting her, the trial court relied on her previous conviction for violation of the
Dangerous Drugs Law. Her being under probation was not alleged in the Information.
It was brought out in the trial where she herself admitted that she was on probation
when she committed the offense in this case. However, while the trial court
mentioned that fact in the Decision of March 1, 1991, it based its findings on
evidence presented by both the prosecution and the defense and not on the fact that
appellant was a probationer convicted of engaging in the abominable trade of illegal
drugs when she committed the offense.
The Proper Penalty
As in all other cases decided by the Court after the effectivity of Republic Act. No.
7659 on December 31, 1993, the beneficial provisions of said law shall be applied to
this case although the offense was committed prior thereto. Because the marijuana
recovered from appellant was less than 750 grams, the penalty imposable upon her
shall, under the ruling in the Simon case, range from prision correccional to reclusion
temporal or more specifically the penalty of prision correccional, considering that the
marijuana involved was less than 250 grams.
No mitigating circumstances have been proven in this case. In regard to aggravating
circumstances, the prosecutor volunteered at the start of the trial that appellant was
then on probation. Appellant herself admitted that she was on probation when she
was arrested by Sgt. Cubillan and Cpl. de Guzman. 44
As such, the circumstance of quasi-recidivism should ideally aggravate her offense
considering that she committed the felony after having been convicted by final
judgment and before serving sentence. 45 That she was on probation would not
erase the fact of her conviction even though service of her sentence was suspended.
However, for its appreciation as an aggravating circumstance, quasi-recidivism must
be proven by records of the previous sentence. 46 As this Court stated in People v.

Capillas 47, the evidence (or the lack of it) must prevail over appellants admission
that she was a probationer when she committed the crime.
Consequently, under Art. 64 (1) of the Revised Penal Code which provides that in the
absence of mitigating and aggravating circumstances the medium period of the
penalty shall be imposed, the penalty should be the medium period of prision
correccional. 48 There being no circumstance to disqualify appellant from availment
of the benefits of the Indeterminate Sentience law, the same must be applied.
Prescinding from the foregoing, this Court is convinced that the guilt of appellant has
been sufficiently proven beyond reasonable doubt by the evidence on record.
WHEREFORE, the appealed Decision convicting appellant Saturnina Salazar y Palanas
of the crime of violation of Section 4, Article II of Republic Act. No. 6425, as
amended, is hereby AFFIRMED subject to the MODIFICATION that appellant shall
suffer the indeterminate sentence of four (4) months of arresto mayor as minimum
penalty to four (4) years and two (2) months of prision correccional as maximum
penalty.
Considering that appellant has been detained for the maximum penalty herein
imposed, her IMMEDIATE RELEASE from custody, unless she is being held for other
valid reasons, is hereby ordered.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Endnotes:

1. Penned by Judge Ma. Nimfa PenacoSitaca.


2. Filed by Third Assistant City Fiscal Jaime
R. Ramos.
3. Rollo, p. 7.
4. Record, p. 20.
5. TSN, March 20, 1989, p. 4.
6. Ibid., pp. 14-15; TSN, April 19, 1989, p.
10.
7. TSN, March 20, 1989, p. 5.
8. TSN, February 20, 1989, pp. 6, 17.
9. Ibid., pp. 5-6.
10. TSN, February 20, 1989, p. 21.
11. TSN, April 19, 1989, p. 15-16.
12. TSN, March 20, 1989, p. 5.
13. TSN, April 19, 1989, p. 19-21.
14. Record, p. 5.
15. Exh. D; Record, p. 42.
16. TSN, February 20, 1989, p. 10; TSN,
March 20, 1989, p. 6; TSN, June 28, 1990,
pp. 7-10.
17. Record, p. 43.
18. TSN, November 6, 1990, pp. 3-4.
19. TSN, November 9, 1990, pp. 3-4.

20. Ibid., pp. 6-7.


21. Rollo, p. 14.
22. Record, p. 137.
23. 234 SCRA 555, July 29, 1994.
24. Rollo, pp. 121-125.
25. Ibid., p. 126.
26. This Court has decided a number of
illegal drugs cases wherein the subject
contraband is even less than a gram. Some
of these cases are as follows: People v.
Ganguso, 250 SCRA 268, November 23,
1995; People v. Reyes, 236 SCRA 264,
September 2, 1994; People v. Constantino,
235 SCRA 384, August 16, 1994; People v.
Caneja, 235 SCRA 328, August 15, 1994;
People v. Vivar, 235 SCRA 257 August 11,
1994; People v. Evangelista, 235 SCRA 247,
August 11, 1994; and People v. Bagares,
235 SCRA 30, August 4, 1994.
27. People v. Pacleb, 217 SCRA 92, 97-98,
January 18, 1993; People v. Vocente, 188
SCRA 100, 108, July 30, 1990; and People v.
Mariano, 191 SCRA 136, 148, October 31,

1990.
28. TSN, March 20, 1989, pp. 3-5.
29. TSN, February 20, 1989, pp. 4-8.
30. TSN, February 20, 1989, p. 15.
31. People v. Herrera, 247 SCRA 433, 439,
August 21, 1995.
32. Ibid., citing People v. Basilgo, 235 SCRA
191, August 5, 1994.
33. 248 SCRA 679, 682, October 2, 1995,
quoting People v. Musa, 217 SCRA 597,
610, January 27, 1993.
34. Appellants Brief, Rollo, pp. 59-60.
35. People v. Ballagan, 247 SCRA 535, 546,
August 23, 1995.
36. People v. Ganguso, supra. at p. 279.
37. Rollo, p. 14.
38. TSN, November 9, 1990, p. 8.
39. Supra, at pp. 566-567.
40. TSN, November 9, 1990, pp. 4-5.
41. Supra at p. 567.
42. People v. Sanchez, 173 SCRA 305, 312,
May 12, 1989.
43. Appellant quoted, on page 17 of her
brief, Sgt. Cubillans testimony, vide:"
x
x
x
Q What prompted you tell a lie because
now you said that you went directly to the
house of Nene Salazar to the PC. My
question is what prompted you to tell a lie?
A At first we intended to go directly to

the PC headquarters but he (sic) informed


us there is another pusher so we pass by
(sic) the house of that pusher.(TSN,
February 20, 1989, pp. 21-22.)"
44. TSN, November 9, 1990, pp. 4-5.
45. Art. 160, Revised Penal Code
provides:jgc:chanrobles.com.ph
"ART. 160. Commission of another crime
during service of penalty imposed for
another previous offense. Penalty.
Besides the provisions of rule 5 of article
62, any person who shall commit a felony
after having been convicted by final
judgment, before beginning to serve such
sentence, or while serving the same, shall
be punished by the maximum period of the
penalty prescribed by law for the new
felony.
x
x
x
46. People v. Ochavido, 142 SCRA 193,
206, May 30, 1986 and People v. Santos,
130 SCRA 443, 445, November 4, 1985.
47. 133 SCRA 171, 177, November 13,
1984.
48. Cf. Reynaldo Garcia v. Court of Appeals,
254 SCRA 542, 552-553, March 8, 1996 and
Jesusa Cruz v. Correctional Institute for
Women, G.R. No. 15672, September 27,
1996, pp. 3-4.

SECOND DIVISION
[G.R. No. 84525. April 6, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARTURO MAUYAO y
LORENZO, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Bonifacio D. Tanega for Accused-Appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; NOT AFFECTED BY
MINOR INCONSISTENCIES AND CONTRADICTIONS. We have ruled, time and
again, that minor inconsistencies and contradictions in the declaration of witnesses
do not destroy their credibility, but even enhance their truthfulness as they erase any
suspicion of a rehearsed testimony. As a matter of fact, it attests to the human
minds imperfection. Well-settled is the rule that inconsistencies in the testimony of
prosecution witnesses with respect to minor details and collateral matters do not
affect either the substance of their declaration, their veracity or the weight of their
testimony (People v. Payumo, G.R. No. 81751, July 2, 1990, 187 SCRA 64, and a
host of cases mentioned therein).
2. ID.; ID.; ID.; FINDINGS OF FACT OF THE TRIAL COURT; RULE AND EXCEPTION.
Indeed, when the issue raised by the accused-appellant concerns the credibility of
witnesses, this Court will not disturb the findings of the Trial Court except in case of
an evident abuse thereof. This Court, in a long line of decisions, has repeatedly held
that the findings of fact of a trial judge who has seen the witnesses testify and who
has observed their demeanor and conduct while on the witness stand are not
disturbed on appeal, unless certain facts of substance and value have been
overlooked which, if considered, may affect the outcome of the case (People v. De
Mesa, G.R. No. 87216, July 28, 1990, 188 SCRA 48; People v. Sagun, Jr., G.R. No.
86816, May 14, 1990, 185 SCRA 405: People v. Cruz, No. L-71462, June 30, 1987,
151 SCRA 609, and other cases listed therein). We perceive no misapprehension of
facts by the Trial Court in this case.

3. ID.; ID.; PRESENTATION OF WITNESSES; RESTS ON THE PROSECUTION; CASE AT


BAR. The accused-appellant even questions the non-presentation of the informant.
On this point, this Court has ruled that the matter of presentation of prosecution
witnesses is not for the accused-appellant or, except in a limited sense, for the Trial
Court to dictate. Discretion belongs to the city or provincial prosecutor as to how the
prosecution should present its case (People v. Sariol, G.R. No. 83809, June 22, 1989,
174 SCRA 237). Besides, the testimony of an informant in a drug case is not
essential for conviction to lie. The failure of the prosecution to present the testimony
of the informant is not fatal. The non-presentation of the informant as witness does
not weaken the prosecutions evidence, as his testimony would be merely
corroborative and cumulative (People v. Cerelegia, No. L-72353, January 30, 1987,
147 SCRA 538). What is crucial in this case is that the accused-appellant was caught
red-handed, in the act of trafficking the prohibited plant.
4. ID.; ID.; RULE ON ADMISSIBILITY; ADMISSION OBTAINED FROM ACCUSED IN
VIOLATION OF HIS CONSTITUTIONAL RIGHTS; INADMISSIBLE. We, agree with
the accused-appellant that his signatures on the Receipt of Property Seized; on
Exhibit E, acknowledging the confiscation of the marked bills from him; and on the
Booking Sheet and Arrest Report are inadmissible in evidence. His conformance to
these documents are declarations against interest and tacit admissions of the crime
charged, since merely unexplained possession of prohibited drugs is punished by law
(People v. Turla, No. L-70270, November 11, 1988, 167 SCRA 278). They have been
obtained in violation of his right as a person under custodial investigation for the
commission of an offense, there being nothing in the records to show that he was
assisted by counsel (People v. De la Pea, G.R. No. 92534, July 9, 1991; People v.
Yutuc, G.R. No. 82590, July 26, 1990, 188 SCRA 1). We have consistently ruled that
any admission wrung from the accused in violation of his constitutional rights is
inadmissible in evidence against him.
5. ID.; ID.; DENIAL OF THE ACCUSED OF THE CRIME CHARGED; CANNOT PREVAIL
OVER THE DETAILED AND UNSHAKEN TESTIMONIES OF THE PROSECUTION. It
bears emphasis, however, that the accused appellants conformity to the questioned
documents has not been a factor at all in his conviction. For even if these documents
were disregarded, still the accused-appellants guilt has been adequately established
by other evidence of record. The Trial Courts verdict was based on the evidence of
the prosecution not on his signatures on the questioned documents. Accusedappellants denials simply can not prevail over the detailed and unshaken testimonies
of the apprehending officers who caught him red-handed selling marijuana and who
have not been shown to have had any ulterior motive to testify falsely
against Accused-Appellant.
6. CRIMINAL LAW; SALE OF PROHIBITED DRUG UNDER DANGEROUS DRUG ACT;
MAY BE COMMITTED AT ANY TIME AND AT ANY PLACE. The accused-appellant then
argues that even if assuming for arguments sake that he was truly engaged in the
illicit trade, he would not have sold right in front of his doorstep, in full view of his
inquisitive neighbors and passers-by, nor would he have sold to Pat. Alferos, a total
stranger, and for a measly sum of P20.00, considering the gravity of the offense and
the penalty of life imprisonment imposed by law. This posture has been discredited in
the recent case of People v. Hilario (G.R. No. 94037, May 6, 1991), where this Court

ruled: "Small level drug-pushing may be committed at any place and at any time. It
is completed clandestinely and swiftly after the offer to buy is accepted and the
exchange made. The fact that the parties are in a public place and in the presence of
other people does not necessarily discourage drug pushers from plying their trade as
these may even serve to camouflage their illicit operations. Hence, the Court has
sustained convictions of drug-pushers caught selling illegal drugs at a basketball
court (People v. Paco, G.R. No. 76893, 27 February 1989, 170 SCRA 681), in billiard
halls (People v. Rubio, G.R. No. 66875, 19 June 1986, 142 SCRA 329,; People v.
Sarmiento, G. R. No. 72141, 12 January 1987, 147 SCRA 252), in front of a store
(People v. Khan, G.R. No. 71863, 23 May 1988, 161 SCRA 406), along a street at
1:45 p.m. (People v. Toledo, G.R. No. 67609, 22 November 1985, 140 SCRA 259),
and in front of a house (People v. Policarpio, G.R. No. 29844, 23 February 1988, 158
SCRA 85; all cited in People v. Paco, supra)." Accused-appellants charge of extortion
by police officers has not been proven. The Court has noted that this is the usual
defense in the prosecution of drug cases. But if, indeed, there was
extortion, Accused-appellant should have come forward with proper charges against
the culprits.
DECISION
MELENCIO-HERRERA, J.:
For "pushing" five (5) tea bags of marijuana, Arturo Mauyao, then 41, was sentenced
to a life in prison and to pay a fine of P20,000.00. Once more, he reasserts his
innocence, this time, before this Court.chanrobles virtual lawlibrary
Interestingly, on 19 August 1991, the accused-appellant filed a Motion to Withdraw
Appeal only to retract it in a letter dated 11 January 1992. The Court allowed the
withdrawal on 19 February 1992.chanrobles.com.ph : virtual law library
The prosecution evidence narrates that a team of police operatives from the
Narcotics Unit of the Western Police District conducted a surveillance after "the Office
received several phone calls from residents of Leyte del Sur (Street) that a suspect
by the name of Arthur is (was) actually engaged in the illegal sale of marijuana
cigarettes at the street of Leyte del Sur" (TSN, October 14, 1987, 29-31).
A "buy-bust operation" was then conceived. Thus, on 20 April 1987, at about 6:00
oclock in the evening, after relating with an informant who admitted having acted as
a "runner" (or a person who approaches would be buyers) for the accused-appellant
Arturo Mauyao (ibid), P/Sgt. Jimmy Carbonell formed a raiding team composed of
himself as team leader, and four (4) others as members, among them, Pat. Rizal
Papa and Pat. Ramon Alferos (TSN, September 23, 1987, 7). Pat. Alferos would be
the poseur-buyer and thus, was handed two (2) ten-peso bills, both initialled by Pat.
Papa (ibid., 7-8). P/Sgt. Carbonell would be the arresting officer, while the others
would act as back-up security (TSN, October 14, 1987, 31-32).
The apprehending party then boarded a civilian Ford Fiera (ibid., 10) and proceeded

to Leyte del Sur Street, stopping a few meters away from where the suspect was
expected (ibid., 11). Pat Alferos walked with the informant towards the residence of
the Accused-Appellant. P/Sgt. Carbonell, who was then in short pants and slippers,
positioned himself on the other side of the street across the residence of the
accused-appellant, pretending to buy fish balls from a fish ball stand. He was, more
or less, four (4) meters away from where the transaction was to take place. The
other likewise took their respective positions (ibid., 12; 3133).chanrobles.com:cralaw:red
Upon seeing the accused-appellant, who was just standing outside his house at 923
Leyte del Sur Street, the informant introduced Pat. Alferos. Pat. Alferos was
described to the accused-appellant as a "drug addict." Pat. Alferos then told the
accused-appellant that he wanted to buy "five (5) tea bags." Pat. Alferos gave him
the two (2) marked ten peso bills." The accused-appellant, in turn, handed over to
Pat. Alferos five (5) tea bags and two (2) sticks of marijuana cigarettes "as free"
(TSN, September 23, 1987, 9; TSN, October 14, 1987, 16).
At this point, Pat. Alferos introduced himself as a police officer and arrested
the Accused-Appellant. Meanwhile, after witnessing the exchange, P/Sgt. Carbonell,
who was across the street, "immediately ran towards the suspect (accusedappellant) and assisted the poseur-buyer to arrest the suspect" (TSN, October 14,
1987, 34-35). The other team members, upon seeing P/Sgt. Carbonell, also closed in
on the Accused-Appellant.
The accused-appellant then voluntarily surrendered the red clutch bag tucked to his
waist which turned out to contain ten (10) more tea bags of marijuana leaves and
four (4) more sticks of marijuana cigarettes (ibid., 16-17). The two (2) marked ten
pesos bills and some other bills were likewise recovered from him (ibid., 36). The
place where the transaction took place was well-lighted by a street light (ibid., 27).
There was no search and seizure warrant for the subject operation (ibid., 21).
The accused-appellant was taken to the Narcotics Control Investigation Section of
the Western Police District and turned over to Police Investigator Martin R. Orolfo
who also received from P/Sgt. Carbonell one (1) red clutch bag containing ten (10)
tea bags of marijuana leaves and four (4) sticks of marijuana cigarettes, five (5) tea
bags of marijuana leaves, two (2) sticks of marijuana cigarettes, two (2) marked
ten-peso-bills and some other bills amounting to thirty (P30.00) pesos. The accusedappellant was then made to sign the Receipt of Property Seized to admit that the
above-mentioned items were indeed seized from him (Exh. H; Exh. H-4; TSN, August
5, 1987, 11).
Afterwards, the accused-appellant, in the presence of his wife, P/Sgt. Carbonell, the
Police Investigator, and the Chief of the Narcotics Section allegedly admitted that he
sold five (5) tea bags of marijuana and owned a red clutch bag containing ten (10)
tea bags of marijuana (TSN, October 14, 1987, 40). The admission, however, was
made without the presence of counsel (ibid., 41).
He was also made to sign Exhibit E, where the two (2) marked ten-peso-bills were
attached, to acknowledge that the marked bills were "taken and confiscated from the
possession/control of one Arturo Mauyao . . . during a buy bust narcotics operation"

(Exh. E, Exh. E-3, TSN, August 5, 1987, 8-9), and the Booking Sheet and Arrest
Report to affirm that he had, indeed, sold and delivered five (5) tea bags of
marijuana leaves and two (2) sticks of marijuana cigarettes to a police poseur-buyer
(Exh. I, Exh. I-1; August 5, 1987, 13).chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
On 21 April 1987, the tea bags of marijuana leaves and the marijuana cigarettes
seized from the accused-appellant were transmitted to the National Bureau of
Investigation (NBI) for proper examination (ibid., 42). Upon receipt of the specimens
submitted and the accompanying letter-request for examination, NBI Forensic
Chemist Felicisima Francisco conducted microscopic, chemical and chromatographic
examinations. All three (3) tests revealed that the seized articles were "positive for
marijuana" (TSN, July 24, 1987, 4-6).
For his part, the accused-appellant denied having sold marijuana. He had his own
version of the incident. He alleged extortion. He averred that on 20 April 1987, at
about 6:00 oclock in the evening, he was invited to drink at the house of Tina, a
neighbor who just got married. Present were Tinas brother-soldier, Ernesto Estrada,
Manuel Guadialla and others. Then, a power failure occurred. The accused-appellant
was requested by Tinas husband to buy wine, cigarettes, "pulutan," "katol," and
candles. Tinas husband gave P50.00; Ernesto another P50.00; and Manuel also
P50.00, for a total of P150.00. The accused-appellant was not able to buy the abovementioned items because as he stepped out of Tinas place, he saw a Ford Fiera
whose passengers, led by a certain Lt. Carbonell, went down and held him "for
verification only." After he was ordered to board the Ford Fiera, his P150.00 was
taken. He was told that it would be returned once they reached the precinct.
However, upon reaching Precinct 5, he was locked-up and was asked to produce a
substantial amount of money in exchange for his release. He was shown a red clutch
bag full of marijuana leaves and was told that if he had money, the clutch bag would
not be his, however, if he did not, he would "own" the clutch bag. He was threatened
and ordered to write his name on the clutch bag. At around 2:00 oclock the
following morning, when P/Sgt. Carbonell and the rest of the group were no longer
around, Pat. Orolfo took him out of his cell and subjected him to an investigation
which lasted until 4:00 in the morning. Pat. Orolfo demanded P4,000.00 for his
release, but when he replied that he could only afford P2,000.00, Pat. Orolfo said:
"Hindi raw pwede at marami sila" (TSN, January 11, 1988, 3-26; TSN, January 25,
1988, 2-16; TSN, March 4, 1988, 3-188; TSN, April 11, 1988, 2-4). Four other
witnesses corroborated the accused-appellants version regarding the wedding party.
One Ernesto M. Estrada averred that he did not believe that accused-appellant had
sold marijuana in the evening of April 20. Not one defense witness, however, testified
that accused-appellant was not a drug-pusher nor did the latter deny that the
informant was his former "runner."cralaw virtua1aw library
After evaluating the contradicting versions, the Trial Court rejected the accusedappellants assertions, convicted him, and sentenced him to life imprisonment and to
pay a fine of P20,000.00. 1
Reaffirming his plea of innocence, the accused-appellant now, before us, faults the
Trial Court in giving credence to the testimonies of the prosecution witnesses despite
irreconcilable inconsistencies and improbabilities; in admitting the evidence of the

prosecution despite manifest violation of his constitutional rights; and in convicting


him despite the failure of the prosecution to prove his guilt beyond reasonable doubt
(Appellants Brief, 5-6, Rollo, 185-186).
After a careful and thorough review of the evidence on record, we hold that the Trial
Court did not err in giving credence to the testimonies of the prosecution witnesses.
Accordingly, we affirm the conviction rendered by the Court a quo.
While there may be some inconsistencies in the testimonies of P/Sgt. Carbonell and
Pat. Alferos, at best, these refer to insignificant details and trivial matters. The
"irreconcilable inconsistencies and improbabilities" painstakingly pointed out in
accused-appellants brief are: that P/Sgt. Carbonell testified that it was Capt.
Cablayan who received the telephone call from the informer, while Pat. Alferos said
that it was P/Sgt. Carbonell himself; that P/Sgt. Carbonell stated that the informer
came to their headquarters, whereas Pat. Alferos maintained that they met the
informer near "where the pusher was selling his wares;" that P/Sgt. Carbonell said
that the "buy-bust team" stopped at thirty (30) meters away from where the pusher
was, while Pat. Alferos admitted that the team alighted from the Ford Fiera at two
hundred (200) meters away from the residence of the Accused-Appellant.
Whether it was Capt. Cablayan or P/Sgt. Carbonell who received the call of the
informer, or whether the informer went to the headquarters or was merely met at an
agreed place, or whether the "buy-bust team" stopped at 200 or 30 meters away
from where the accused-appellant was expected, is de minimis. The irrefutable fact is
that the accused-appellant was caught in flagrante delicto as a result of the "buybust operation." The inconsistencies asserted to by the accused-appellant are too
minor to affect the credibility of the prosecution witnesses who are all law enforcers
presumed to have regularly performed their duties in the absence of convincing proof
to the contrary (Sec. 5[m], Rule 131, Revised Rules of Court; People v. Yap and
Mendoza, G.R. Nos. 87088-87089, May 9, 1990, 185 SCRA 222; People v. Mariano,
G.R. No. 86656, October 31, 1990, 191 SCRA 136). P/Sgt. Carbonell and Pat.
Alferos, both members of the Special Reaction Unit of the Narcotics Section, a unit
formed precisely to operate against drug dealers, could have had no other motive,
other than to accomplish their mission, which is to enforce the laws, particularly the
Dangerous Drugs Acts.
We have ruled, time and again, that minor inconsistencies and contradictions in the
declaration of witnesses do not destroy their credibility, but even enhance their
truthfulness as they erase any suspicion of a rehearsed testimony. As a matter of
fact, it attests to the human minds imperfection. Well-settled is the rule that
inconsistencies in the testimony of prosecution witnesses with respect to minor
details and collateral matters do not affect either the substance of their declaration,
their veracity or the weight of their testimony (People v. Payumo, G.R. No. 81751,
July 2, 1990, 187 SCRA 64, and a host of cases mentioned therein).
Indeed, when the issue raised by the accused-appellant concerns the credibility of
witnesses, this Court will not disturb the findings of the Trial Court except in case of
an evident abuse thereof. This Court, in a long line of decisions, has repeatedly held
that the findings of fact of a trial judge who has seen the witnesses testify and who
has observed their demeanor and conduct while on the witness stand are not

disturbed on appeal, unless certain facts of substance and value have been
overlooked which, if considered, may affect the outcome of the case (People v. De
Mesa, G.R. No. 87216, July 28, 1990, 188 SCRA 48; People v. Sagun, Jr., G.R. No.
86816, May 14, 1990, 185 SCRA 405: People v. Cruz, No. L-71462, June 30, 1987,
151 SCRA 609, and other cases listed therein). We perceive no misapprehension of
facts by the Trial Court in this case.chanrobles virtual lawlibrary
The accused-appellant even questions the non-presentation of the informant. On this
point, this Court has ruled that the matter of presentation of prosecution witnesses is
not for the accused-appellant or, except in a limited sense, for the Trial Court to
dictate. Discretion belongs to the city or provincial prosecutor as to how the
prosecution should present its case (People v. Sariol, G.R. No. 83809, June 22, 1989,
174 SCRA 237). Besides, the testimony of an informant in a drug case is not
essential for conviction to lie. The failure of the prosecution to present the testimony
of the informant is not fatal. The non-presentation of the informant as witness does
not weaken the prosecutions evidence, as his testimony would be merely
corroborative and cumulative (People v. Cerelegia, No. L-72353, January 30, 1987,
147 SCRA 538). What is crucial in this case is that the accused-appellant was caught
red-handed, in the act of trafficking the prohibited plant.
The accused-appellant then argues that even if assuming for arguments sake that he
was truly engaged in the illicit trade, he would not have sold right in front of his
doorstep, in full view of his inquisitive neighbors and passers-by, nor would he have
sold to Pat. Alferos, a total stranger, and for a measly sum of P20.00, considering the
gravity of the offense and the penalty of life imprisonment imposed by
law.chanrobles virtual lawlibrary
This posture has been discredited in the recent case of People v. Hilario (G.R. No.
94037, May 6, 1991), where this Court ruled:jgc:chanrobles.com.ph
"Small level drug-pushing may be committed at any place and at any time. It is
completed clandestinely and swiftly after the offer to buy is accepted and the
exchange made. The fact that the parties are in a public place and in the presence of
other people does not necessarily discourage drug pushers from plying their trade as
these may even serve to camouflage their illicit operations. Hence, the Court has
sustained convictions of drug-pushers caught selling illegal drugs at a basketball
court (People v. Paco, G.R. No. 76893, 27 February 1989, 170 SCRA 681), in billiard
halls (People v. Rubio, G.R. No. 66875, 19 June 1986, 142 SCRA 329,; People v.
Sarmiento, G. R. No. 72141, 12 January 1987, 147 SCRA 252), in front of a store
(People v. Khan, G.R. No. 71863, 23 May 1988, 161 SCRA 406), along a street at
1:45 p.m. (People v. Toledo, G.R. No. 67609, 22 November 1985, 140 SCRA 259),
and in front of a house (People v. Policarpio, G.R. No. 29844, 23 February 1988, 158
SCRA 85; all cited in People v. Paco, supra)."cralaw virtua1aw library
Accused-appellants charge of extortion by police officers has not been proven. The
Court has noted that this is the usual defense in the prosecution of drug cases. But
if, indeed, there was extortion,Accused-appellant should have come forward with
proper charges against the culprits.
We, however, agree with the accused-appellant that his signatures on the Receipt of

Property Seized (Exh. H-4); on Exhibit E, acknowledging the confiscation of the


marked bills from him (Exh. E-3); and on the Booking Sheet and Arrest Report (Exh.
I-1) are inadmissible in evidence. His conformance to these documents are
declarations against interest and tacit admissions of the crime charged, since merely
unexplained possession of prohibited drugs is punished by law (People v. Turla, No. L70270, November 11, 1988, 167 SCRA 278). They have been obtained in violation of
his right as a person under custodial investigation for the commission of an offense,
there being nothing in the records to show that he was assisted by counsel (People v.
De la Pena, G.R. No. 92534, July 9, 1991; People v. Yutuc, G.R. No. 82590, July 26,
1990, 188 SCRA 1).
We have consistently ruled that any admission wrung from the accused in violation of
his constitutional rights is inadmissible in evidence against him. 2 Once again, we
stress this ruling.
It bears emphasis, however, that the accused appellants conformity to the
questioned documents has not been a factor at all in his conviction. For even if these
documents were disregarded, still the accused-appellants guilt has been adequately
established by other evidence of record. The Trial Courts verdict was based on the
evidence of the prosecution not on his signatures on the questioned documents.
Accused-appellants denials simply can not prevail over the detailed and unshaken
testimonies of the apprehending officers who caught him red-handed selling
marijuana and who have not been shown to have had any ulterior motive to testify
falsely against Accused-Appellant.
Weighing the prosecution evidence as against the denials by the accused-appellant
including his allegation of extortion by the police officers, we find that his guilt, for
drug-pushing, has, indeed, been established beyond reasonable doubt.
WHEREFORE, the decision appealed from is AFFIRMED in toto. Costs against
accused-appellant Arturo Mauyao y Lorenzo.
SO ORDERED.
Paras, Padilla, Regalado and Nocon, JJ., concur.
Endnotes:

1. Judgment rendered by the Regional Trial Court, National Capital judicial Region, Branch 45,
Manila, Hon. Andres E. Matias, presiding.
2. Section 12(1) and (3), Article III of the 1987 Constitution provides:chanrob1es virtual 1aw
library
SEC. 12 (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 111742 March 26, 1998


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMAN MENESES Y MARIN, accused-appellant.

KAPUNAN, J.:
Eyewitness identification is vital evidence and, in most cases, decisive of the success or
failure of the prosecution.1 Subject of the Court's scrutiny in the instant criminal case is the
credibility of a child's alleged eyewitness account on which the appellant's conviction by the trial
court was solely anchored.
At around three o'clock in the early morning of December 15, 1991, thirty-three year old
Cesar Victoria was stabbed to death while sleeping by his seven-year old son Christopher in
a rented makeshift room in Tondo, Manila.
Appellant Roman Meneses was charged with the murder of Cesar Victoria, in an Information
dated December 27, 1991, which reads:
That on or about December 15, 1991, in the City of Manila, Philippines, the
said accused, with evident premeditation and treachery, did then and there
willfully, unlawfully and feloniously, with intent to kill, attack, assault and use
personal violence upon one CESAR VICTORIA y FERNANDEZ, by then and
there stabbing the latter with a fan knife (balisong) on the different parts of his
body, thereby inflicting upon the said CESAR VICTORIA y FERNANDEZ
mortal wounds which were the direct and immediate cause of his death
immediately. 2

The prosecution presented the following witnesses: Christopher R. Victoria, SPO3 Jaime
Mendoza, SPO3 Eduardo Gonzales and Medico-Legal Officer Florante Baltazar.
Christopher R. Victoria testified that he witnessed the stabbing of his father. He testified that
while he lived with his Kuya Odeng on Kasipagan Street, Tondo, on the night of December
14, 1991, he went to his father's rented makeshift room to sleep after he (Christopher) was
whipped by his brother. Christopher's other siblings lived elsewhere in Tondo and his mother
was living in Quezon. He further testified that he was awakened from sleep and saw his
father being stabbed in the heart with a "veinte nueve." After the assailant ran away,
Christopher cried.
SPO3 Jaime Mendoza, a police investigator of the Western Police District testified that on
December 15, 1991, a kagawad of Barangay 123, Zone 9, Tondo, Manila called the precinct
informing him that Cesar Victoria was found stabbed to death. With three policemen,
Mendoza immediately went to the crime scene, arriving there at around three o'clock in the
morning. Mendoza described the scene as a makeshift room about three by five square
meters. The room was connected by a divider with a door to a house owned by the Spouses
Ardiete, the victim's landlord. The policemen saw the victim's bloodied body, with several
stab wounds, lying on a wooden bed.
Mendoza testified that when he questioned Christopher, who was then in the house,
Christopher could not identify nor describe the attacker, but that the child said he could
identify him because he knew his face. On re-direct examination however, Mendoza said that
Christopher identified the assailant as appellant.
Mendoza and the policemen brought Christopher to the precinct where his statement was
taken. 3 After the appellant was arrested and turned over to the investigators on December 26,
1991, Christopher was again brought to the precinct where, during a confrontation with appellant,
Christopher identified appellant as the person who stabbed his father. 4
SPO3 Eduardo C. Gonzales testified that at about two o'clock in the morning of December
25, 1991, he arrested appellant. The arrest was based on the report of Angelina Victoria,
appellant's wife, who implicated appellant in the crime. The policemen found appellant at the
place pointed to by Angelina, which was a flower box at the corner of Tuazon and Mithi
Streets. Frisked, appellant yielded a balisong. After announcing that they were policemen
and that appellant was being arrested as the suspect in the stabbing of Cesar Victoria,
Gonzales and his companions brought appellant to Police Station No. 2. Appellant was later
transferred to the Homicide Section.
On cross-examination, Gonzales stated that he and his companions merely "invited"
appellant to go with them to the police station for investigation, but that at the police station,
appellant verbally admitted to stabbing Cesar Victoria. 5
Medico-Legal Officer Florante P. Baltazar of the Philippine National Police Crime Laboratory
conducted the autopsy on the victim. He testified in court that the cause of death of the
victim, as stated in his Autopsy Report, was "cardio-respiratory arrest due to shock and
hemorrhage secondary to stab wounds," and that the victim sustained five external injuries,
two of which were fatal. 6 He opined that based on the direction of the stab wounds, the victim

was not lying down when stabbed, but could have been standing or silting when stabbed by the
attacker who could have also been standing. 7

The lone witness for the defense was the appellant himself, Roman Meneses. He interposed
the defense of denial and alibi. Appellant testified that the victim, who was his brother-in-law,
and Christopher used to live with him and his wife Angelina, the victim's sister, in their house
at A. Tuazon Street, Tondo, Manila. On the day of the crime, appellant alleged that he was in
San Isidro, Mexico, Pampanga, and had been there since the tenth or eleventh of that
month, after he had a misunderstanding with Angelina.
He further testified that he was arrested on December 24, 1991, without a warrant after
being implicated in the crime by his wife. He was brought to the police station where he was
mauled by policemen; he never admitted though to killing Cesar Victoria, his brother-in-law.
Appellant also denied that there was animosity between him and his brother-in-law. In fact,
when Cesar was stabbed after he (Cesar) got out of prison, appellant even brought him to
the hospital and paid for his medical expenses. Appellant even sent his nephew Christopher
to school. 8
In a Decision dated July 26, 1993, the trial found appellant guilty, thus:
WHEREFORE, judgment is hereby rendered convicting the accused of the
crime of Murder, and he is hereby sentenced with the penalty of Reclusion
Perpetua.
The accused is hereby ordered to indemnify and pay the heirs of the victim
Cesar Victoria the sum of P50,000.00 as damages sustained by them on
account of the victim's death. 9
In this appeal, appellant assigns to the trial court the following errors:

I
THE TRIAL COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO
THE EVIDENCE ADDUCED BY THE DEFENSE.
II
THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF THE CRIME
CHARGED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION
TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
III
ON THE ASSUMPTION THAT APPELLANT IS GUILTY, THE TRIAL COURT
ERRED IN CONVICTING HIM OF MURDER INSTEAD OF HOMICIDE
ONLY. 10

The issue in the instant case is credibility. The judgment of appellant's conviction is anchored
entirely on the testimony of the single eyewitness, Christopher Victoria, who identified
appellant as the one who he allegedly saw stab his father.
We find that the trustworthiness of the identification of appellant by Christopher is dubious,
raising reasonable doubt in the mind of the Court as to appellant's culpability.
It was established that the crime took place in the wee hours of the morning, before the
crack of dawn, at around three o'clock. 11 The court can take judicial notice of the "laws of
nature," 12 such as in the instant case, that at around three in the morning during the Christmas
season, it is still quite dark and that daylight comes rather late in this time of year.13 Nowhere in
the description of the crime scene by witness SPO3 Mendoza in his testimony was it established
that there was light or illumination of any sort by which Christopher could see the attacker. SPO3
Mendoza testified thus:
Q You said you found the body of the victim, what (sic) did
you found (sic) at the body of the victim?
A We found the body of the victim on adjacent makeshift of
the No. 1324.
Q The makeshift room which was adjacent to the house,
whose house of that makeshift was adjacent?
A It was owned by Cesar Victoria and his son Christopher.
Q You said you interviewed a couple named Ardiete, where
did you see this couple?
A Inside the house, sir.
Q How far is that house to the house of the victim?
A Only a division within that house, only division separate.
COURT:
Q You said that the makeshift was adjacent to the house,
does the Court understand from you that the makeshift was
attach to the house?
A Part of the house, Your Honor.
Q Is there an opening on it?
A Yes, Your Honor.
Q How wide?

A The main door going to the house.


Q Did you come to know, what that makeshift was for?
A It was occupied intended for the victim Cesar Victoria and
his son, they actually rented the space.
Q So the place where you found the victim is a place which
can be used for living purposes?
A Yes, sir.
Q How did you come to that conclusion?
A Because that portion, there was a door, there was a door
before you can get inside.
FISCAL SULLA:
Q How big is that room more or less?
A More or less about three meters or five meters.
Q Now who occupied the room adjacent to the room occupied
by the victim?
A The spouses Ardiete, sir. 14
The crime took place in a makeshift room measuring about three by five square meters.
While the room had a door, there was no mention of a window which could have allowed
entry of some kind of light from the outside. It is highly improbable that a young boy, just
roused from sleep and his eyes adjusting to the unlit room, could identify the attacker, much
less identify the knife used, as Christopher did, as a "veinte nueve."
The prosecution failed to paint a crystal-clear picture of the environ by which Christopher
could have made an accurate and reliable identification of the attacker. Christopher's
testimony being improbable, is not credible. Evidence is credible when it is "such as the
common experience of mankind can approve as probable under the circumstances. We have
no test of the truth of
human testimony, except its conformity to our knowledge, observation, and experience." 15
We now consider the identification itself. We note a glaring discrepancy, not inconsequential,
in the testimony of SPO3 Mendoza regarding Christopher's identification of appellant. SPO3
Mendoza testified thus:
Q Where was the son of the victim when you arrived?
A Inside the house, sir.

COURT:
Q Did you talked (sic) to the son of the victim?
A Yes, sir.
Q What did he tell you?
A He told me he can remember the suspect whenever he
sees him again.
Q Then he can identify him?
A Yes, Your Honor.
ATTY. SARMIENTO:
Q So at the time that you were there, the son of the victim
was not able to tell you who the suspect was?
A Yes, sir.
xxx xxx xxx
Q Neither the wife nor the husband [referring to the spouses
Ardiete], nor the son tell you that they saw the killing?
A The son of the victim said that he can identified (sic) the
suspect.
Q Did you asked (sic) him if he can identify?
A Yes, sir.
Q And what did he tell you?
A He knows the face of the suspect.
Q Did you ask him the name of the suspect, if he knows him
at that time?
A He can't tell the name.
Q Did he tell you the description of the suspect?
A He can't tell the description of the suspect but he insist (sic)
that if he can see him again, he can identify. 16

During his direct and cross-examination, SPO3 Mendoza asserted that Christopher could not
name his father's attacker nor give a description; however, in his re-direct examination he
said that Christopher mentioned categorically appellant's name, Roman Meneses, thus:
Q When you responded to the scene of the crime, and talking
to Christopher Victoria who can identify the suspect, did you
asked [sic] him why he can identify the suspect?
A Yes, sir.
Q What did he say?
A He remember [sic] the face.
Q And did you ask him why he can remember the face?
A Yes, sir. Because he openly sees the face, sice (sic) he was
his uncle.
Q Did you asked [sic] the son what is the name of his uncle?
A Yes, sir.
xxx xxx xxx
Q What is the name?
A Roman Meneses. 17
This inconsistency in the testimony of SPO3 Mendoza not only tolls on his credibility as well
as the credibility of his testimony, but more significantly, casts doubt on the trustworthiness,
veracity and reliability of the alleged identification itself. Significantly, this inconsistency was
noted by the trial court with vexation, but the court merely glossed over the same, stating
that the identification of appellant by Christopher during the subsequent confrontation
rendered such inconsistency unimportant.
Even in the Advance information 18 prepared by SPO3 Mendoza on December 15, 1991, no
mention was made regarding an identification made by Christopher when questioned immediately
after the crime. Mendoza wrote:
CHRISTOPHER VICTORIA, 8 years old, son of victim, who was sleeping
beside the latter during the commission of the crime when interviewed stated
that he was awakened, while his father was being stabbed by suspect, whom
he claimed he can identify if he can see him again.
Case to be further investigated and follow-up to determine the motive behind
the knife-slaying and efforts will be exerted to establish the identity of
suspect. 19

Indeed, it taxes the credibility of Christopher's testimony that while he knew appellant prior to
the crime, being his uncle, who for some time he was staying with, he failed to point to
appellant as the attacker when questioned by the police immediately after the incident.
Wall 20 in his work on eyewitness identification expounds on the danger signals which a trial court
judge and the appellate courts should watch out for when considering identifications in criminal
cases, thus:
When a person has been the victim of a crime committed by a friend,
acquaintance, relative, or other person previously familiar to him, and
decides to make a complaint to the police, it is to be expected that he would
immediately inform them of the name (or it that be unknown, then at least the
identity) of the person whom they should arrest. The victim would normally
tell the police that he had been hit by John Smith, or that her purse had been
snatched by the grocer's delivery boy. Of course, some crimes are never
reported, for one reason or another. But once the victim decides to make a
criminal complaint, then he will almost invariably name or designate the
perpetrator of the crime immediately, if he is able to do so. The occasional
failure of a complainant to do this is a danger signal of which the courts have
sometimes taken note.
In an Idaho prosecution for rape, for example, the complaining witness
identified the defendant at the trial, but had not accused him when making
her original complaint to the police, even though he was previously known to
her. As an explanation, she testified she had not recognized him during the
commission of the crime. The ensuing conviction was reversed on the ground
that the evidence of identification was insufficient. In an lowa prosecution for
assault with intent to commit rape, the complainant was a young married
woman who had known the defendant prior to the commission of the alleged
crime. She identified him at the trial, but admitted that she had not
recognized him during the assault, for he had a veil covering his face. It was
after he left, she testified that it came to her mind that he assault, and on the
same day, she became afraid to stay alone at home while waiting for her
husband to return, and asked none other than the defendant to wait with her
a course of action that which was commented upon by the appellate court
which reversed the conviction on grounds which included the insufficiency of
the evidence of identification.
In a New York murder prosecution, the victim's widow identified the defendant
prior to her husband's killers. Although she knew the defendant prior to her
husband's death, she admitted that she had not named him to the police on
the night of the crime, and admitted also that she had told the coroner that
she had never before seen her husband's murderers. A conviction for murder
in the first degree was reversed because the trial judge had failed to charge
the jury that they should consider those facts in determining the accuracy of
the identification. And in a recent New York robbery prosecution, it was
brought out that the two women who had identified the defendant at the trial
had not immediately named him to the police, even though they had known
him previously, since he was the son of an acquaintance of one of them. The
conviction was reversed on appeal, the court stating, with respect to the
identifying witnesses, that:

If we give credence to their testimony, it appears that they


were able to and did observe fully the fact and general
appearance of one of the three alleged robbers who was
identified by them 17 months later as the defendant . . . .
Certainly, if, at the time of the incident, they had recognized
the particular individual as one whom they knew or as
resembling one with whom they were acquainted, it is
reasonable to expect that they would have given this
information promptly to the police. . . . On the state of this
record, there was no plausible explanation for the failure of
the two women, or one of them, to recognized the defendant
at the time of the robbery or, in any event, to pass along to
the police within a reasonable time information which would
have led them to identify the defendant as one of the robbers.
We realize. . . . That the issue is one of credibility and that,
generally speaking, such issued is for the trier of the facts.
Here, however, on the whole record, we have concluded that
the finding of the jury as to the guilt of the defendant . . . is
contrary to the weight of the evidence; and that, in any event,
a new trial should be had in the interests of justice.
These four cases should suffice to illustrate how the courts react to this
danger signal on the rather rare occasions when it is in the record before
them. Those occasions are rare, it is submitted, because when the point
actually arises in a case, it usually produces that reasonable doubt which
causes a jury to acquit. It may also be of some significance that when a jury
convicts despite such a glaring weakness in the identification, it is usually in
the type of case that stirs up the greatest emotions sex crimes and crimes
of violence. Common sense, however, dictates that when this danger signal
is present in a case, and the failure of the witness or complainant to do what
would normally be done, i.e., to name or designate the perpetrator of the
crime immediately, is not satisfactorily explained, no conviction should occur
or should be allowed to stand in the absence of independent and persuasive
evidence of the defendant's guilt.
The prosecution did not endeavor to explain Christopher's failure to name the attacker at the
time he was questioned immediately after the crime. From SPO3 Mendoza's testimony,
Christopher was at that time coherent and answering clearly questions from the police.
We further find objectionable Christopher's identification of appellant during a "show-up" at
the police station. As testified to by SPO3 Mendoza, "I made confrontation between them,"
referring to Christopher and appellant. SPO3 Mendoza testified on the circumstances
surrounding the "confrontation" between Christopher and appellant, thus:
Q Who was able to arrest the suspect?
A PO Eddie Gonzales sir.
Q And what did you do when you informed about this?

A I invited again the eye witness, the son of the victim.


Q And what did you do when you invited the eye witness?
A We make confrontation between the suspect and him.
Q Where?
A Inside the room sir.
Q When was that?
A Right after the suspect was arrested.
Q When was he arrested?
A December 25, 1991
xxx xxx xxx
Q And then in the confrontation between the suspect and the
eye witness, what happened?
A The eye witness positively identified the suspect as the one
who stabbed the victim.
COURT:
Who identified?
A The eye witness Your Honor.
xxx xxx xxx
FISCAL SULLA:
Q Exactly, where was the suspect when he was identified by
the witness?
A Inside the office.
Q In what Particular place inside your office?
A Crime against person, homicide. 21
xxx xxx xxx

Q So, when the accused was arrested and you were


informed about it, what did you do?
A I investigated again, after I made a confrontation between
the son of the victim and the suspect.
Q Son of the victim alone?
A Together with Angelina? 22
xxx xxx xxx

Q So the suspect was turn-over (sic) over to you?


A Yes, sir.
Q When was that?
A Day after December 25, 1992.
Q And when the suspect was turned-over to your office, who
were there?
A The night shift in charge.
Q How about the son of the victim, were (sic) he there?
A I just saw him (there) when I arrive (sic).
Q What happened when they arrived.
A I took immediately the statement of the son of the victim.
Q Did you point them the suspect?
A No, sir.
Q Was there confrontation between the suspect and the son
together with Angelina?
A Yes, sir.
Q What happened during the confrontation?
A He pin-pointed the suspect.
Q Who pin-pointed the suspect?

A The son of the victim.


Q How about Angelina?
A She did not. 23
xxx xxx xxx

Q And from that time how long did it take? When they arrive
(sic), how long (did) this Christopher Victoria identify the
suspect?
A Immediately during my investigation I made a confrontation
with the suspect and the victim, and he pin-pointed to me that
the suspect was really the one.
Q You said that the suspect was inside the jail, when you
made the investigation in your office, how far is your office to
the detention cell?
A About three meters.
Q When did the confrontation exactly took (sic) place?
A I let the son of the victim to go (sic) nearer the detention
cell.
COURT:
Did you tell something, did you asked (sic) did you tell
anything to the son before the confrontation?
A Yes, sir.
COURT:
What did the son told (sic) you?
A He told me he can.
Q And after he told you he can, what did you do?
A I made confrontation between them.
COURT:
And during the confrontation, what did the son tell you?

A He is Roman Meneses.
COURT:
Did you asked (sic) him where did he saw (sic) the person
pointed to?
A Yes, he told me that he saw him in the room they rented at
Alinia. 24
In Tuazon v. Court of Appeals, 25 the Court stated that an identification of the accused during a
"show-up" or where the suspect alone is brought face to face with the witness for
identification, 26 is seriously flawed. We stated thus:
. . . the mode of identification other than an identification parade is a showup, the presentation of a single suspect to a witness for purposes of
identification. Together with its aggravated forms, it constitutes the most
grossly suggestive identification procedure now or ever used by the police
(SeeLouisell, David W., Kaplan, John, and Waltz, Jon R., Cases and
Materials on Evidence; Wall, Eyewitness Identification in Criminal Cases,
1968 ed., p. 1263)
In the Tuazon case, during a first encounter in the National Bureau of Investigation (NBI)
headquarters, the accused therein was pointed to by the alleged eyewitnesses after an NBI
agent first pointed him out to them. The Court said that "[the eyewitnesses'] Identification of
[petitioner] from a [subsequent] line-up at the NBI was not spontaneous and independent. An
NBI agent improperly suggested to them petitioner's person." 27
From Mendoza's testimony we can gather that appellant was presented as the suspect in the
crime to Christopher inside Mendoza's office in the Homicide Section of the police station, or
later in the detention cell the boy was made to approach. While Mendoza did not literally
point to appellant as in the Tuazon case, equally pervasive in the "confrontation" in the
instant case is what Wigmore calls "the suggestion of guilty identity." 28
Even applying the totality of circumstances test set in People v. Teehankee, Jr., 29 formulated
and used by courts in resolving the admissibility and reliability of out-of-court identifications, we
must hold the identification of appellant by Christopher to be seriously flawed. The test lists three
factors to consider:
. . . (1) the witness' opportunity to view the criminal at the time of the crime;
(2) the witness' degree of attention at that time; (3) the accuracy of any prior
description given by the witness; (4) the level of certainty demonstrated by
the witness at the identification; (5) the length of time between the crime and
the identification; and, (6) the suggestiveness of the identification process.
(See Neil v. Biggers, 409 US 188 (1973); Manson v. Brathwaite, 482 US 98
(1977); Del Carmen, Criminal Procedure, Law and Practice, 3rd Edition., p.
346)

Indeed, we cannot discount the angle that young Christopher was influenced by prior
prompting or manipulation by an adult, his aunt Angelina. Rather than reinforce the
identification, the circumstances pointed out by the trial court plants in mind the plausibility
that appellant's wife Angelina could have coached the young impressionable Christopher.
These circumstances are:
First, was the insistence of [appellant's] wife as testified by the accused
himself, that he was the one who killed the victim, and was pointed to by her
as the assailant, thus, he was arrested. Another was the resentment of the
accused against his brother-in-law-victim brought about by the latter's
intervention in that serious quarrel between him and his wife. Thirdly, that the
accused no doubt disliked the financial support and subsistence being given
by his wife to the victim.
Quite revealingly, Angelina was the one who went to the police to implicate appellant in the
crime and who directed the police to where he could be found. She later herded Christopher
to the police station for the boy to give his statement. She was also with the boy when he
was made to identify appellant during the "confrontation." We see Angelina's actuations as
suspect, especially when we consider that per SPO3 Mendoza's testimony, when he
questioned Christopher immediately after the crime, the boy could not simply name the
attacker.
And while the above circumstances, particularly, the supposed resentment of appellant
against the victim, who was his wife Angelina's brother, and envy proceeding from Angelina's
giving financial support to the victim may constitute motive, motive alone, without credible
positive identification, cannot be a basis for conviction. 30
The People points out that appellant had verbally admitted having committed the crime at the
time of his arrest and later during the conduct of the investigation. 31 The appellant however
during the trial denied having made such verbal admissions of guilt. Granting arguendo that
appellant indeed made such verbal admissions, the same would not be admissible in evidence
against him because the constitutional preconditions for its admission were not complied with.
The mere assertion by a police office that after an accused was informed of his constitutional right
to remain silent and to counsel he readily admitted his guilt, does not make the supposed
confession admissible against the purported confessant. 32 Here, it was not even shown that
appellant's supposed admissions of guilt were made with benefit of counsel. 33
It is conceded that appellant's defense of alibi is weak. 34 The settled rule however is that
conviction should rest on the strength of the prosecution and not on the weakness of the
defense. 35 The onus is on the prosecution to prove the accused guilty beyond reasonable doubt,
in view of the constitutional presumption of the innocence of the accused. 36 We must rule that the
prosecution failed to so discharge its burden.
WHEREFORE, in view of the foregoing, the Decision dated July 26, 1993 of the Regional
Trial Court of Manila, National Capital Judicial Region, Branch 34 in Criminal Case No. 91101878 convicting appellant ROMAN MENESES y MARIN is REVERSED and appellant is
ACQUITTED of the crime charged on the ground of reasonable doubt. The Court orders his
RELEASE from commitment unless he is held for some other legal cause or ground.
Costs de oficio.

SO ORDERED.
Narvasa, C.J., Romero and Purisima, JJ., concur.
Footnotes
1 People v. Teehankee, Jr., 319 Phil. 128, 179 (1995).
2 Record. p. 1.
3 Referred to as Exhibit "A," Note that Christopher Victoria's Salaysay is dated December 26,
1991.
4 TSN, May 26, 1992, pp. 3-22.
5 TSN, July 6, 1992, pp. 3-14.
6 Exhibit "D-3."
7 TSN, October 27, 1992, pp. 3-13.
8 TSN, November 12, 1991, pp. 2-24.
9 Rollo, p. 21.
10 Rollo, p. 26.
11 TSN, SPO3 Jaime Mendoza, May 26, 1992, p. 4; Advance Information dated December 15,
1991 (Exhibit "B"); Additional Information dated December 26, 1991 (Exhibit "C").
12 Section 1, Rule 129, Revised Rules of Court.
13 People v. Madera, 57 SCRA 349 (1974), where the Court took judicial notice of the time
when the moon rises or sets on a particular day. Cites Francisco's Evidence, Vol. VII, Part I, p.
80.14 TSN, SPO3 Jaime Mendoza, May 26, 1992, pp. 4-6.
15 People v. Abellanosa, 264 SCRA 722, 735 (1996) citing People v. Escalante, 238 SCRA 554
(1994).
16 TSN, May 26, 1992, pp. 12-14, emphasis supplied.
17 Id., at 19, emphasis ours.
18 Records, p. 5.
19 Records, p. 5.
20 Wall, Eyewitness Identification in Criminal Cases, 1968 ed., pp. 95-97.
21 TSN, May 26, 1992, pp. 8- 10.
22 Id., at 16.
23 TSN, May 26, 1992, pp. 17-18, emphasis supplied.
24 TSN, May 26, 1992, pp. 21-22.
25 311 Phil. 812 (1995).
26 See note 1, at p. 180.
27 Id., at 827.
28 Wall, supra note 20, citing Wigmore, Corroboration by Witness' Identification of an Accused
on Arrest, 25 III, L. Rev. 550, 55, (1991).
29 See note 1, p. 180.
30 People v. Mallari, 241 SCRA 113 (1995); People v. Dayson, 242 SCRA 113 (1995).
31 Brief for Appellee, p. 14-15; Rollo, pp. 93- 94.
32 People v. Duhan, 142 SCRA 100 (1986).
33 People v. Cabintoy, 317 Phil. 528 (1995).
34 See People v. Talla, 181 SCRA 133 (1990) citing People v. Anquillano, 149 SCRA 442 (1987);
People v. Acelajado, 148 SCRA 142 (1987).
35 See Duran v. Court of Appeals, 71 SCRA 68 (1976); People v. Solis, 182 SCRA 182
(1990) citingPeople v. Hora, 153 SCRA 21 (1987).
36 Sec. 14 (2), Art. III of the 1987 Philippine Constitution.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 138934-35

January 16, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ANTHONY ESCORDIAL, accused-appellant.
MENDOZA, J.:
These cases are before this Court for review from the decision, 1 dated February 26, 1999, of
the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant Anthony
Escordial guilty of robbery with rape and sentencing him to death and to pay private
complainant Michelle Darunday the amounts of P3,650.00 representing the amount taken by
him, P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs.
In Criminal Case No. 97-18117, the information against accused-appellant charged him with
the crime of rape committed as follows:
That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines,
and within the jurisdiction of this Honorable Court, the herein accused armed with a
deadly weapon, a knife, by means of force, violence and intimidation, did, then and
there willfully, unlawfully and feloniously have carnal knowledge of the complainant
Michelle Darunday y Jintula, against the latter's will.
All contrary to law and with the aggravating circumstance that the said offense was
committed in the dwelling of the said party during nighttime while [she] was asleep
inside her room.
Act contrary to law.2
In Criminal Case No. 97-18118, the information charged accused-appellant with robbery with
rape as follows:
That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, armed with a
deadly weapon, a knife, with intent of gain and by means of violence and intimidation
on the person, did, then and there willfully, unlawfully and feloniously take from
Michelle Darunday y Jintula the sums of P3,650.00, belonging to said offended party
and [on] the occasion thereof have carnal knowledge with the complainant Michelle

Darunday y Jintula, against her will, and inside her room wherein she was
temporarily residing as a boarder.
All contrary to law and with aggravating circumstance that the said offense was
committed inside the dwelling of the offended party and during nighttime the latter not
having given provocation for the offense.
Act contrary to law.3
When arraigned on February 25, 1997, accused-appellant pleaded not guilty to the charges,
whereupon the two cases were jointly tried.
The prosecution presented eight witnesses, namely, Jason Joniega, Mark Esmeralda, Erma
Blanca,4 Dr. Joy Ann Jocson, PO3 Nicolas Tancinco, Leo Asan, Ma. Teresa Gellaver, and
Michelle Darunday. Their testimonies are as follows:
Jason Joniega and Mark Esmeralda testified that at around 8 o'clock in the evening of
December 27, 1996, they and Mark Lucena were playing inside a jeepney parked in front of
a boarding house owned by Pacita Aguillon5 at No. 17 Margarita Extension, Libertad St.,
Purok Amelia 2, Barangay 40, Bacolod City. As one of them hit his head on the rails of the
jeepney, the boys were told by a man sitting inside the jeepney to go home lest they would
meet an accident. The man was later identified by Jason Joniega and Mark Esmeralda as
accused-appellant.6
Living in a boarding house in front of which the jeepney was parked were Michelle Darunday,
Erma Blanca, and Ma. Teresa Gellaver. They stayed in a bedroom on the ground floor. That
same night, December 27, 1996, Teresa went to sleep at around 9:30 p.m., while Michelle
and Erma watched television for a while before going to bed. They slept beside each other
on two beds placed side by side, with Teresa nearest the wall, Michelle in the middle, and
Erma on the other side.
While the three were asleep, Erma was awakened by the presence of a man. The man had
his head covered with a t-shirt to prevent identification and carried a knife about four inches
long. He warned Erma not to shout or he would kill her. He then asked Erma where her
money was, and the latter pointed to the wall where she had hung the bag which contained
her money. Michelle, who by then was already awake, told Erma to give the man her money
so he would leave. Erma gave the man P300.00, but the latter said to give him all her money.
He told Erma that he would look for more money and, if he found more, he would kill her. For
this reason, Erma gave the rest of her money. Afterwards, she was told to lie on her side
facing the wall. The man then turned to Michelle and Teresa. Michelle gave him her money,
but Teresa said her money was in the other room. However, she was not allowed to leave the
bedroom. The man was able to get P500.00 from Erma and P3,100.00 from Michelle.
After getting their money, the man gave a t-shirt to Erma to blindfold Teresa and another to
Michelle to blindfold Erma. He blindfolded Michelle himself and then began touching her in
different parts of her body. He ordered her to take off her t-shirt, threatening to kill her if she
did not do as he commanded. He then went on top of Michelle and tried to insert his penis
into her vagina. As he had difficulty doing so, he instead inserted his two fingers. He tried
once more to insert his penis, but again failed. The man then rose from the bed and took

some soapy water, which he proceeded to insert into Michelle's vagina. He finally succeeded
in inserting his penis into Michelle's vagina. Michelle felt great pain and pleaded with the man
to stop, but the man paid no heed, and only stopped after satisfying his lust.
Michelle said that although she was blindfolded and could not see, she could feel that the
man had no cover on his face when he was raping her. She felt that his chest was rough and
had some scars. When he placed her hands on his nape, she felt that it was also rough.
On the other hand, Erma claimed she was able to see through her blindfold and that she saw
the man's face because of the light coming from the lamp post outside the boarding house.
Their bedroom window had panes through which the light filtered in.
After he had finished raping Michelle, the man sat on the bed and talked to the three women.
He told Michelle that he used to make catcalls at her and called her a beautiful girl whenever
she passed by his place but Michelle had ignored him. He told them that he was from
Hinigaran, but later took back his statement when Teresa told him that she was from
Binalbagan, which was near Hinigaran. Michelle then told him that she worked at the City
Engineer's Office and graduated from the Central Mindanao University. The man cussed
when he learned that Michelle was from Mindanao. As he spoke to Michelle, he leaned over
the bed and mashed the breasts of Erma and Teresa.
After a while, the man told Michelle he wanted to have sex with her again. Michelle pleaded
with him, but the man threatened to call his companions and said it would be worse for her if
his companions would be the ones to rape her. He ordered Michelle to lie on her stomach
and then inserted his penis into her anus. When he was through, he gave Michelle a blanket
to cover herself and returned to her a pair of earrings which he had taken from her. He then
left, but not before warning the women not to report the matter to anyone or he would kill
them.7
Mark Esmeralda testified that he was in his bedroom on the second floor of their house,
toying with a flashlight, when he saw from his bedroom window a man wearing denim shorts
coming out of the boarding house. It was around 12:30 in the morning then. The man was
nibbling something. Mark saw the man jump over the fence. After 30 minutes, Mark went
down from his room and told his parents what he had seen. His parents then went out to
check what had happened. Mark identified accused-appellant as the man he saw that night. 8
Michelle, Erma, and Teresa were so frightened that they were not able to ask for help until 30
minutes after the man had left. They told their neighbor, Tiyo Anong, that a man had come to
the house and robbed them. They also called up Allan Aguillon, the son of the owner of the
boarding house, who in turn reported the incident to the police. When the policemen arrived,
they asked Michelle to describe the assailant, but she told them that she could only identify
his voice and his eyes. Accompanied by the police, the three women looked for the man
around the Libertad area, but they did not find him. Michelle, Erma, and Teresa were taken to
the police station at Bac-Up 6 for investigation. But, at Michelle's request, Erma and Teresa
did not tell the others that Michelle had been raped by their attacker.
Upon returning home, Michelle found her aunt and uncle. She embraced her aunt and told
her about her ordeal. Michelle was again taken to the police headquarters, where she was

referred to the Women's Desk to report the rape. They were able to go home to the house of
Michelle's aunt at around 5 to 6 o'clock in the evening. 9
PO3 Nicolas Tancinco, one of the policemen who responded to the report shortly after the
commission of the crime, also testified for the prosecution. He said that the assailant was
described to him as wearing long hair and having a rough projection on the back of his neck,
small eyes, a slim body, and a brown complexion. Later on, Michelle Darunday,
accompanied by Allan Aguillon, returned to the police station to report the rape committed
against her. Tancinco entered her complaint in the police blotter and referred Michelle to the
Women's Desk.
In the morning of December 28, 1996, Tancinco returned to the boarding house. He found
that the intruder was able to gain entry to the house through the window of the bathroom. He
noticed that the room beside those of the three women had been ransacked, with the
cabinets opened and the clothes in disarray.
The following day, on December 29, 1996, Tancinco went around Margarita Extension and
learned about the children playing on the street around the time the intruder entered the
boarding house. He was told by Mark Esmeralda and Jason Joniega that they saw a man
inside the jeepney where they were playing at the time of the incident. Tancinco was likewise
informed by Esmeralda that the person he saw inside the jeepney was the same person he
saw coming out of the boarding house later that night. According to Tancinco, the children
said that they could identify the man if he was shown to them. At around 8 o'clock that
evening, Tancinco questioned a certain Tiyo Anong and Ramie about the identity of the
suspect. Ramie said that the description of the suspect fitted that of a worker at a caf called
Coffee Break Corner, about two houses away from the boarding house.
Thus, on January 2, 1997, Tancinco and some companions proceeded to the Coffee Break
Corner and interviewed the security guard, who told them that a certain Fidel Hinolan owned
the caf. When interviewed by Tancinco and his companions, Fidel Hinolan told them that
accused-appellant was his helper and that the latter had gone home on December 27, 1996
to Barangay Miranda, Pontevedra, Negros Occidental.
Based on the information furnished by Hinolan, Tancinco and his fellow police officers,
Michelle Darunday, Allan Aguillon, and Pacita Aguillon went to Barangay Miranda,
Pontevedra, Negros Occidental at around 10 o'clock in the morning of January 3, 1997 and
asked the assistance of the police there to locate accused-appellant. PO2 Rodolfo Gemarino
asked one of his colleagues at the Pontevedra police to accompany Tancinco and his
companions. They found accused-appellant at the basketball court and "invited" him to go to
the police station for questioning.10
Michelle Darunday remained at the Pontevedra police station. When accused-appellant was
brought there, he saw Michelle and blushed. Michelle looked at him and recognized him as
the man who had robbed and raped her on December 27, 1996. Accused-appellant was
asked to take off his t-shirt. Michelle said that she just kept quiet while accused-appellant
tried to talk to her. However, according to Tancinco, Michelle confirmed to him that accusedappellant was the man who had attacked her, identifying him through a rough projection, or a
keloid, on the back of his neck and his voice. At the time of his arrest, accused-appellant had
a short haircut. He was transferred to the Bacolod police station for further

investigation.11 Allan Aguillon took a picture of accused-appellant (Exh. F) at the Pontevedra


police station.12
At the Bacolod police station, Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark
Esmeralda were asked whether accused-appellant was the same person they saw on the
night of the incident. They were taken one by one to the jail cell and asked to point to the
person that they had seen that night. They picked accused-appellant out of four people who
were inside the jail cell.13
Michelle Darunday executed an affidavit, dated January 4, 1997, identifying accusedappellant as the person who had robbed and raped her.14 She testified that she and her
friends had gone to the Coffee Break Corner sometime in September or October 1996. On
the way home, she was approached by accused-appellant. He asked Michelle what her
name was, and she gave it to him, albeit reluctantly. She usually passed by the said caf
when going home and accused-appellant would often whistle at her and call her a beautiful
girl. Michelle had simply ignored him and gone on her way.15
Dr. Joy Ann C. Jocson, Medical Officer IV of the Bacolod City Health Department, examined
Michelle Darunday and made the following findings and remarks:
1. Abrasions noted on the right and left Labia Minora and on the posterior fourchette.
2. New Lacerations noted on the hymenal ring on the following location 1 o'clock
position, 3 o'clock position, and 9 o'clock position.
3. Vaginal introitus admits 2 fingers but with pain.
4. Presently, patient with menstruation.
In my opinion, the patient would need a urinalysis (since she complains of pain upon
urination) and possible Medical treatment if necessary, for about 7 to 10 days. And if
necessary, psychiatric evaluation & management is also recommended. 16
Testifying in court, Dr. Jocson said there was penetration of the victim's vagina as shown by
the fact that the hymenal rim had lacerations at the 1, 3, and 9 o'clock positions. Since the
edges of the lacerations were sharp, she concluded that these lacerations were less than a
week old at the time of the examination. According to Dr. Jocson, these were caused by
abrasions due to force or pressure applied on the vaginal area. When asked during crossexamination whether the victim had abrasions or contusions on her body at the time of her
examination, Dr. Jocson said that she could not remember. She could not remember either
whether there was sperm in the victim's vagina when she examined the latter. She said that
no sperm specimen had been taken from the victim. She testified that it could not be
determined how many times the victim had previously engaged in sexual intercourse
because this would depend on the elasticity of the victim's hymen. She opined, however, that
it would be less than 10 times in the case of the victim. Dr. Jocson stated it was possible the
victim agreed to have sexual intercourse voluntarily based on the lack of marks of violence
on the latter, although it was also possible that she was merely forced to have sex because
she was threatened. On re-direct examination, she stated it was possible that seminal fluid
was not found on the victim's private parts because the victim was having her monthly

period. She said the lacerations on the victim's vagina would result whether the sexual
intercourse was voluntary or involuntary on the part of the victim.17
Leo Asan, an employee at the City Health Office in Bacolod, testified that the medical
certificate presented by the prosecution, which was undated, was a faithful reproduction of
what was written by Dr. Joy Ann Jocson on January 3, 1997 in the logbook. 18
The defense presented as its witnesses Elias Sombito, Aaron Lavilla, PO2 Rodolfo
Gemarino, Ricardo Villaspen, Nestor Dojillo, accused-appellant Anthony Escordial, Jerome
Jayme, and Lucila Jocame. These witnesses gave a different account of the events that led
to the arrest of accused-appellant. Their version is as follows:
Accused-appellant testified that he was employed by Fidel Hinolan on January 21, 1996. He
said he started on August 6, 1996 as a dishwasher and was later made cashier. Accusedappellant said that he went home to Pontevedra, Negros Occidental on December 24, 1996,
arriving there at 2 o'clock in the afternoon. Hinolan paid him P500.00, which he gave to his
mother as his Christmas gift. He dropped by the house of Aaron Lavilla. At 5:30 p.m., he
returned to Coffee Break Corner in Bacolod City.
In the evening of December 26, 1996, accused-appellant asked permission from Hinolan to
go home to Pontevedra to stay there until January 1997 as the restaurant would be closed
anyway during this period. Hinolan gave accused-appellant his permission and paid the latter
his salary of P600.00 as well as a P200.00 bonus. Hence, at 2 o'clock in the afternoon of
December 27, 1996, accused-appellant took the bus home, arriving in Barangay Miranda,
Pontevedra, Negros Occidental an hour later. He went straight home to his mother and gave
her P600.00, telling her to use P400.00 for New Year's Day.19
Accused-appellant also saw Elias20 Sombito, who told him to look for Aaron Lavilla because a
cockfight derby was being held that day in their barangay. Accused-appellant, therefore,
looked for Aaron Lavilla and found him at the basketball court. Aaron's mother asked
accused-appellant to help her bring to the cockpit some cases of beer which she planned to
sell there. Accused-appellant obliged.
At the cockpit, Elias Sombito asked him to take care of his cocks. Accused-appellant asked
Aaron Lavilla to go with him to the cockpit, but the latter continued playing basketball and
only proceeded to the cockpit after the game was finished. The derby ended at around 9
o'clock in the evening.
At about 10 o'clock that night, accused-appellant and Aaron Lavilla went to the latter's house
and slept there. The following day, December 28, 1996, accused-appellant helped Aaron
Lavilla's mother with the household chores, cutting the grass and feeding the cocks. He
stayed in Barangay Miranda until January 3, 1997. 21 Accused-appellant's testimony as to his
whereabouts from December 27, 1996 to January 3, 1997 was corroborated by Elias
Sombito22 and Aaron Lavilla.23
As to the circumstances of accused-appellant's arrest, PO2 Rodolfo Gemarino and Ricardo
Villaspen testified that at around 11 o'clock in the morning of January 3, 1997, three
members of the Bacolod police, led by PO3 Nicolas Tancinco, went to the headquarters of
the Pontevedra police to ask for help in locating a person named Anthony Escordial, said to

be a resident of Barangay Miranda, Pontevedra, Negros Occidental, who was wanted in


connection with a case for robbery with rape. Although Tancinco and his companions showed
their mission order to Gemarino, they did not show a warrant for accused-appellant's arrest.
Nonetheless, Gemarino told PO2 Gella of the Pontevedra police and Ricardo Villaspen, the
tanod commander of Barangay Miranda, to help the Bacolod policemen look for accusedappellant. The group left the police station, although Tancinco's other companions, Michelle
Darunday and Pacita Aguillon, stayed in the headquarters.24
The arresting party, composed of Tancinco, PO2 Gella, and Villaspen, proceeded to the
house of accused-appellant in Barangay Miranda, but the latter was not there. They found
accused-appellant at the basketball court watching a game. After informing him that he was
a suspect in a robbery case, the group invited accused-appellant to go with them to the
police headquarters.
Nestor Dojillo, the barangay captain of Barangay Miranda, was at the police station. He
testified that when accused-appellant, together with Tancinco and his companions, arrived at
the police station, he (Nestor Dojillo) followed them to the investigating room. Inside the
room were Michelle Darunday, three members of the Bacolod police, Villaspen, and
Gemarino. Gemarino asked Michelle if she could identify accused-appellant as her attacker,
but the latter said that she could do so only if she could see a lump on his back. Gemarino
told accused-appellant to take off his t-shirt. When accused-appellant did as Gemarino
ordered, Michelle looked at his back for identifying marks, while Allan Aguillon took his
photograph. Gemarino then asked Michelle whether accused-appellant was her attacker, but
she replied that she was not sure because the attacker was wearing a mask when she was
raped. The Bacolod policemen requested Gemarino to allow them to bring accused-appellant
to Bacolod City as they still had some witnesses who could identify the suspect there.
Accused-appellant was allowed to go with them after Dojillo and Gemarino asked the
Bacolod policemen not to harm him.25 Dojillo's testimony was corroborated by the testimonies
of PO2 Rodolfo Gemarino,26 Ricardo Villaspen,27 and accused-appellant.28
Accused-appellant further testified that on the way to Bacolod City, PO3 Tancinco began
beating him and hitting him with the butt of a shotgun to force him to admit liability for the
crime. Because accused-appellant refused to do so, he was taken by Tancinco and his
companions to a lodging house where he was subjected to torture. Accused-appellant was
told to take off his clothes and to lie down. PO3 Tancinco and his companions then
proceeded to hit him with a belt. Afterwards, they covered his mouth and took him to the
bathroom. Tancinco put a knife to his neck, telling him that he would be killed if he refused to
admit that he was the culprit. As he continued to deny liability for the crime, accusedappellant was subjected to further torture. Later on, the driver entered the room and brought
with him a child, whose head was covered, who was instructed to identify accused-appellant.
The child, however, did not react upon seeing accused-appellant, who was thus brought
back to the headquarters where he was again maltreated. Accused-appellant said that he
was left alone in his cell and tied to a chair. He also said that at around 8 o'clock that
evening, two of the complainants arrived and the police told them to identify accusedappellant as their attacker. But these two complainants just kept looking at accusedappellant and even asked the policemen if he was the suspect.
After the two women had left, PO3 Tancinco took accused-appellant to a house so that he
could be identified by another complainant. But this complainant likewise said that he was

not the assailant, as the latter had a heavier build and longer hair. Accused-appellant was
returned to the police headquarters.
At the headquarters, PO3 Tancinco talked to accused-appellant and told him that he would
help him if accused-appellant confessed to the crime. But accused-appellant again refused
because he said he had not done anything wrong. The police then began beating him up
again. PO3 Tancinco burnt accused-appellant's lips and tongue with a lighted cigarette. 29
At around 12:00 noon of January 6, 1997, Gemarino, Dojillo, and Villaspen, together with
accused-appellant's grandfather, a certain Inspector Tamayo, and reporters from Bombo
Radyo, went to the Bacolod police station to visit accused-appellant. They found him tied to a
chair. When they entered the cell, accused-appellant, thinking that they were members of the
Bacolod police, held up his hands and asked for pity. The visitors assured accused-appellant
that they would not hurt him. Accused-appellant had a limp because his feet were injured.
For this reason, Dojillo and his companions asked the Bacolod police to let them take
accused-appellant to the hospital for treatment. Accused-appellant was thus brought to the
provincial hospital in Bacolod for x-ray and medical treatment. He was taken back to the
police station thereafter.30
Lucila Jocame, Records Officer of the Corazon Locsin Montelibano Memorial Regional
Hospital (CLMMH), identified in court31 the medical certificate (Exh. 12) issued by the said
hospital, showing the injuries sustained by accused-appellant, to wit:
# 5 CM LINEAR ABRASION WITH CONTUSION HEMATOMA LEFT SCAPULAR
AREA.
# 1 CM LINEAR ABRASION RIGHT SCAPULAR AREA.
# 4 x 2 CM CONTUSION HEMATOMA LEFT LATERAL CHEST LEVEL OF T12.
# 2 x 2 CM CONTUSION HEMATOMA M/3 RIGHT LEG ANTERIOR ASPECT.
# 2 x 4 CM CONTUSION HEMATOMA RIGHT KNEE LATERAL ASPECT.
# 3 x 3 CM SWELLING AND TENDER LEFT ANKLE.
# 1 x 1 CM CONTUSION HEMATOMA D/3 RIGHT LEG POSTERIOR ASPECT.
# 1 x 1 CM CONTUSION HEMATOMA M/3 RIGHT THIGH POSTERIOR ASPECT.
# 2 x 2 CM CONTUSION HEMATOMA RIGHT PERI AURICULAR AREA.
X-RAY # 280 dated January 6, 1997: SKULL APL: CHEST BUCKY RIGHT THIGH:
APL: RIGHT AND LEFT FOOT APO.
"No Radiographic evidence of fracture in this examination." 32

The last witness presented by the defense was Jerome33 Jayme, General Manager of Royal
Express Transport, Inc., who testified that the last bus trip from Kabankalan to Bacolod on
December 27, 1996 left at 6 o'clock in the evening. The trip from Kabankalan to Barangay
Miranda, Pontevedra, Negros Occidental would take one hour. On cross-examination, Jayme
stated that the said bus would reach Bacolod City by 7:40 to 8:00 p.m. if it left Kabankalan at
6:00 p.m. His company's buses were not allowed to pick up passengers along the way to
Bacolod City because of the incidence of highway robbery. Jayme identified in court a
certification (Exh. 12-a) he issued which stated that the last bus trip of their company on
December 27, 1996 was at 6:00 p.m.34
On February 26, 1999, the trial court rendered a decision, the dispositive portion of which
stated:
WHEREFORE, it is the well-considered view of this court, after a thorough,
painstaking and exhaustive review and examination of the evidence adduced in this
case, that the accused ANTHONY ESCORDIAL y GALES, is GUILTY, beyond a
reasonable doubt of the crime of Robbery with Rape, punished under Art. 294,
paragraph 1 of the Revised Penal Code, as amended. The commission of the crime
was attended by three aggravating circumstances of nighttime, that the crime was
committed in the dwelling of the offended party, and that craft, fraud and disguise
were employed by the accused in the commission of the crime under paragraphs 3,
6, and 14 of Art. 14 of the Revised Penal Code. There is no mitigating circumstance.
Applying Article 63, paragraph 1, the accused is hereby sentenced to the maximum
penalty of DEATH.
He is also condemned to pay private complainant the sum of P3,650.00,
representing the money taken by the accused; P50,000.00 as moral damages,
P30,000.00 as exemplary damages, and the costs.
SO ORDERED.35
Hence this appeal. Accused-appellant contends that:
1. THE COURT A QUO ERRED IN DISREGARDING THE DEFENSE OF THE
ACCUSED TO THE EFFECT THAT ANTHONY ESCORDIAL CAN NEVER BE THE
ROBBER-RAPIST WHO RAVISHED MICHELLE DARUNDAY ON THAT FATEFUL
NIGHT OF DECEMBER 27, 1996, AS THE FORMER (ESCORDIAL) DID NOT HAVE
THE QUALITIES, CHARACTER AND EXPERTISE OF THE LATTER (ROBBERRAPIST).
2. THE COURT A QUO ERRED IN CONCLUDING THAT THE DESCRIPTION OF
THE ASSAILANT AS DESCRIBED BY THE COMPLAINANT AND HER WITNESSES
FIT WITH THAT OF HEREIN ACCUSED, THE TRUTH OF THE MATTER IS THAT
THERE WAS NO DESCRIPTION OF THE ASSAILANT EVER MADE BY ANYBODY
PRIOR TO THE "WARRANTLESS ARREST" OF THE ACCUSED. THE AFFIDAVITS
OF THE COMPLAINANT AND HER WITNESSES WERE IN FACT DRAFTED,
EXECUTED AND SIGNED ONLY SEVERAL DAYS AFTER THE ACCUSED WAS
BROUGHT INTO THE CUSTODY OF THE BACOLOD POLICE.

3. THE COURT A QUO ERRED IN DISREGARDING THE TESTIMONIES OF


WITNESSES PO2 RODOLFO GEMARINO (DEP. CHIEF OF POLICE OF
PONTEVEDRA), BRGY. CAPT. NESTOR DOJILLO (BRGY. CAPT. OF MIRANDA
AND THEN MEMBER OF THE SANGGUNIANG BAYAN OF PONTEVEDRA), AND
RICARDO VILLASPEN (THEN COMMANDER OF BARANGAY TANOD IN
PONTEVEDRA) TO THE EFFECT THAT MICHELLE DARUNDAY FAILED TO
IDENTIFY THE ACCUSED DURING THEIR ENCOUNTER IN PONTEVEDRA
POLICE STATION.
4. THE COURT A QUO ERRED IN NOT EXCLUDING ALL EVIDENCES,
TESTIMONIAL AND DOCUMENTARY, OBTAINED BY THE PROSECUTION
DURING THE WARRANTLESS ARREST OF THE ACCUSED AND THE LATTER'S
SUBJECTION TO CUSTODIAL INVESTIGATION WITHOUT LETTING HIM KNOW
OF HIS CONSTITUTIONAL RIGHTS, PARTICULARLY HIS RIGHT TO COUNSEL
OF CHOICE.
5. THE COURT A QUO ERRED IN CONCLUDING THAT PROSECUTION
WITNESSES WERE ABLE TO POSITIVELY IDENTIFY THE ACCUSED IN A
POLICE LINE UP DESPITE THE FACT THAT OF THE PERSONS BEING LINED UP
ONLY THE ACCUSED WAS HANDCUFFED.
6. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF
PROSECUTION WITNESSES TO THE EFFECT THAT THEY WERE ABLE TO
IDENTIFY THE ASSAILANT BY FACE THAT VERY EVENING OF DECEMBER 27,
1996 AMIDST THE IMPOSSIBILITY OF DOING THE SAME, GIVEN THE
DISTANCE, THE INTENSITY OF LIGHT, AND THE TERRIFYING SITUATION,
WHICH ALL OBSCURE, IF NOT DESTROY, THE CLARITY OF HUMAN MEMORY
AND PERCEPTION.
7. THE COURT A QUO ERRED IN CONCLUDING THAT THE DEFENSE FAILED
TO SHOW THE IMPOSSIBILITY OF ACCUSED TO GO TO BACOLOD THAT
EVENING OF DECEMBER 27, 1996, DESPITE OVERWHELMING EVIDENCE
SUBMITTED, BY SIMPLY RELYING ON THE POSSIBILITY OF THE ACCUSED
TAKING A CARGO TRUCK FROM PONTEVEDRA TO BACOLOD.
8. THE COURT A QUO ERRED IN CONCLUDING THAT ACCUSED ANTHONY
ESCORDIAL HAD MOTIVE TO COMMIT THE CRIME CHARGED BASED ON A
WRONG PREMISE THAT THE DEFENSE ALLEGEDLY DID NOT REFUTE THE
ALLEGATIONS OF THE COMPLAINANT THAT ACCUSED ATTEMPTED TO BE
ACQUAINTED WITH THE COMPLAINANT AND WHISTLED AT THE LATTER
SEVERAL TIMES.36
The issues raised by accused-appellant concern (1) the alleged violations of his
constitutional rights and the consequent admissibility of the evidence against him and (2) the
credibility of the prosecution witnesses.
I. Alleged Violations of Accused-appellant's Constitutional Rights

A. Accused-appellant questions the legality of his arrest without a warrant. Indeed, PO3
Nicolas Tancinco admitted that he and his companions had arrested accused-appellant
without any warrant issued by a judge.37 Art. III, 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.
To implement this provision, Rule 113, 5 of the Revised Rules of Criminal Procedure
provides that a peace officer or a private person may, without a warrant, arrest a person only
under the following circumstances:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
The cases at bar do not fall under paragraphs (a) or (c) of the aforequoted rule. At the time of
his arrest, accused-appellant was watching a game in a basketball court in Barangay
Miranda, Pontevedra, Negros Occidental. He was not committing or attempting to commit a
crime when he was arrested by the police on that day. Nor was he an escaped prisoner
whose arrest could be effected even without a warrant.
The question is whether these cases fall under paragraph (b) because the police officers had
personal knowledge of facts and circumstances that would lead them to believe that
accused-appellant had just committed a crime. The phrase "personal knowledge" in
paragraph (b) has been defined in this wise:
Personal knowledge of facts in arrests without a warrant under Section 5(b) of Rule
113 must be based upon "probable cause" which means "an actual belief or
reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in
the absence of actual belief of the arresting officers, the suspicion that the person to
be arrested is probably guilty of committing the offense is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable
cause of guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the peace officer
making the arrest.38

In these cases, the crime took place on December 27, 1996. But, accused-appellant was
arrested only on January 3, 1997, a week after the occurrence of the crime. As the arresting
officers were not present when the crime was committed, they could not have "personal
knowledge of the facts and circumstances of the commission of the crime" so as to be
justified in the belief that accused-appellant was guilty of the crime. The arresting officers
had no reason for not securing a warrant.
However, the records show that accused-appellant pleaded not guilty to the crimes charged
against him during his arraignment on February 25, 1997 without questioning his warrantless
arrest.39 He thus waived objection to the legality of his arrest. 40 As this Court has held in
another case:
[The accused] waived objections based on the alleged irregularity of their arrest,
considering that they pleaded not guilty to the charges against them and participated
in the trial. Any defect in their arrest must be deemed cured when they voluntarily
submitted to the jurisdiction of the court. For the legality of an arrest affects only the
jurisdiction of the court over the person of the accused. Consequently, if objections
based on this ground are waived, the fact that the arrest was illegal is not a sufficient
cause for setting aside an otherwise valid judgment rendered after a trial, free from
error. The technicality cannot render subsequent proceedings void and deprive the
State of its right to convict the guilty when all the facts on record point to the
culpability of the accused.41
B. Accused-appellant invokes Art. III, 12(1) of the Constitution which provides that "[a]ny
person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel." He contends that he was subjected to custodial interrogation without being
informed of his right to remain silent and to have independent counsel preferably of his
choice. Hence, he contends, the trial court erred in not excluding evidence obtained from him
during such interrogation for violation of accused-appellant's rights under this provision.
1wphi1.nt

While it cannot be denied that accused-appellant was deprived of his right to be informed of
his rights to remain silent and to have competent and independent counsel, he has not
shown that, as a result of his custodial interrogation, the police obtained any statement from
him whether inculpatory or exculpatory - which was used in evidence against him. The
records do not show that he had given one or that, in finding him guilty, the trial court relied
on such statement. In fact, accused-appellant testified that at no point, even when subjected
to physical torture, did he ever admit committing the crime with which he was charged. In
other words, no uncounseled statement was obtained from accused-appellant which should
have been excluded as evidence against him.
C. Of greater significance is the fact that accused-appellant was never assisted by counsel,
whether of his own choice or provided by the police officers, from the time of his arrest in
Pontevedra, Negros Occidental to the time of his continued detention at the Bacolod police
station. Although accused-appellant made no statement during this time, this fact remains
important insofar as it affects the admissibility of the out-of-court identification of accused-

appellant by the prosecution witnesses, namely, Michelle Darunday, Erma Blanca, Ma.
Teresa Gellaver, Mark Esmeralda, and Jason Joniega.
As a rule, an accused is not entitled to the assistance of counsel in a police line-up
considering that such is usually not a part of the custodial inquest.42 However, the cases at
bar are different inasmuch as accused-appellant, having been the focus of attention by the
police after he had been pointed to by a certain Ramie as the possible perpetrator of the
crime, was already under custodial investigation when these out-of-court identifications were
conducted by the police.
An out-of-court identification of an accused can be made in various ways. In a show-up, the
accused alone is brought face to face with the witness for identification, while in a police lineup, the suspect is identified by a witness from a group of persons gathered for that
purpose.43 During custodial investigation, these types of identification have been recognized
as "critical confrontations of the accused by the prosecution" which necessitate the presence
of counsel for the accused. This is because the results of these pre-trial proceedings "might
well settle the accused's fate and reduce the trial itself to a mere formality." 44 We have thus
ruled that any identification of an uncounseled accused made in a police line-up, or in a
show-up for that matter, after the start of the custodial investigation is inadmissible as
evidence against him.45
Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3,
1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a
police line-up on various dates after his arrest. Having been made when accused-appellant
did not have the assistance of counsel, these out-of-court identifications are inadmissible in
evidence against him. Consequently, the testimonies of these witnesses regarding these
identifications should have been held inadmissible for being "the direct result of the illegal
lineup 'come at by exploitation of [the primary] illegality.'"46
Be that as it may, as the defense failed to object immediately when these witnesses were
presented by the prosecution or when specific questions regarding this matter were asked of
them, as required by Rule 132, 36 of the Rules on Evidence, accused-appellant must be
deemed to have waived his right to object to the admissibility of these testimonies. 47
Furthermore, the inadmissibility of these out-of-court identifications does not render the incourt identification of accused-appellant inadmissible for being the "fruits of the poisonous
tree."48 This in-court identification was what formed the basis of the trial court's conviction of
accused-appellant. As it was not derived or drawn from the illegal arrest of accusedappellant or as a consequence thereof,49 it is admissible as evidence against him. However,
whether or not such prosecution evidence satisfies the requirement of proof beyond
reasonable doubt is another matter altogether.
II. Credibility of the Prosecution Witnesses
Accused-appellant contends that: (1) he does not possess the character, qualities, and
expertise of the assailant who robbed and raped Michelle Darunday, Erma Blanca, and Ma.
Teresa Gellaver; (2) the records are bereft of any description of the assailant made by these
prosecution witnesses prior to his arrest as the affidavits of Darunday, Blanca, Joniega, and
Esmeralda were executed only after his arrest; (3) the testimonies of the defense witnesses,

namely, PO2 Rodolfo Gemarino, Barangay Captain Nestor Dojillo, and Ricardo Villaspen,
show that Michelle Darunday failed to identify accused-appellant when the latter was
presented to her at the Pontevedra police station; (4) Tancinco's testimony that Michelle
Darunday properly identified accused-appellant at the Pontevedra police station could not be
believed as the said witness had motive to testify falsely against accused-appellant; (4) the
identification of accused-appellant at the Bacolod police station was tainted because only
accused-appellant was handcuffed among the persons presented to the prosecution
witnesses; and (5) it was highly improbable for the prosecution witnesses to identify the
assailant by face considering the distance, the intensity of light, and the circumstances at the
time of the commission of the crime.
A. Jason Joniega50 and Mark Esmeralda51 pointed to accused-appellant as the man they saw
on the night of December 27, 1996 and the person they identified inside a jail cell at the
Bacolod police station. Erma Blanca, on the other hand, testified that she saw through her
blindfold accused-appellant raping Michelle Darunday. She identified accused-appellant in
court as their assailant and as the man whom she saw inside the jail cell at the Bacolod
police station.52 Ma. Teresa Gellaver53 and Michelle Darunday54 identified accused-appellant
as the suspect brought before them at the Bacolod police station and the Pontevedra police
station, respectively.
The test is whether or not the prosecution was able to establish by clear and convincing
evidence that the in-court identifications were based upon observations of the suspect other
than the line-up identification.55 As held inUnited States v. Wade:56
We think it follows that the proper test to be applied in these situations is that quoted
in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455, 83 S Ct 407,
"'[W]hether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.' Maguire,
Evidence of Guilt 221 (1959)." See also Hoffa v United States, 385 US 293, 309, 17
L ed 2d 374, 386, 87 S Ct 408. Application of this test in the present context requires
consideration of various factors; for example, the prior opportunity to observe the
alleged criminal act, the existence of any pre-line-up description and the defendant's
actual description, any identification prior to lineup of another person, the
identification by picture of the defendant prior to the lineup, failure to identify the
defendant on a prior occasion, and the lapse of time between the alleged act and the
lineup identification. It is also relevant to consider those facts which, despite the
absence of counsel, are disclosed concerning the conduct of the lineup.
We now consider whether the testimonies of the prosecution witnesses meet the test as laid
down in that case.
1. Michelle Darunday testified that her assailant's face was covered with cloth when he
entered the room and that she was blindfolded when she was raped.57 She could thus only
see the assailant's eyes, which Michelle described as chinito (chinky),58 although she testified
that she could also identify his voice.59 Otherwise, Michelle did not see her attacker. Yet, she
testified that she immediately recognized accused-appellant as the assailant when she saw
him at the Pontevedra police station. Michelle stated:

PROS. CARDINAL:
Madam Witness, a few days thereafter, can you recall any development of
your case?
WITNESS:
That was in January 3, when somebody told us to identify a suspect in the
City Hall of Pontevedra.
PROS. CARDINAL:
Who was with you when you went to Pontevedra?
WITNESS:
My aunt and my uncle and the police investigators.
....
PROS. CARDINAL:
Upon arrival at Pontevedra, what happened?
WITNESS:
We waited for a while because they will find the suspect and I was there in
the room of the police sitting.
....
PROS. CARDINAL:
So, you stayed behind and the policemen pick up the suspect?
WITNESS:
I and my aunt waited in the police of the policemen, and then later the
suspect arrived.
PROS. CARDINAL:
When that suspect arrived inside the room where you were, can you tell us
what was the reaction of the suspect?
WITNESS:

When the suspect arrived, at first, he was not able to see me because I was
behind the desk after the door, and then he was so fresh saying that he was
a good man, but when he saw me he blushed and moving his head asking,
"Ano ang sala ko sa imo? (What did I do to you?), I did not do anything." But
when I looked at his eyes and heard his voice, I was sure that he was the
man.
PROS. CARDINAL:
When that person said, what did I do to you, I did not do anything, what was
[your] reaction?
WITNESS:
I just looked at him and he was so fresh that he has not done anything, but
the policeman said that his case is rape. Then, he was asked to take off his tshirt and I just looked at him and then later, the policeman asked to borrow
the man for investigation and while the policeman was recording, that
suspect approached me and told me that, "You do not know me.", and asked,
"Do you know me?"
PROS. CARDINAL:
What was your reaction?
WITNESS:
I just [kept] quiet but my aunt reacted by saying, "You think you cannot be
identified because you covered yourself?"
PROS. CARDINAL:
And then what did he answer?
WITNESS:
He just stand outside while we went ahead to go back to our home. 60
A show-up, such as what was undertaken by the police in the identification of accusedappellant by Michelle Darunday, has been held to be an underhanded mode of identification
for "being pointedly suggestive, generat[ing] confidence where there was none, activat[ing]
visual imagination, and, all told, subvert[ing] their reliability as [an eyewitness]." 61 In these
cases, Michelle knew that she was going to identify a suspect when she went to Pontevedra.
Upon seeing accused-appellant escorted by Tancinco and his colleagues in the Bacolod
police, she knew that he was the suspect she was supposed to identify. When accusedappellant was thus shown to her, there could be no doubt as to what was expected of her.
Further aggravating the situation were the reply of the policeman to accused-appellant's
protestations of innocence that he was being held for rape and Michelle's aunt's obvious

assumption of his guilt. Michelle's immediate conclusion, therefore, that accused-appellant


was her attacker was understandable. As has been explained:
Social psychological influences. Various social psychological factors also increase
the danger of suggestibility in a lineup confrontation. Witnesses, like other people,
are motivated by a desire to be correct and to avoid looking foolish. By arranging a
lineup, the police have evidenced their belief that they have caught the criminal;
witnesses, realizing this, probably will feel foolish if they cannot identify anyone and
therefore may choose someone despite residual uncertainty. Moreover, the need to
reduce psychological discomfort often motivates the victim of a crime to find a likely
target for feelings of hostility.
Finally, witnesses are highly motivated to behave like those around them. This desire
to conform produces an increased need to identify someone in order to show the
police that they, too, feel that the criminal is in the lineup, and makes the witnesses
particularly vulnerable to any clues conveyed by the police or other witnesses as to
whom they suspect of the crime. . .62
Coupled with the failure of Michelle to see the face of her assailant, the apparent
suggestiveness of the show-up places in doubt her credibility concerning the identity of
accused-appellant. The possibility that her identification of accused-appellant was merely
planted in her mind both by the circumstances surrounding the show-up and her concomitant
determination to seek justice cannot be disregarded by this Court.
Michelle's identification of accused-appellant is further rendered dubious by the disparity
between her description of her attacker and the appearance of accused-appellant. In her
affidavit, dated January 4, 1997, Michelle described her attacker as follows:
P
Sadtong tinion nga ginahimoslan ikaw sining suspetsado nakita mo bala
ang iya hitsura? (At the time that you were abused by the suspect, did you see what
he looked like?)
S
Wala, kay tungod nga may tabon ang akon mata, apang matandaan ko
guid ang iya tingog, mata, ang iya malaka nga biguti, ang structure sang iya lawas,
ang supat sang iya kamot, ang iya bibig, ang madamo nga "kelloid" sa iya lawas kag
ang iya baho. (No, because I was blindfolded but I can remember his voice, his eyes,
his thin mustache, his body structure, the smoothness of his hands, his mouth, and
thenumerous keloids on his body, and his smell.)63
Michelle's affidavit clearly indicated that she felt the keloids on the back of her assailant
when the latter was raping her. But, when she testified in court, Michelle admitted that she
did not see keloids on accused-appellant although she said that his skin was rough. 64 This is
corroborated by the testimony of PO2 Rodolfo Gemarino who said that he did not see any
lump on the back of accused-appellant when he tried to look for it. 65 In fact, it would appear
that accused-appellant had no such markings on his back but had only small patches which
could not even be readily seen.66
In dismissing the disparity between accused-appellant's appearance and Michelle's
description of her attacker, the trial court dwelt on the apparent roughness of accused-

appellant's skin and the probability that Michelle might have felt only the arch of the spinal
cord of her assailant.67 However, mere speculations and probabilities cannot take the place of
proof beyond reasonable doubt required by law to be established by the
prosecution.68 Michelle Darunday was a civil engineer in the City Engineer's Office in Bacolod
City. Considering her educational attainment and professional status, it is improbable that
she was mistaken as to what she felt on her attacker's back at the time she was raped. A
mere protrusion on the back of the neck of the assailant could not possibly have been
mistaken for keloids.
Another circumstance casting doubt on the credibility of Michelle's identification is her lack of
reaction upon seeing accused-appellant at the Pontevedra police headquarters. Defense
witnesses PO2 Rodolfo Gemarino,69 Ricardo Villaspen,70 and Nestor Dojillo71 testified that
Michelle failed to see any identifying marks on accused-appellant and that she showed
hesitation in pinpointing the latter as the culprit. With Gemarino being a policeman, Villaspen
a barangay tanod, and Dojillo a barangay captain, these witnesses were all, in one form or
another, connected with law enforcement. The prosecution having failed to ascribe any ill
motive on the part of these defense witnesses, who are without doubt respectable members
of the community, their testimonies that Michelle showed no reaction in seeing accusedappellant at the show-up in Pontevedra police station deserve greater credence than the
testimony of Tancinco that Michelle confirmed to him that accused-appellant was her
attacker. The defense evidence established that Tancinco was an abusive policeman who
had made up his mind as to accused-appellant's guilt and who had no compunction in doing
whatever means necessary, legal or illegal, to ensure his conviction. We note further that the
testimonies of these defense witnesses coincide with Michelle's testimony that she kept quiet
when she saw accused-appellant at the Pontevedra police station on January 3, 1997. This
being so, her reaction to the show-up at the Pontevedra police station upon seeing accusedappellant, the man who supposedly raped her twice in an ignominious manner, is contrary to
human nature.72 It may be that she was filled with rage so that upon seeing accusedappellant she was unable to show any emotion. But it is equally possible that, as defense
witnesses Gemarino, Villaspen, and Dojillo testified, Michelle did not immediately recognize
accused-appellant as her attacker and only pointed to him as her assailant upon promptings
by the police and her companions. "[W]here the circumstances shown to exist yield two (2)
or more inferences, one of which is consistent with the presumption of innocence, while the
other or others may be compatible with the finding of guilt, the court must acquit the
accused: for the evidence does not fulfill the test of moral certainty and is insufficient to
support a judgment of conviction."73
For the foregoing reasons, we find both the out-of-court and in-court identification of Michelle
Darunday to be insufficient to establish accused-appellant as the person who robbed and
raped her and her companions on the night of December 27, 1996.
2. Erma Blanca testified that she saw through her blindfold the assailant when he was raping
Michelle Darunday. She identified accused-appellant in open court as the person whom she
saw that night.74 Certain circumstances in these cases lead us to believe, however, that Erma
Blanca did not really see the assailant and that her testimony otherwise was a mere
afterthought. These are:
First, the police blotter, dated December 28, 1996,75 prepared by PO3 Nicolas Tancinco,
referred to an "unknown suspect" who allegedly entered the boarding house of Pacita

Aguillon and robbed Ma. Teresa Gellaver and Michelle Darunday. This casts doubt on Erma's
credibility because she testified that she had known accused-appellant for a long time prior
to December 27, 1996. During her testimony, Erma claimed that accused-appellant
approached her and Michelle sometime in September or October 1996 to ask for the name
of the latter. In addition, Erma said she had seen accused-appellant whenever he passed by
their boarding house or stayed in her Tiyo Anong's store nearby.76 It would thus seem that
Erma was familiar with accused-appellant. But, if she had actually seen him on that night of
the robbery, why did she not report this to the police immediately? Being a victim herself,
Erma had every motive to reveal the identity of the robber that same night the crime was
committed. But she did not do so. We are therefore left with the conclusion that the police
blotter referred to an unknown suspect because the identity of the assailant had not been
determined at the time the crime was reported to the police.
Second, Erma was not the one who accompanied the Bacolod police when the latter sought
accused-appellant in Pontevedra, Negros Occidental. PO3 Tancinco testified that he took
Michelle Darunday along with his other companions when they went to Pontevedra, Negros
Occidental so that she could identify if the suspect was the person who had raped her. But
Michelle admitted that she did not see the face of the assailant. Erma Blanca, who claimed
she recognized accused-appellant, was not taken along by the police to Pontevedra, Negros
Occidental. Why not? Why did they bring instead Michelle Darunday?
Third, the affidavit of Erma Blanca77 was prepared on January 4, 1997, a day after the arrest
of accused-appellant. This delay belies Erma's claim that she saw the assailant through her
blindfold on the night of the incident. For the normal reaction of one who actually witnessed a
crime and recognized the offender is to reveal it to the authorities at the earliest
opportunity.78 In these cases, the crime took place on December 27, 1996, but Erma Blanca
executed her affidavit only on January 4, 1997, more than a week after the occurrence of the
crime. Delay in reporting the crime or identifying the perpetrator thereof will not affect the
credibility of the witness if it is sufficiently explained.79 But here, no explanation was given by
the prosecution why Erma Blanca executed her affidavit one week after the crime took place
and one day after accused-appellant's arrest. The most likely explanation for such lapse is
that Erma Blanca was used merely to corroborate what would otherwise have been a weak
claim on the part of Michelle Darunday. The same may be said of the testimonies of Jason
Joniega and Mark Esmeralda.
B. Accused-appellant's testimony that he was at the cockpit in Barangay Miranda,
Pontevedra, Negros Occidental on December 27, 1996 is corroborated by Aaron
Lavilla,80 Elias Sombito,81 and Nestor Dojillo.82 Considering the improbabilities and
uncertainties surrounding the testimonies of the prosecution witnesses, the defense of alibi
by accused-appellant deserves credence.83
To summarize, we find that the prosecution failed to meet the degree of proof beyond
reasonable doubt required in criminal cases. The acquittal of accused-appellant is thus in
order.
WHEREFORE, the decision of the Regional Trial Court, Branch 53, Bacolod City, finding
accused-appellant guilty of robbery with rape and sentencing him to death, is hereby
REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt.

Accused-appellant is ordered immediately released unless there are other legal grounds for
his continued detention.
1wphi1.nt

The Director of Prisons is directed to implement this Decision and to report to the Court
immediately the action taken hereon within five (5) days from receipt hereof.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo,
Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Footnote
1
Per Judge B. Gellada.
2
Records, p. 1.
3
Id., p. 41.
4
Also referred to as Irma Blanca or Erma Blanco in the transcript of stenographic notes.
5
Referred to as Tia Pasing in the transcript of stenographic notes.
6
TSN (Jason Joniega), pp. 6-11, July 29, 1997; TSN (Mark Esmeralda), pp. 6-13, July 31, 1997.
7
TSN (Erma Blanca), pp. 5-44, 62-67, Aug. 7, 1997; TSN (Ma. Teresa Gellaver), pp. 6-34, Oct. 8,
1997; TSN (Michelle Darunday), pp. 7-36, Oct. 13, 1997.
8
TSN (Mark Esmeralda), pp. 17-23, July 31, 1997.
9
TSN (Erma Blanca), pp. 54-59, Aug. 7, 1997; TSN (Ma. Teresa Gellaver), pp. 34-39, Oct. 8,
1997; TSN (Michelle Darunday), pp. 36-43, Oct. 13, 1997.
10
TSN (PO3 Nicolas Tancinco), pp. 3-43, Sept. 19, 1997.
11
TSN (Michelle Darunday), pp. 43-50, Oct. 13, 1997; TSN (PO3 Nicolas Tancinco), pp. 44-48,
Sept. 19, 1997.
12
TSN (Allan Aguillon), p. 5, Nov. 6, 1997.
13
TSN (Jason Joniega), pp. 12-13, July 29, 1997; TSN (Mark Esmeralda), pp. 27-29, July 31,
1997; TSN (Erma Blanca), pp. 52-53, Aug. 7, 1997; TSN (Ma. Teresa Gellaver), pp. 40-43, Oct.
8, 1997.
14
Exh. L; Records, pp. 15-18.
15
TSN (Michelle Darunday), pp. 55-59, Oct. 13, 1997. See also TSN (Erma Blanca), pp. 46-48,
Aug. 7, 1997.
16
Exhs. D or 5; Records, p. 499.
17
TSN (Dr. Joy Ann Jocson), pp. 6-16,40-53, 57-58, Aug. 25, 1997.
18
TSN (Leo Asan), pp. 3-7, Oct. 3, 1997.
19
TSN (Anthony Escordial), pp. 8-14, May 25, 1998.
20
Referred to as Ely in the transcript of stenographic notes.
21
TSN (Anthony Escordial), pp. 14-19, May 25, 1998.
22
TSN (Elias Sombito), pp. 22-33, Dec. 9, 1997.
23
TSN (Aaron Lavilla), pp. 19-30, Jan. 16, 1998.
24
TSN (PO2 Rodolfo Gemarino), pp. 9-21, Feb. 3, 1998; TSN (Ricardo Villaspen), pp. 8-10, Feb.
5, 1998.
25
TSN (Nestor Dojillo), pp. 30-45, April 17, 1998.
26
TSN (PO2 Rodolfo Gemarino), pp. 24-33, Feb. 3, 1998.
27
TSN (Ricardo Villaspen), pp. 15-20, Feb. 5, 1998.
28
TSN (Anthony Escordial), pp. 21-25, May 25, 1998.
29
Id., pp. 26-32.
30
TSN (PO2 Rodolfo Gemarino), pp. 36-49, Feb. 3, 1998; TSN (Ricardo Villaspen), pp. 21-35,
Feb. 5, 1998; TSN (Nestor Dojillo), pp. 46-57, April 17, 1998; TSN (Anthony Escordial), pp. 3336, May 25, 1998.
31
TSN (Lucila Jocame), pp. 5-10, June 24, 1998.
32
Exh. 11; Records, p. 488.

Spelled as Gerome in the transcript of stenographic notes.


TSN (Jerome Jayme), pp. 73-86, May 26, 1998.
35
Decision, pp. 87-88; Records, pp. 794-795.
36
Brief for the Accused-Appellant, pp. 14-17; Rollo, pp. 167-170.
37
TSN (PO3 Nicolas Tancinco), p. 176, Sept. 19, 1997.
38
Posadas v. Ombudsman, 341 SCRA 388, 397 citing People v. Doria, 301 SCRA 668, 709
(1991).
39
Records, p. 76.
40
People v. Pacistol, 284 SCRA 520, 597 (1998).
41
People v. Timon, 281 SCRA 577, 597 citing People v. Nazareno, 260 SCRA 256, 263 (1996).
42
De la Torre v. Court of Appeals, 294 SCRA 196 (1998); People v. Timple, 237 SCRA 52 (1994).
43
People v. Teehankee, Jr., 249 SCRA 54 (1995).
44
United States v. Wade, 388 U.S. 218, 224, 18 L.Ed.2d 1149 (1967).
45
People v. Macam, 238 SCRA 306 (1994).
46
Gilbert v. California, 388 U.S. 263, 272-273, 18 L.Ed.2d. 1178 (1967).
47
People v. Hermoso, 343 SCRA 567 (2000).
48
People v. Salazar, 277 SCRA 67 (1997); People v. Pacistol, 284 SCRA 520 (1998).
49
People v. Manzano, 248 SCRA 239 (1995).
50
TSN (Jason Joniega), pp. 11-12, July 29, 1997.
51
TSN (Mark Esmeralda), pp. 12, 23-24, 28, July 31, 1997.
52
TSN (Erma Blanca), pp. 31, 53, Aug. 7, 1997.
53
TSN (Ma. Teresa Gellaver), pp. 40-41, Oct. 8, 1997.
54
TSN (Michelle Darunday), pp. 49-50, Oct. 13, 1997.
55
United States v. Wade, 388 U.S. 218, 240, 18 L.Ed.2d. 1149, 87 S Ct 1926 (1967).
56
388 U.S. 218, 241, 18 L.Ed.2d. 1149, 87 S Ct 1926 (1967) (emphasis added).
57
TSN (Michelle Darunday), p. 39, Nov. 4, 1997.
58
TSN (Michelle Darunday), p. 40, Oct. 13, 1997.
59
Id., p. 39.
60
Id., pp. 43-49 (emphasis added).
61
People v. Nio, 290 SCRA 155 citing People v. Cruz, 32 SCRA 181, 186 (1970).
62
Frederic D. Woocher, Did Your Eyes Deceive You? Expert Psychological Testimony on the
Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969 (1977). Excerpts reprinted in
Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation 419-429, 428
(1993).
63
Exhs. L or 9; Records, p. 15 (emphasis added).
64
TSN (Michelle Darunday), p. 124, Nov. 4, 1997.
65
TSN (PO2 Rodolfo Gemarino), p. 88, Feb. 3, 1988.
66
TSN (PO3 Nicolas Tancinco), pp. 53-54, Sept. 19, 1997.
67
Decision, pp. 71-72; Records, pp. 778-779..
68
People v. Padua, 215 SCRA 266 (1992) citing People v. Nicolas, 204 SCRA 191 (1991).
69
TSN (PO2 Rodolfo Gemarino), pp. 28-31, Feb. 3, 1998.
70
TSN (Ricardo Villaspen), pp. 16-17, Feb. 5, 1998.
71
TSN (Nestor Dojillo), pp. 34-38, April 17, 1998.
72
People v. Galera, 280 SCRA 492 (1997).
73
People v. Sapal, 328 SCRA 417 (2000).
74
TSN (Erma Blanca), pp. 30-31, Aug. 7, 1997.
75
Exhs. C and C-1; Records, pp. 496-497.
76
TSN (Erma Blanca), pp. 47-50, Aug. 7, 1997.
77
Exh. 2; id., p. 49.
78
People v. Delmendo, 109 SCRA 350 (1981); People v. Aquino, 93 SCRA 772 (1979); People v.
Bulawin, 29 SCRA 710 (1969); People v. Baquiran, 20 SCRA 451 (1967); People v. Cunanan, 19
SCRA 769 (1967).
79
People v. Arlalejo, 333 SCRA 604 (2000).
80
TSN (Aaron Lavilla), pp. 19-30, Jan. 16, 1998.
81
TSN (Elias Sombito), pp. 22-33, Dec. 9, 1997.
82
TSN (Nestor Dojillo), pp. 26-27, April 27, 1998.
83
People v. Padilla, 177 SCRA 129 (1989).
33
34

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 144293

December 4, 2002

JOSUE R. LADIANA, petitioner,


vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
The Constitution bars the admission in evidence of any statement extracted by the police
from the accused without the assistance of competent and independent counsel during a
custodial investigation. However, a counter-affidavit voluntarily presented by the accused
during the preliminary investigation, even if made without the assistance of counsel, may be
used as evidence against the affiant.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10,
2000 Decision1 and August 4, 2000 Resolution2 of the Sandiganbayan (First Division) in
Criminal Case No. 16988. The dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY
beyond reasonable doubt of the crime of homicide and, in the absence of any modifying
circumstance, sentencing the said accused to: (a) suffer an indeterminate sentence of
imprisonment of ten (10) years of prision mayor, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory
penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in
the total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the
costs."3
The assailed Resolution denied petitioners Motion for Reconsideration.
Petitioner was originally charged with murder before the Sandiganbayan in an
Information4 dated August 5, 1991. However, the anti-graft court issued an Order 5 dated
October 14, 1991, noting that "besides the allegation that the crime was allegedly committed

by the accused while he was taking advantage of his official position, nothing else is in the
Information to indicate this fact so that, as the Information stands, nothing except a
conclusion of fact exists to vest jurisdiction [in] this Court over the accused and over the
crime for which he is charged."
Further, the Order gave the government sufficient time to amend the Information to show
adequate facts to vest the Sandiganbayan with jurisdiction over the case. Subsequently, an
Amended Information,6 still charging petitioner with murder, was filed on April 1, 1992. The
accusatory portion reads as follows:
"That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a
public officer, being then a member of the Integrated National Police (INP now PNP)
assigned at the Lumban Police Station, Lumban, Laguna, acting in relation to his duty which
is primarily to enforce peace and order within his jurisdiction, taking advantage of his official
position confronted Francisco San Juan why the latter was removing the steel pipes which
were previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto
Street, Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing
along the said street and when Francisco San Juan told the accused that the latter has no
business in stopping him, said accused who was armed with a firearm, with intent to kill and
with treachery, did then and there willfully, unlawfully and feloniously attack and sho[o]t
Francisco San Juan with the firearm hitting Francisco San Juan at his head and neck
inflicting upon him fatal wounds thereby causing the death of Francisco San Juan." 7
During his arraignment on May 8, 1992, petitioner, assisted by his counsel de parte, 8 pled not
guilty.9 After due trial, the Sandiganbayan found him guilty of homicide, not murder.
The Facts
In their Memoranda, both the prosecution and the defense substantially relied upon the
Sandiganbayans narration of the facts as follows:
"The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo
Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their
respective testimonies, in essence are as follows, to wit:
"1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is
the wife of Francisco San Juan (hereinafter Francisco), the victim in the case at bar.
Caridad testified that Francisco was the Barangay Captain of Barangay Salac,
Lumban, Laguna, until he was shot and killed by accused Ladiana, who happens to
be also a distant relative of the decedent.
"Caridad recounted that, on December 29, 1989, she was in her house when
an unidentified woman came and told her that her husband was killed by
accused Ladiana. She immediately called up her sister-in-law before rushing
to Jacinto Street where the gruesome incident allegedly transpired. Thereat,
many people were milling around, and Caridad saw the lifeless body of
Francisco lying in the middle of the road and being examined by [SPO2]
Percival A. Gabinete.

"Caridad recalled that it was around 11:00 oclock a.m. when she reached the
place of the subject incident. At that point in time, she was not even allowed
by the police to touch, much less get near to, the cadaver of Francisco.
Caridad, expectedly, was crying and one of her aunts advised her to go
home.
"Caridad maintained that she was aware that her husband was killed by
accused Ladiana because this was what the woman actually told her.
Moreover, accused Ladiana had given himself up to the police authorities.
"Caridad went on to narrate that, on December 30, 1989, she was at the
police station, where she gave her written statement before police
investigator PFC Virgilio Halili (hereinafter, Halili).
"Additionally, Caridad presented the Death Certificate of her husband and
testified that he was eventually buried at the Lumban Cemetery. She
declared that she had incurred about Twenty Thousand Pesos (P20,000.00)
for the funeral, burial and other incidental expenses by reason of the death of
Francisco.
"On cross-examination, Caridad testified that, on December 29, 1989, she
was in her house and that she did not hear any gunshot between 10:30 and
11:00 oclock a.m. Caridad also admitted she did not witness the killing of her
husband.
"On questions propounded by the Court, Caridad narrated that her husband
suffered two gunshot wounds - one on the upper right temple and the other
on the left cheek. However, Caridad stated that she was told that the wounds
were the entry and the exit points. She also told the Court that her husband
was wearing short pants at the time of his death and that she found some
bruises on his knees.
"Finally, Caridad recalled that, on the date of the incident, her husband was
with his close friend, a certain Rodolfo Cabrera, and some other persons,
and that they went to Jacinto Street to repair the steel humps which were
used to block the street during school days for the protection and safety of
the school children.
"2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared
that he is a policeman assigned at the Lumban Police Station in Lumban, Laguna.
He has been designated as the radio operator of the station since 1989.
"Cacalda recounted that, on December 29, 1989, at around 11:00 oclock
a.m., somebody, whose name he could no longer recall, reported to him
about an existing trouble along Jacinto Street in Barangay Salac Cacalda
responded by going to the scene, where he was accompanied by Alberto
Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body
of Francisco lying face up on the road. Cacalda did not examine the body of

Francisco. He left the place of the incident when [SPO2] Percival A. Gabinete
and other policemen subsequently arrived.
"Cacalda had gathered from the people milling around the body of Francisco
that it was accused Ladiana who shot and killed Francisco. Cacalda
immediately left to look for accused Ladiana. However, he eventually saw
accused Ladiana already inside the jail of the police station and thereafter
learned that said accused had surrendered to the police authority.
"Cacalda recalled that he was later on investigated by Halili because he was
the responding policeman who went to the scene of the incident.
Consequently, Cacalda executed a written statement in relation to the subject
incident.
"On cross-examination, Cacalda testified that he was a radio operator and
not an investigator of the police station. He also testified that he did not
witness the incident subject matter of the case at bar.
"Cacalda went on to testify that the people milling around the place of the
incident told him that accused Ladiana had already left. Because of this
development, Cacalda proceeded to accused Ladianaa house but was told
that he had already gone to the police station. Cacalda accordingly went to
the police station where he saw accused Ladiana already locked inside the
jail. He also saw a stab wound on accused Ladianas right bicep but he did
not anymore ask him how he sustained the said injury.
"3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a
physician and the Municipal Health Officer of Lumban, Laguna.
"Javan recounted that he was the one who performed the necropsy on the
cadaver of Francisco and that he had prepared the corresponding reports
and/or documents relating thereto. Javan made a sketch representing the
anterior and posterior views of the body of Francisco, and labeled and placed
red markings on the gunshot wounds found on the said cadaver. The marking
Gunshot wound A is the point of entry, which is one (1) centimeter in
diameter and situated two (2) inches behind the left ear. The marking
Gunshot wound B is the point of exit of Gunshot wound A, which is two (2)
centimeters in diameter and found above the right cheekbone and one (1)
inch below the right eye. Javan also testified that there is another gunshot
wound and the point of entry and exit are labeled as Gunshot wound C and
Gunshot wound D, respectively. Gunshot wound D is one and one-half (11/2) centimeters in diameter and located at the left cheek, three and one-half
(3-1/2) centimeters below the left eye, while Gunshot wound C is one (1)
centimeter in diameter and found at the right lateral aspect of the neck, at the
level of the adams apple.
"According to Javan, the assailant must be behind the victim when he
inflicted Gunshot wound A. As regards Gunshot wound C, the assailant

likewise must be behind the victim, at a distance of more than twenty-four


(24) inches away.
"Lastly, Javan testified that he was not able to retrieve any bullet during the
examination. However, judging from the size of the wound and the point of
entry, Javan opined that the firearm used was probably a caliber 38.
"On questions propounded by the Court, Javan testified that Gunshot wound
A could have been fired first because the trajectory is on the same level so
much so that the assailant and the victim could have been both standing.
Javan inferred that Gunshot wound C could have been inflicted while the
victim was already falling down. Javan then stressed that both wounds are
fatal in nature.
"4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that
he is a police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz,
Laguna.
"The testimony of Gabinete was subsequently dispensed with, upon the
admission of the defense that he was part of the group of policemen who
proceeded to the place of the subject incident and that he found the body of
Francisco lying along the road. Additionally, the defense admitted the
existence of the receipt issued by Funeraria de Mesa dated January 3, 1990
in the sum of Six Thousand Five Hundred Pesos (P6,500.00).
"5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired
Assistant Prosecutor of Laguna.
"Prior to the conduct of the examination-in-chief on Cortez, the defense
counsel made an admission as to the authorship, authenticity, and
voluntariness of the execution of the counter-affidavit of accused Ladiana,
which was subscribed and sworn to before Cortez. In said counter-affidavit,
accused Ladiana allegedly admitted to making the fatal shots on Francisco.
However, accused Ladiana allegedly did so in self-defense as Francisco was
then purportedly attacking accused Ladiana and had, in fact, already inflicted
a stab wound on the arm of accused Ladiana.
"However, Cortez emphasized that he was not the one who conducted the
preliminary investigation of the complaint which led to the filing of the subject
case. Additionally, Cortez testified that he would not be able to anymore
recognize the face of the affiant in the said counter-affidavit, but maintained
that there was a person who appeared and identified himself as Josue
Ladiana before he affixed his signature on the counter-affidavit.
"After the presentation of Cortez, the prosecution filed its formal offer of
evidence and rested its case.
"On May 31, 1995, this Court issued a resolution admitting all the
documentary evidence submitted by the prosecution.

"On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to
File Demurrer to Evidence dated August 16, 1995, claiming that: (i) a review
of the documentary and testimonial evidence adduced by the prosecution
allegedly failed to show that the accused is guilty of the offense charged; (ii)
at best, the evidence submitted by the prosecution are allegedly hearsay in
character, considering that the supposed eyewitness in the person of Rodolfo
Cabrera was never presented in court; and (iii) the prosecution was allegedly
merely able to prove the fact of death of the victim, but not the identity of the
person who caused said death.
"On August 23, 1996, this Court issued an Order of even date holding that
the filing of a demurrer to evidence is no longer appropriate considering that
accused Ladiana received a copy of this Courts resolution dated May 31,
1995 on the admission of the prosecutions documentary exhibits as early as
May 25, 1995.
"On September 2, 1996, in view of his perception that the evidence submitted
by the prosecution is allegedly inadequate to sustain a conviction, accused
Ladiana, through counsel, waived his right to present controverting evidence.
Instead, he asked for time to file a written memorandum. Thus, both parties
were given time within which to do so, after which the case shall be deemed
submitted for resolution.
"Thereafter, this Court received on October 25, 1996 by mail the
Memorandum for the defense. As for the prosecution, it opted not to file
any."10 (Citations omitted)
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the prosecution had been able to establish the guilt of
petitioner beyond reasonable doubt. The court a quo held that his Counter-Affidavit, 11 in
which he had admitted to having fired the fatal shots that caused the victims death, 12 may be
used as evidence against him. It underscored the admission made by the defense as to the
authorship, the authenticity and the voluntariness of the execution of the CounterAffidavit.13 In short, it ruled that the document had sufficiently established his responsibility for
the death of the victim. However, it found no evidence of treachery; thus, it convicted him of
homicide only.14
Hence, this Petition.15
Issues
In his Memorandum, petitioner raises the following issues for this Courts consideration:
"I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond
reasonable doubt of the crime of homicide even in the absence of any eyewitness
who personally saw the sho[o]ting of the victim by the accused, basing it only on the
testimony of the prosecutor who had administered the oath on the Counter-affidavit
filed by petitioner-accused.

"II. Whether or not the prosecution has presented proof beyond reasonable doubt to
overcome the constitutional presumption of innocence of the accused and his right
against self-incrimination on the basis of the Counter-affidavit whose execution was
admitted by the counsel of the petitioner, but not by the accused personally.
"III. Whether or not the Counter-affidavit of the accused-petitioner which was
considered by the Sandiganbayan in its decision as similar to an extrajudicial
confession may [be] admitted against him as evidenc[e] of guilt beyond reasonable
doubt even if he was not assi[s]ted then by counsel and while he was under custodial
investigation.
"IV. Whether or not the Sandiganbayan is constitutionally and legally correct in
issuing the Order of August 23, 1996 denying the Motion for Leave of Court to File
Demurrer to Evidence dated August 16, 1995 filed by the accused in accordance with
Sec. 15 of Rule 120 of the 1985 Rules on Criminal Procedure in relation to Rule XXI
of the Revised Rules of Sandiganbayan.
"V. Whether or not accused is entitled to the mitigating circumstance of voluntary
surrender which fact was admitted by the prosecution as it even used the same as
proof of the guilt of the accused."16
In short, petitioner raises the following questions in this appeal: (1) whether the CounterAffidavit he executed during the preliminary investigation of this case is admissible proof
showing his complicity in the crime, (2) whether the Sandiganbayan erred in denying his
Motion for Leave to File a Demurrer to Evidence, and (3) whether he is entitled to the
mitigating circumstance of voluntary surrender.
This Courts Ruling
The Petition is not meritorious.
First Issue:
Admissibility of Counter-Affidavit
Undeniably, the resolution of this case hinges mainly on the admissibility of the CounterAffidavit17 submitted by petitioner during the preliminary investigation. He argues that no
counsel was present when the Affidavit was executed. In support of his argument, he cites
the Constitution thus:
"SEC. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
xxx

xxx

xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him."18
It is well-settled that the foregoing legal formalities required by the fundamental law of the
land apply only to extra-judicial confessions or admissions obtained during custodial
investigations.19 Indeed, the rights enumerated in the constitutional provision "exist only in
custodial interrogations, or in-custody interrogation of accused persons." 20
Custodial interrogation is the questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant
way.21
In the present case, petitioner admits that the questioned statements were made during the
preliminary investigation, not during the custodial investigation. However, he argues that the
right to competent and independent counsel also applies during preliminary investigations.
We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been committed,
and that the respondent is probably guilty thereof and should be held for trial. 22
Evidently, a person undergoing preliminary investigation before the public prosecutor cannot
be considered as being under custodial investigation. In fact, this Court has unequivocally
declared that a defendant on trial or under preliminary investigation is not under custodial
interrogation.23 It explained as follows:
"His [accused] interrogation by the police, if any there had been would already have
been ended at the time of the filing of the criminal case in court (or the public
prosecutors office). Hence, with respect to a defendant in a criminal case already
pending in court (or the public prosecutors office), there is no occasion to speak of
his right while under custodial interrogation laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution [now Section
12, Article III of the 1987 Constitution], for the obvious reason that he is no longer
under custodial interrogation."24
There is no question that even in the absence of counsel, the admissions made by petitioner
in his Counter-Affidavit are not violative of his constitutional rights. It is clear from the
undisputed facts that it was not exacted by the police while he was under custody or
interrogation. Hence, the constitutional rights of a person under custodial investigation as
embodied in Article III, Section 12 of the 1987 Constitution, are not at issue in this case.
However, the accused -- whether in court or undergoing preliminary investigation before the
public prosecutor -- unquestionably possess rights that must be safeguarded. These include:
1) the right to refuse to be made witnesses; 2) the right not to have any prejudice whatsoever
imputed to them by such refusal; 3) the right to testify on their own behalf, subject to crossexamination by the prosecution; and 4) while testifying, the right to refuse to answer a
specific question that tends to incriminate them for some crime other than that for which they
are being prosecuted.25

We do not, however, agree with the Sandiganbayans characterization of petitioners


Counter-Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and 33
of Rule 130 of the Revised Rules on Evidence distinguish one from the other as follows:
"SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
"SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein, may be given in evidence
against him."
In a confession, there is an acknowledgment of guilt; in an admission, there is merely a
statement of fact not directly involving an acknowledgment of guilt or of the criminal intent to
commit the offense with which one is charged.26 Thus, in the case at bar, a statement by the
accused admitting the commission of the act charged against him but denying that it was
done with criminal intent is an admission, not a confession.27
The Counter-Affidavit in question contains an admission that petitioner actually shot the
victim when the latter was attacking him. We quote the pertinent portion:
"[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot
na T-shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa
kabila ng aking pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng
pangyayari ay hindi ko alam na siya ay tinamaan;"28
Through the above statement, petitioner admits shooting the victim -- which eventually led to
the latters death -- but denies having done it with any criminal intent. In fact, he claims he
did it in self-defense. Nevertheless, whether categorized as a confession or as an admission,
it is admissible in evidence against him.
Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself
submitted it to the public prosecutor to justify his actions in relation to the charges hurled
against him. It escapes this Court how he can cavalierly deny a document that he has
voluntarily submitted and originally relied upon in his defense.
In general, admissions may be rebutted by confessing their untruth or by showing they were
made by mistake. The party may also establish that the response that formed the admission
was made in a jocular, not a serious, manner; or that the admission was made in ignorance
of the true state of facts.29 Yet, petitioner never offered any rationalization why such
admissions had been made, thus, leaving them unrebutted. In addition, admissions made
under oath, as in the case at bar, are evidence of great weight against the declarant. They
throw on him the burden of showing a mistake.30
Petitioner contends that nowhere in the transcripts of this case can it be found that he has
admitted to the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We
quote verbatim the proceedings in the Sandiganbayan:
"PJ GARCHITORENA

Well, he will identify the person who took the oath before him. Will you deny that it
was your client who took the oath before the Fiscal at the preliminary investigation?
ATTY. ILAGAN
We will admit that, your Honor.
PJ GARCHITORENA
So in that case we will have no question about the authorship, authenticity and the
voluntariness of the execution of the counter-affidavit dated July 31, 1990?
Companiero?
ATTY ILAGAN
Admitted, your Honor."31
The admissions of petitioner made through his counsel cannot be any clearer. To be sure,
the unbroken stream of judicial dicta is that, in the conduct of their case, clients are bound by
the actions of their counsels, save when the latters negligence is so gross, reckless and
inexcusable that the former are deprived of their day in court. 32 Also, clients, being bound by
the actions of their counsels, cannot complain that the result of the litigation might have been
different had their lawyers proceeded differently.33 A counsel may err as to the competency of
witnesses, the sufficiency and the relevance of evidence, the proper defense, the burden of
proof, the introduction or the withholding of witnesses or pieces of evidence, or the manner
of arguing the case. This Court, however, has ruled several times that those are not even
proper grounds for a new trial, unless the counsels incompetence is so gross that the clients
are prevented from fairly presenting their case.34
Having admitted that he had fatally shot the victim, petitioner had the duty of showing that
the killing was justified, and that the latter incurred no criminal liability therefor.35 Petitioner
should have relied on the strength of his own evidence and not on the weakness of that for
the prosecution. Even if his evidence be weak, it cannot be disbelieved after the accused
has admitted the killing.36
Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense.
Hence, he could not be bound by it. This argument deserves scant consideration. As
discussed earlier, the declarations contained in his Counter-Affidavit are admissions that may
be used as evidence against him.37 The Sandiganbayan did not unfairly presume that he had
indeed raised the theory of self-defense, because this argument had already been laid out in
his Counter-Affidavit. No presumption was necessary, because the admission was clear and
unequivocal.
Neither do we believe petitioners claim that the anti-graft court "miserably failed to give
equal effect or treatment to all the allegations found therein (Counter-Affidavit) choosing
deliberately and without reasonable basis the parts which are incriminating in character, and
ignoring without sufficient legal basis the exculpatory assertions of the accused." 38

The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are


utterly insufficient to discharge his burden of proving that the act of killing was justified. It is
hornbook doctrine that self-defense must be proved with certainty by sufficient, satisfactory
and convincing evidence that excludes any vestige of criminal aggression on the part of the
person invoking it.39 It cannot be entertained if it is uncorroborated by any separate and
competent evidence, and it is also doubtful.40 The question whether the accused acted in
self-defense is essentially a question of fact properly evaluated by the lower court; in this
case, the Sandiganbayan.41
By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense
enumerated in the law.42Had petitioner been more vigilant in protecting his rights, he could
have presented clear and cogent evidence to prove those elements. But, as found by the
court a quo, he not only failed to discharge the burden of proving the existence of the
justifying circumstance of self-defense; he did not even bother to present any evidence at
all.43So, we do not see how the Sandiganbayan could have been selective in its treatment of
his Counter-Affidavit.
Verily, if the accused fails to discharge the burden of proving the existence of self-defense or
of any other circumstance that eliminates criminal liability, his conviction shall of necessity
follow, on the basis of his admission of the killing.44 Upholding this principle does not in any
way violate his right to be presumed innocent until proven guilty. When he admitted to having
killed the victim, the burden of proving his innocence fell on him. It became his duty to
establish by clear and convincing evidence the lawful justification for the killing.
Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of
the crime charged.45As far as he is concerned, homicide has already been established. The
fact of death and its cause were established by his admissions coupled with the other
prosecution evidence including the Certificate of Death,46the Certificate of Post-Mortem
Examination47 and the Medico-Legal Findings.48 The intent to kill is likewise presumed from
the fact of death.49
Second Issue:
Denial of Motion for Leave to File Demurrer
Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion
for Leave to File Demurrer to Evidence. He brands this denial as legally and constitutionally
wrong.50
We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial
court.51 And, unless there is grave abuse amounting to lack or excess of jurisdiction in its
denial, the trial courts resolution may not be disturbed. 52
Final Issue:
Voluntary Surrender
After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change
of tenor, implores this Court to consider his voluntary surrender to the police authorities as a

mitigating circumstance. He argues that two of the prosecution witnesses testified that he
had surrendered to the police authorities after the shooting incident. 53 To buttress his
argument, he contends that the "main reason for his voluntary surrender is that he sincerely
believe[d] that he was legally justified in defending himself as a policeman when he fought
the victim after he was attacked by the latter."54 It goes without saying that this statement only
reaffirms the admissions contained in his Counter-Affidavit, which he so vehemently tried to
discredit.
For voluntary surrender to mitigate criminal liability, the following elements must concur: 1)
the offender has not been actually arrested, 2) the offender surrenders himself to a person in
authority or to the latters agent, and 3) the surrender is voluntary.55 To be sufficient, the
surrender must be spontaneous and made in a manner clearly indicating the intent of the
accused to surrender unconditionally, either because they acknowledge their guilt or wish to
save the authorities the trouble and the expense that will necessarily be incurred in
searching for and capturing them.56
The only pieces of evidence in support of the plea of voluntary surrender made by petitioner
are statements made by two (2) prosecution witnesses that they were allegedly told by other
people that he had already gone to the police station. There is no showing that he was not
actually arrested; or that when he went to the police station, he surrendered himself to a
person in authority. Neither is there any finding that he has evinced a desire to own to any
complicity in the killing.
1wphi1

We have ruled in the past that the accused who had gone to the police headquarters merely
to report the shooting incident did not evince any desire to admit responsibility for the killing.
Thus, he could not be deemed to have voluntarily surrendered. 57 In the absence of sufficient
and convincing proof showing the existence of indispensable circumstances, we cannot
appreciate voluntary surrender to mitigate petitioners penalty.
WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution
AFFIRMED. Costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
Puno, (Chairman), J., abroad on official business.

Footnotes

Annex "A" of the Petition; rollo, pp. 71-85. Penned by Justice Gregory S. Ong with the
concurrence of Justices Francis E. Garchitorena (then Division chairman and presiding justice)
and Catalino R. Castaeda Jr. (member).
2
Annex "C" of the Petition; id., pp. 93-101.
3
Sandiganbayan Decision, p. 13; id., p. 84.
4
Records, pp. 1-2.
5
Id., p. 56.
1

Id., pp. 88-89. This was signed by Special Prosecution Officer Fidel D. Galindez and approved
by then Ombudsman Conrado M. Vasquez.
7
Amended Information, p. 1; id, p. 88.
8
Atty. Balagtas P. Ilagan.
9
See Certificate of Arraignment; records, p. 100.
10
Sandiganbayan Decision, pp. 2-9; rollo, pp. 73-80.
11
Exhibit "H," prosecutions exhibits folder.
12
Sandiganbayan Decision, p. 10; rollo, p. 81.
13
Ibid.
14
Ibid.
15
This case was deemed submitted for resolution on May 9, 2001, upon receipt of petitioners
Memorandum, signed by Jose A. Almo and Angel R. Purisima III. Respondents Memorandum,
filed on April 18, 2001, was signed by Special Prosecutor Leonardo P. Tamayo, Deputy Special
Prosecutor Robert E. Kallos, Acting ASAB Director Rodrigo V. Coquia, and Special Prosecution
Officer Manuel T. Soriano Jr. of the Office of the Special Prosecutor (OSP).
16
Petitioners Memorandum, pp. 5-6; rollo, pp. 169-170; original in upper case.
17
Exh. "H" of the prosecutions evidence.
18
Art. III, 12, 1987 Constitution.
19
People v. Salonga, GR No. 131131, June 21, 2001.
20
People v. Ayson, 175 SCRA 216, 230, July 7, 1989, per Narvasa, J. (later, CJ).
21
People v. Marra, 236 SCRA 565, September 20, 1994; People v. Logronio, 214 SCRA 519,
October 13, 1992; People v. Ayson, supra.
22
Rule 112, 1, 2000 Revised Rules of Criminal Procedure.
23
People v. Ayson, supra.
24
Id., p. 232.
25
Id., p. 234.
26
People v. Lorenzo, 240 SCRA 624, January 26, 1995.
27
Francisco, The Revised Rules of Court in the Philippines Evidence, Vol. VII, Part I, 1997 ed., p.
303.
28
Petitioners Counter-Affidavit, p. 2; Exhibit "H", prosecutions exhibits folder.
29
Francisco, supra, p. 319.
30
Ibid.
31
TSN, April 18, 1995, pp. 4-5.
32
Ramos v. Dajoyag Jr., AC 5174, February 28, 2002; Villanueva v. People, 330 SCRA 695, April
12, 2000; Sublay v. NLRC, 324 SCRA 188, January 31, 2000; Alarcon v. CA, 323 SCRA 716,
January 28, 2000; Velasquez v. CA, 309 SCRA 539, June 30, 1999.
33
People v. Remudo, GR No. 127905, August 30, 2001; GoldLine Transit, Inc. v. Ramos, GR No.
144813, August 15, 2001; People v. Villanueva, 339 SCRA 482, August 31, 2000.
34
Abrajano v. CA, 343 SCRA 68, October 13, 2000; People v. Salido, 258 SCRA 291, July 5,
1996.
35
People v. Obzunar, 265 SCRA 547, December 16, 1996; People v. Doepante, 263 SCRA 691,
October 30, 1996.
36
People v. Damitan, GR No. 140544, December 7, 2001; People v. Iglesia, GR No. 132354,
September 13, 2001; People v. Nepomuceno Jr., 298 SCRA 450, November 11, 1998; People v.
Bautista, 254 SCRA 621, March 12, 1996.
37
26, Rule 130, Rules of Court.
38
Petitioners Memorandum, p. 9; rollo, p. 173.
39
People v. Suyum, GR No. 137518, March 6, 2002; People v. Sanchez, 308 SCRA 264, June 16,
1999; People v. Balamban, 264 SCRA 619, November 21, 1996.
40
People v. Suyum, supra; People v. Sarabia, 317 SCRA 684, October 29, 1999.
41
People v. Suyum, supra; People v. Dano, 339 SCRA 515, September 1, 2000; People v.
Sarabia, supra.
42
Art. II, Revised Penal Code.
43
Sandiganbayan Decision, p. 11, rollo, p .82.
44
People v. Suyum, supra; People v. Templa, GR No. 121897, August 16, 2001; People v.
Cawaling, 293 SCRA 267, July 28, 1998; People v. Vallador, 257 SCRA 515, June 20, 1996.
45
People v. Gemoya, 342 SCRA 63, October 4, 2000.
46
Exh. "B" of the prosecutions evidence.
6

Exh. "E" of the prosecutions evidence.


Exh. "F" of the prosecutions evidence.
49
People v. Gemoya, supra.
50
Petitioners Memorandum, p. 15; rollo, p. 179.
51
Bernardo v. CA, 278 SCRA 782, September 5, 1997.
52
Bernardo v. CA, supra; People v. Mercado, 159 SCRA 453, March 30, 1988.
53
Petitioners Memorandum, p. 16; rollo, p. 180.
54
Ibid.
55
People v. Gutierrez, GR No. 142905, March 18, 2002; People v. Manlansing, GR No. 13173637, March 11, 2002; People v. Sitchon, GR No. 134362, February 27, 2002; People v. Ancheta,
GR No. 138306-07, December 21, 2001.
56
People v. Boquila, GR No. 136145, March 8, 2002; People v. Cortezan, GR No. 140732,
January 29, 2002; People v. Saul, GR No. 124809, December 19, 2001; People v. Viernes, GR
No. 136733-35, December 13, 2001.
57
People v. Valles, 267 SCRA 103, January 28, 1997; People v. Rogales, 6 SCRA 830, November
30, 1962.
47
48

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 133570-71

January 15, 2002

PEOPLE OF THE PHILIPPINES, appellee,


vs.
NERIO SUELA y HEMBRA, EDGAR SUELA y HEMBRA and EDGARDO
BATOCAN, appellants.
PANGANIBAN, J.:
In this Decision, the Court visits and applies existing jurisprudence on the right to competent
and independent counsel of persons under custodial investigation. It also reiterates the longstanding judicial policy that procedural laws which are favorable to the accused shall be
given retroactive effect. Inasmuch as the aggravating circumstance of disguise was not
alleged in the Information, it cannot now be appreciated to increase the penalty to death,
notwithstanding the fact that the new rule requiring such allegation was promulgated only
after the crime was committed and after the trial court had already rendered its Decision.
The Case
For automatic review by this Court is the Decision1 dated January 26, 1998 of the Regional
Trial Court of Quezon City, (Branch 95), finding appellants guilty beyond reasonable doubt of
robbery with homicide and simple robbery. The decretal portion of the Decision reads as
follows:
"WHEREFORE, judgment is hereby rendered in the following:
"1. In Crim. Cases Nos. Q-96-64616 and Q-96-65071, the Court finds the accused
Nerio Suela y Hembra and Edgar Suela y Hembra and Edgardo Batocan GUILTY
beyond reasonable doubt of the crime of Robbery with Homicide defined in and
penalized by paragraph I, Article 294 of the Revised Penal Code, as amended by
R.A. 7659, and, there being one aggravating circumstance of disguise (par. 14, Art.
14, Revised Penal Code) and no mitigating circumstance to offset the same, each of
them is hereby sentenced to suffer the penalty of DEATH and are ordered to
indemnify the heirs of the late Geronimo Gabilo y Hostallero the amount
of P50,000.00, as death indemnity; P20,000.00 as exemplary damages;P125,250.00,
as actual and compensatory damages; and P2,8[8]0,000.00, as loss of earnings
based on the formula (2/3 x (80-44) or 24 years life expectancy by P120,000.00
reasonable average net annual earnings.

"The three accused are further ordered to return to John Doe (not his real name) the
three (3) cameras worth P25,000.00; assorted jewelry worth P120,000.00 and cash
money in the amount of P500,000.00. If the three (3) cameras and the assorted
jewelry can no longer be returned, the three (3) accused are hereby ordered to
instead pay the value thereof in the total amount of P145,000.00;
"2. In Crim. Case No. Q-96-64618, the Court finds the accused Edgar Suela y
Hembra GUILTY beyond reasonable doubt of the crime of Simple Robbery defined in
and penalized by paragraph 5, Article 294, of the Revised Penal Code and is hereby
sentenced to suffer the indeterminate penalty of from six (6) months and one (1) day
of prision correccional minimum, as the minimum penalty to four (4) years, two (2)
months and one (1) day of prision correccional maximum, as the maximum penalty;
and,
"3. In Crim. Cases Nos. Q-96-64617 and Q-96-65072, the Court finds the accused
Nerio Suela y Hembra, Edgar Suela y Hembra and Edgardo Batocan NOT GUILTY
of the Crime of Carnapping as defined in and penalized by Rep. Act. 6539, as
amended by Rep. Act 7659, and hereby ACQUITS them for failure of the prosecution
to prove the guilt of the accused beyond reasonable doubt.
"The Sony TV set (Exh. 'E') and the Citizen gold wrist watch (Exh. 'T-1') are hereby
ordered returned to John Doe (not his real name) upon the final disposition of the
cases.
"The motorcycle (Exh. 'FF') under the name of the accused Edgardo Batocan shall
be kept by the Court until the final disposition of the cases.
"All the three (3) accused are ordered to pay the costs.
"IT IS SO ORDERED."2
The Information3 against Nerio Suela and Edgar Suela in Criminal Case No. Q-96-64616
reads as follows:
"That on or about the 26th day of July 1995, in Quezon City, Philippines, the abovenamed accused, conspiring, confederating with another person whose true name,
identity and whereabouts have not as yet been ascertained and mutually helping one
another, by means of force upon things, did then and there wilfully, unlawfully and
feloniously rob one GERONIMO GABILO Y HOSTALLERO in the following manner,
to wit: on the date and place aforementioned said accused managed to enter the
house of complainant located at No. 95 B-5 A. Melchor St., Xavierville Subd., Loyola
Heights, this City, by barging into the door of said house and once inside took,
robbed and carried away the following, to wit:

one (1) 14" Sony Trinitron colored TV

P12,000.00

three (3) cameras

25,000.00

assorted jewelries

120,000.00

cash money

500,000.00

all in the total amount of P657,000.00, Philippine Currency, and on the occasion of
said Robbery, the said accused pursuant to their conspiracy, with intent to kill,
attacked, assaulted and employed personal violence upon the person of said
GERONIMO GABILO Y HOSTALLERO, by stabbing him, thereby inflicting upon him
serious and mortal wounds which were the direct and immediate cause of his
untimely death, to the damage and prejudice of the heirs of said Geronimo Gabilo y
Hostallero, in the total amount aforementioned."
The Information4 against Edgardo Batocan in Criminal Case No. Q-96-65071 reads as
follows:
"That on or about the 26th day of July, 1995, in Quezon City, Philippines, the abovenamed accused, conspiring and confederating with NERIO SUELA Y HEMBRA and
EDGAR SUELA Y HEMBRA who are being charged with the same offense at
Regional Trial Court Branch 79 and docketed as Criminal Case No. Q-64616, and
mutually helping one another, by means of force upon things, did then and there
wilfully, unlawfully and feloniously rob one John Doe (not his real name) in the
following manner, to wit: on the date and place afor[e]mentioned said accused
entered the house of complainant located at 95 Melchor St. Xavierville Subd., Loyola
Heights, this City, by barging into the door of said house and inside took, robbed and
carried away the following, to wit:

one (1) 14" Sony Trinitron colored TV

P12,000.00

three (3) cameras

25,000.00

assorted jewelries

120,000.00

cash money

500,000.00

all in the total amount of P657,000.00, Philippine Currency, to the damage and
prejudice of John Doe (not his real name) in the aforementioned amount
of P657,000.00, and on the occasion of said Robbery, the said accused pursuant to
their conspiracy, with intent to kill, attacked, assaulted and employed personal
violence upon the person of said GERONIMO GABILO Y HOSTALLERO, by
stabbing him, thereby inflicting upon him serious and mortal wounds which were the
direct and immediate cause of his untimely death, to the damage and prejudice of the
heirs of said Geronimo Gabilo y Hostallero."
The Information5 against Edgar Suela in Criminal Case No. Q-96-64618 reads as follows:
"That on or about the 18th day of January 1996, in Quezon City, Philippines, the said
accused, with intent to gain, and by means of intimidation against person, did then
and there wilfully, unlawfully and feloniously rob/extort one John Doe (not his real
name) in the manner as follows: on the date and place aforementioned, the said
accused called up by phone the Executive Secretary of said complainant and
demanded the amount of P200,000.00, Philippine Currency, in exchange for the
information regarding the robbery case and slaying of Geronimo Gabilo on July 26,
1995, as in fact said accused, took, robbed and carried away the aforesaid amount
of P200,000.00, Philippine Currency, to the damage and prejudice of the said
offended party."
When arraigned on September 24, 1996, appellants, with the assistance of counsel, pleaded
"not guilty."6 In due course, they were tried and found guilty by the court a quo.
The Facts
Version of the Prosecution
The Office of the Solicitor General summarized the evidence for the prosecution in this wise: 7
"On July 26, 1995, between 11:00 P.M. and 12:00 midnight, private complainant John
Doe (not his real name) was at the master's bedroom located at the second floor of
his townhouse residence at #95 B-5 A. Melchor Street, Xavierville Subdivision,
Loyola Heights, Quezon City. He was watching television thereat, together with his
adopted son, Norman Rosas, and his former co-teacher and good friend, Geronimo
'Gerry' Gabilo, who at that time was engaged in the real estate business. Suddenly,
three persons sporting ski masks, bonnets and gloves, brandishing handguns and a
knife, barged into the room. The tallest of the three, with a height of about five feet
and five inches, reached for the light switch and turned it off. The three intruders then
shouted 'dapa, dapa.' So John Doe (not his real name), Gerry Gabilo, and Norman
Rosas dropped to the floor with their faces facing the bed. Two of the malefactors
turned off the television set, and tied their hands at their backs, with the use of
hankies and telephone cord. The room remained illuminated by the light coming from

a walk-in closet and from the lamp post outside fronting the room, and from the lights
of the neighboring townhouses.
"The shortest of the three malefactors, about five feet tall, poked the barrel of his gun
on the chin of John Doe (not his real name), then inside John Doe (not his real
name)' mouth. At the same time, using his free hand, the same malefactor poked a
knife on the right side of John Doe (not his real name)' neck. The other man, who
was the second to the tallest, with a height of about five feet three inches, while
holding a penlight in one hand, and a gun on the other, threateningly told John Doe
(not his real name), 'Nakikita mo ba iyan? Nararamdaman mo ba iyan?', to which
John Doe (not his real name) replied 'Opo, opo.' The two then ordered John Doe (not
his real name) to 'ilabas ang iyong mga pera.' All that time, while the two were with
John Doe (not his real name), the other man, the tallest of them, stood in front of the
mirror by the side of the door, facing and brandishing a gun towards Norman Rosas.
John Doe (not his real name) did not heed the order to bring out the money even
though Gabilo advised him, saying 'John Doe (not his real name) ilabas mo na.'
However, Gabilo stood up, and even with his hands tied at the back, went towards
the second compartment of the television rack and reached for an envelope
containing his money. He handed the envelope to the shortest of the three fellows,
who, upon seeing the money inside the envelope, closed it. John Doe (not his real
name) knew that the envelope contained P200,000.00 as Gabilo had informed him of
the amount earlier that evening. Forced to reveal that his money was in the walk-in
closet, the second tallest of the three malefactors poked a gun on John Doe (not his
real name)' neck, forced him to get up, kicked and pushed him towards the closet.
When the fellow could not open the closet, he asked John Doe (not his real name)
for the key. When he was informed that the key was inside his wallet which was on
top of the drawer beside his bed, the fellow opened the wallet and took all the money
he found in it: two (2) $100.00 bills and ten (10) P1,000.00 bills. With the key, he
thereafter opened the closet. He then asked where the money was. When John Doe
(not his real name) told him that it was inside his suitcase, the fellow tried opening it
but failed. So he ordered John Doe (not his real name) to open it but the latter also
failed as he had difficulty doing so since his hands were still tied at his back. The
fellow, however, subsequently opened the suit case himself and got all the money in
it amounting to P300,000.00. He also took the valuables he found inside the suit
case, viz., a gold-plated Citizen wristwatch engraved at the back with 'John Doe (not
his real name)' and some rings and bracelet valued at P20,000.00, more or less. The
malefactors also took with them three (3) automatic cameras valued at P25,000.00
each, and bottles of cologne costing aboutP10,000.00. While leaving John Doe (not
his real name) lying on the floor near the closet, the second tallest of the three,
together with the shortest fellow, went to Gabilo and dragged and pushed him. They
demanded that Gabilo give them his car key, which he did. They then dragged Gabilo
out of the room and proceeded downstairs. The second tallest fellow went back to
John Doe (not his real name) and said 'Mabait ka, mabait ka' but warned him not to
follow them downstairs because 'puputok ang granada sa daanan mo.' He then
placed a gag inside John Doe (not his real name)' mouth, tying it with a piece of
cloth. Upon sensing that the three were already downstairs, John Doe (not his real
name) tried to follow them but his adopted son, Norman Rosas, pleaded 'Daddy,
daddy, huwag kang sumunod, baka patayin ka nila.' After about two (2) minutes, a
long moaning sound was heard coming from downstairs, which sound resembled
Gabilo's voice. After a while, he heard the engine of Gabilo's car, a Nissan Sentra car

with plate no. TEB-258, running and he later found out that they had also carted
away his Sony Trinitron colored television set. Sensing that the malefactors had left,
he went downstairs and saw Gabilo slump[ed] on the floor in his blood. When he saw
that Gabilo was motionless, he went back to the second floor and told his son to
rouse their housemaid, Pinky Maalac, who was asleep on the third floor of their
townhouse. They then sought help from their neighbors. The first to assist them was
a medical doctor who, upon examining Gabilo, informed them that the latter was
already dead. At the Quezon City Medical Center where Gabilo was subsequently
brought, he was pronounced dead-on-arrival.
1wphi1.nt

"Early morning, the following day, July 27, 1995, upon receiving the report from the
Quezon City Medical Center regarding the stabbing incident which resulted to the
death of Gerry Gabilo, Captain Alejandro Casanova, SPO3 Jesus Patriarca, and
SPO2 Reynato Resurrecion, all of the Quirino District Police Station, Station 9,
Anonas Road, Quezon City, proceeded to the crime scene. SPO3 Jesus Patriarca
was assigned as lead investigator of the case. The autopsy conducted on Gabilo
showed that he died of hemorrhage due to multiple (five) stab wounds. To shed light
on the incident, several persons, including private complainant John Doe (not his
real name), his adopted son, Norman Rosas, his brother, Romulo Rosas, their
housemaid, Pinky Maalac, William Hostillero, Ruben Pacuntad, Joven Maalac and
Rodito Gabilo, were summoned and interviewed by the police. The same, however,
did not result to any breakthrough for the case. When they were subjected to a lie
detector test by the NBI, the results were negative.
"Gabilo's Nissan Sentra vehicle was recovered by the operatives of the Western
Police District as it was found abandoned at P. Florentino Street, Sta. Cruz, Manila.
At the back seat floor of the car, a black bonnet was found.
"After almost five (5) months of no leads towards solving the case, on January 15,
1996, Araceli Tubaga, John Doe (not his real name)' executive secretary at his DECS
office at Misamis Street, Bago Bantay, Quezon City, received a call from a male
person who requested to speak with John Doe (not his real name). When Tubaga
requested to get his message as the director could not go to the phone, he told her to
relay to John Doe (not his real name) that he has information as to the identity and
whereabouts of those responsible for the death of his friend, Gabilo. He told her that
he is willing to give the information in writing in exchange for P200,000.00. He then
said that he will call again for John Doe (not his real name)' response to his offer. In
reaction, John Doe (not his real name), accompanied by Tubaga, went to the Quirino
District Police Station to inform Capt. Casanova about the call. Capt. Casanova
came up with the plan to entrap the caller. At noon the following day (January 16,
1996), the unidentified caller called again. When told that John Doe (not his real
name) was accepting his offer, he instructed Tubaga to meet him the following day
(January 17, 1996) at noon at the Ninoy Aquino Park, Quezon Avenue, Quezon City.
He told her to bring with her the amount of P200,000.00 which should be placed in a
plastic bag, and to bring flowers with her so he could easily identify her. John Doe
(not his real name) informed Capt. Casanova about the conversation.
"On January 17, 1996, about 10:00 A.M. Tubaga went to the Max's Restaurant at the
Quezon City Circle and met Capt. Casanova and the other policemen, in preparation

for the entrapment. Carrying with her the boodle money in a Unilane Food Mart
plastic bag, she proceeded to the Ninoy Aquino Park and waited but the caller did not
appear. About 5:00 P.M. that afternoon, the caller called her at the office and
informed her that he will meet her the following day (January 18, 1996) at the same
time and place. Thus, the following day, she waited for him at the designated spot.
Shortly after, a male person approached her and asked if she was the one with
whom he talked with over the phone. When she answered in the affirmative, he
handed her an envelope while she handed him the plastic bag containing the boodle
money. While he was untying the plastic bag to check its contents, the police officers
who were posted in the vicinity pounced on him and effected his arrest. He was
brought to Police Station 9. This person was later identified as appellant Edgar
Suela.
1wphi1.nt

"While on board the vehicle on their way to the police station, in the presence of
appellant Edgar Suela, Capt. Casanova, and the other policemen, SPO3 Patriarca
opened the envelope which Tubaga had earlier received from appellant Edgar Suela.
It contained a handwritten note which reads:
1. Nerio Suela ang utak nang pag-paslang
2. TV color and ibedensia nasa bahay niya. Ang tunay na pangalan National
ngayon ay pinalitan nang Panasonic.
3. Ang knife na ginamit nasa bahay niya 8 [sic].
When he asked Edgar Suela who wrote it, he answered 'Ako po, sir.' When he further
asked as to who is Nerio Suela, Edgar answered that he is his brother and is the
driver of John Doe (not his real name).
"With that information, appellant Nerio Suela was immediately arrested at John Doe
(not his real name)' office. When Nerio confirmed the contents of his brother Edgar's
letter, Capt. Casanova directed SPO1 Carlos Nicolas and PO2 Orlin Comia to
accompany Nerio to his residence at Kaibigan Street Street, Kalayaan B, Barangay
Batasan Hills, Quezon City. Thereat, they recovered the Sony Trinitron TV, and a
knife with a wooden scabbard.
"While under detention, the Suelas expressed their desire to give an extra-judicial
confession. Hence, on January 19, 1996, between 4:00 to 5:00 o'clock in the
afternoon, SPO3 Patriarca, together with Capt. Casanova and another police officer,
brought the Suelas to the office of the Integrated Bar of the Philippines (IBP), located
at the second floor, Hall of Justice, Quezon City. When they arrived there, Atty.
Confesor Sansano and Atty. Florimond Rous were manning the IBP office. When the
police informed them of their purpose, Atty. Sansano separately interviewed each of
the Suelas first, informed them of their constitutional rights, insured that they
understood the import of their confession, physically examined them for any sign of
maltreatment or force, and after satisfying himself that the suspects' intention was
voluntary on their part and that it was his legal assistance that they were willing to
secure, he allowed the police to take down their individual extra-judicial confessions.
Atty. Sansano was present all throughout the time that the Suelas were individually

propounded with questions. Thereafter, both were brought before the Assistant City
Prosecutor where they affirmed their confessions under oath in the presence of Atty.
Sansano who assisted them. The following morning, January 20, 1996, the Suelas
were again brought before Assistant City Prosecutor Ibuyan for inquest investigation
where they again affirmed under oath the contents of their extra-judicial confessions.
"In their extra-judicial confessions, the Suelas mentioned appellant Edgardo
Batocan, their townmate, as a participant in the crime. Thus, his name was included
in the criminal informations, and a warrant of arrest was issued against him.
"Sometime in the second week of March 1996, a team composed of SPO3 Patriarca,
Capt. Nestor Abalos, and SPO2 Jesus Casica, together with the father of the Suela
brothers, went to Jaro, Leyte, to serve the warrant of arrest on appellant Batocan. In
coordination with Sr./Insp. Benjamin Labadia, the Chief of Police in Jaro, Leyte, the
arrest of appellant Batocan was effected. He was immediately brought to Manila and
was detained at the Quezon City Police Station 9. The operatives were able to
recover the gold-plated Citizen watch of John Doe (not his real name) from Batocan's
girlfriend at Barangay San Agustin, Jaro, Leyte. The brand-new Honda motorcycle
registered in appellant Batocan's name was shipped from Leyte to Quezon City as
Batocan had admitted that he had bought it sometime in July 1995 with his share
from the loot of the robbery. While in police custody, appellant Batocan also indicated
his desire to give an extra-judicial confession. Thus, on March 31, 1996, about 3:30
P.M., he was brought by SPO2 Reynato Resurreccion to the same IBP office and
gave his confession in the presence and with the assistant of Atty. Flormind [sic]
Rous, which statement he subscribed before an Assistant City Prosecutor and later
re-affirmed before an inquest Fiscal." (Citations omitted)
Version of the Defense
On the other hand, the Public Attorney's Office (PAO) summarized appellants' version of the
incident as follows:8
"On July 26, 1995, Edgardo Batocan was in his hometown in Jaro, Leyte where he
worked as a farmer. Sometime in March 1996, and while on board his motorcycle, he
was arrested by the police. He bought the motorcycle from an uncle with the money
that his sister gave him. No citizen gold wristwatch was seized from him upon his
arrest.
"After his arrest he was brought to Quezon City and investigated. He had no
knowledge nor any participation in the crime that occurred on July 26, 1995, at the
residence of John Doe (not his real name). He was forced and threatened by the
police officers to admit and confess to the crimes. He was also forced to sign a
typewritten extrajudicial confession, the contents of which he did not know as he was
not allowed to read it nor was it read to him. No lawyer was present at that time and
he only met Atty. Rous for the first time in court. He recalled however, that during his
brief visit at the IBP-Quezon City Chapter office, in the afternoon of March 13, 1996,
he saw, but did not talk to Atty. Rous, the one who limps, whom he recognized when
the latter testified in Court. He was brought before the Assistant City Prosecutor for
inquest but the fiscal did not explain to him the contents of his written statement. He

was not adept at reading because he only reached first year high school. No copy of
his supposed statement was given him. He did not complain to the fiscal nor to any
government agency about the alleged coercion and threats of the police. He only told
his lawyer, Atty. Tabang and his brother Jimmy Batocan about it. He is not angry at
the Suelas for falsely implicating him. In jail, he confronted the brothers and was told
that they were merely forced by the police officers so that they could be freed. The
Suelas had many friends but they pointed to him because they thought that the
police will no longer bother to pursue him because he lived in a very far place in
Leyte. He knew the Suela brothers because they were his barriomates in San
Agustin, Jaro, Leyte. Although he came to Manila in 1992 to work until 1994, he did
not visit the Suelas or any of his friends from his barrio. He could not recall his exact
Manila address.
"Nerio Suela worked as a driver of John Doe (not his real name) at DECS 1993 up to
1995. Geronimo Gabilo was formerly his co-employee thereat as the latter was the
one responsible for his employment with John Doe (not his real name). In the months
of June and July 1995, he was mostly at home because he was recuperating from an
operation (for appendectomy). He was on leave and reported back to work only on
July 30, 1995. It was then that he learned about the untimely demise of Gerry Gabilo.
The police and the NBI did not investigate him, not until after his arrest on January
18, 1996 by the Quezon City police.
"He had no knowledge nor participation in the killing of Gerry Gabilo nor in the
robbery that occurred at the residence of John Doe (not his real name) on the night
of July 26, 1995. After his arrest, he was brought to Danarra Hotel where he was
manhandled and boxed and his head submerged in the toilet bowl. He was forced to
sign a piece of paper. He also met his brother Edgar at the same hotel. He was not
allowed to read the paper which he was forced to sign. He found out later on that this
was the statement or his supposed extra-judicial confession. From the hotel, he was
brought to his house where the police took away his television set (TV) and a knife
with scabbard. John Doe (not his real name) gave him the tv set after Gabilo's death.
At that time, he did not notice why the 'Sony' brand name was scrapped and
replaced by the name 'National'. The next day, he was brought to the City Hall where
he was given a lawyer whom he does not know and whose name he could not even
recall. The lawyer showed him a paper and asked him if the signature thereon was
his. The lawyer did not ask him anything more. The former did not explain to him that
said paper was his alleged admission to the crimes for which he was arrested and
detained. He met Atty. Sansano for the first time in the court room during the hearing
of these cases and not on January 19, 1996. He could not recall if Atty. Sansano was
the same one who was presented to him when he was brought to the City Hall after
his arrest. After this, he was brought before the Assistant City Prosecutor.
"He sustained hematomas (pasa) from the man-handling by his police captors but he
did not show them to the Assistant City Prosecutor or the lawyer at the IBP, Quezon
City office nor did he file any complaint against the police. He recanted his
confession in his counter-affidavit.
"He knew Edgardo Batocan well because they grew up together in the same town in
Leyte. On July 26, 1995, he was at home at Batasan Hills, Quezon City, the whole

time. He was playing chess with his neighbor Mang Tancio during the time of the
incident.
"While inside the prison cell, he was convinced by his officemates at the DECS-NCR
and by Capt. Casanova to write John Doe (not his real name) a letter on January 31,
1996. The contents of this letter was merely dictated to him by the police.
"Edgar Suela admits to having called up the office of John Doe (not his real name)
and in proposing a trade off of P200,000.00 in exchange for the information he would
give about the identities and whereabouts of the robbers. He learned from his brother
Nerio that John Doe (not his real name) placed a reward money for whoever can
provide such an information. At the agreed time and date of the 'trade off', the police
apprehended him and changed the original note he gave with another written note
the contents of which, the police forced and dictated to him. During his investigation,
the police employed threats, intimidation and physical force to make him admit to the
crime, and to sign a statement or confession. Together with his brother, he was
brought to the office of the IBP in Quezon City, a lawyer talked to him and he
identified this person in court as Atty. Sansano. At the IBP office, he was asked to
sign his supposed extrajudicial confession. Later on, he executed a Counter-Affidavit
wherein he assailed the voluntariness of his forced confession and recanted the
contents thereof.
"He has no knowledge about the killing of Gerry Gabilo nor about the robbers who
invaded John Doe (not his real name)' house.
"On July 26, 1995, he was on his tour of duty as security guard of Hoctagon Security
Agency at his assigned post at Northridge Elementary School, along Mother Ignacia
Street, Timog Avenue, Quezon City. Edgardo Batocan was his acquaintance since
childhood and the last time he saw the latter was in 1990 at Jaro, Leyte. He did not
see Batocan in his hometown when he got married in November 1995. He did not
implicate Batocan. He learned about the death of Gerry Gabilo when he came back
to Manila after his wedding.
"Joselito Jacinto testified that Nerio Suela wanted him to repair the latter's television
set. The defect of said tv, pertain only to the channeling. He asked Suela for money
to buy the spare parts. On August 19, 1995, he met Nerio Suela and his boss, John
Doe (not his real name) at the SM parking lot. John Doe (not his real name) gave
Nerio some money which the latter in turn gave him for the TV spare parts and
repair.
"Dionesio Ador had seen Edgardo Batocan in Jaro, Leyte on July 26, 1995. The
motorbike of Batocan is an old red Honda. He saw Batocan used a new motorbike in
December 1995 in their barrio. He does not know the Suela brothers. Batocan had
been in their barrio all his life and had not left their place." (Citations omitted)
Ruling of the Trial Court
The court a quo ruled that appellants had been assisted by competent and independent
counsel during the execution of their extrajudicial confessions. It gave credence to the

testimonies of Atty. Sansano and the police officers and thus admitted in evidence the said
confessions.
The letter of Nerio Suela addressed to John Doe (not his real name) asking for forgiveness,
as well as the discovery of the stolen TV set and knife in the former's house, further
convinced the trial court of appellants' guilt. Finding the presence of one aggravating
circumstance (disguise) with no mitigating circumstance to offset it, the trial court sentenced
them to death.
Hence, this automatic review before us.9
Assignment of Errors
In his Brief, Appellant Edgardo Batocan ascribes to the trial court the following alleged
errors:10
"I. The trial court gravely erred in considering Edgardo Batocan's extra judicial
confession as admissible evidence against him.
"II. The trial court erred in admitting and appreciating the wristwatch as evidence
against Edgardo Batocan.
"III.The trial court erred in convicting Appellant Batocan of robbery with homicide."
Appellants Nerio and Edgar Suela, on the other hand, fault the trial court with the following
supposed errors:11
"I. The court a quo erred in considering the extr[a]-judicial confessions of Edgar
Suela and Nerio Suel[a] are admissible against them;
"II. The court a quo erred in considering the letter of Nerio Suela to John Doe (not his
real name) as evidence against him;
"III. The court a quo erred in convicting Edgar Suela for simple robbery under Art.
294, no. 5, of the Revised Penal Code.
"IV. The court a quo erred in convicting Edgar Suela and Nerio Suela [of] robbery
with homicide."
Basically, the assigned errors boil down to four: (1) whether the extrajudicial confessions of
appellants are admissible in evidence; (2) whether the wristwatch and the letter (of Nerio
Suela) are admissible in evidence; (3) whether appellants can be convicted of robbery with
homicide; and (4) whether Edgar Suela is guilty of robbery for demanding P200,000 as
payment for information on the robbery-slay case.
The Court's Ruling
The appeal is partly meritorious.

First Issue:
Admissibility of Extrajudicial Confessions
Section 12 of Article III of the 1987 Constitution provides:
"(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
"(2) No torture, force, violence, threat, intimidation, or any other means which vitiate
the free will shall be used against him. Secret detention places,
solitary, incomunicado, or other similar forms of detention are prohibited.
"(3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible in evidence against him.
xxx

xxx

x x x."

In People v. Labtan,12 we explained that "[t]he right to counsel is a fundamental right and
contemplates not a mere presence of the lawyer beside the accused." Furthermore, an
effective and vigilant counsel "necessarily and logically [requires] that the lawyer be present
and able to advise and assist his client from the time the confessant answers the first
question asked by the investigating officer until the signing of the extrajudicial confession.
Moreover, the lawyer should ascertain that the confession is made voluntarily and that the
person under investigation fully understands the nature and the consequence of his
extrajudicial confession in relation to his constitutional rights. A contrary rule would
undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be
presumed innocent."13
True, counsel does not necessarily have to dissuade the person under investigation from
confessing. But his bounden duty is to properly and fully advise his clients on the nature and
consequences of an extrajudicial confession.
In People v. Deniega,14 the Court explained:
"The desired role of counsel in the process of custodial investigation is rendered
meaningless if the lawyer merely gives perfunctory advice as opposed to a
meaningful advocacy of the rights of the person undergoing questioning. If the advice
given is so cursory as to be useless, voluntariness is impaired. If the lawyer's role is
reduced to being that of a mere witness to the signing of a pre-prepared document
albeit indicating therein compliance with the accused's constitutional rights, the
constitutional standard guaranteed by Article III, Section 12(1) is not met. The
process above-described fulfills the prophylactic purpose of the constitutional
provision by avoiding the 'pernicious practice of extorting false or coerced
admissions or confessions from the lips of the person undergoing interrogation for

the commission of the offense' and ensuring that the accused's waiver of his right to
self incrimination during the investigation is an informed one in all aspects."
The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It
stresses the need to accord the accused, under the uniquely stressful conditions of a
custodial investigation, an informed judgment on the choices explained to him by a diligent
and capable lawyer.15
With respect Edgardo Batocan, we hold that his extrajudicial confession was obtained in
violation of his constitutional rights. This appellant did not finish first year high school. 16 Yet
Atty. Rous, who is touted by the prosecution as a competent and independent counsel,
interviewed Batocan -- before the latter gave his confession -- for only around "five
minutes."17 After this initial interview, Atty. Rous just listened nonchalantly to the questions
propounded by the police and to the answers given by Batocan. Counsel was not even sure
that he had explained to appellant the consequences of his extrajudicial confession.
Furthermore, Atty. Rous' attention was divided while attending the custodial investigation as
he was also looking over another paper work on his desk.18
In view of these proven circumstances, we are not convinced that counsel had fully
explained to Batocan his constitutional rights and what they entailed or the nature and the
consequences of an extrajudicial confession -- explanations that would have enabled him to
make an informed judgment on whether to confess; and if so, on what matters. There is no
showing that Atty. Rous properly explained the choices or options open to appellant, a duty
expected of any counsel under the circumstances. In sum, he did not turn out to be the
competent and independent counsel envisioned by the Constitution.
We now go to the extrajudicial confessions of Edgar and Nerio Suela. Atty. Sansano
supposedly stood as counsel for the Suela brothers during their custodial investigation. He
testified on how he discharged his duties as follows:
"Q:
Did you also inform them of the nature of the charge against them and the
circumstances s[u]rrounding the taking of their statement?
A:
I did not have the opportunity to inform them about the nature of their charge
because at that time, when they introduced to me, I have not yet informed them what
they are going to do and what being took their statement.
Q:
In other words, Mr. Witness, you did not inform the[m] that the [imposable]
penalty in this crime is death?
A:
Well, during my personal interview as I said, at that time, I don't even know
that they are charged for Murder and Homicide.
Q:
But anyway, Mr. Witness, when this case was brought to you by the police
officer, you really informed that the crime charged was robbery-homicide, Carnapping
and extortion?

A:
Nobody informed me about the nature of the charge as they stated. They were
just brought before me there. I was asked to provide the free legal assistance other
than the investigation conducted by the police officer.
Q:

Did you not ask the police why these people were brought to you?

A:
They told me that they are going to be asked questions, to be investigated in
connection with that incident in John Doe (not his real name) home.
Q:

And did you not ask the police what was that incident?

A:
The police told me already that the two boys were going to give statement in
connection with that incident in John Doe (not his real name) house where one was
killed in the house of John Doe (not his real name).19
xxx

xxx

xxx

Q:
But, nevertheless, Mr. Witness, it was the policeman who choose you to be
the lawyer to assist?
A:
No, sir, the police only thru their duties, to suggest or provide where counsel
can be sought, now, it happened that under our agreement, with the police, if the two
boys were going to give their statement and if the declarant got no lawyer that they
will bring them to the IBP because we even provide the assistance that are needed
in order to be able to conduct an investigation."20 (Italics supplied)
xxx

xxx

xxx

"Q:
Anyway, you already knew that the incident of robbery and killing of a person
was involved, is that right?
A:

Yes sir, after the investigation.

Q:
So when you already knew the possible charge based on the testimony of the
two declarants?
A:

Yes sir, it was robbery with homicide.

Q:
You said a while ago that your duty as assisting counsel was only to advise
the suspects one of which is to advise them that they can if they do not want to
answer those questions that they would think damaging then they can do that?
A:
Yes sir, and the best evidence is the evidence that they gave in their
statements.
Q:
Now, since you advised them about damaging testimonies, did you not advise
them that to make a confession would be damaging to themselves as assisting
counsel?

A:
The confession became clearly damaging only after the answers were given
following the question but as I said, at that stage I did not stop the declarant from
giving his answer because if I objected then that would be an obstruction in the
investigation itself."21
Evidently, Atty. Sansano did not understand the exact nature of appellants' rights to counsel
and to remain silent during their custodial investigations. He viewed a refusal to answer as
an obstruction in the investigation. This shows that he was incapable or unwilling to advise
appellants that remaining silent was a right they could freely exercise without fear of any
untoward consequence. As counsel, he could have stopped his clients from answering the
propounded questions and advised them of their right to remain silent, if they preferred to do
so. That the process of investigation could have been "obstructed" should not have
concerned him because his duty was to his clients and not to the prosecution or to the police
investigators.
1wphi1.nt

Moreover, when he interviewed appellants, he did not even bother to find out the gist of their
proposed statements in order to be able to inform them properly of the nature and
consequences of their extrajudicial confessions. Clearly and sadly, appellants were not
accorded competent and independent counsel whom they could rely on to look after their
interests.
"In People v. dela Cruz, we stated that 'a confession made in an atmosphere
characterized by deficiencies in informing the accused of all rights to which he is
entitled would be rendered valueless and inadmissible, perforated, as it is, by noncompliance with the procedural and substantive safeguards to which an accused is
entitled under the Bill of Rights and as now further implemented and ramified by
statutory law.'"22
Where the prosecution failed to discharge the State's burden of proving with clear and
convincing evidence that the accused had enjoyed effective and vigilant counsel before he
extrajudicially admitted his guilt, the extrajudicial confession cannot be given any probative
value.23
The extrajudicial confessions of all three appellants are thus inadmissible in evidence.
Second Issue:
Admissibility of Wristwatch and Letter
Wristwatch
Edgardo Batocan allegedly confessed in Leyte that the stolen Citizen wristwatch had been
given to his girlfriend. When he rendered this confession, he did not execute any written
waiver of his right to remain silent or of his right to counsel. "Any admission wrung from the
accused in violation of his constitutional rights is inadmissible in evidence against
him."24 Therefore, his alleged statement as to the location of the wristwatch is inadmissible.
Furthermore, the prosecution's claim that the wristwatch was recovered from his girlfriend is
hearsay and hence, has limited probative value.25 The prosecution did not present anyone

who had actually witnessed the alleged recovery of the wristwatch from the girl. S/Insp.
Benjamin Labadia recounted the incident in this plainly insufficient manner:
"Q:
Alright Mr. Witness, you said that a wrist watch was also a part of the loot and
that Batocan told your team that it was in the custody of his sweetheart. When so
informed that this wrist watch was in the custody of his sweetheart, what did the
police operatives do?
A:
The police operatives together with Edgardo Batocan went to the place and
when they came back, I did not go with them, the wrist watch was already in the
possession of the Quezon City Police operative, Sir.
Q:
Did you actually see, Mr. Witness when the team proceeded to the place
where the sweetheart of accused Edgardo Batocan was staying, give this wrist watch
to the Quezon City Police operatives?
A:

I said, Sir. I did not accompany them."26

As for the wristwatch itself, we agree with appellant that its seizure, if it was really taken from
Batocan's girlfriend, was irregular. As succinctly explained in Batocan's Brief:
"x x x. Clearly, the watch was taken without a search warrant and not as an incident
of a valid arrest. The seizure was irregular. There is also no evidence on record that it
was taken under any of the exempting circumstances where a warrantless seizure is
permissible. It was not shown if the girlfriend voluntarily and validly consented to the
taking x x x. Lacking such evidence, no presumption of regularity can be assumed.
'Where the search was conducted with irregularity, i.e. without a warrant, the
Court cannot appreciate consent based merely on the presumption of
regularity of the performance of duty.' (People vs. Encinada, 280 SCRA 72).
"The wristwatch is clearly a fruit of a 'fruit of a poisonous tree.' As such, it should not
have been admitted and appreciated against the accused."27
Letter
Nerio Suela also contends that his January 31, 1996 letter to John Doe (not his real name) is
inadmissible in evidence. The letter reads as follows:

"Jan-31-96

"Dearest Sir John Doe (not his real name)


"Sir matagal kona sana ito ipagtapat sa iyo dahil tuwing kitay nakikita na lumoloha ka
parang hindi ako maka hinga ng sisikip and aking dibdib. Tuwing tayo'y nasa

simbahan homihinge ako ng tawad sa panginoon ang nagawa kong ito


nararamdaman ko na parabang hinde niya tinatanggap.
"Sir napakalaki ng nagawa kong kasalanan sa iyo at sana bigyan mo pa ako ng
isang pagkakataon pagsisihan ko lahat ang pagkakasala sa iyo babagohin ko na ang
buhay ko maglilingkod ako sa diyos.
"Sir nandito ako sa likod ng bakal na rihas halos lahat ng oras ng dadasal ako bigyan
mo pa ako ng isang pagkakataon patawaring mo ako.
"Sir alam ng diyos na hindi ako ang kriminal may kinalaman lang ako inamin ko na
lang. Para naman magkaroon ng lonas yong problima mo hindi narin ako makatiis
hindi pa makatolog. Lalo na nakikita kita na ng hihirap ang inyong katawan lalo na
ang in kalooban sana sir bigyan mo pa ako ng isang pagkakataon patawarin mo ako
isa rin ako na anak ng diyos na naligaw ng langdas ngayon pinagsisihan ko lahat
ang nagawa kong kasalanan sir ayaw ko pang mamatay maliliit ang aking mga anak
mahal ako ng aking asawa.
"Sir. Edgardo Batokan ang pumatay kay Sir JERRY sangayon nandoon siya sa Jaro
Leyte Bo. San Agostin. Sir hinde ko maggawang pomatay ng tao somama lang ako
dahil baka kayo ang patayin nang doon lang ako sa may pito. Yung kapatid ko
namana siya ang may baril siya and nanotok si Edgardo Batokan siya ang komoha
ng pira tapos omalis na kami ako ang ng drive ng kotse. Tapos inewan namin sa
Ricto tapos ng hiwalay hiwa na kame yon tike. Dian ng kapatid ko.
"Sir patawarin mo na ako hinde naman akong masamang tao na pasama lang ako.
"Sana po & sir babaan mo naman ang aking sintinesia ayaw ko pang mamatay.

Nerio Suela
(signed)
Quezon City Jail

Sir. Sagotin mo naman


itong sulat ko
(signed)"28

This letter was properly identified. Nerio was no longer under custodial investigation when he
wrote it. In open court, he admitted having written it. Thus, contrary to his contention, the fact
that he was not assisted by counsel when he wrote it will not make the letter inadmissible in
evidence. Constitutional procedures on custodial investigation do not apply to a spontaneous
statement, not elicited through questioning by the authorities.29Hence, the letter is admissible
in evidence.

Third Issue:
Liability for Robbery with Homicide
Without the wristwatch and the uncounseled extrajudicial confessions, are the remaining
pieces of evidence still sufficient to prove appellants' guilt beyond reasonable doubt?
Fortunately for the prosecution, our answer is "Yes."
Excluding the wristwatch and the written extrajudicial confessions, the material evidence on
record are as follows:
1) The testimony of the medicolegal officer in conjunction with the medico legal
Report30 which proved the existence of five stab wounds on the cadaver of Geronimo
Gabilo;
2) The stolen colored Sony television set and the knife used in stabbing Geronimo
Gabilo, which were recovered from the house of Nerio Suela;
3) The handwritten letter of Nerio Suela asking for forgiveness and admitting his
participation in the crime;
4) The handwritten tip on the identity of the malefactors voluntarily handed by Edgar
Suela to Araceli Tubaga, which -- in open court -- he admitted having written. It
states:
'1. Nerio Suela ang utak ng pagpaslang
'2. TV color and evidencia nasa bahay niya ang tunay na pangalan national
ngayon ay pinalitan ng Panasonic
'3. Ang knife na ginamit nasa bahay niya 8 inc.'
5) The testimony of John Doe (not his real name) who narrated how three hooded
men brandishing guns and a knife barged into his room on the night of January 18,
1996, and hogtied him, Gabilo and Norman.31They were then threatened and
intimidated into giving the location of their money and valuables, which the criminals
eventually took.32 The malefactors then dragged Gabilo downstairs.33 Shortly,
thereafter, he followed them and found Gabilo in a pool of his own blood. 34 He
observed that the height and built of the three malefactors were the same as those of
appellants;35
6) The oral admissions made by Nerio Suela and Edgardo Batocan to John Doe (not
his real name) and his officemates. John Doe (not his real name) testified as follows:
"Q
After Nerio Suela was told that somebody will be talking with him thru the
phone, what happened next, if any?

A
Nerio Suela pale faced, admitted the commission of the crime and he was very
apologetic to me and he said: "Sir, patawarin mo po ako sa aking nagawa, nagkamali
lang po ako, tulungan naman po ninyo ako", those were the statements of Mr. Nerio
Suela as he was being interrogated by Mr. Patriarca.
Q

What else did he tell you?

Those were the only statements that I actually heard from Nerio Suela.36
xxx

xxx

xxx

Again, do you know a person by the name of Edgardo Batocan?

A
I learned about him only from the letter of Nerio Suela and also when I met him
on March 13, 1996, sir.
Q:

Where did you meet this Edgardo Batocan for the first time, Mr. Witness?

A:

I met him in the second floor of station 9 along Anonas Street.

Q:

Under what circumstances were you able to meet him?

A:
Upon his arrest on March 13, 1996 at around 3:00 in the afternoon, I was
called by the Station Commander of Station 9 to meet Mr. Edgardo Batocan and
present also during that time were the relatives of Gerry Gabilo, sir.
Q:
What transpired when you met Edgardo Batocan in the office of the Station
Commander of Station 9?
A:
We talked about the crime and he mentioned to us that it was Nerio Suela who
planned the whole thing at their place and the plan was hatched three days before
the commission of the crime on July 26, 1995.
Q:

What else did he tell you, Mr. Witness, at that time?


xxx

xxx

xxx

A:
He insisted that it was actually Mr. Nerio Suela who masterminded because on
the way down from the second floor, Mr. Gerry Gabilo was pleading with him for them
not to harm him and felt quite remorseful when he was already about to stab my
friend but it was Nerio Suela who pushed him to kill Gerry and then one of my staff
even asked him "how many times did you stab, Mr. Gabilo?"
xxx
Q:

xxx

xxx

What did Edgar Batocan answer to one of your staff?

A:

He answered that he hit him five times, sir.

COURT:
Q:
You were present when your staff member asked Edgardo about the
question?
A:

Yes, I was there.

Q:

You were also present when Edgardo Batocan gave the answer?

A:

Yes, Your Honor.


xxx

xxx

xxx

Q:
Was there any investigation being conducted by the police at that time you
were talking with Edgardo Batocan?
A:

There was none, Your Honor.

Q:

Or you were alone with Edgardo Batocan together with your staff member?

A:
We were left alone at the second floor with some of my staff member together
with the family of Gerry Gabilo, so we were asking him the circumstances on how he
did it and so forth and so on.
Q:

Did he ask for forgiveness?

A:

No, he did not Your Honor.37

Edgardo Batocan's confession to John Doe (not his real name) who is not a police officer is
admissible in evidence.38 The Rules state that "the declaration of an accused acknowledging
his guilt of the offense charged, or of any offense necessarily included therein, may be given
in evidence against him."39 Batocan's verbal declarations are not covered by Sections 12 (1)
and (3) of Article III of the Constitution,40 because they were not extracted while he was under
custodial investigation.
In People v. Tawat,41 the Court declared:
"The rule is that "any person, otherwise competent as a witness, who heard the
confession, is competent to testify as to the substance of what he heard is he heard
and understood all of it. An oral confession need not be repeated verbatim, but in
such case it must be given in its substance."
"Proof of the contents of an oral extrajudicial confession may be made by the
testimony of a person who testifies that he was present, heard, understood, and
remembers the substance of the conversation or statement made by the accused."

These pieces of evidence sufficiently prove beyond reasonable doubt the commission of the
crime of robbery with homicide.
Identities of Appellants As Malefactors
Edgardo Batocan's oral admission to John Doe (not his real name) that he stabbed Gabilo
five times dovetails on material points with the letter of Nerio. In turn, Nerio's letter to John
Doe (not his real name) asking for forgiveness and admitting his participation in the crime,
taken together with the recovery from his house of the stolen TV and knife used in killing
Gabilo; plus the oral admission of Batocan and the written tip of Edgar Suela pointing to him
as the mastermind prove beyond reasonable doubt his identity as one of the malefactors.
The evidence showing the identity of Edgar Suela are circumstantial in character. It is basic
that an accused may be convicted on the basis of circumstantial evidence alone, provided
that: (a) there is more than one circumstance, (b) the facts from which the inferences are
derived are proven, and (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.42 In the present case, all these requirements are
satisfied.
These circumstances may be summarized, thus: (1) Edgar's intimate personal knowledge of
the details of the crime which he wrote down as tips; (2) as a security guard, he possessed a
gun on the night of the incident; (3) he was the brother of one of the malefactors and a friend
of the other; (4) the interlocking admissions to John Doe (not his real name) of Batocan and
his brother Nerio point to Edgar as their cohort; (5) John Doe (not his real name) also
identified him as one of the malefactors. These are duly proven circumstances which
sufficiently establish beyond reasonable doubt his identity as one of the malefactors.
Conspiracy
The three malefactors arrived together at the house of John Doe (not his real name). They
were all wearing ski masks and were all sporting weapons. While one was threatening John
Doe (not his real name), the other was intimidating Gabilo and the third was pointing his
weapon on Norman. After getting the money and valuables of Gabilo and John Doe (not his
real name), all three went downstairs together, two of them dragging Gabilo with them. Upon
the instruction of Nerio, Batocan stabbed Gabilo five times. They finally left together in the
same car, with Nerio driving. These acts of the three appellants before, during and after the
crime clearly 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.43
Hence, although Nerio and Edgar Suela did not themselves stab Gerry Gabilo, they are still
liable for his death as principals because the existence of conspiracy makes the act of one
the act of all.44 Moreover, whenever the complex crime of robbery with homicide is proven to
have been committed, all those who took part in the robbery are liable as principals even
though they did not actually take part in the killing.45
Proper Penalty

The current Rules on Criminal Procedure require that even generic aggravating
circumstances must be alleged in the Information. Thus, Section 9 of new Rule 110 states:
"Sec. 9. Cause of the accusation. - The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.
In People v. Mauricio,46 the Court elucidated:
"The use of the word 'must' indicates that the requirement is mandatory, therefore
failure to comply with Sec. 9, Rule 110, means that generic aggravating
circumstances, although proven at the trial, cannot be appreciated against the
accused if such circumstances are not stated in the information. It is a cardinal rule
that rules of criminal procedure are given retroactive application insofar as they
benefit the accused."
In the present case, the aggravating circumstance of disguise which was appreciated by the
court a quo was not alleged in the Informations against appellants. Following the above-cited
new rule and current jurisprudence, we cannot appreciate the aggravating circumstance of
disguise against appellants. The special complex crime of robbery with homicide carries the
penalty of reclusion perpetua to death. There being no appreciable aggravating
circumstance, the proper penalty to be imposed is reclusion perpetua.
Furthermore, in People v. Catubig,47 we held that while a non-alleged but proven aggravating
circumstance cannot be used to increase the penalty, nonetheless it can be the source of
civil awards. Hence, we retain the trial court's civil grants in this regard.
Fourth Issue:
Robbery
On the trial court's sentence of robbery in Criminal Case No. Q-96-64618, we agree with the
recommendation of the Office of the Solicitor General that Edgar Suela should be acquitted.
The OSG explained:
"Simple robbery is committed by means of violence against or intimidation of persons
as distinguished from the use of force upon things, but the extent of the violence or
intimidation does not fall under pars. 1 to 4 of Article 294 (Revised Penal Code) [p.
175, Criminal Law, Book II, Vol. IV, Ambrosio Padilla, 1990].
"Unfortunately, in the case at bar, the prosecution failed to prove that appellant Edgar
Suela employed force or intimidation on private complainant John Doe (not his real
name) by instilling fear in his mind so as to compel the latter to cough out the amount
of P200,000.00. Instead, what was established was that he had agreed to give
the P200,000.00 in exchange for information regarding the identity and whereabouts
of those who robbed him and killed his friend (TSN, November 4, 1996, p. 7; TSN,

November 5, 1996, pp. 4-9). There was no showing that appellant Edgar Suela had
exerted intimidation on him so as to leave him no choice but to give the money.
Instead, what is clear was that the giving of the money was done not out of fear but
because it was a choice private complainant opted because he wanted to get the
information being offered to him for the consideration of P200,000.00 (TSN,
November 4, 1996, pp. 5-17; ibid., Decision, p. 15). In fact, the money was delivered
not due to fear but for the purpose of possibly having a lead in solving the case and
to possibly bring the culprit to justice (ibid.). As such, the elements of simple robbery
have not been established in the instant case, hence, appellant Edgar Suela should
be acquitted of that charge."48
WHEREFORE, the appeal is hereby PARTIALLY GRANTED and the appealed
Decision MODIFIED. We AFFIRMthe judgment insofar as it refers to Criminal Case Nos. Q96-64616 and Q-96-65071 but REDUCE the penalty toreclusion perpetua. The award of civil
indemnities is also AFFIRMED. In Criminal Case No. Q-96-64618 for simple robbery, Edgar
Suela y Hembra is ACQUITTED.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo,
Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Footnote
1
Penned by Judge Diosdado Madarang Peralta.
2
Assailed Decision, pp. 44-45; Rollo, pp.107-108; records, pp. 245-246.
3
Rollo, pp. 10-11.
4
Ibid., p. 17.
5
Id., p. 12.
6
Order dated September 24, 1996; records, pp. 66-67.
7
Consolidated Appellee's Brief, pp. 13-25, Rollo, pp. 291-303. The Brief was signed by Solicitor
General Ricardo P. Galvez, Asst. Solicitor General Mariano M. Martinez and Solicitor Fay L.
Garcia.
8
This narration is taken from Appellant Edgardo Batocan's Brief, pp. 12-18; Rollo, pp. 147-153;
signed by Attys. Arceli A. Rubin, Amelia C. Garchitorena and Ma. May Zafionco Redor of PAO.
The Brief for the Brothers Suela, signed by Atty. Patricio B. Tanpiengco Jr., narrates a similar
story; Rollo, pp. 240-242.
9
This case was deemed submitted for resolution on January 17, 2000 upon receipt by the Clerk
of Court En Banc of the last Reply Brief.
10
Appellant's Brief , p. 1, Rollo, p. 136.
11
Rollo, p. 234.
12
320 SCRA 140, 159, December 8, 1999, per Puno, J.
13
Ibid., citing People v. Bacamante, 248 SCRA 47, September 5, 1995.
14
251 SCRA 626, 638-639, December 22, 1997, per Kapunan, J.
15
Ibid., see also People v. Santos, 283 SCRA 441, December 22, 1997.
16
TSN, September 1, 1997, p. 7.
17
TSN, March 13, 1997, p. 19.
18
Ibid., p. 11.
19
TSN, February 21, 1997, pp. 9-11.
20
Ibid., p. 17.

TSN, March 4, 1997, pp. 16-17.


People v. Labtan, 320 SCRA 140, 166, December 8, 1999, per Puno, J.
23
People v. Paule, 261 SCRA 649, September 11, 1996.
24
People v. Mauyao, 207 SCRA 732, April 6, 1992, per Melencio-Herrera, J.
25
People v. Villaviray, 262 SCRA 13, September 18, 1996; People v. Parungao, 265 SCRA 140,
November 28, 1996; People v. Julito Franco, 269 SCRA 211, March 4, 1997.
26
TSN, December 10, 1996, pp. 14-15.
27
Page 37; Rollo, p. 172.
28
Exhibit "PP," records, p. 62.
29
People v. Cabiles, 284 SCRA 199, January 16, 1998.
30
Exhibit I.
31
TSN, March 21, 1997, pp.5-9.
32
Ibid., pp.10-19.
33
Id., pp. 23-25.
34
Id., pp. 27-29.
35
TSN, March 21, 1997, p. 63.
36
Ibid., pp. 44-45.
37
Ibid., pp. 58-61.
38
People v. Aringue, 263 SCRA 291, December 15, 1997; People v. Andan, 269 SCRA 95, March
3, 1997;People v. Tawat, 129 SCRA 431, May 25, 1984.
39
Sec. 33, Rule 130, Rules of Court.
40
People v. Andan, 269 SCRA 95, March 3, 1997.
41
129 SCRA 431, 436-437, May 25, 1984, per curiam.
42
Sec. 4, Rule 133, Rules of Court. People v. Asis, 286 SCRA 64, February 9, 1998; People v.
Llaguno, 285 SCRA 124, January 25, 1998; People v. Quitorio 285 SCRA 196, January 28, 1998.
43
People v. Antonio, 303 SCRA 414, February 19,1999; People v. Taclan, 308 SCRA 368, June
17, 1999;People v. Bitoon, Sr., 309 SCRA 209, June 28, 1999.
44
People v. Gongon, 287 SCRA 618, March 19, 1998; People v. Medina, 292 SCRA 436, July 10,
1998;People v. Tidula, 292 SCRA 596, July 16, 1998.
45
People v. Pulusan, 290 SCRA 353, May 21, 1998.
46
GR No. 133695, February 28, 2001, per Bellosillo, J.; see also People v. Arojado, GR No.
130492, January 31, 2001.
47
GR No. 137842, August 23, 2001.
48
Appellee's Brief, pp. 62-63; Rollo, pp. 340-341.
21
22

FIRST DIVISION
[G.R. No. L-73604. January 29, 1988.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROUBEN CORRAL y
HERNANDEZ,Accused-Appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSIONS; INADMISSIBLE IN
THE ABSENCE OF COUNSEL DURING CUSTODIAL INVESTIGATION. The other two
extrajudicial confessions, Exhibits "D" and "E" are similarly inadmissible. Although
Accused-appellants mother was a witness to Exhibit "D," there is nothing in the
records to show that she had understood the contents thereof and that she was
cognizant of the constitutional rights of her son. Her presence cannot substitute for
the explicit requirement that counsel be present in custodial interrogations (Morales,
Jr. v. Enrile, No. L-61016, April 26, 1983, 121 SCRA 538) so that the constitutional
rights of a detained person may be sufficiently safeguarded.
2. ID.; ID.; GUILT ESTABLISHED BY CIRCUMSTANTIAL EVIDENCE. But even
disregarding said confessions, the circumstantial evidence is ample enough to

establish the guilt of Accused-appellant through the testimony of prosecution witness


Felix Ramos, Jr., who had known Accused-appellant for about one (1) year. Motive for
the commission of the crime was established, specifically, the refusal of the victim to
lend money to Accused-appellant for the second time that fateful night. Much later,
the latter was seen by said witness enter the house where the victim slept, then
leaving it with a kitchen knife in his hand at about 1:00 A.M. of December 5, 1983,
after which the victim was found to have sustained a stab wound at the left side of
his body which caused his death. There was no one else in that house aside from
Accused-appellant and the victim so that the inevitable conclusion is that he was the
malefactor.
3. ID.; ID.; FLIGHT AFTER THE INCIDENT, INDICATIVE OF GUILT. The flight of
Accused-appellant to Quezon Province after the incident is also indicative of his guilt.
As he had stated in his statement, Exhibit "D," he learned the next morning of the
incident that the victim had disclosed that he was the assailant so that at his
mothers behest he went to Lucena, Quezon, where he remained in hiding for over a
year until his arrest in February, 1984. The ostensible reason given, which was to
help his cousins in making copra, is too flimsy to justify the interruption of his
schooling as a second year high school student at the Manuel Roxas High School at
the time.
4. ID.; ID.; ALIBI; DEFENSE FAILED TO SHOW PHYSICAL IMPOSSIBILITY TO BE AT
THE SCENE OF THE CRIME DURING ITS COMMISSION. Accused-appellants
defense of alibi deserves no credence. For that defense to succeed it must be shown
that not only was an accused at some other place at the time but that it was
physically impossible for him to have been at the scene of the crime at the time of its
commission. As the Trial Court had pointed out, the Metro-aide quarters at the
Engineering Compound at Quezon City is less than a kilometer away from the St.
Peter Memorial Chapels so that even if Accused-appellant was, in fact, sleeping with
his mother that evening, it would have been an easy matter for him to have slipped
out at 1:00 A.M., committed the offense, and then returned to the sleeping quarters.
5. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY. As to the
categorization of the crime, treachery was correctly appreciated by the Trial Court.
As prosecution witness, Felix Ramos, Jr. testified, when he asked the victim about the
identity of his assailant, the victim replied that he did not know as he was asleep at
the time. That statement was part of the res gestae and sufficiently proves that
treachery attended the commission of the offense.
6. ID.; PENALTY FOR CAPITAL PUNISHMENT UNDER THE 1987 CONSTITUTION.
The penalty, however, will have to be modified. With the abolition of capital
punishment in the 1987 Constitution the penalty for Murder is now, reclusion
temporal in its maximum period to reclusion perpetua (People v. Gavarra, No. L37673, October 30, 1987; People v. Masangkay, G.R. No. 73461, October 27, 1971).
With no modifying circumstances attendant, said penalty is imposable in its medium
period, or, from eighteen (18) years, eight (8) months and one (1) day to twenty
(20) years. The indeterminate penalty would then be within the range of the penalty
next lower, or, prision mayor, maximum, to reclusion temporal, medium (Article 61,
parag. 3, Revised Penal Code), the appealed judgment is hereby modified in that the
accused-appellant, Alejandro Reunir y Tan, is hereby sentenced to suffer the

indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion
temporal, as maximum.
DECISION
NARVASA, J.:
Once again this Court is confronted with the question, regrettably familiar, it seems,
of whether in the case at bar there had been a forcible sexual assault upon a trustful
maiden by a man in the grip of bestial passion, or simply a lustful coupling by two
consenting adults.
Josephine Menghamal, a nutrition graduate of the Aquinas University at Legaspi City,
wished to move to Manila and there pursue her career. Her strong-willed father
would have none of it, however, insisting that she remain in Legazpi to assist in the
family store. Her ambition was stronger than her sense of filial loyalty. She resolved
to defy her father.
On November 15, 1981, 23-year old Josephine left her home and went to the house
of Rouben Corral and his family. Rouben Corral was then a member of the PC-INP at
Legazpi City. He was married to Imelda Petilos, the sister of Josephines closest
friend, Techie Petilos. Techie used to live with the Corrals until she had gone to
Manila; and Josephine had frequented the Corrals home at the time that Techie had
been residing there. Josephine had thus become quite close to the Corrals and had in
fact become the ninang of a son of the Corrals, Rommel, at the latters confirmation.
1 Josephine confided her plans to Rouben and his wife. The spouses agreed to help
her. They suggested that Josephine reside with them for a while instead of
proceeding directly to Manila. They surmised that Josephines father, on noting her
disappearance, would soon recall that her close friend, Techie, was staying in Manila
and would immediately go there. 2
The Corrals first thought of hiding her at the residence of Roubens brother, Alfredo,
and in fact took her there, at Buaguis, Legazpi City. But after Josephine had stayed
with Alfredo for one day, Rouben and Imelda Corral changed their minds and brought
her back to their home. 3 There Josephine dwelt from November 17, to December
23, 1981.
Her sojourn at the Corrals residence ended on December 24, 1981. On that day,
Josephine showed up at the house of her friend, Mercy Bernaldez, at Arimbay,
Legazpi City, and told Mercy that Rouben had violated her. 4 In the evening she had
Mercy call for another friend, Eleanor Echalas, who was Rouben Corrals niece. When
Eleanor came, Josephine also told her of her terrible ordeal. 5
Josephine was submitted to medical examination by her family on December 28,
1981. 6 The examination was conducted by Dr. Luzviminda Morales, Assistant City
Health Officer of Legazpi City, whose findings 7 were as

follows:jgc:chanrobles.com.ph
"Contusions around hymen, Lacerations hymen at 5 oclock and 9 oclock positions
could not be ascertained as to healing stage because of fresh blood oozing from the
vagina due to menstrual flow. finger cannot be inserted with ease because of
complaint of pain even on light touch."cralaw virtua1aw library
On February 25, 1982 Rouben Corral was indicted for rape before the Court of First
Instance of Albay upon complaint of Josephine. 8 And after trial, Rouben was found
guilty of the crime beyond reasonable doubt and sentenced, by judgment
promulgated on November 20, 1985, to suffer the penalty of reclusion perpetua, and
to indemnify the offended party in the amount of P3,016.70 for hospitalization
expenses and doctors fees; P3,000.00 for attorneys fees; P30,000.00 as moral
damages, and P5,000.00 as exemplary damages. 9
Rouben Corral has brought this case up to this Court on appeal, basically questioning
the sufficiency of the evidence of the State on which his conviction was
founded.cralawnad
A review of the record discloses, as was intimated in this opinions opening
paragraph, two diametrically opposed versions of the material occurrences. As
against the proposition espoused by the State that after the appellants wife and
children had left on a trip to Manila in the afternoon of the 23rd of December,
Josephine Menghamal had been forced by the appellant to have sexual intercourse
with him twice in the evening of that same day, the latter claims that their acts of
coupling he confirms that there had actually been two (2), despite the fact that
Josephine was menstruating at the time had not only resulted from their mutual
consent and desire, but had been initiated by Josephine herself; what happened,
according to him, was that after having put on some make-up, and thereafter
switching off the television set which they had been watching together, Josephine
had said to him, "Uncle Ben, let us sleep now," 10 and this had started the whole
thing.
Josephine testified that on December 23, 1981, Imelda and all her children, five in
number, had made ready for a trip to Manila. Together with Rouben they all left the
house for the bus station at about 5 oclock in the afternoon, leaving Josephine alone
in the house but assuring her that they would try to get a ticket for her, and if they
succeeded in doing so, would send a tricycle to fetch her and bring her to the
terminal. Josephine was also told that in anticipation of the possibility that no berth
could be obtained for her, they had arranged for two of her friends, Maritess Corral
and Eleonor Echalas, to come and keep her company. 11
Rouben returned at about 8 P.M. and from him Josephine learned that no ticket could
be bought for her, that Imelda, Roubens wife, and the children had gone on the bus
to Manila. Rouben also told her that her friends, Marites and Eleanor, would be
coming as he had already sent word to them. 12 After waiting for a while, Josephine
changed her clothes, set the table, and took supper. She then seated herself on the
sofa at the sala to wait for her friends.
At about 9 oclock, she went to her room to get some medicine for her asthma.

Suddenly she felt Roubens arms on her shoulders. She turned and fled to the sala.
Rouben followed her, and grabbed her. He kissed her on the lips at the same time
placing his gun at her temple. She resisted and tried to free herself. He gave her a
strong blow above her abdomen. She fell to the floor. He picked her up, placed her
on the sofa and again pointed his gun at her temple. She saw that the gun was his
service revolver. Despite her resistance, he placed himself on top of her. She pleaded
with him to stop, that he should not violate the great trust she had reposed in him,
to no avail. 13
Rouben dragged Josephine to her room, locked the door and shoved her down to the
bed. She could not shout because Rouben had his gun out and threatened to shoot
her if she shouted, or later told her father about the incident. Employing intimidation
and force, and uttering amorous words at the same time, Rouben succeeded in
removing her trousers and panties, as well as the sanitary napkin she had on as she
was then menstruating. He parted her legs and had intercourse with her twice. 14
In the early morning of the 24th, Josephine told Rouben she was feeling very weak,
she could not "bear it anymore," and asked for a glass of milk. When Rouben went
out to buy some milk, Josephine fled from the house, took a tricycle and, as earlier
stated, went to the home of her friend, Mercy Bernaldez, at Arimbay, Legazpi City, to
whom she tearfully narrated her dreadful experience. 15 She also asked Mercy to call
for another friend, Eleanor Echalas, a niece of Rouben, and when Eleanor came that
evening, she told her too of her rape by Rouben. 16
As also earlier narrated, Josephine was examined on December 28, 1981 by Dr.
Luzviminda Morales who there after set down her findings in writing. 17
Josephine subsequently suffered a nervous breakdown and had to be confined at the
Aquinas University Hospital from March 15 to 22, 1982. 18 She underwent
psychiatric treatment under Dr. Salvador Sambitan. Dr. Sambitan testified that he
had found Josephine to be suffering from depression psychosis as a result of the
rape, characterized by slow mental functions and some suicidal tendencies. 19
Josephine later engaged the services of a lawyer to undertake the prosecution of her
complaint against Rouben Corral, inclusive of her claim for moral and exemplary
damages, to whom she had bound herself to pay an acceptance fee of P3,000.00 and
P150.00 per appearance.cralawnad
Josephines friend, Eleanor Echalas, testified for the prosecution. She declared that
she arrived at her home quite late on the 23rd of December, 1981 at which time her
mother had told her that her uncle, Rouben wanted to see her. 20 The following
morning, at around 9 oclock, she had gone to Roubens house at Alegre Street but
found it closed. But later that morning, at about 10:30 oclock, she had seen her
uncle Rouben near St. Jude Pharmacy, and asked him about Josephine. Rouben said
he did not know as he had left his house in the early morning to see his wife and
children off at the Pantranco terminal, but thought that Josephine might have gone
to her (Eleanors) house. That evening, Mercy Bernaldez fetched Eleanor and brought
her to the Bernaldez residence where (as aforestated) Josephine had taken refuge.
When Eleanor saw Josephine, she noted her pallor and evidently weakened physical
condition. Josephine told Eleanor that she had been raped by her uncle Rouben.
Among the details recounted to Eleanor by Josephine was that in the course of her

struggle with Rouben, she had bitten his lips. 21


Eleanor further declared that her uncle Rouben had come to her house at Gogon,
Legazpi City, three days afterwards. He had shown up at about 9 A.M. on December
27, 1981. He was looking for Josephine. She told him she did not know where
Josephine was. But Rouben tarried, and even took lunch with Eleanor and her
mother, leaving only at 2:30 that afternoon. While there at Eleanors home, Rouben
had been looking all around, apparently suspicious that Josephine might be hidden
somewhere in the house. On this occasion, Eleanor had noticed a wound on Roubens
lips, in process of healing; this brought to mind what had been told to her by
Josephine: that she had bitten Roubens lips while struggling with him. 22
Josephines older brother, Ramon Menghamal, who lives separately from his parents,
also took the witness stand and declared that at about 1 oclock in the morning of
December 28, 1981, Josephine had arrived at his house, crying and in an apparent
state of shock. She could not tell him, at first, how she had fallen into such a
condition. But after a time he was able to draw from her the cause of it all: she had
been raped by Rouben Corral; and she had found it difficult to reveal the wrong done
to her at once, because she was fearful of her life and the safety of her family in view
of Roubens threats. They had afterwards told their father of Roubens crime and they
had decided that Josephine should file, as she afterwards did file, the corresponding
criminal complaint against him. 23 Ramon confirmed, too, his fathers character of
rigid sternness, and stated that it would really be in his nature to insist on
Josephines assisting at their store instead of transferring to Manila to work as a
nutritionist. 24
It was upon this evidence which, in the Trial Courts view had not been negated or
debilitated by the appellants proofs, that the latters conviction of the crime of rape
beyond reasonable doubt was predicated. This Court is now urged by the appellant to
accept his version of the facts as more veracious and consequently reverse the Lower
Courts verdict and direct his acquittal.
His own account of the material occurrences has already been generally lined earlier
in this decision. What had happened, according to him, was that on December 23,
1981, Josephine had asked to go with him and his wife and children to Manila, where
they were planning to spend the Christmas vacation; 25 that he had in fact applied
for vacation leave for that period and turned over his service pistol to the property
custodian of the Legazpi City Police Station, Marilyn Jacobo, who had issued a receipt
to him in acknowledgment of the deposit of the firearm; 26 that unaccountably,
Josephine backed out from the trip to Manila, and told them she would leave the
house as soon as her friends arrived; that when Rouben and his family departed that
afternoon, Josephine was instructed by Imelda, Roubens wife, to turn off all the
lights and lock the windows and maindoor on leaving the house; 27 that however,
Rouben was not able to make the trip to Manila because he learned at the bus
terminal that the police had been placed on "red alert" and his application for a pass
had been disapproved; that after seeing his family off, he had proceeded to the
police station at around 7:00 P.M. to retrieve his service revolver but had been
unable to do so because the custodian, Marilyn Jacobo, had gone home. 28
Rouben further said that he arrived at his home at about 9 oclock that evening and

had been surprised to see Josephine still there, seated by the door; he had assumed
she had already gone because the lights were off and the door locked. He remarked,
"Oh, so you are still here," and she had answered, "Yes, I was not able to leave." 29
Josephine had then set the table and they took supper together, after which
Josephine turned on the TV set and they watched some programs together. At 10
oclock, Josephine put on some make-up; and after two minutes, turned off the TV
set and said, "Uncle Ben, let us sleep now." Rouben took this as an invitation for
them to sleep
together. 30
They then repaired to the Corrals bedroom. There they made love. According to
Rouben, they had sex twice; the second, after taking some time out to take coffee,
and after he had asked her if she still wanted to do it and she had said, "Yes, I still
want it." 31
Imelda Petilos-Corral, Roubens wife, took the witness stand in an effort to exculpate
him. She sought to depict Josephine as a flirt; that she had caught Josephine
touching her husbands legs during meal time; and once, Josephine had insisted on
sleeping with her and her husband in their room. 32 She also recounted how she had
been so enraged on learning of the supposed rape that she had slapped her husband.
Her anger quickly vanished, however, when Rouben swore to her that he had not in
fact raped Josephine, and their intercourse was the result of their mutual desire. 33
Imelda was told, too, that Josephine had filed the complaint for rape only as a means
of coercing Rouben to leave his family and live with her. 34
Police Officer Marilyn Jacobo affirmed before the Trial Court that Rouben had indeed
deposited his service pistol with her in the afternoon of December 23, 1981, on the
occasion of his application for leave to travel with his family to Manila. 35 She
acknowledged having accepted the deposit and issued the receipt despite knowing
that Roubens application for emergency leave had been disapproved on account of a
"red alert." 36
A review of the record convinces this Court of the correctness of the Trial Courts
verdict. The evidence establishes the appellants guilt of the felony of rape beyond
reasonable doubt. Josephines testimony is straightforward, candid, consistent, and
justifies the Trial Courts assessment of her as "truthful and sincere when . . .
narrating the harrowing experience she underwent under the vicious hands of the
accused." Her testimony finds substantial corroboration as regards the material
events immediately after the rape, in the sworn declarations of the other prosecution
witnesses Mercy Bernaldez, Eleanor Echalas, Ramon Menghamal, Dr. Luzviminda
Morales whose credibility has not been shown to be questionable in any way. One
of said witnesses, Eleanor Echalas, the appellants own niece, has even furnished
circumstantial corroboration of a detail in the actual perpetration of the crime; i.e.,
as to Josephines claim that she had bitten Roubens lip while struggling with him;
Eleanor testified that some four (4) days after the date of the crime, she had
observed a wound that was healing on Roubens lips.chanrobles law library : red
This Court also finds correct the Trial Courts rejection of the defense theory that
Josephine was not an unwilling victim because she had not shouted for help or

otherwise offered such resistance as might be expected of a rape victim. "Perhaps,"


the Court said, "the complainant could have shown greater physical resistance . . . to
the advances of the accused. Another woman would have probably tried to fight him
off, shouted at the top of her voice even to the jeopardy of life or limb. But not all
women are of the same mettle. What is clear and undisputable here is that Josephine
was far from being a willing victim; and, if her protestations lacked vigor and
vehemence, it was because of the fact that the accused was a policeman, strong in
build and armed with his service revolver to cow her to submission. If there was no
appreciable force employed, definitely there was intimidation." 37
The absence of any discernible trace of a fist blow on Josephines abdomen is of no
moment. The medical examination on Josephine was after all conducted after five
days from the rape, at which time no visible signs thereof might be expected any
longer. 38
The defense theory of a consented conjugation between Rouben and Josephine,
apart from being completely at odds with the more credible version of the facts
demonstrated by the States evidence, is in itself improbable and implausible. The
defense paints Josephine as a wanton wench, making lascivious advances on a
married man, the brother-in-law of her very close friend, right in his own home,
uncaring of the presence and observance of his wife, so depraved and lewd as to
crave and invite intercourse even with menstrual blood flowing from her. Apart from
the appellants assertions, and his wifes, there is nothing in the record showing the
depiction to be even remotely true. On the contrary, that description is forcefully
belied by the recorded evidence of Josephines pertaining to a family of more than
modest means, her upbringing by a stern father, her relatively high educational
attainment, her having been some sort of a campus beauty during her student days,
her having not a few suitors of comfortable circumstances, her strong ambition to
strike out on her own in the "big city" and carve out a career for herself. 39
The declaration by the appellants wife that Josephine was a flirt, openly attempting
to seduce her husband, 40 cannot be believed. If true, she would certainly never
have allowed Josephine to stay as long as she did in her home. The attempt by
Marlyn Jacobo to corroborate Roubens claim that he had deposited his service
revolver with her and consequently could not have used that weapon to intimidate
Josephine was negated by her admission that she had accepted the deposit of the
firearm and issued a receipt therefor even though she (and Rouben) already knew
that the purported reason therefor, Roubens emergency leave, no longer existed,
having been cancelled by a "red alert" announcement. 41
In fine, the record discloses no reason whatever to disturb the factual findings of the
Trial Court. It was in a better position to resolve the issues of fact on the basis of
direct and personal observation of the deportment of the witnesses and their manner
of testifying; and in this case, it does not appear that it has overlooked any
circumstance of substance or value that might affect the result of the case. The Trial
Courts findings will thus be sustained. 42
The proofs establish the commission of two (2) crimes of rape by the appellant. Each
act of forcible sexual intercourse constitutes one distinct offense of rape. 43 This
notwithstanding, it is not legally possible to convict the offender of two (2) rapes

albeit perpetrated on the same occasion, where the information charges only one
and otherwise contains no averments from which a conclusion that more than one
such offense has been committed may plainly and patently be drawn. 44 In 1980, in
a case where the records disclosed "that the information charges only one crime of
rape. . . (but) the evidence presented by the prosecution established two other
separate sexual intercourse on two subsequent dates," this Court ruled that
"An accused cannot be convicted of an offense not charged or included in the
information because the Constitution guarantees that: In all criminal prosecutions,
the accused . . . shall enjoy the right . . . to be informed of the nature and cause of
the accusation against him . . . (Section 19, Art. IV, Bill of Rights, 1973 Constitution).
Likewise, . . . it matters not how conclusive and convincing the evidence of guilt may
be, an accused person cannot be convicted in the courts of these Islands of any
offense, unless it is charged in the complaint or information on which he is tried, or
necessarily included therein. He has a right to be informed as to the nature of the
offense with which he is charged before he is put on trial . . . (Matilde, Jr. v. Jabson,
68 SCRA 456, 461 [1967], citing V.S. v. Campo, 23 Phil. 396 [1912]).
Consequently,the appellant herein may only be convicted of one crime of
rape."cralaw virtua1aw library
WHEREFORE, the judgment of the Trial Court rendered on November 20, 1985, being
in accord with the facts and the law, is affirmed in all respects.
Teehankee, C.J., Cruz, Paras and Gancayco, JJ., concur.
Endnotes:

1. TSN, July 18, 1983, pp. 7-9.


2. TSN, July 18, 1983, pp. 10-11.
3. TSN, Aug. 22, 1984, pp. 35-36.
4. Id., pp. 44-46; TSN, Oct. 3, 1983, pp. 79-81; TSN, July 28, 1983, pp. 44-46.
5. TSN, July 18, 1983, p. 46.
6. Id., pp. 47-48.
7. Trial Court Record, p. 183.
8. Docketed as Crim. Case No. 2290; SEE Original Record, p. 3; complaint, Exh. B; TSN, July 18,
1983, pp. 4-6; Information, Original Record, pp. 1-2.
9. Lower Court Record, p. 251.
10. TSN, Aug. 22, 1984, p. 76.
11. TSN, July 18, 1983, pp. 19-23.
12. Id., p. 24.
13. Id., pp. 31-37.
14. Id., pp. 39-44; TSN, Oct. 3, 1983, pp. 57-64.
15. TSN, July 18, 1983, pp. 44-46; TSN, Oct. 3, 1983, pp. 79-81.
16. TSN, July 18, 1983, p. 46.
17. SEE footnotes 6 and 7, supra.
18. Exh. C, Trial Court Record, p. 184.
19. TSN, May 24, 1984, pp. 8-9.
20. TSN, Nov. 19, 1982, pp. 17-18.
21. Id., pp. 8-17, 23.
22. Id., pp. 19-23.
23. TSN, July 9, 1984, pp. 5-9, 13-14.
24. Id., pp. 17-18.

25. TSN, Aug. 22, 1984, pp. 58-59.


26. Id., pp. 6-9; Exhs. 1 and 1-A, Original Rec., p. 222.
27. Id., pp. 63-64.
28. Id., p. 65.
29. Id., p. 67.
30. Id., p. 76.
31. Id., pp. 79-81, 83-85.
32. TSN, Nov. 27, 1984 (pm), pp. 8-10.
33. Id., p. 18.
34. Id., p. 20.
35. TSN, Nov. 27, 1984 (a.m.), p. 4.
36. Id., pp. 12-13.
37. Decision of Court a quo, p p. 10-11.
38. Peo. v. Cruz, Sr., G.R. No. 71462, June 30, 1987, citing Peo. v. Budol, G.R. No. L-48010, July
31, 1986.
39. TSN, July 18, 1983, pp. 48-49; TSN, Oct. 3, 1983, pp. 14-15.
40. SEE footnote 32, supra.
41. SEE footnote 36, supra.
42. Peo. v. Cruz, Sr., G.R. No. 71462., June 30, 1987, supra; Peo. v. Ibal, G.R. No. 66010-12, July
13, 1986, supra; Peo. v. Alcid, 135 SCRA 280; Peo. v. Cielo, 133 SCRA 117; Peo. v. Centeno, 130
SCRA 198.
43. Peo. v. Baao, 142 SCRA 476 (1986); Peo. v. Alcid, 135 SCRA 280 (1985).
44. SEE, e.g., Peo v. Bohos, 98 SCRA 353 (1980) where the complaint for forcible abduction
with rape alleged that the several accused,." . . conspiring together x x and with lewd designs .
. . take and carry away the undersigned by force and violence or intimidation in a cargo truck x
x dragged her to a certain house . . . (and there) alternately and successively had sexual
intercourse with her against her will . . ., "and this Court convicted the appellants of one (1)
felony of "forcible abduction with rape and sixteen (16) separate crimes of rape" and imposed
seventeen (17) death penalties. Aquino, J., dissented, holding that since the complaint failed to
specifically allege the number of rapes, "the accused should be convicted only of forcible
abduction with rape which is the offense charged in the information and which should be
considered a continuous crime, embracing or absorbing the other sixteen alleged rapes which
were not specifically alleged in the complaint (and therefore) only one death sentence should
be imposed." This view, that each appellant "should be punished only for the rapes he himself
enjoyed, without being responsible for the other rapes he helped his companions commit," was
declared by Barredo, J., to be "revolting to the conscience" and "extremely over liberal in the
application of our criminal law," and that if any procedural flaw existed in the case, it was "the
failure of the defense to ask for a bill of particulars and to object to the presentation of
evidence proving more than one rape."
In Peo. v. Daing, 133 SCRA 448 (1984), the information charged the two (2) accused with
having conspired and confederated together, and having assisted and cooperated with each
other, in raping the offended party; they were convicted of two (2) separate rapes.

EN BANC
[A.M. No. RTJ-89-425. April 17, 1990.]
OSCAR PALMA PAGASIAN, Complainant, v. JUDGE CESAR P.
AZURA, Respondent.
SYLLABUS

1. CONSTITUTIONAL LAW; DUE PROCESS OF LAW; VIOLATED WHERE A JUDGE


PUNISHES A PERSON WITHOUT TRIAL FOR ACTS NOT CONSTITUTING A CRIME.
Respondent Judge appears to have regrettably lost sight of an even more
fundamental and familiar constitutional precept: "No person shall be deprived of life,
liberty or property without due process of law" (Sec. 1, Art. III, Constitution). This
safeguard, the first listed in the Bill of Rights, includes what is known as procedural
due process that guarantees a procedure which, according to Daniel Webster, "hears
before it condemns, which proceeds upon inquiry and renders judgment only after
trial." It is made more particular in a subsequent section: "No person shall be held to
answer for a criminal offense without due process of law" (Sec. 14 [a]). In said
Criminal Case No. 922-M (87), the complaining witness had absolutely no idea that
he himself was on trial, like the very persons he was accusing, for the commission of
some offense (or perhaps for constructive contempt); he consequently had no
opportunity whatsoever to present any evidence in his behalf to exculpate him from
the offense which was known to nobody except the Judge. What is worse, the
complainant was punished for acts not declared by any law to constitute a penal
offense and prescribing a specific penalty therefor, in violation of another equally
familiar precept, which also appears to have escaped respondent Judges attention,
that no act may be deemed to be, and punished as, a crime unless so declared by
law. Under the circumstances, the Court must hold that the complainant was clearly
denied due process by respondent Judge. He was subjected to no small injustice. He
was, by a process of specious, sophistical reasoning on the part of the respondent
Judge, sentenced to a penalty without justification whatever, in infringement of basic
principles of which all judges are charged with knowledge.
2. JUDICIAL ETHICS; JUDGES; GROSS IGNORANCE; PENALTY. A judge who,
without trial, sentences a complaining witness to a penalty of paying a fine of
P200.00 for acts not declared by any law to constitute a penal offense, and without
any justification, in infringement of basic principles of which all judges are charged
with knowledge, is guilty of gross ignorance, and should be fined P2,000.00
DECISION
NARVASA, J.:
In the administrative proceedings at bar, Judge Cesar P. Azura is charged with having
knowingly rendered an unjust judgment against Oscar Palma Pagasian. The latters
sworn complaint draws attention to a decision rendered on September 21, 1989 by
His Honor in a criminal prosecution for theft of large cattle (Crim. Case No. 922-M
[87]) entitled "People v. Vicente Dumo, Sr. and Vicente Dumo, Jr.," in which the
complainant, the barangay captain in the locality, was one of the witnesses for the
prosecution. The complaint alleges that although the complainant, Pagasian, was
"not in any manner, shape or form an accused in said . . . case," respondent Judge in his decision acquitting both accused "for utter lack of evidence" nevertheless
declared him guilty of "clear violations of the provisions of the fundamental law of
the land and against human rights," and sentenced him to pay a fine of P200.00.

The decision in question recites inter alia the acts supposed to have been done by
Barangay Captain Pagasian after receiving a report from Luciana Degala that she had
lost a male carabao, to wit: he and his "vigilante" had found the bull, dead, early in
the morning of July 20, 1986, near the house of the accused Vicente Dumo, Sr.;
accompanied by a policeman, he had later gone to see Dumo, Sr. and asked him "if
the cart under his house was his," and on receiving an affirmative answer, "he
borrowed the cart and issued a receipt therefor (Exh.E);" he used the cart to haul
the bull away and then deposited the cart at the municipal building of Talisayan "for
safe-keeping." After pronouncing the government evidence insufficient to prove the
defendants guilt, the decision went on to characterize the taking of the cart as a
"confiscation," as "a seizure . . . made without any search or seizure warrant issued
by any judge," and its use in evidence as violative of the Constitution. The decision
ended with the following disposition:chanrobles law library
"WHEREFORE, for utter lack of evidence, the accused Vicente Dumo, Sr. and Vicente
Dumo, Jr., are hereby acquitted . . .
x

For clear violation of the provision of the fundamental law of the land and against
human rights so sacred in a democracy, Barangay Captain Oscar Pagasian is hereby
fined in the sum of TWO HUNDRED PESOS (P200.00)payable in a period of fifteen
(15) days from the date of the promulgation of this judgment and failure to pay
within the said period, he shall be imprisoned for a period of two (2) days."cralaw
virtua1aw library
Respondent Judge, in his comment dated January 18, 1990, concedes that Pagasian
was not an accused in the case, but insists that his search of the house of Vicente
Dumo, Sr., his seizure of the latters cart and deposit thereof in the municipal
building, "without being armed with any warrant issued by any judge," was a
"violation of Sec. 2 of Art. III of the Constitution." He asserts that while there was no
"law in implementation of any violation of the provisions of the constitution," he felt
it to be "his solemn duty to defend and protect the constitution," and not to "decline
to render judgment by reason of the silence, obscurity or insufficiency of the laws"
(Art. 9, Civil Code), and adopt "any suitable process or mode of proceeding . . .
which appears most conformable to the spirit" of the Rules of Court (Sec. 6, Rule
135, Rules of Court). He finally declares that as a judge, he" cannot be held to
account or answer, criminally, civilly, or administratively for an erroneous decision
rendered by him in good faith. (In Re Judge Baltazar R. Dizon, Adm. Case No. 3086,
promulgated 31 May 89)."cralaw virtua1aw library
Respondent Judge appears to have regrettably lost sight of an even more
fundamental and familiar constitutional precept: "No person shall be deprived of life,
liberty or property without due process of law" (Sec. 1, Art. III, Constitution). This
safeguard, the first listed in the Bill of Rights, includes what is known as procedural
due process that guarantees a procedure which, according to Daniel Webster, "hears
before it condemns, which proceeds upon inquiry and renders judgment only after
trial." It is made more particular in a subsequent section: "No person shall be held to
answer for a criminal offense without due process of law" (Sec. 14 [a]). In said

Criminal Case No. 922-M (87), the complaining witness had absolutely no idea that
he himself was on trial, like the very persons he was accusing, for the commission of
some offense (or perhaps for constructive contempt); he consequently had no
opportunity whatsoever to present any evidence in his behalf to exculpate him from
the offense which was known to nobody except the Judge. What is worse, the
complainant was punished for acts not declared by any law to constitute a penal
offense and prescribing a specific penalty therefor, in violation of another equally
familiar precept, which also appears to have escaped respondent Judges attention,
that no act may be deemed to be, and punished as, a crime unless so declared by
law. Under the circumstances, the Court must hold that the complainant was clearly
denied due process by respondent Judge. He was subjected to no small injustice. He
was, by a process of specious, sophistical reasoning on the part of the respondent
Judge, sentenced to a penalty without justification whatever, in infringement of basic
principles of which all judges are charged with knowledge.chanrobles virtual
lawlibrary
WHEREFORE, the Court finds respondent Judge guilty of gross ignorance and hereby
sentences him to pay a fine of Two Thousand Pesos (P2,000.00). The Court further
directs that a copy of this judgment be entered in the Judges record.
SO ORDERED.
Fernan (C.J.), Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Sarmiento, J., is on leave.

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