[G.R. No. 142356. April 14, 2004.

]
PEOPLE OF THE PHILIPPINES, appellee, vs. LITA AYANGAO y
BATONG-OG, appellant.
DECISION
CORONA, J :
p

This is an appeal from the February 29, 2000 decision 1 of the Regional Trial
Court, Branch 59, Angeles City in Criminal Case no. 99-1261 convicting the
appellant of violating Section 4, Article 2 of RA 7659, as amended, also known as
theDangerous Drugs Act.

ACIESH

Appellant Lita Ayangao was charged with transporting 14.75 kilograms of

marijuana in an information 2 that read:
That on or about the 13th day of August, 1999, in the Municipality of
Mabalacat, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, LITA
AYANGAO y BATONG-OG, without any authority of law, did then and
there wilfully, unlawfully and feloniously dispatch in transit or transport
fifteen (15) bricks of dried marijuana leaves with the actual total weight of
FOURTEEN KILOGRAMS AND SEVENTY FIVE HUNDREDTHS (14.75)
of kilogram, a prohibited drug.

IEAacS

The appellant, through counsel, filed a motion to quash on the ground that the
facts charged did not constitute an offense. This was denied by the trial court.
Upon arraignment, the appellant pleaded not guilty. 3 Thereafter, trial ensued.
The prosecution presented three witnesses: PO3 Nestor Galvez, PO3 Bienvenido
Sagum and Chief Forensic Chemist Daisy Panganiban-Babor. The prosecution's
version 4 of the facts, as aptly summarized by the trial court, was:

Two weeks before August 13, 1999, PO3 Bienvenido Sagum and PO3
Nestor A. Galvez, members of the Criminal Detection and Intelligence
Group based at Diamond Subdivision, Balibago, Angeles City, received
information from one of their informants that a certain woman from
Mountain Province delivers dried marijuana leaves for sale at Sapang
Biabas, Mabalacat, Pampanga to some drug pushers. Said information
was also relayed by the informant to C/Insp. Rhodel O. Sermonia who
instructed the two operatives to conduct surveillance operation against
their target female who was described by their informant as about 50
years old, 5 feet in height, straight long hair and coming from Kalinga
province.
At around 5:00 o'clock in the morning of August 13, 1999, their informant
went to their headquarters and informed them that their suspect is due to
arrive at Sapang Biabas, Mabalacat. PO3 Sagum and PO3 Galvez,
together with the informant, immediately went to Sapang Biabas and
parked their car near the entrance of the road going to Sapang Biabas.
While they were in their car, the informer pointed to them a woman
bearing the same description given by the former. The woman alighted
from the tricycle and subsequently loaded two sacks with camote fruits
on top. The two officers proceeded to the place where the woman was
and noticed marijuana dried leaves protruding through a hole of one of
the sacks. Sagum and Galvez introduced themselves as police officers
and requested the woman to put out the contents of the said sacks. The
sacks yielded sweet potatoes mixed with 15 brick-like substance
wrapped in brown paper and masking tape. A brick, which was damaged
on the side and in plain view of the officers revealed dried marijuana
leaves. The woman who was arrested identified herself as accused Lita
Ayangao y Batong-Og of Lacnog, Agbanawag Tabuk, Kalinga Province.
Ayangao and the suspected dried marijuana leaves were brought to the
police officer's headquarter at Diamond Subdivision, Angeles City. The
evidence confiscated from the accused were sent to the PNP Crime

Laboratory at Camp Olivas where it was examined by Chief Forensic

Chemist Daisy P. Babor. The Initial Laboratory Report issued indicated
that the specimens from the 15 bricks of suspected dried marijuana
leaves weighing 14.75 kilograms were found to be positive for marijuana.

The defense, through the testimonies of the appellant and Reynaldo

Nunag, purok chairman of Sitio Makabakle, presented a different version,
again summarized by the trial court: 5
Accused Lita Ayangao denied the charge made against her and alleged
that she has nothing to do with the marijuana allegedly found in her
possession. She went to Sapang Biabas "Marimar," Camachile,
Mabalacat, Pampanga from Tabuk, Kalinga Province on August 13, 1999
only upon the request of a certain Magda Dumpao. Allegedly, Magda
bought a house in Mawaque, Mabalacat and learned that it was being
sold again. Magda then requested her (accused) to talk to Jaime Alarcon
who acted as Magda's agent in buying the house. It was Magda who
instructed her on how to go to the house of Jaime Alarcon. She arrived
at the house of Alarcon at around 3:00 o'clock in the morning and was
welcomed inside by Gloria and Jocelyn Alarcon, Jaime's wife and
daughter-in-law. As Jaime was not around, she asked the Alarcon's
permission if she can have a nap. Gloria and Jocelyn allowed her to
sleep on the sofa and while she was resting, at around 6:00 o'clock in
the morning, somebody knocked at the door. Gloria opened it and two
men, who identified themselves as CIS agents, told Gloria that they were
looking for somebody who came from Baguio City. One of the men went
to where she was then lying and asked Gloria who she was. Gloria
answered that she came from Tabuk. The police officers asked her
(accused) to go with them as they wanted to talk to her. When she
refused, the policemen forced her out of the house and boarded her to
their car. While she was inside the car, she saw a sack and a carton box.
The police brought her to their headquarters at Diamond Subd., Angeles
City. She was made to sit in a chair and in her view, the sack was

opened and its contents were placed in (sic) a table. She then heard
from the policemen that the contents of the sack were marijuana and
accused her of owning it.
Reynaldo Nunag, purok chairman of Sitio Makabakle, Marimar, Biabas,
Mabalacat, Pampanga, testified that, as tricycle driver whose terminal is
near the house of Jaime Alarcon, he did not see any unusual incident
that happened in said vicinity in the morning of August 13, 1999. He also
did not see how the accused was arrested and did not see the
policemen's car.

The trial court found the prosecution's version to be credible, reasoning that
appellant's defense of frame-up was not supported by evidence and thus could
not prevail over the testimonies of the prosecution witnesses. The law enforcer's
testimonies carried the presumption of regularity in the performance of official
duties. The dispositive portion of the decision read:
WHEREFORE, premises considered, accused Lita Ayangao y Batong-og
is found GUILTY beyond reasonable doubt of violating Section 4 of
Article II of R.A. 6425 as amended by R.A. 7659 by transporting fourteen
kilograms and seventy five hundredths (14.75) of a kilogram of
marijuana, a prohibited drug, without authority. Said accused is hereby
sentenced to suffer the penalty of reclusion perpetua. Accused Lita
Ayangao-Batong-og (sic) is further ordered to pay a fine of five hundred
thousand (P500,000.00) pesos.
SO ORDERED. 6

The following assignments of error are raised in this appeal: 7

I.
THE LOWER COURT ERRED IN GIVING FULL FAITH AND
CREDENCE TO THE TESTIMONIES OF THE PROSECUTION

WITNESSES DESPITE EXISTING SERIOUS INCONSISTENCIES AND

INCREDIBILITY THEREBY CREATING DOUBT REGARDING THEIR
TRUTHFULNESS AND CREDIBILITY.
II.
THE TRIAL COURT ERRED IN NOT CONSIDERING FAVORABLY THE
DEFENSE OF ALIBI AS A GROUND FOR ACQUITTAL OF THE
DEFENDANT-APPELLANT IN SPITE OF THE WEAKNESS OF THE
PROSECUTION

EVIDENCE

WHICH

IS

INSUFFICIENT

TO

OVERCOME THE PRESUMPTION OF INNOCENCE IN HER FAVOR.

III.
THE

TRIAL

COURT

ERRED

IN

NOT

ACQUITTING

HEREIN

DEFENDANT-APPELLANT ON GROUND OF REASONABLE DOUBT.

IV.
THE LOWER COURT ERRED IN FAILING TO HOLD THAT THE
APPREHENDING OFFICERS VIOLATED DEFENDANT-APPELLANT'S
MIRANDA RIGHTS.

After a thorough review of the records, this Court finds that the prosecution was
able to discharge its burden of proving the appellant's guilt beyond reasonable
doubt. The decision of the trial court was supported by the evidence on record.
Regarding the credibility of witnesses, this Court has ruled time and again that
this is a matter best assessed by the trial court judge since he has the
opportunity to observe the witnesses' demeanor and deportment on the
stand. 8Besides, in this case, the inconsistencies criticized by the appellant were
minor ones involving negligible details which did not negate the truth of the
witnesses' testimonies nor detract from their credibility. 9

Appellant also assigns as error the illegality of her arrest because she was not
read her Miranda rights. (This is in addition to her argument that the 15 bricks of
marijuana were inadmissible since the warrantless search was invalid, not having
been made pursuant to a lawful arrest.) This contention is without merit since this
Court has repeatedly ruled that, by entering a plea upon arraignment and by
actively participating in the trial, an accused is deemed to have waived any
objection to his arrest and warrantless search. 10 Any objection to the arrest or
acquisition of jurisdiction over the person of the accused must be made before he
enters his plea, otherwise the objection is deemed waived.

11

Here, in submitting

herself to the jurisdiction of the trial court when she entered a plea of not guilty
and participated in the trial, the appellant waived any irregularity that may have
attended her arrest. 12
Assuming, however, that there was no such waiver, pursuant to People
vs. Barros, 13 reiterated in People vs. Aruta, 14 the waiver of the non-admissibility
of the "fruits" of an invalid warrantless arrest and warrantless search and seizure
isnot to be casually presumed for the constitutional guarantee against
unreasonable searches and seizures to retain vitality. The Court finds that the
arrest was lawful as appellant was actually committing a crime when she was
arrested transporting marijuana, an act prohibited by law. Since a lawful arrest
was made, the resulting warrantless search on appellant was also valid as the
legitimate warrantless arrest authorized the arresting police officers to validly
search and seize from the offender (1) any dangerous weapons and (2) the
things which may be used as proof of the commission of the offense. 15

In the present case, the warrantless arrest was lawful because it fell under Rule
113, Section 5(a) of the Revised Rules of Criminal Procedure. This section
provides that a peace officer may arrest a person even without a warrant when, in
his presence, the person to be arrested has committed, is actually committing or
is attempting to commit an offense. However, the police officer should be spurred
by probable cause in making the arrest. Although the term eludes exact

definition, probable cause signifies a reasonable ground of suspicion supported

by circumstances sufficiently strong in themselves to warrant a cautious man's
belief that the person accused is guilty of the offense with which he is
charged. 16 The determination of probable cause must be resolved according to
the facts of each case. In this case, the arresting officers had probable cause to
make the arrest in view of the tip they received from their informant. This Court
has already ruled that tipped information is sufficient probable cause to effect a
warrantless search. 17 Although the apprehending officers received the tip two
weeks prior to the arrest, they could not be faulted for not applying for a search
warrant inasmuch as the exact date of appellant's arrival was not known by the
informant. Apprehending officer PO3 Sagum testified 18 as follows:
Q So what were the information given you by your informer?
A Ang kausap po nila iyong hepe namin[g] si Maj. Rhodel Sermonia
tapos po sinabi lang po sa amin ni Maj. Sermonia ang sinabi ng
informant.
Q So you did not hear the report of the informant?
A Yes, sir.
Q What was the information given by your superior?
A He told us that somebody will be delivering marijuana at Sapang
Bayabas and the informer knew the person.
Q Give us the complete report?

IHEDAT

A Sinabi po ng hepe namin na sinabi ng informant na merong babaeng

magdedeliver ng marijuana sa Sapang Bayabas at babalik daw
po siya kung kailan magdedeliver.
Q On the date in question August 13 at around 6:00 o'clock in the
morning you were in your office?

A We were already at Sapang Bayabas, sir.

Q Which is which now?
A Nasa Sapang Bayabas na po, sir.
Q Before going to Sapang Bayabas where did you come from?
A We were in the office, sir.
Q What time where you in the office?
A That is where we were sleeping.
Q You were sleeping there?
A Yes, sir, we are stay-in.
Q And then what happened?
A Our informant came, sir.
Q What time?
A 5:00 o'clock, sir.
Q What was the purpose of the informant?
A Sinabi po niya sa amin na darating na raw po iyong ano.
Q I thought that your superior already informed you that the suspect or
the accused will be arriving at 6:00 o'clock the first time?
A Sabi po sa amin noong magpunta iyong informer sa office namin
August 13 darating daw po iyong babae.
Q It was on August 13 when he said that?

A Yes, sir.
Q Who was he talking with then?
A Iyong Chief po namin tapos kinausap ko rin po siya.
Q What time was that?
A Before 5:00, sir.
Q So they were talking before 5:00 with your Chief?
A Yes, sir.
Q Where were you?
A I was outside, sir.
Q So you were not listening to them?
A No, sir.
Q So you do not know what they have talked about?
A Yes, sir.
Q And then what were the instruction given by your superior?
A He said we will proceed to Sapang Bayabas because there is a lady
going there bringing marijuana.
Q Did you ask the identity of the woman?
A Yes, sir.
Q What did he say?

A About 50 years of age, 5 feet and with straight long hair?

Q How about the name, was the name given to you?
A No, sir, he just said she came from Kalinga.
Q Aside from that, was the quantity of the drugs given to you that was to
be brought?
A No, sir.
Q So you just learned that the woman will be arriving at Sapang
Bayabas at 6:00 o'clock?
A I do not know the time she is arriving.
Q He did not tell you?
A He does not know, sir.
Q The informant did not tell you?
A Yes, sir, he just said she will be coming in Sapang Bayabas.
Q You did not ask for the time?
A He does not know, sir.
Q What about the particular place where the woman will deliver the
drugs?
A Hindi niya po alam basta doon sa entrance daw po ng Sapang
Bayabas doon na po kami mag-istambay. (Emphasis and Italics
supplied).

Although there was testimony by PO3 Galvez that the informant told them the
exact date of arrival, the trial court gave more weight to the testimony of PO3
Sagum that stated otherwise, as evidenced by his finding that the informant
arrived at the police station at 5:00 A.M. on August 13, 1999 and informed them
that the appellant was arriving at 6:00 A.M. 19 The judgment call of the trial court
on which of these two conflicting testimonies to believe should prevail because it
involved the assessment of the credibility of witnesses.

20

Thus, without proof that

some facts or circumstances of weight or substance having a bearing on the

result of the case have been overlooked, misunderstood or misapplied, this Court
will not overturn such finding as the judge was in a better position to observe the
demeanor of the two witnesses. 21
In those cases where this Court invalidated a warrantless search on the ground
that the officers could have applied for a search warrant, the concerned officers
received the tip either days prior to the arrival or in the afternoon of a working
day. In People vs. Aminnudin, 22 this Court found that the officers received the tip
two days prior to the actual date of arrival of accused Aminnudin. In People
vs. Encinadak, 23 the police officers were tipped off at 4:00 P.M. on May 20, 1992
that accused Encinada would arrive at 7:00 A.M. the next day. Thus, the officers
had time to obtain search warrants inasmuch as Administrative Circulars 13 and
19 of the Supreme Court allowed the application for search warrants even after
office hours. In People vs. Aruta, 24 the police officers received the information on
December 13, 1988 that accused Aruta would arrive on a Victory Liner Bus at
6:30 P.M. on December 14, 1999, giving them a day to obtain a warrant.

DHAcET

In the present case, the informant arrived at the police station at 5:00 A.M. on
August 13, 1999 and informed the officers that the appellant would be arriving at
6:00 A.M. (just an hour later) that day. The circumstances clearly called for an
immediate response from the officers. In People vs. Valdez, 25 this Court upheld
the validity of the warrantless arrest and corresponding search of accused Valdez
as the officer made the arrest on the strength of a similar on-the-spot tip. In the
case at bar, though all other pertinent details were known by the officers except
the date, they could not have applied for a search warrant since the validity of a

warrant was only for 10 days.

26

Considering that the officers did not know when

the appellant was going to arrive, prudence made them act the way they did.
The appellant also faults the trial court for failing to give weight to her defense of
alibi. Appellant's alibi could not prevail over the overwhelming evidence presented
by the prosecution. Alibi as a defense is inherently weak

27

and for it to serve as

basis for an acquittal, the accused must establish by clear and convincing
evidence (a) his presence at another place at the time of the perpetration of the
offense and (b) the physical impossibility to be at the scene of the crime.

28The

appellant failed to meet these two requirements. Jaime Alarcon's house where
appellant claimed to be sleeping at the time of her arrest, was only 10 meters
from the tricycle terminal where she was arrested by the officers.

29

Thus, the trial

court was correct in ruling that the alibi of appellant was not enough to acquit her
of the charges.
With the effectivity of RA 7659, Section 4 of RA 6425, provides the penalty
of reclusion perpetua to death and a fine ranging from P500,000 to P10,000,000
if the marijuana involved weighs 750 grams or more. Since the penalty is
composed of two indivisible penalties, the rules for applying the penalties
in Article 63 of the Revised Penal Code are applicable, pursuant to the ruling
in People vs. Simon 30 wherein the Court recognized the suppletory application of
the rules on penalties in the Revised Penal Code and the Indeterminate Sentence
Law to the Dangerous Drugs Act after its amendment by RA 7659. Thus, as the
appellant was found to be transporting 14.75 kilograms of marijuana, the trial
court was correct in imposing the lesser penalty of reclusion perpetua since there
was no aggravating or mitigating circumstance, and in not applying the
Indeterminate Sentence Law which is not applicable when indivisible penalties
are imposed.
WHEREFORE, the judgment of the Regional Trial Court, Branch 59, of Angeles
City, finding the appellant guilty of transporting a prohibited drug and sentencing
her to reclusion perpetua and to pay the fine of P500,000, is hereby AFFIRMED.

|||

(People v. Ayangao y Batong-Og, G.R. No. 142356, [April 14, 2004], 471 PHIL

379-394)

[G.R. No. 128587. March 16, 2007.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PERFECTO
A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch
18, RTC, Manila, and LAWRENCE WANG Y CHEN, respondents.
DECISION
GARCIA, J :
p

On pure questions of law, petitioner People of the Philippines has directly come
to this Court via this petition for review on certiorari to nullify and set aside the
Resolution 1 dated 13 March 1997 of the Regional Trial Court of Manila, Branch
18, in Criminal Case Nos. 96-149990 to 96-149992, entitled People of the
Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C.
Wang's Demurrer to Evidence and acquitting him of the three (3) charges filed
against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16,
Article III in relation to Section 2 (e) (2), Article I of Republic Act (R.A.) No. 6425
(Dangerous Drugs

Act); (2) Criminal Case No. 96-149991 for Violation

ofPresidential Decree No. 1866 (Illegal Possession of Firearms); and (3) Criminal
Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation
to R.A. No. 7166 (COMELEC Gun Ban).
The three (3) separate Informations filed against Lawrence C. Wang in the court
of origin respectively read:
Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):
That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control a
bulk of white and yellowish crystalline substance known as SHABU
contained

in

thirty-two

(32)

transparent

plastic

bags

weighing

approximately

29.2941

kilograms,

containing

methamphetamine

hydrochloride, a regulated drug, without the corresponding license or

prescription therefor.
Contrary to law. 2

Criminal Case No. 96-149991 (Illegal Possession of Firearms):

That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control one
(1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and
one AMT Cal. .380 9mm automatic backup pistol with magazine loaded
with ammunitions without first having secured the necessary license or
permit therefor from the proper authorities.
Contrary to law. 3

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control one
(1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and
one (1) AMT Cal. 380 9mm automatic backup pistol with magazine
loaded with ammunitions, carrying the same along Maria Orosa St.,
Ermita, Manila, which is a public place, on the date which is covered by
an election period, without first securing the written permission or
authority from the Commission on Elections, as provided by the
COMELEC Resolution 2828 in relation to Republic Act 7166.
Contrary to law. 4

During his arraignment, accused Wang refused to enter a plea to all the
Informations and instead interposed a continuing objection to the admissibility of
the evidence obtained by the police operatives. Thus, the trial court ordered that
a plea of "Not Guilty" be entered for him. 5 Thereafter, joint trial of the three (3)
consolidated cases followed.
The pertinent facts are as follows:
On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance
and Reaction Against Crime of the Department of Interior and Local Government,
namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo
Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano,
for unlawful possession of methamphetamine hydrochloride, a regulated drug
popularly known as shabu. In the course of the investigation of the three arrested
persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the
source of the drug. An entrapment operation was then set after the three were
prevailed upon to call their source and pretend to order another supply of shabu.
At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were
arrested while they were about to hand over another bag of shabu to SPO2 De
Dios and company. Questioned, Redentor Teck and Joseph Junio informed the
police operatives that they were working as talent manager and gymnast
instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang.
Redentor Teck and Joseph Junio did not disclose their source of shabu but
admitted that they were working for Wang. 6 They also disclosed that they knew
of a scheduled delivery of shabu early the following morning of 17 May 1996, and
that their employer (Wang) could be found at the Maria Orosa Apartmentin
Malate, Manila. The police operatives decided to look for Wang to shed light on
the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector
Cielito Coronel and his men then proceeded to Maria Orosa Apartment and
placed the same under surveillance.

TCacIE

Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10
a.m. of 17 May 1996, Wang, who was described to the operatives by Teck, came
out of the apartment and walked towards a parked BMW car. On nearing the car,
he (witness) together with Captain Margallo and two other police officers
approached Wang, introduced themselves to him as police officers, asked his
name and, upon hearing that he was Lawrence Wang, immediately frisked him
and asked him to open the back compartment of the BMW car. 7 When frisked,
there was found inside the front right pocket of Wang and confiscated from him
an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with
ammunitions. At the same time, the other members of the operatives searched
the BMW car and found inside it were the following items: (a) 32 transparent
plastic bags containing white crystalline substance with a total weight of 29.2941
kilograms, which substance was later analyzed as positive for methamphetamine
hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of
P650,000.00; (c) one electronic and one mechanical scales; and (d) an
unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted
the warrantless arrest and search. 8
On 6 December 1996, the prosecution rested its case and upon motion, accused
Wang was granted 25 days from said date within which to file his intended
Demurrer to Evidence. 9 On 19 December 1996, the prosecution filed
aManifestation 10 to the effect that it had rested its case only in so far as the
charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96149990 is concerned, and not as regards the two cases for Illegal Possession of
Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban
(Crim. Case No. 96-149992). Accordingly, trial continued.
On 9 January 1997, Wang filed his undated Demurrer to Evidence, 11 praying for
his acquittal and the dismissal of the three (3) cases against him for lack of a
valid arrest and search warrants and the inadmissibility of the prosecution's
evidence against him. Considering that the prosecution has not yet filed its
Opposition to the demurrer, Wang filed an Amplification

12

to his Demurrer of

Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its

Opposition 13 alleging that the warrantless search was legal as an incident to the
lawful arrest and that it has proven its case, so it is now time for the defense to
present its evidence.
On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr.,
issued

the

herein

assailed

Resolution 14 granting

Wang's Demurrer

to

Evidence and acquitting him of all charges for lack of evidence, thus:
WHEREFORE, the accused's undated Demurrer to Evidence is hereby
granted; the accused is acquitted of the charges against him for the
crimes of Violation of Section 16, Article III of the Dangerous Drugs Act,
Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for
lack of evidence; the 32 bags of shabu with a total weight of 29.2941
kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and
one Daewoo Cal. 9mm. are ordered confiscated in favor of the
government and the branch clerk is directed to turn over the 32 bags of
shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two
firearms to the Firearms and Explosive Units, PNP, Camp Crame,
Quezon City, for proper disposition, and the officer-in-charge of PARAC,
Department of Interior and Local Government, is ordered to return the
confiscated amount of P650,000.00 to the accused, and the confiscated
BMW car to its registered owner, David Lee. No costs.
SO ORDERED.

Hence, this petition 15 for review on certiorari by the People, submitting that the
trial court erred
I
.

IN

HOLDING

THAT

THE

UNDISPUTED

FACTS

AND

CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE

WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF THE
CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND

CIRCUMSTANCES

NEITHER

JUSTIFIED

THE

WARRANTLESS

SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE

CONTRABAND THEREIN.
II
. . . IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS
CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN
INCIDENT TO A LAWFUL ARREST.
III
. . . IN DECLARING THE WARRANTLESS ARREST OF THE
ACCUSED AND THE SEARCH AND SEIZURE OF HIS HANDGUNS
UNLAWFUL.
IV
. . . IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A
RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE
SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO
THE ADMISSION OF THE EVIDENCE SEIZED.
V
. . . IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND
OFFERED

BY

THE

PROSECUTION

AND

IN

NOT

DENYING

ACCUSED'S DEMURRER TO EVIDENCE.

In its Resolution 16 of 9 July 1997, the Court, without giving due course to the
petition, required the public and private respondents to comment thereon within

ten days from notice. Private respondent Wang filed his comment

17

on 18 August

1997.
On 10 September 1997, the Court required the People to file a reply,

18

which the

Office of the Solicitor General did on 5 December 1997, after several

extensions. 19
On 20 October 2004, the Court resolved to give due course to the petition and
required the parties to submit their respective memoranda, 20 which they did.
The case presents two main issues: (a) whether the prosecution may appeal the
trial court's resolution granting Wang's demurrer to evidence and acquitting him
of all the charges against him without violating the constitutional proscription
against double jeopardy; and (b) whether there was lawful arrest, search and
seizure by the police operatives in this case despite the absence of a warrant of
arrest and/or a search warrant.
First off, it must be emphasized that the present case is an appeal filed directly
with this Court via a petition for review on certiorari under Rule 45 in relation to
Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure
questions of law, ordinary appeal by mere filing of a notice of appeal not being
allowed as a mode of appeal directly to this Court. Then, too, it bears stressing
that the right to appeal is neither a natural right nor a part of due process, it being
merely a statutory privilege which may be exercised only in the manner provided
for by law (Velasco v. Court of Appeals

21

). Although Section 2, Rule 122 of the

Rules on Criminal Procedure states that any party may appeal, the right of the
People to appeal is, in the very same provision, expressly made subject to the
prohibition against putting the accused in double jeopardy. It also basic that
appeal in criminal cases throws the whole records of the case wide open for
review by the appellate court, that is why any appeal from a judgment of acquittal
necessarily puts the accused in double jeopardy. In effect, the very same Section
2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People
from judgments of acquittal.

An order granting an accused's demurrer to evidence is a resolution of the case

on the merits, and it amounts to an acquittal. Generally, any further prosecution
of the accused after an acquittal would violate the constitutional proscription on
double jeopardy. To this general rule, however, the Court has previously made
some exceptions.
The celebrated case of Galman v. Sandiganbayan 22 presents one exception to
the rule on double jeopardy, which is, when the prosecution is denied due
process of law:
No court whose Presiding Justice has received "orders or suggestions"
from the very President who by an amendatory decree (disclosed only at
the hearing of oral arguments on November 8, 1984 on a petition
challenging the referral of the Aquino-Galman murder cases to the
Tanodbayan and Sandiganbayan instead of to a court martial, as
mandatorily required by the known P.D. 1850 at the time providing for
exclusive jurisdiction of courts martial over criminal offenses committed
by military men) made it possible to refer the cases to the
Sandiganbayan, can be an impartial court, which is the very essence of
due process of law. As the writer then wrote, "jurisdiction over cases
should be determined by law, and not by preselection of the Executive,
which

could

be

much

too

easily

transformed

into

means

of predetermining the outcome of individual cases." This criminal

collusion as to the handling and treatment of the cases by public
respondents at the secret Malacaang conference (and revealed only
after fifteen months by Justice Manuel Herrera) completely disqualified
respondent Sandiganbayan and voided ab initio its verdict. This renders
moot and irrelevant for now the extensive arguments of respondents
accused, particularly Generals Ver and Olivas and those categorized as
accessories, that there has been no evidence or witness suppressed
against them, that the erroneous conclusions of Olivas as police
investigator do not make him an accessory of the crimes he investigated
and the appraisal and evaluation of the testimonies of the witnesses

presented and suppressed. There will be time and opportunity to present

all these arguments and considerations at the remand and retrial of the
cases herein ordered before a neutral and impartial court.
The Supreme Court cannot permit such a sham trial and verdict and
travesty of justice to stand unrectified. The courts of the land under its
aegis are courts of law and justice and equity. They would have no
reason to exist if they were allowed to be used as mere tools of injustice,
deception and duplicity to subvert and suppress the truth, instead of
repositories of judicial power whose judges are sworn and committed to
render impartial justice to all alike who seek the enforcement or
protection of a right or the prevention or redress of a wrong, without fear
or favor and removed from the pressures of politics and prejudice. More
so, in the case at bar where the people and the world are entitled to
know the truth, and the integrity of our judicial system is at stake. In life,
as an accused before the military tribunal Ninoy had pleaded in vain that
as a civilian he was entitled to due process of law and trial in the regular
civil courts before an impartial court with an unbiased prosecutor. In
death,

Ninoy,

as

the

victim

of

the

"treacherous

and

vicious

assassination" and the relatives and sovereign people as the aggrieved

parties plead once more for due process of law and a retrial before an
impartial court with an unbiased prosecutor. The Court is constrained to
declare the sham trial a mock trial the non-trial of the century and
that the predetermined judgment of acquittal was unlawful and void ab
initio.
1. No double jeopardy. It is settled doctrine that double jeopardy
cannot be invoked against this Court's setting aside of the trial courts'
judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due
process. As the Court stressed in the 1985 case of People vs. Bocar,

Where the prosecution is deprived of a fair opportunity to

prosecute and prove its case, its right to due process is thereby
violated.
The cardinal precept is that where there is a violation of basic
constitutional rights, courts are ousted of their jurisdiction. Thus,
the violation of the State's right to due process raises a serious
jurisdictional issue (Gumabon vs. Director of the Bureau of
Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be
glossed over or disregarded at will. Where the denial of the
fundamental right of due process is apparent, a decision rendered
in disregard of that right is void for lack of jurisdiction (Aducayen
vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs.
Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment
or decision rendered notwithstanding such violation may be
regarded as a "lawless thing, which can be treated as an outlaw
and slain at sight, or ignored wherever it exhibits its head"
(Aducayen vs. Flores, supra).
Respondent Judge's dismissal order dated July 7, 1967 being null
and void for lack of jurisdiction, the same does not constitute a
proper basis for a claim of double jeopardy (Serino vs.
Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a valid indictment,
(b) before a competent court, (c) after arraignment, (d) a valid
plea having been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the accused
(People vs. Ylagan, 58 Phil. 851). The lower court was not
competent as it was ousted of its jurisdiction when it violated the
right of the prosecution to due process.

In effect, the first jeopardy was never terminated, and the remand
of the criminal case for further hearing and/or trial before the
lower courts amounts merely to a continuation of the first
jeopardy, and does not expose the accused to a second jeopardy.

Another exception is when the trial court commits grave abuse of discretion
in dismissing a criminal case by granting the accused's demurrer to
evidence. In point is the fairly recent case of People v. Uy, 23 which involved the
trial court's decision which granted the two separate demurrers to evidence filed
by the two accused therein, both with leave of court, resulting in their acquittal of
their respective charges of murder due to insufficiency of evidence. In resolving
the petition for certiorari filed directly with this Court, we had the occasion to
explain:
The general rule in this jurisdiction is that a judgment of acquittal is final
and unappealable. People v. Court of Appeals explains the rationale of
this rule:
In our jurisdiction, the finality-of-acquittal doctrine as a safeguard
against double jeopardy faithfully adheres to the principle first
enunciated in Kepner v. United States. In this case, verdicts of
acquittal are to be regarded as absolutely final and irreviewable.
The cases of United States v. Yam Tung Way, People v. Bringas,
Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a
few, are illustrative cases. The fundamental philosophy behind the
constitutional proscription against double jeopardy is to afford the
defendant, who has been acquitted, final repose and safeguard
him from government oppression through the abuse of criminal
processes.

As

succinctly

observed

in Green

v.

United

States "(t)he underlying idea, one that is deeply ingrained in at

least the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged

offense, thereby subjecting him to embarrassment, expense and

ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even
though innocent, he may be found guilty." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence is

granted. As held in the case of People v. Sandiganbayan:
The demurrer to evidence in criminal cases, such as the one at
bar, is " filed after the prosecution had rested its case," and when
the same is granted, it calls "for an appreciation of the evidence
adduced by the prosecution and its sufficiency to warrant
conviction beyond reasonable doubt, resulting in a dismissal of
the case on the merits, tantamount to an acquittal of the accused."
Such dismissal of a criminal case by the grant of demurrer to
evidence may not be appealed, for to do so would be to place the
accused in double-jeopardy. The verdict being one of acquittal,
the case ends there. (Italics in the original)
Like any other rule, however, the above-said rule is not absolute. By way
of exception, a judgment of acquittal in a criminal case may be
assailed in a petition for certiorari under Rule 65 of the Rules of
Court upon a clear showing by the petitioner that the lower court, in
acquitting the accused, committed not merely reversible errors of
judgment but also grave abuse of discretion amounting to lack or
excess of jurisdiction or a denial of due process, thus rendering the
assailed judgment void. (Emphasis supplied.)

In Sanvicente v. People, 24 the Court allowed the review of a decision of the Court
of Appeals (CA) which reversed the accused's acquittal upon demurrer to
evidence filed by the accused with leave of court, the CA ruling that the trial court

committed grave abuse of discretion in preventing the prosecution from

establishing the due execution and authenticity of certain letter marked therein as
Exhibit "LL," which supposedly "positively identified therein petitioner as the
perpetrator of the crime charged." The Court, in a petition for certiorari, sustained
the CA's power to review the order granting the demurrer to evidence, explaining
thus:
Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure,
as amended, the trial court may dismiss the action on the ground of
insufficiency of evidence upon a demurrer to evidence filed by the
accused with or without leave of court. In resolving accused's demurrer
to evidence, the court is merely required to ascertain whether there is
competent or sufficient evidence to sustain the indictment or support a
verdict of guilt.
The grant or denial of a demurrer to evidence is left to the sound
discretion of the trial court and its ruling on the matter shall not be
disturbed in the absence of a grave abuse of discretion. Significantly,
once the court grants the demurrer, such order amounts to an acquittal
and any further prosecution of the accused would violate the
constitutional proscription on double jeopardy. This constitutes an
exception to the rule that the dismissal of a criminal case made with the
express consent of the accused or upon his own motion bars a plea of
double jeopardy. The finality-of-acquittal rule was stressed thus
in People v. Velasco:
The fundamental philosophy highlighting the finality of an acquittal
by the trial court cuts deep into the "humanity of the laws and in
jealous watchfulness over the rights of the citizens, when brought
in unequal contest with the State . . . . Thus Green expressed the
concern that "(t)he underlying idea, one that is deeply ingrained in
at least the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed to

make repeated attempts to convict an individual for an alleged

offense thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even
though innocent, he may be found guilty."
It is axiomatic that on the basis of humanity, fairness and justice,
an acquitted defendant is entitled to the right of repose as a direct
consequence of the finality of his acquittal. The philosophy
underlying this rule establishing the absolute nature of acquittals
is "part of the paramount importance criminal justice system
attaches to the protection of the innocent against wrongful
conviction." The interest in the finality-of-acquittal rule, confined
exclusively to verdicts of not guilty, is easy to understand: it is a
need for "repose", a desire to know the exact extent of one's
liability. With this right of repose, the criminal justice system has
built in a protection to insure that the innocent, even those whose
innocence rests upon a jury's leniency, will not be found guilty in a
subsequent proceeding.
Given the far-reaching scope of an accused's right against double
jeopardy, even an appeal based on an alleged misappreciation of
evidence will not lie. The only instance when double jeopardy will not
attach is when the trial court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, such as where the
prosecution was denied the opportunity to present its case or
where the trial was a sham. However, while certiorari may be
availed of to correct an erroneous acquittal, the petitioner in such
an extraordinary proceeding must clearly demonstrate that the trial
court blatantly abused its authority to a point so grave as to deprive
it of its very power to dispense justice. (Emphasis supplied.)

By this time, it is settled that the appellate court may review dismissal orders of
trial courts granting an accused's demurrer to evidence. This may be
done via the special civil action of certiorari under Rule 65 based on the
ground of grave abuse of discretion, amounting to lack or excess of
jurisdiction. Such dismissal order, being considered void judgment, does not
result in jeopardy. Thus, when the order of dismissal is annulled or set aside by
an appellate court in an original special civil action via certiorari, the right of the
accused against double jeopardy is not violated.
Unfortunately, what petitioner People of the Philippines, through then Secretary of
Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III,
filed with the Court in the present case is an appeal by way of a petition for
review on certiorari under Rule 45 raising a pure question of law, which is
different from a petition for certiorari under Rule 65.
In Madrigal Transport Inc. v. Lapanday Holdings Corporation, 25 we have
enumerated the distinction between the two remedies/actions, to wit:
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there are substantial
distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the correction of
errors of jurisdiction, not errors of judgment. In Pure Foods Corporation
v. NLRC, we explained the simple reason for the rule in this light:
"When a court exercises its jurisdiction, an error committed while
so engaged does not deprive it of the jurisdiction being exercised
when the error is committed. If it did, every error committed by a
court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may commit in

the exercise of its jurisdiction is not correct[a]ble through the

original civil action of certiorari."
The supervisory jurisdiction of a court over the issuance of a writ
of certiorari cannot be exercised for the purpose of reviewing the intrinsic
correctness of a judgment of the lower court on the basis either of the
law or the facts of the case, or of the wisdom or legal soundness of the
decision. Even if the findings of the court are incorrect, as long as it has
jurisdiction over the case, such correction is normally beyond the
province of certiorari. Where the error is not one of jurisdiction, but of an
error of law or fact a mistake of judgment appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises its
appellate jurisdiction and power of review. Over a certiorari, the higher
court uses its original jurisdiction in accordance with its power of control
and supervision over the proceedings of lower courts. An appeal is thus
a continuation of the original suit, while a petition for certiorari is an
original and independent action that was not part of the trial that had
resulted in the rendition of the judgment or order complained of. The
parties to an appeal are the original parties to the action. In contrast, the
parties to a petition for certiorari are the aggrieved party (who thereby
becomes the petitioner) against the lower court or quasi-judicial agency,
and the prevailing parties (the public and the private respondents,
respectively).
As to the Subject Matter. Only judgments or final orders and those that
the Rules of Court so declared are appealable. Since the issue is
jurisdiction, an original action for certiorari may be directed against an
interlocutory order of the lower court prior to an appeal from the
judgment; or where there is no appeal or any plain, speedy or adequate
remedy.

As to the Period of Filing. Ordinary appeals should be filed within

fifteen days from the notice of judgment or final order appealed from.
Where a record on appeal is required, the appellant must file a notice of
appeal and a record on appeal within thirty days from the said notice of
judgment or final order. A petition for review should be filed and served
within fifteen days from the notice of denial of the decision, or of the
petitioner's timely filed motion for new trial or motion for reconsideration.
In an appeal by certiorari, the petition should be filed also within fifteen
days from the notice of judgment or final order, or of the denial of the
petitioner's motion for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not later than
sixty days from the notice of judgment, order, or resolution. If a motion for
new trial or motion for reconsideration was timely filed, the period shall
be counted from the denial of the motion.

As to the Need for a Motion for Reconsideration. A motion for

reconsideration is generally required prior to the filing of a petition
for certiorari, in order to afford the tribunal an opportunity to correct the
alleged errors. Note also that this motion is a plain and adequate remedy
expressly available under the law. Such motion is not required before
appealing a judgment or final order.

HAaScT

Also in Madrigal, we stressed that the special civil action of certiorari and appeal
are two different remedies mutually exclusive; they are neither alternative nor
successive. Where appeal is available, certiorari will not prosper. In the dismissal
of a criminal case upon demurrer to evidence, appeal is not available as such an
appeal will put the accused in double jeopardy. Certiorari, however, is allowed.
For being the wrong remedy taken by petitioner People of the Philippines in this
case, this petition is outrightly dismissible. The Court cannot reverse the assailed

dismissal order of the trial court by appeal without violating private respondent's
right against double jeopardy.
Even assuming that the Court may treat an "appeal" as a special civil action
of certiorari, which definitely this Court has the power to do, when there is a clear
showing of grave abuse of discretion committed by the lower court, the instant
petition will nevertheless fail on the merits as the succeeding discussion will
show.
There are actually two (2) acts involved in this case, namely, the
warrantless arrest and the warrantless search. There is no question that
warrantless search may be conducted as an incident to a valid warrantless arrest.
The law requires that there be first a lawful arrest before a search can be made;
the process cannot be reversed.

26

However, if there are valid reasons to conduct

lawful search and seizure which thereafter shows that the accused is currently
committing a crime, the accused may be lawfully arrested in flagrante
delicto 27 without need for a warrant of arrest.
Finding that the warrantless arrest preceded the warrantless search in the case
at bar, the trial court granted private respondent's demurrer to evidence and
acquitted him of all the three charges for lack of evidence, because the unlawful
arrest resulted in the inadmissibility of the evidence gathered from an invalid
warrantless search. The trial court's ratiocination is quoted as follows:
The threshold issue raised by the accused in his Demurrer to Evidence
is whether his warrantless arrest and search were lawful as argued by
the prosecution, or unlawful as asserted by the defense.
Under Section 5, Rule 113 of the New Rules of Court, a peace officer
may arrest a person without a warrant: (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 escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while
being transferred from one confinement to another. None of these
circumstances were present when the accused was arrested. The
accused was merely walking from the Maria Orosa Apartment and was
about to enter the parked BMW car when the police officers arrested and
frisked him and searched his car. The accused was not committing any
visible offense at the time of his arrest. Neither was there an indication
that he was about to commit a crime or that he had just committed an
offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol
that the accused had in his possession was concealed inside the right
front pocket of his pants. And the handgun was bantam and slim in size
that it would not give an outward indication of a concealed gun if placed
inside the pant's side pocket as was done by the accused. The arresting
officers had no information and knowledge that the accused was
carrying an unlicensed handgun, nor did they see him in possession
thereof immediately prior to his arrest.
Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal.
9mm Pistol with magazine that were found and seized from the car. The
contraband items in the car were not in plain view. The 32 bags of shabu
were in the trunk compartment, and the Daewoo handgun was
underneath the driver's seat of the car. The police officers had no
information, or knowledge that the banned articles were inside the car, or
that the accused had placed them there. The police officers searched the
car on mere suspicion that there was shabu therein.
On this matter, pertinent portions of the testimonies of Police Inspector
Cielito Coronel and SPO3 Reynaldo are hereunder quoted:
POLICE INSPECTOR CIELITO CORONEL'S TESTIMONY

"PROSECUTOR TO WITNESS: Direct-Examination

Q. Mr. Witness, what was your role or participation in this case?
A. I am one of those responsible for the arrest of the accused.
xxx xxx xxx
Q. Where did you make that arrest, Mr. Witness?
A. The apprehension was made in front of an apartment along Maria
Orosa Street, Ermita, Manila.
Q. What date was that when you arrested the accused?
A. It was on May 17, 1996, at about 2:10 a.m.
xxx xxx xxx
Q. What was the reason why you together with other policemen effected
the arrest of the accused?
A. We arrested him because of the information relayed to us by one of
those whom we have previously apprehended in connection with
the delivery of shabu somewhere also in Ermita, Manila.
xxx xxx xxx
Q. When you established that he was somewhere at Maria Orosa, what
did you do?
A. We waited for him.
xxx xxx xxx

Q. You yourself, Mr. Witness, where did you position yourself during that
time?
A. I was inside a vehicle waiting for the accused to appear.
Q. What about your other companions where were they?
A. They were position in strategic places within the area.
Q. What happened when you and your companions were positioned in
that place?
A. That was when the accused arrived.
Q. How many of your approached him.
A. Inspector Margallo, myself and two other operatives.
Q. What happened when you approached the accused, Mr. Witness?
A. We introduced ourselves as police officers and we frisked him and we
asked him to open the back compartment of his car.
Q. You said you frisked him, what was the result of that?
A. He was found in possession of one back-up pistol with one loaded
magazine and likewise when the compartment was opened
several plastic bags containing white crystalline substance
suspected to be shabu (were found).
Q. What did you do when you found out Mr. Witness?
A. When the car was further search we later found another firearm, a
Daewoo Pistol at the place under the seat of the driver.
Q. Then what happened?

A. He was brought to our headquarters at Mandaluyong for further

investigation.
Q. What about the suspected shabu that you recovered, what did you do
with that?
A. The suspected shabu that we recovered were forwarded to the NBI for
laboratory examination.
Q. Did you come to know the results?
A. It was found positive for methamphetamine hydrochloride. (TSN, pp.
3-8, November 15, 1996).
ATTY. LOZANO TO WITNESS: CROSS
Q. You arrested Joseph Junio and Redentor Teck for alleged
transporting of shabu on May 16, 1996, at 11:00 p.m., is it not?
A. Yes, Sir.
Q. You asked Redentor Teck where he is employed, is it not?
A. Yes, Sir.
xxx xxx xxx
Q. Redentor Teck told you that he is a talent manager at the Glenmore
Modeling Agency, is it not?
A. Yes, Sir.
Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it
not?
A. I supposed, Sir.

Q. And that is why immediately after Redentor Teck told you that he is an
employee of the Glenmore Modeling Agency owned by Lawrence
Wang, naturally, you and your companions look for Lawrence
Wang to shed light on the transporting of shabu by Redentor Teck
and Joseph Junio, is it not?
A. Yes, Sir.
Q. Thereafter, you spotted a person previously described by Redentor
Teck as Lawrence Wang, is it not?
A. Yes, Sir.
Q. While you were arresting Lawrence Wang, your companions at the
same time searched the BMW car described in your affidavit of
arrest, is it not?
A. Yes, Sir.
xxx xxx xxx
Q. Lawrence Wang was not inside the BMW car while the same was
searched, is it not?
A. He was outside, Sir.
Q. The driver of the car was inside the car when the arrest and search
were made, is it not?
A. He was likewise outside, Sir.
Q. Lawrence Wang did resist arrest and search is it not?
A. Yes, Sir.
Q. When you effected the arrest, there was no warrant of arrest, is it not?

A. Yes, Sir.
Q. When the search was made on the BMW car, there was no search
warrant, is it not?
A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)
SPO3

REYNALDO

CRISTOBAL'S

TESTIMONY

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. What is you role or participation in this case?
A. I was one of the arresting officers and investigator, Sir.
xxx xxx xxx
Q. What kind of specific offense did the accused allegedly do so that you
arrested him, Mr. Witness?
A. He was arrested on the basis of the recovered drugs in his possession
placed inside his car.
xxx xxx xxx
Q. Mr. witness, you said that you recovered drug from the car of the
accused, please tell us the antecedent circumstances which led
you to recover or confiscate these items?
A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one
Redentor Teck and Joseph Junio.
COURT: Where did you arrest these people?
A They were arrested in Metro Manila also.
COURT: The same date?

A. May 16, about 11:00 p.m. They were arrested and when they were
investigated, Teck mentioned the name of Lawrence Wang as his
employer.

cCHITA

COURT: Why were these people, arrested?

A. For violation of R.A. 6425.
COURT: How were they arrested?
A. They were arrested while in the act of transporting shabu or handling
shabu to another previously arrested person. It was a series of
arrest.
COURT: So, this involved a series of operation?
A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3)
persons, SPO2 Vergel de Dios, a certain Arellano and a certain
Rogelio Noble. When they were arrested they divulged the name
of the source.
COURT: They were arrested for what, for possession?
A. Yes, Your Honor. For unlawful possession of shabu. Then they
divulged to us the name of the person from whom they get shabu.
COURT: Whose name did they mention:
A. One Alias Frank, who turned out to be Redentor Teck and Joseph
Junio. We let them call Redentor Teck and Joseph Junio thru the
cellphone and pretend and to order another supply of shabu.
COURT: So there was an entrapment?

A. Yes, Your Honor.

COURT: So, these two (2) were arrested?
A. While they were about to hand over another bag of shabu to Noble
and company.
COURT: And these two reveals (revealed) some information to you as to
the source of the shabu?
A. Yes, Your Honor.
COURT: What was the information?
A. Teck told us that he is an employee of Lawrence Wang.
COURT: What did you do when you were told about that?
A. They also told us that there was an ongoing delivery of shabu on that
morning.
COURT: When?
A. Of that date early morning of May 17, 1996.
COURT: At what place?
A. We asked them where we could find Lawrence Wang and Teck lead
us to Maria Orosa Apartment where we conducted a stake out
which lasted up to 2:00 a.m.
xxx xxx xxx
COURT: What happened during the stake out?

A. When the person of the accused was identified to us, we saw him
opening his car together with his driver.
COURT: So, he was about to leave when you saw him?
A. Probably, Sir.
COURT: What did you do?
A. We saw him opened his car and we have a suspicion that there was a
shabu inside the compartment of the car.
xxx xxx xxx
COURT: All right, when you saw the accused opened his car, what did
you do?
A. We approached him.
COURT: What happened when you approached him?
A. We suspected the shabu inside the compartment of his car.
COURT: And this shabu that you saw inside the compartment of the car,
what did you do with that?
A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I
was the one who inspected and opened the compartment of the
car and saw the shabu. (TSN, pp. 15-24, December 16, 1996).
CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE
COURT
COURT: From your testimony and that of Police Inspector Cielito
Coronel, this Court has gathered that prior to the arrest of the

accused there were three (3) men that your team arrested. One of
whom is a police officer.
A: Yes, Sir.
xxx xxx xxx
COURT: And on the occasion of the arrest of these three men shabu
were confiscated from them?
A: Yes, Sir.
Q: And in the course of the investigation of these three men, you were
able to discover that Redentor Teck and Joseph Junio were the
source of the regulated drug that were confiscated from the three
men that you have arrested?
A: Yes, Sir.
Q: Now, thru entrapment base[d] on your testimony you were able to
apprehend also these two men, Redentor Teck and Joseph
Junio?
A: Yes, Sir.
xxx xxx xxx
Q: These two men, Redentor Teck and Joseph Junio they were also
investigated by your team?
A: Yes, Sir.
Q: You were present while they were investigated?
A: I was the one whom investigated them.

xxx xxx xxx

Q: Did you ask Redentor and Joseph the source of shabu that you
confiscated from them at the time of the (their) arrest?
A: Yes, Sir. They refuse to say the source, however, they told me that
they were working for the accused.
Q: You also testified that Redentor informed you that there was another
delivery of shabu scheduled that morning of (stop) was it May 16
or 17? The other delivery that is scheduled on?
A: On the 17th.
xxx xxx xxx
Q: Did he tell you who was to make the delivery?
A: No, Sir.
xxx xxx xxx
Q: At that time when you decided to look for the accused to ask him to
shed light on the matter concerning the arrest of these two
employees in possession of shabu. Did you and did your team
suspect the accused as being involved in the transaction that lead
(led) to the arrest of Redentor and Joseph?
A: Yes, Sir. We suspected that he was the source of the shabu.
xxx xxx xxx
Q: When you saw the accused walking towards his car, did you know
whether he was carrying a gun?
A: No, Sir. It cannot be seen.

Q: It was concealed?
A: Yes, Sir.
Q: So, the only time that you and your team learned that he was in
possession of the gun is when he was bodily search?
A: Yes, Sir. That is the only time that I came to know about when Capt.
Margallo handed to me the gun.
Q: Other than walking towards his car, the accused was not doing
anything else?
A: None, Sir.
Q: That would invite your suspicion or give indication that he was
intending to do something unlawful or illegal?
A: No, Sir.
Q: When you searched the car, did the accused protest or try to prevent
your team from searching his car?
A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)
Clearly therefore, the warrantless arrest of the accused and the search
of his person and the car were without probable cause and could not be
licit. The arrest of the accused did not fall under any of the exception to
the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of
Court) and is therefore, unlawful and derogatory of his constitutional right
of liberty. . . .

The trial court resolved the case on the basis of its findings that the arrest
preceded the search, and finding no basis to rule in favor of a lawful arrest, it
ruled that the incidental search is likewise unlawful. Any and all pieces of

evidence acquired as a consequence thereof are inadmissible in evidence. Thus,

the trial court dismissed the case for lack of evidence.
Contrary to its position at the trial court, the People, however, now posits that
"inasmuch as it has been shown in the present case that the seizure without
warrant of the regulated drugs and unlicensed firearms in the accused's
possession had been validly made upon probable cause and under exigent
circumstances, then the warrantless arrest of the accused must necessarily have
to be regarded as having been made on the occasion of the commission of the
crime in flagrante delicto, and therefore constitutionally and statutorily permissible
and lawful." 28 In effect, the People now contends that the warrantless search
preceded the warrantless arrest. Since the case falls under an exception to the
general rule requiring search warrant prior to a valid search and seizure, the
police officers were justified in requiring the private respondent to open his BMW
car's trunk to see if he was carrying illegal drugs.
The conflicting versions as to whether the arrest preceded the search or vice
versa, is a matter of credibility of evidence. It entails appreciation of evidence,
which may be done in an appeal of a criminal case because the entire case is
thrown open for review, but not in the case of a petition for certiorari where the
factual findings of the trial court are binding upon the Court. Since a dismissal
order consequent to a demurrer to evidence is not subject to appeal and
reviewable only by certiorari, the factual finding that the arrest preceded the
search is conclusive upon this Court. The only legal basis for this Court to
possibly reverse and set aside the dismissal order of the trial court upon
demurrer to evidence would be if the trial court committed grave abuse of
discretion in excess of jurisdiction when it ruled that there was no legal basis to
lawfully effect a warrantless arrest.
The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on
warrantless arrest provide:

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 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.

Section 5, above, provides three (3) instances when warrantless arrest may be
lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect
where, based on personal knowledge of the arresting officer, there is probable
cause that said suspect was the author of a crime which had just been
committed; (c) arrest of a prisoner who has escaped from custody serving final
judgment or temporarily confined while his case is pending.
For a warrantless arrest of an accused caught in flagrante delicto under
paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person
to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is
done in the presence or within the view of the arresting officer. 29
The facts and circumstances surrounding the present case did not manifest any
suspicious behavior on the part of private respondent Lawrence Wang that would
reasonably invite the attention of the police. He was merely walking from
the Maria Orosa Apartment and was about to enter the parked BMW car when
the police operatives arrested him, frisked and searched his person and
commanded him to open the compartment of the car, which was later on found to

be owned by his friend, David Lee. He was not committing any visible offense
then. Therefore, there can be no valid warrantless arrest in flagrante delicto under
paragraph (a) of Section 5. It is settled that "reliable information" alone, absent
any overt act indicative of a felonious enterprise in the presence and within the
view of the arresting officers, is not sufficient to constitute probable cause that
would justify an in flagrante delicto arrest. 30

Neither may the warrantless arrest be justified under paragraph (b) of Section 5.
What is clearly established from the testimonies of the arresting officers is that
Wang was arrested mainly on the information that he was the employer of
Redentor Teck and Joseph Junio who were previously arrested and charged for
illegal transport of shabu. Teck and Junio did not even categorically identify Wang
to be their source of the shabu they were caught with in flagrante delicto. Upon
the duo's declaration that there will be a delivery of shabu on the early morning of
the following day, May 17, which is only a few hours thereafter, and that Wang
may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting
officers conducted "surveillance" operation in front of said apartment, hoping to
find a person which will match the description of one Lawrence Wang, the
employer of Teck and Junio. These circumstances do not sufficiently establish the
existence of probable cause based on personal knowledge as required in
paragraph (b) of Section 5.
And doubtless, the warrantless arrest does not fall under paragraph (c) of Section
5.
The inevitable conclusion, as correctly made by the trial court, is that the
warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the
illegal arrest is likewise unlawful.

In People v. Aminnudin, 31 the Court declared as inadmissible in evidence the

marijuana found in appellant's possession during a search without a warrant,
because it had been illegally seized, in disregard of the Bill of Rights:
In the case at bar, the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so
or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that
called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when
the informer pointed to him as the carrier of the marijuana that he
suddenly became a suspect and so subject to apprehension. It was the
fugitive finger that triggered his arrest. The identification of the informer
was the probable cause as determined by the officer (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest
him.

The People's contention that Wang waived his right against unreasonable search
and seizure has no factual basis. While we agree in principle that consent will
validate an otherwise illegal search, however, based on the evidence on record,
Wang resisted his arrest and the search on his person and belongings.

32

The

implied acquiescence to the search, if there was any, could not have been more
than mere passive conformity given under intimidating or coercive circumstances
and is thus considered no consent at all within the purview of the constitutional
guarantee. 33 Moreover, the continuing objection to the validity of the warrantless
arrest made of record during the arraignment bolsters Wang's claim that he
resisted the warrantless arrest and search.
We cannot close this ponencia without a word of caution: those who are
supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As
Justice Holmes once said, "I think it is less evil that some criminals should
escape than that the government should play an ignoble part." It is simply not

allowed in free society to violate a law to enforce another, especially if the law
violated is the Constitution itself. 34
WHEREFORE, the instant petition is DENIED.
|||

(People v. Laguio, Jr., G.R. No. 128587, [March 16, 2007], 547 PHIL 296-331)

[G.R. No. 133025. February 17, 2000.]

PEOPLE OF

THE

PHILIPPINES, plaintiff-appellee, vs.

RADEL GALLARDE, accused-appellant.

The Solicitor General for plaintiff-appellee.
Sansano-Suyat Law Office for accused-appellant.
SYNOPSIS
An information for the special complex crime of rape with homicide was filed
charging accused-appellant of having sexual intercourse with one Editha Talan, a
minor, 10 years of age, against her will and consent, and thereafter, with intent to
kill, cover the nose and mouth of the said minor resulting to her death and then
bury her in the field. Upon arraignment, accused-appellant pleaded not guilty. He
interposed the defense of denial and alibi that he was at home with his mother
and brothers at the time the crime occurred. Trial ensued. Thereafter, the trial
court rendered a decision finding accused-appellant guilty of the crime of murder
and sentenced him to reclusion perpetua and to pay the heirs of the victim actual
damages. It convicted accused-appellant of the crime of murder only, not of the
complex crime of rape with homicide because of the lack of proof of carnal
knowledge. Hence, this appeal.
The Supreme Court held that the trial court erred in convicting accused-appellant
of murder in an information charging him of rape with homicide. A reading of the
accusatory portion of the information showed that there was no allegation of any
qualifying circumstance. In rape with homicide, in order to be convicted of murder
in case the evidence fails to support the charge of rape, the qualifying
circumstance must be sufficiently alleged and proved. In the absence in the
information of an allegation of any qualifying circumstance, accused-appellant
cannot be convicted of murder. Nevertheless, the Court held that the
circumstantial evidence in the case at bar, when analyzed and taken together, led

to no other conclusion than that accused-appellant and no other else, killed the
victim and that he was guilty therefor. The Court found accused-appellant guilty
of homicide. As to the crime of rape, the Court found no convincing proof that the
laceration of the vagina and the rupture of the hymen of the victim were caused in
the course of coitus or by a male organ.
Accused-appellant's alibi and bare denial deserved no consideration. Even
assuming that accused-appellant's claim was true, his stay in his house did not
preclude his physical presence at the locus criminis or its immediate vicinity. The
place where the body of the victim was found buried was a few meters from his
house, and can be reached in a short while.

aHTcDA

The assailed decision of the trial court was modified by the Supreme Court.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHT OF ACCUSED TO BE
INFORMED OF NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM;
CONVICTION OF ACCUSED OF AN OFFENSE HIGHER THAN THAT
CHARGED IS AN UNAUTHORIZED DENIAL OF SAID RIGHT. In the absence
then

in

the

information

of

an

allegation

of

any

qualifying

circumstance, GALLARDE cannot be convicted of murder. An accused cannot be

convicted of an offense higher than that with which he is charged in the complaint
or information under which he is tried. It matters not how conclusive and
convincing the evidence of guilt may be, but an accused cannot be convicted of
any offense, unless it is charged in the complaint or information for which he is
tried, or is necessarily included in that which is charged. He has a right to be
informed of the nature of the offense with which he is charged before he is put on
trial. To convict an accused of a higher offense than that charged in the complaint
or information under which he is tried would be an unauthorized denial of that
right.

2. ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION; NOT VIOLATED IF

PICTURES OF ACCUSED WERE TAKEN EVEN WITHOUT ASSISTANCE OF
COUNSEL; PURELY MECHANICAL ACTS ARE NOT INCLUDED IN THE
PROHIBITION. We cannot agree with the trial court's rejection of the
photographs (Exhibits "I", "J" and "K") taken of GALLARDE immediately after the
incident on the ground that "the same were taken while [GALLARDE] was
already under the mercy of the police." The taking of pictures of an accused even
without the assistance of counsel, being a purely mechanical act, is not a
violation of his constitutional right against self-incrimination. The constitutional
right of an accused against self-incrimination proscribes the use of physical or
moral compulsion to extort communications from the accused and not the
inclusion of his body in evidence when it may be material. Purely mechanical acts
are not included in the prohibition as the accused does not thereby speak his
guilt, hence the assistance and guiding hand of counsel is not required. The
essence of the right against self-incrimination is testimonial compulsion, that is,
the giving of evidence against himself through a testimonial act. Hence, it has
been held that a woman charged with adultery may be compelled to submit to
physical examination to determine her pregnancy; and an accused may be
compelled to submit to physical examination and to have a substance taken from
his body for medical determination as to whether he was suffering from
gonorrhea which was contracted by his victim; to expel morphine from his mouth;
to have the outline of his foot traced to determine its identity with bloody
footprints; and to be photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enable the foregoing things to be
done.
3. ID.; ID.; ARREST; ANY OBJECTION, DEFECT OR IRREGULARITY THEREIN
MUST BE INTERPOSED PRIOR TO ARRAIGNMENT AND TRIAL OTHERWISE
IT IS DEEMED WAIVED. With respect to GALLARDE's claim that he was
arrested without warrant, suffice it to say that any objection, defect, or irregularity
attending an arrest must be made before the accused enters his plea. The
records show no objection was ever interposed prior to arraignment and

trial.GALLARDE's assertion that he was denied due process by virtue of his

alleged illegal arrest is negated by his voluntary submission to the jurisdiction of
the trial court, as manifested by the voluntary and counsel-assisted plea he
entered during arraignment and by his active participation in the trial thereafter. It
is settled that any objection involving a warrant of arrest or procedure in the
acquisition by the court of jurisdiction over the person of an accused must be
made before he enters his plea, otherwise the objection is deemed waived. It is
much too late in the day to complain about the warrantless arrest after a valid
information had been filed and the accused arraigned and trial commenced and
completed and a judgment of conviction rendered against him. Verily, the illegal
arrest of an accused is not sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after trial free from error; such arrest does
not negate the validity of the conviction of the accused.
4. ID.; ID.; PROSECUTION OF OFFENSES; PLACE, TIME AND DATE OF
COMMISSION OF CRIME NOT ESSENTIAL ELEMENTS OF THE CRIME OF
RAPE WITH HOMICIDE. There is also no merit in GALLARDE's argument
that the failure of the prosecution to prove beyond reasonable doubt the place
and time of the commission of the crime is fatal and will justify his acquittal. The
place, time and date of the commission of the offense are not essential elements
of the crime of rape with homicide. The gravamen of the offense is the carnal
knowledge of a woman and that on the occasion of or as a reason thereof, the
crime of homicide was committed. Conviction may be had on proof of the
commission of the crime provided it appears that the specific crime charged was
in fact committed prior to the date of the filing of the complaint or information,
within the period of the statute of limitation, and within the jurisdiction of the court.
5. ID.; ID.; ID.; ALLEGATION OF PLACE AND COMMISSION OF CRIME IN THE
INFORMATION, WHEN SUFFICIENT. The allegation of the place of
commission of the crime in the complaint or information is sufficient if it can be
understood therefrom that the offense was committed or some of the essential
ingredients thereof occurred at some place within the jurisdiction of the court. The
rule merely requires that the information shows that the crime was committed

within the territorial jurisdiction of the court. The Court may even take judicial
notice that said place is within its jurisdiction.
6. ID.; ID.; ID.; PRECISE DATE OR TIME OF COMMISSION OF CRIME NEED
NOT BE PROVED; PROXIMATE TIME OF COMMISSION OF OFFENSE
ESTABLISHED IN CASE AT BAR. As to the time of the commission of the
crime, the phrase "on or about" employed in the information does not require the
prosecution "to prove any precise date or time," but may prove any date or time
which is not so remote as to surprise and prejudice the defendant." Contrary to
the claim ofGALLARDE, the prosecution was able to establish the proximate time
of the commission of the crime, which was sometime between 9:00 p.m.,
when GALLARDE left the house of Talan followed by EDITHA, and 10:30 p.m.,
when the body of EDITHA was found. This was further corroborated by the
examining physician who testified, on the basis of the degree of rigor mortis, that
EDITHA died more or less, at 10:00 p.m. of 6 May 1997.
7. ID.;

EVIDENCE;

ABSENCE

OF

DIRECT

EVIDENCE

DOES

NOT

NECESSARILY ABSOLVE ACCUSED FROM CRIMINAL LIABILITY; WHEN

CIRCUMSTANTIAL EVIDENCE CONSIDERED SUFFICIENT TO ESTABLISH
GUILT OF ACCUSED; CASE AT BAR. We agree with the trial court that the
evidence for the prosecution, although circumstantial, was sufficient to establish
beyond reasonable doubt the guilt of GALLARDE for the death of EDITHA. Direct
evidence of the commission of a crime is not the only matrix wherefrom a trial
court may draw its conclusion and finding of guilt. The prosecution is not always
tasked to present direct evidence to sustain a judgment of conviction; the
absence of direct evidence does not necessarily absolve an accused from any
criminal liability. Even in the absence of direct evidence, conviction can be had on
the basis of circumstantial evidence, provided that the established circumstances
constitute an unbroken chain which leads one to one fair and reasonable
conclusion which points to the accused, to the exclusion of all others, as the
guilty person, i.e., 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.

8. ID.; ID.; REQUISITES TO SUSTAIN CONVICTION OF ACCUSED BASED ON

CIRCUMSTANTIAL EVIDENCE. The rules on evidence and precedents
sustain the conviction of an accused through circumstantial evidence, as long as
the following requisites are present: (1) there must be more than one
circumstance; (2) the inference must be based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond doubt of the guilt
of the accused. The importance of circumstantial evidence is more apparent in
the prosecution of cases of rape with homicide. The nature of the crime of rape,
where it is usually only the victim and the rapist who are present at the scene of
the crime, makes prosecutions for the complex crime of rape with homicide
particularly difficult since the victim can no longer testify against the perpetrator of
the crime. In these cases pieces of the evidence against the accused are usually
circumstantial. The circumstantial evidence in the case at bar, when analyzed
and taken together, leads to no other conclusion than that GALLARDE, and no
other else, killed EDITHA and that he is guilty therefor.
9. ID.; ID.; POSITIVE IDENTIFICATION PERTAINS TO PROOF OF IDENTITY
AND NOT PER SE TO BEING AN EYEWITNESS TO COMMISSION OF CRIME;
TYPES. We cannot sustain the contention of GALLARDE that he was not
positively identified as the assailant since there was no eyewitness to the actual
commission

of

the

crime.

It

does

not

follow

that

although

nobody

saw GALLARDE in the act of killing EDITHA, nobody can be said to have
positively identified him. Positive identification pertains essentially to proof of
identity and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification. A witness
may identity a suspect or accused in a criminal case as the perpetrator of the
crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a
witness may not have actually seen the very act of commission of a crime, he
may still be able to positively identify a suspect or accused as the perpetrator of a
crime as for instance when the latter is the person or one of the persons last

seen with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of
circumstantial evidence, which, when taken together with other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that the accused is the author of the crime to the exclusion of
all others. If the actual eyewitnesses are the only ones allowed to possibly
positively identify a suspect or accused to the exclusion of others, then nobody
can ever be convicted unless there is an eyewitness, because it is basic and
elementary that there can be no conviction until and unless an accused is
positively identified. Such a proposition is absolutely absurd, because it is settled
that direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt. If resort to
circumstantial evidence would not be allowed to prove identity of the accused on
the absence of direct evidence, then felons would go free and the community
would be denied proper protection.
10. ID.; ID.; DEFENSE OF ALIBI; TO PROSPER, REQUIREMENTS OF TIME
AND PLACE MUST BE STRICTLY MET. GALLARDE's alibi and bare denial
deserve no consideration. He did not present witnesses who could confirm his
presence in his house. No member of his family corroborated him on this matter.
The defenses of denial and alibi, if unsubstantiated by clear and convincing
evidence, are negative and self-serving, deserve no weight in law, and cannot be
given evidentiary value over the testimony of credible witnesses who testify on
affirmative matters. Moreover, even assuming that GALLARDE's claim is true, his
stay in his house did not preclude his physical presence at the locus criminis or
its immediate vicinity. The place where the body of EDITHA was found buried
was a few meters from his house, the place pointed to in the alibi and can be
reached in a short while. For the defense of alibi to prosper, the requirements of
time and place must be strictly met. It is not enough to prove that the accused
was somewhere else when the crime was committed, he must demonstrate that it
was physically impossible for him to have been at the scene of the crime at the
time of its commission.

11. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONIES OF WITNESSES

WHO HAVE NO MOTIVE TO FALSIFY THEIR TESTIMONIES SHOULD BE
GIVEN CREDENCE. No evil motive has been established against the
witnesses for the prosecution that might prompt them to incriminate the accused
or falsely testify against him. It is settled that when there is no showing that the
principal witnesses for the prosecution were actuated by improper motive, the
presumption is that the witnesses were not so actuated and their testimonies are
thus entitled to full faith and credit. Testimonies of witnesses who have no motive
or reason to falsify or perjure their testimonies should be given credence.
12. CRIMINAL LAW; RAPE WITH HOMICIDE; IN ORDER TO BE CONVICTED
OF MURDER IN CASE EVIDENCE FAILS TO SUPPORT CHARGE OF RAPE,
THE QUALIFYING CIRCUMSTANCE MUST BE SUFFICIENTLY ALLEGED AND
PROVED. We sustain GALLARDE's contention that the trial court erred in
convicting him of murder in an information charging him of rape with homicide. A
reading of the accusatory portion of the information shows that there was no
allegation of any qualifying circumstance. Although it is true that the term
"homicide" as used in special complex crime of rape with homicide is to be
understood in its generic sense, and includes murder and slight physical injuries
committed by reason or on the occasion of rape, it is settled in this jurisdiction
that where a complex crime is charged and the evidence fails to support the
charge as to one of the component offense, the accused can be convicted of the
other. In rape with homicide, in order to be convicted of murder in case the
evidence fails to support the charge of rape, the qualifying circumstance must be
sufficiently alleged and proved. Otherwise, it would be a denial of the right of the
accused to be informed of the nature of the offense with which he is charged. It is
fundamental that every element of the offense must be alleged in the complaint
or information. The main purpose of requiring the various elements of a crime to
be set out in an information is to enable the accused to suitably prepare his
defense. He is presumed to have no independent knowledge of the facts that
constitute the offense.

13. ID.; ID.; COMMISSION OF RAPE NOT PROVED; CASE AT BAR. As to

the crime of rape, there is much to be desired with respect to the prosecution's
evidence therefor, but not for the reason adduced by the trial court, namely, the
absence of spermatozoa in EDITHA's private part and thereabout. It is well
settled that the absence of spermatozoa in or around the vagina does not negate
the commission of rape. Our doubt on the commission of rape is based on the
fact that there is at all no convincing proof that the laceration of the vagina and
the rupture of the hymen of EDITHA were caused in the course of coitus or by a
male organ. Our meticulous reading of the testimony of Dr. Tebangin disclosed
that he was never asked if the laceration and the rupture could have been caused
by the penis of a human being. Needless to state, these could have been caused
by any object other than the penis of a person.
14. ID.;

HOMICIDE;

PENALTY;

INDETERMINATE

SENTENCE

LAW;

APPLICATION THEREOF. Homicide, which we find to be the only crime

committed by GALLARDE, is defined in Article 249 of the Revised Penal Code
and is punished withreclusion temporal. In the absence of any modifying
circumstance, it shall be imposed in its medium period. GALLARDE is entitled to
the benefits of the Indeterminate Sentence Law. Accordingly, he can be
sentenced to suffer an indeterminate penalty ranging from ten (10) years of the
medium period of prision mayor as minimum to seventeen (17) years and four (4)
months of the medium period of reclusion temporal as maximum.
15. CIVIL LAW; DAMAGES; ACTUAL DAMAGES AND CIVIL INDEMNITY
AWARDED IN CASE AT BAR. As to the civil aspect of the case, the parties
agreed on P70,000 as liquidated damages. This should be construed as actual
damages. However, as indemnity for death, the additional sum of P50,000, per
current case law, should be awarded.
DECISION
DAVIDE, JR., C.J :
p

This is an appeal from the judgment of the Regional Trial Court of Tayug,
Pangasinan,

Branch

51,

finding

accused-appellant

Radel Gallarde 1 (hereafter GALLARDE) guilty beyond reasonable doubt of the

crime of murder in Criminal Case No. T-1978, and sentencing him to suffer the
penalty of reclusion perpetua and to pay the heirs of Editha Talan (hereafter
EDITHA) the amount of P70,000 as actual damages. 2
On 24 June 1997, GALLARDE was charged with the special complex crime of
rape with homicide in an information whose accusatory portion reads as
follows:

cdtai

That on or about the 6th day of May 1997, in the evening, amidst the
field located at Brgy. Trenchera, [M]unicipality of Tayug, [P]rovince of
Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, and by means of force, violence and
intimidation, did then and there wilfully, unlawfully and feloniously have
sexual intercourse with one EDITHA TALAN, a minor, 10 years of age,
against her will and consent, and thereafter, with intent to kill, cover the
nose and mouth of the said minor resulting to her death and then bury
her in the field, to the damage and prejudice of the heirs of said EDITHA
TALAN. 3

During the arraignment on 1 September 1997, GALLARDE, with the assistance

of counsel, entered a plea of not guilty. 4 Trial of the case immediately ensued as
the defense waived the holding of the pre-trial conference.

cdasia

The witnesses presented by the prosecution were Mario Fernandez, Jaime

Cabinta,

Rosy

Clemente,

Felicisimo

Mendoza,

Alfredo

Cortez,

Renato

Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto Tebangin. The relevant and
material facts established by their testimonies are faithfully summarized in the
Appellee's Brief as follows:

In the evening of May 26 1997, at the house of spouses Eduardo and

Elena Talan in Brgy. Trenchera, Tayug, Pangasinan, their neighbors
converged. Among them were appellant Radel Gallarde, Francisco,
Renato, Edwin, all surnamed Fernandez, Romel Hernandez, Jaime
Cabinta, Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon.
Idling by was Editha, 10 year old daughter of spouses Talan. A
fluorescent lamp illuminated them as they partook beer (TSN dated
October 13, 1997, pp. 3-4).
After a while, Roger stood up and invited Jaime and appellant to dine in
the kitchen. As they partook of the meal, appellant suddenly left. Jaime,
too, stepped out of the kitchen to urinate. Outside the house, he chanced
upon appellant and Editha talking to each other. Jaime whistled at
appellant but instead of minding him, the latter sprinted towards the road
leading to his house (Id., pp. 4-6).

dctai

Thereafter, Editha entered the kitchen and took hold of a kerosene lamp.
Jaime followed her and asked where she was going. Editha answered
that she would look for appellant. Soon Editha left enroute to where
appellant fled (Id., pp. 7-8).
By 10:00 o'clock that evening, the drinking buddies had dispersed but
Jaime, Francisco, Edwin and Rose regrouped at Renato's place where
they talked and relaxed. Moments later, Roger arrived and informed them
that Editha was missing. Roger asked the group to help look for her
(Id., p. 10).
Elena

Talan

informed

his

uncle,

Barangay

Ex-kagawad

Mario

Fernandez, about her daughter's disappearance. The latter, together with

his son Edwin, wife Virginia and nephew Freddie Cortez wasted no time
in joining their neighbors search the houses, dikes and fields to look for
the missing child. The searchers used a lighted rubber tire (TSN dated
Sept. 24, 1997, pp. 8-10 and 24).

When Jaime mentioned that appellant was the last person he saw
talking to Editha, the searchers went back to the house of appellant.
About 7 meters away from appellant's house, one of the searchers,
Alfredo Cortez, found Editha's left foot slipper (TSN dated October 22,
1997, pp. 4-6). Suddenly, Edwin Fernandez announced: "Tata, Radel is
here!" pointing to the toilet about 6 meters away from appellant's house.
The searchers found appellant squatting with his short pants. His hands
and knees were covered with soil. When confronted by ex-kagawad
Hernandez why he was there, appellant answered he was relieving
himself (Id., pp. 11-16).

cda

Asked where Editha was, appellant replied: "I do not know, I did not do
anything to her." When told "according to Jimmy, you were with
Editha." appellant responded "I let her go and brought her back to the
dike and let her go home." To the next question, "where did you come
from since a while ago you were not yet in this toilet?" appellant
answered "I was with Kiko, I was asleep in their house. One of the
searchers Mario Bado, got angry and countered that appellant's
statement was impossible because Kiko was with him drinking (Id., pp.
16-20).
After the confrontation at the toilet, Ex-kagawad Fernandez brought
appellant to Brgy. Captain Felicisimo Mendoza, informing the latter that
appellant was the last person seen talking with the missing child.
Fernandez then rejoined the searchers (Id., pp. 21-22).

Cdpr

Back in the field, Virginia Fernandez tripped on a wet ground. As she

reached for her slipper, she saw Editha's right foot slipper (the other one
was earlier found near the house of appellant) (Id., pp. 23-24).
Around 3 meters farther from Editha's right foot slipper; another slipper
was found. It was old, 8 to 9 inches in length and appellant was seen
wearing it in the morning of that day (TSN dated Sept. 25, 1997, p. 25).

The searchers, thereafter, noticed disheveled grasses. Along the way,

they saw a wide hole among the disheveled grass. Ex-kagawad
Fernandez accidentally dropped the lighted rubber tire and as his
nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this
loose soil!" Ex-kagawad Fernandez forthwith scratched some earth aside
and then Editha's hand pitted out. The Fernandez screamed in terror
(Id., pp. 5-6).
Meantime, Barangay Captain Mendoza heard shouts saying: "She is
here, she is now here already dead!" Mindful of appellant's safety, Brgy.
Captain Mendoza decided to bring appellant to the municipal building.
On their way though, they met policemen on board a vehicle. He flagged
them down and turned over the person of appellant, saying: "Here is the
suspect in the disappearance of the little girl. Since you are already here,
I am giving him to you" (TSN dated Oct. 21, 1997, pp. 4-5).
The

policemen

together

with

appellant

cdrep

proceeded

to

where

the people found Editha. One of the policemen shoved more soil aside.
The lifeless Editha was completely naked when she was recovered.
(Id., pp. 9-10).
The cause of Editha's death as revealed in the post-mortem examination
showed "suffocation of the lungs as a result from powerful covering of
the nose and mouth, associated with laceration of the vagina and
raptured hymen (Exh. "T", TSN dated Oct. 23, 1997, pp. 22-23)."

On the other hand, GALLARDE was the lone witness for the defense. He
interposed a denial and the alibi that he was at home with his mother and
brothers at the time the crime occurred. He declared that he is 18 years old,
single, a former construction worker. He knew EDITHA, a neighbor whom he
considered as a sister because she used to come to his house. They never had a
quarrel or misunderstanding. He neither raped nor killed Editha. 6

On cross-examination by the prosecutor and to questions propounded by the

court, GALLARDE admitted that he saw Editha on the night of 6 May 1997 in her
parent's house, particularly in the kitchen. He was there because he joined a
group drinking Colt 45 beer, as he was called by Rudio Fernandez. He drank and
had dinner in the kitchen. After dinner he returned to the drinking place and
eventually went home because he was then a little drunk. He knows Kgd. Mario
Fernandez, but after he left the Talan residence he did not see Kgd. Fernandez
anymore. Kgd. Fernandez saw him inside his (Gallarde's) toilet on the night of
May 6; thereafter Fernandez took him to the barangay captain and later he was
turned over to the PNP at Camp Narciso Ramos. The police informed him that he
was a suspect in the rape and killing of Editha Talan, and he told them that he did
not commit the crime. At the Talan residence he was wearing short pants and
rubber slippers. Fernandez asked him at the police headquarters to pull down his
shorts and he complied. He was then wearing briefs with a hemline that was a
little loose. He was informed that a cadaver was recovered near his house. When
he was asked questions while in police custody, he was not represented by any
lawyer.

prcd

GALLARDE further declared on cross-examination and on questions by the court

that he considered Editha Talan as a sister and her parents also treated him in a
friendly manner. When he came to know that Editha's parents suspected him of
the crime, he was still on friendly terms with them. However, he did not go to
them to tell them he was innocent because they brandished a bolo in anger.
Finally, he testified that in the evening of May 6 he came to know that Editha died.
She was still alive when he was drinking at the back of the Talan house and left
for home. From the time he arrived, he never left again that night, and his mother
and brothers knew it for a fact. 7
On

12

February

1998,

the

trial

court

rendered

decision

convicting GALLARDE of the crime of murder only, not of the complex crime of
rape with homicide because of the lack of proof of carnal knowledge. It observed:

Exh. "T" and Dr. Tebangin's testimony thereon show that the late Editha
Talan sustained slit wounds inflicted as a means of suffocating her to
death, a laceration of the lower portion of her vagina, and a ruptured
hymen. What allegedly oozed from her vagina was blood, coupled with
dirt. Had there been observed the presence of even just a drop of
seminal fluid in or around her vagina, the Court would readily conclude
that the laceration and rupture resulted from phallic intrusion. Without
such observation, however, "carnal knowledge" as element of rape
would be an open question.

The trial court did not appreciate the alternative circumstance of intoxication
either as a mitigating or aggravating circumstance pursuant to Article 15 of the
Revised Penal Code because GALLARDE's alleged inebriation on the night of 6
May 1997, was not satisfactorily proven.
As to the civil aspect of the case, the trial court considered the stipulation of the
parties on 27 October 1997 fixing a liquidated amount of P70,000 as actual
damages, and leaving the matter of moral damages to the discretion of the court.
The trial court was not inclined to award moral damages because the "evidence
before it tends to disclose that on the night of 6 May 1997, before she died,
Editha was a much-neglected child."
Accordingly, in its decision 8 of 12 February 1998, the trial court decreed:
WHEREFORE, his guilt having been established beyond a reasonable
doubt,

the

Court

hereby

convicts

the

accused

RADEL GALLARDE Y HERMOSA of the crime of MURDER, and

sentences him to suffer the penalty of reclusion perpetua and to
indemnify the heirs of the late Editha Talan in the negotiated sum of
P70,000.00. 9

His motion for reconsideration,

10 having

been denied by the trial court in its

Resolution 11 of 28 February 1998, GALLARDE seasonably appealed to us.

cdphil

We accepted the appeal on 9 September 1998.

In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the trial
court committed the following errors:

1. In convicting [him] of the crime of murder in an information for rape

with homicide.
2. In concluding that the prosecution has proven beyond reasonable
doubt that [he] was responsible for the death of Editha Talan.
3. In not acquitting [him] on the ground of notches of proof beyond
reasonable doubt. 12

We sustain GALLARDE's contention that the trial court erred in convicting him of
murder in an information charging him of rape with homicide. A reading of the
accusatory portion of the information shows that there was no allegation of any
qualifying circumstance. Although it is true that the term "homicide" as used in
special complex crime of rape with homicide is to be understood in its generic
sense, and includes murder and slight physical injuries committed by reason or
on the occasion of rape, 13 it is settled in this jurisdiction that where a complex
crime is charged and the evidence fails to support the charge as to one of the
component offense, the accused can be convicted of the other.

14

In rape with

homicide, in order to be convicted of murder in case the evidence fails to support

the charge of rape, the qualifying circumstance must be sufficiently alleged and
proved. Otherwise, it would be a denial of the right of the accused to be informed
of the nature of the offense with which he is charged.

15

It is fundamental that

every element of the offense must be alleged in the complaint or information. The
main purpose of requiring the various elements of a crime to be set out in an
information is to enable the accused to suitably prepare his defense. He is
presumed to have no independent knowledge of the facts that constitute the
offense. 16

In the absence then in the information of an allegation of any qualifying

circumstance, GALLARDE cannot be convicted of murder. An accused cannot be
convicted of an offense higher than that with which he is charged in the complaint
or information under which he is tried. It matters not how conclusive and
convincing the evidence of guilt may be, but an accused cannot be convicted of
any offense, unless it is charged in the complaint or information for which he is
tried, or is necessarily included in that which is charged. He has a right to be
informed of the nature of the offense with which he is charged before he is put on
trial. To convict an accused of a higher offense than that charged in the complaint
or information under which he is tried would be an unauthorized denial of that
right. 17
Nevertheless, we agree with the trial court that the evidence for the prosecution,
although circumstantial, was sufficient to establish beyond reasonable doubt the
guilt of GALLARDE for the death of EDITHA.

cdasia

Direct evidence of the commission of a crime is not the only matrix wherefrom a
trial court may draw its conclusion and finding of guilt.

18

The prosecution is not

always tasked to present direct evidence to sustain a judgment of conviction; the

absence of direct evidence does not necessarily absolve an accused from any
criminal liability. 19 Even in the absence of direct evidence, conviction can be had
on the basis of circumstantial evidence, provided that the established
circumstances constitute an unbroken chain which leads one to one fair and
reasonable conclusion which points to the accused, to the exclusion of all others,
as the guilty person, i.e., 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. 20
The rules on evidence and precedents sustain the conviction of an accused
through circumstantial evidence, as long as the following requisites are present:
(1) there must be more than one circumstance; (2) the inference must be based
on proven facts; and (3) the combination of all circumstances produces a
conviction beyond doubt of the guilt of the accused. 21

The importance of circumstantial evidence is more apparent in the prosecution of

cases of rape with homicide. The nature of the crime of rape, where it is usually
only the victim and the rapist who are present at the scene of the crime, makes
prosecutions for the complex crime of rape with homicide particularly difficult
since the victim can no longer testify against the perpetrator of the crime. In these
cases pieces of the evidence against the accused are usually circumstantial. 22
The circumstantial evidence in the case at bar, when analyzed and taken
together, leads to no other conclusion than that GALLARDE, and no other else,
killed EDITHA and that he is guilty therefor. We quote with approval the lower
court's enumeration of the circumstantial evidence in this case:

cdrep

1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she
used to frequent his place.
2. Both were at the Talan residence on the night of May 6, 1997 while
neighbors indulged themselves in beer.
3. Among said neighbors Cabinta saw them hand in hand by the toilet
situated five (5) meters east of the Talan kitchen.
4. After Cabinta whistled he saw Gallarde run home towards north after
letting go of Editha's hands. Neighbor Clemente also noticed
that Gallarde disappeared, and that Editha returned to the kitchen.
5. Cabinta followed Editha back to the kitchen, and saw her holding a
kerosene lamp. She told him that she was going to look for
"Dalpac," and off she went in the same direction Gallarde took.
6. Gallarde wore short pants and rubber slippers at the drinking place.
Subsequently he was seen wearing shorts in his own toilet.

7. At past 10:00 in the evening during an intensive search for the then
missing Editha, her lifeless body was found in a shallow grave
situated some distance behind Gallarde's residence.
8. Before Editha's body was discovered, a searcher found a girl's slipper
(Exh. "B"), 5-6 inches long, among thickets seven meters away
from Gallarde's house.
9. Another searcher saw a second slipper (Exh. "B-1"), of the same color
and size as the first one. Both slippers were Editha's, the
searchers recalled.
10. A third rubber slipper (Exh. "C') was thereafter found in the field near
Exh. "B-1." It was an old slipper, 8-9 inches long and with a hole
at the rear end.
11. Soil stuck to each one of the three slippers.
12. Gallarde was not at home when searchers went to look for him there,
after Cabinta told them that Editha was last seen with Gallarde.
13. When Gallarde was discovered squatting in the dark toilet behind his
house and beside the thickets, his shorts were up and on. His
hands and knees were soiled.
14. At the toilet he was asked the innocent question of where Editha was
and he answered revealingly, thus: "I did not do anything to her"
and "I let her go and brought her back to the dike and let her go
home."
15. When asked where he had been, as the toilet was first seen
empty, Gallarde said he was with Kiko and he slept at the latter's
house, which answer Mario Bado promptly refuted saying, "Vulva

of your mother . . . Kiko was with me drinking." Bado and Kiko

were not at the place of the Talans that night.
16. Yanked out of the dark toilet near his own house, Gallarde joined
Kgd. Mario Fernandez sans protest.
17. Dr. Tebangin found on Editha's cheeks two slit wounds, each being
an inch away from her nostrils. Both wounds were fresh and
reddish.
From the lower portion of Editha's vagina blood oozed, accompanied by
dirt.
Her hymen was ruptured and was still bleeding.
The medico-legal concluded that there must have been a forceful
covering of Editha's nose and mouth because of the presence of
the slit wounds on both sides of her face, and that in 30 seconds
unconsciousness and weakening resulted, with the vaginal
injuries contributing to her death.

23

As to the crime of rape, there is much to be desired with respect to the

prosecution's evidence therefor, but not for the reason adduced by the trial court,
namely, the absence of spermatozoa in EDITHA's private part and thereabout. It
is well settled that the absence of spermatozoa in or around the vagina does not
negate the commission of rape. 24 Our doubt on the commission of rape is based
on the fact that there is at all no convincing proof that the laceration of the vagina
and the rupture of the hymen of EDITHA were caused in the course of coitus or
by a male organ. Our meticulous reading of the testimony of Dr. Tebangin
disclosed that he was never asked if the laceration and the rupture could have
been caused by the penis of a human being. Needless to state, these could have
been caused by any object other than the penis of a person.

LLphil

We cannot sustain the contention of GALLARDE that he was not positively

identified as the assailant since there was no eyewitness to the actual
commission

of

the

crime.

It

does

not

follow

that

although

nobody

saw GALLARDE in the act of killing EDITHA, nobody can be said to have
positively identified him. Positive identification pertains essentially to proof of
identity and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification. A witness
may identity a suspect or accused in a criminal case as the perpetrator of the
crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a
witness may not have actually seen the very act of commission of a crime, he
may still be able to positively identify a suspect or accused as the perpetrator of a
crime as for instance when the latter is the person or one of the persons last
seen with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of
circumstantial evidence, which, when taken together with other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that the accused is the author of the crime to the exclusion of
all others. If the actual eyewitnesses are the only ones allowed to possibly
positively identify a suspect or accused to the exclusion of others, then nobody
can ever be convicted unless there is an eyewitness, because it is basic and
elementary that there can be no conviction until and unless an accused is
positively identified. Such a proposition is absolutely absurd, because it is settled
that direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt.

25 If

resort to

circumstantial evidence would not be allowed to prove identity of the accused on

the absence of direct evidence, then felons would go free and the community
would be denied proper protection.

cdasia

As discussed above, the circumstantial evidence as established by the

prosecution in this case and enumerated by the trial court positively established
the identity of GALLARDE, and no one else, as the person who killed EDITHA.
We cannot agree with the trial court's rejection of the photographs (Exhibits "I",
"J" and "K") taken of GALLARDE immediately after the incident on the ground
that "the same were taken while [GALLARDE] was already under the mercy of
the police." The taking of pictures of an accused even without the assistance of
counsel, being a purely mechanical act, is not a violation of his constitutional right
against self-incrimination.
The constitutional right of an accused against self-incrimination

26

proscribes the

use of physical or moral compulsion to extort communications from the accused

and not the inclusion of his body in evidence when it may be material. Purely
mechanical acts are not included in the prohibition as the accused does not
thereby speak his guilt, hence the assistance and guiding hand of counsel is not
required. 27 The essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself through a testimonial
act. 28 Hence, it has been held that a woman charged with adultery may be
compelled to submit to physical examination to determine her pregnancy;

29

and

an accused may be compelled to submit to physical examination and to have a

substance taken from his body for medical determination as to whether he was
suffering from gonorrhea which was contracted by his victim;

30

to expel morphine

from his mouth; 31 to have the outline of his foot traced to determine its identity
with bloody footprints; 32 and to be photographed or measured, or his garments
or shoes removed or replaced, or to move his body to enable the foregoing things
to be done. 33
There is also no merit in GALLARDE's argument that the failure of the
prosecution to prove beyond reasonable doubt the place and time of the
commission of the crime is fatal and will justify his acquittal.

The place, time and date of the commission of the offense are not essential
elements of the crime of rape with homicide. The gravamen of the offense is the
carnal knowledge of a woman and that on the occasion of or as a reason thereof,
the crime of homicide was committed. Conviction may be had on proof of the
commission of the crime provided it appears that the specific crime charged was
in fact committed prior to the date of the filing of the complaint or information,
within the period of the statute of limitation, and within the jurisdiction of the
court. 34
The allegation of the place of commission of the crime in the complaint or
information is sufficient if it can be understood therefrom that the offense was
committed or some of the essential ingredients thereof occurred at some place
within the jurisdiction of the court.

35

The rule merely requires that the information

shows that the crime was committed within the territorial jurisdiction of the court.
The Court may even take judicial notice that said place is within its jurisdiction.

36

As to the time of the commission of the crime, the phrase "on or about" employed
in the information does not require the prosecution "to prove any precise date or
time," but may prove any date or time which is not so remote as to surprise and
prejudice the defendant." 37
Contrary to the claim of GALLARDE, the prosecution was able to establish the
proximate time of the commission of the crime, which was sometime between
9:00 p.m., when GALLARDE left the house of Talan followed by EDITHA, and
10:30 p.m., when the body of EDITHA was found. This was further corroborated
by the examining physician who testified, on the basis of the degree of rigor
mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997. 38
Likewise, GALLARDE's alibi and bare denial deserve no consideration. He did
not present witnesses who could confirm his presence in his house. No member
of his family corroborated him on this matter. The defenses of denial and alibi, if
unsubstantiated by clear and convincing evidence, are negative and self-serving,

deserve no weight in law, and cannot be given evidentiary value over the
testimony of credible witnesses who testify on affirmative matters. 39
Moreover, even assuming that GALLARDE's claim is true, his stay in his house
did not preclude his physical presence at the locus criminis or its immediate
vicinity. The place where the body of EDITHA was found buried was a few meters
from his house, the place pointed to in the alibi and can be reached in a short
while. For the defense of alibi to prosper, the requirements of time and place
must be strictly met. It is not enough to prove that the accused was somewhere
else when the crime was committed, he must demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of its
commission. 40
Besides, no evil motive has been established against the witnesses for the
prosecution that might prompt them to incriminate the accused or falsely testify
against him. It is settled that when there is no showing that the principal
witnesses for the prosecution were actuated by improper motive, the presumption
is that the witnesses were not so actuated and their testimonies are thus entitled
to full faith and credit. 41 Testimonies of witnesses who have no motive or reason
to falsify or perjure their testimonies should be given credence. 42
With respect to GALLARDE's claim that he was arrested without warrant, suffice
it to say that any objection, defect, or irregularity attending an arrest must be
made before the accused enters his plea.

43

The records show no objection was

ever interposed prior to arraignment and trial. 44 GALLARDE's assertion that he

was denied due process by virtue of his alleged illegal arrest is negated by his
voluntary submission to the jurisdiction of the trial court, as manifested by the
voluntary and counsel-assisted plea he entered during arraignment and by his
active participation in the trial thereafter.

45

It is settled that any objection involving

a warrant of arrest or procedure in the acquisition by the court of jurisdiction over

the person of an accused must be made before he enters his plea, otherwise the
objection is deemed waived. 46 It is much too late in the day to complain about
the warrantless arrest after a valid information had been filed and the accused

arraigned and trial commenced and completed and a judgment of conviction

rendered against him. 47 Verily, the illegal arrest of an accused is not sufficient
cause for setting aside a valid judgment rendered upon a sufficient complaint
after trial free from error; such arrest does not negate the validity of the conviction
of the accused. 48
Homicide, which we find to be the only crime committed by GALLARDE, is
defined in Article 249 of the Revised Penal Code and is punished with reclusion
temporal. In the absence of any modifying circumstance, it shall be imposed in its
medium period. GALLARDE is entitled to the benefits of the Indeterminate
Sentence Law. Accordingly, he can be sentenced to suffer an indeterminate
penalty ranging from ten (10) years of the medium period of prision
mayor asminimum to seventeen (17) years and four (4) months of the medium
period of reclusion temporal as maximum.

LexLib

As to the civil aspect of the case, the parties agreed on P70,000 as liquidated
damages. This should be construed as actual damages. However, as indemnity
for death, the additional sum of P50,000, per current case law, should be
awarded.
WHEREFORE the assailed decision of the Regional Trial Court, Branch
51, Tayug, Pangasinan, in Criminal Case No. T-1978 finding accusedappellant RADEL GALLARDE guilty of the crime of murder is hereby modified.
As modified, RADEL GALLARDE is hereby found guilty beyond reasonable
doubt, as principal, of the crime of Homicide, defined under Article 249 of the
Revised Penal Code, and is hereby sentenced to suffer an indeterminate
penalty ranging from ten (10) years of the medium period of prision
mayor as minimum to seventeen (17) years and four (4) months of the
medium period of reclusion temporal as maximum, and to pay the heirs of the
victim, Editha Talan, the sum of P70,000 as liquidated actual damages and
P50,000 as indemnity for the death of Editha Talan.

LLphil

Costs against accused-appellant RADEL GALLARDE in both instances.

|||

(People v. Gallarde, G.R. No. 133025, [February 17, 2000], 382 PHIL 718-741)

[G.R. No. 16444. September 8, 1920.]

EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS,
sheriff of the city of Manila, respondent.
Alfredo Calupitan and Gibbs, McDonough & Johnson for petitioner.
Assistant City Fiscal Felix for respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; PHILIPPINE BILL OF RIGHTS; RIGHT OF
ACCUSED PERSON; GENERAL PRINCIPLES. The object of having
criminal laws is to purge the community of persons who violate the laws to the
great prejudice of their fellow men. Criminal procedure, the rules of evidence,
and constitutional provisions are then provided, not to protect the guilty but to
protect the innocent. No rule is intended to be so rigid as to embarrass the
administration of justice in its endeavor to ascertain the truth.
2. ID.; ID.; ID.; ID.; With a losse extension of constitutional guaranties
because of a misconceived motion of the rights of accused persons, this court
is not in accord.
3. ID.; ID.; ID.; SELF-INCRIMINATION; HISTORY OF THE GUARANTY.
The maxim of the common law, Nemo tenetur seipsum accusare, was
recognized in England in early days is a revolt against the thumbscrew and
the rack. A legal shield was raised against odious inquisitional methods of
interrogating an accused person by which to extort unwilling confessions with
the ever present temptation to commit the crime of perjury. The principle was
taken into the American Constitutions, and from the United States was
brought to the Philippine Islands, in exactly as States was brought to the
Philippine Islands, in exactly as wide but no wider a scope as it existed
in old English days.

4. ID.; ID.; ID.; ID.; POLICY OF THE LAW. Even superior to the
complete immunity of a person to be let alone as the interest which the public
has in the orderly administration of justice. Between a sacrifice of the
ascertainment of truth to personal considerations, between a disregard of the
public welfare for refined notions of delicacy, law and justice cannot hesitate.
5. ID.; ID.; ID.; ID.; RULES. The constitutional guaranty, that no
person shall be compelled in any criminal case to be a witness against
himself, is limited to a prohibition against compulsory testimonial selfincrimination.
6. ID.; ID.; ID.; ID.; ID.; Torture force shall be avoided.
7. ID.; ID.; ID.; ID.; BODILY EXHIBITION. On a proper showing and
under an order of the trial court, an ocular inspection of the body of the
accused is permissible.
8. ID.; ID.; ID.; ID.; ID. Upon petition of the assistant fiscal for the city
of Manila, the trial court ordered the defendant, a woman charged with the
crime of adultery, to submit her body to the examination of one or two
competent doctors to determine whether she was pregnant or not. Held: That
while this order of the trial court is phrased in absolute terms, it should,
nevertheless, be understood as subject to the limitations herein mentioned,
and thus as not in violation of that portion of the Philippine Bill of rights and
that portion of the Philippine Code of Criminal Procedure which find their
origin in the Constitution of the United States and practically all State
Constitutions, and in the common law rules of evidence, relating to selfincrimination.
9. ID.; ID.; ID.; ID.; ID. The rules announced are believed to be
stare decisis in this jurisdiction. (Holt vs. U. S. [1910], 218 U. S., 585; U. S. vs.
Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735.)
Even if not so, the Supreme Court of the Philippine Islands would rather
desire its decision to rest on the reason of the case than on blind adherence to
tradition.

DECISION

MALCOLM, J :
p

The petitioner prays that a writ of habeas corpus issue to restore her to
her liberty.
The facts are not in dispute. In a criminal case pending before the Court
of First Instance of the city of Manila, Emeteria Villaflor and Florentino
Souingco are charged with the crime of adultery. On this case coming on for
trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the
petition of the assistant fiscal for the city of Manila, the court ordered the
defendant Emeteria Villaflor, now become the petitioner herein, to submit her
body to the examination of one or two competent doctors to determine if she
was pregnant or not. The accused refused to obey the order on the ground
that such examination of her person was a violation of the constitutional
provision in contempt of court and was ordered to be committed to Bilibid
Prison until she should permit the medical examination required by the court.
The sole legal issue arising from the admitted facts is whether the
compelling of a woman to permit her body to be examined by physicians to
determine if she is pregnant, violates that portion of our Code of Criminal
Procedure which find their origin in the Constitution of the United States and
practically all state constitutions and in the common law rules of evidence,
providing that no person shall be compelled in any criminal case to be a
witness against himself . (President's Instructions to the Philippine
Commission; Act of Congress of July 1, 1902, section 5, paragraph 3; Act of
Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal
Procedure, section 15 [4]; United States Constitution, fifth amendment.)
Counsel for petitioner argues that such bodily exhibition is an infringement of
the constitutional provision; the representative of the city fiscal contends that it
is not an infringement of the constitutional provision. The trial judge in the
instant case has held with the fiscal; while it is brought to our notice that a

judge of the same court has held on an identical question as contended for by
the attorney for the accused and petitioner.
The authorities are abundant but conflicting. What may be termed the
conservative courts emphasize greatly the humanitarianism of the
constitutional provision and are pleased to extend the privilege in order that its
mantle may cover any fact by which the accused is compelled to make
evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259
with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Nordstrom
[1893], 7 Wash., 506; State vs. Height [1902], 117 Iowa, 650; Thornton vs.
State [1903], 117 Wis., 338.) A case concordant with this view and almost
directly in point is People vs. McCoy relating to self-incrimination. Thereupon
she was found ([1873], 45 How. Pr., 216). A woman was charged with the
crime of infanticide. The coroner directed two physicians to go to the jail and
examine her private parts to determine whether she had recently been
delivered of a child. She objected to the examination, but being threatened
with force, yielded, and the examination was had. The evidence of these
physicians was offered at the trial and ruled out. The court said that the
proceeding was in violation of the spirit and meaning of the Constitution,
which declares that "no person shall be compelled in any criminal case to be a
witness against himself." Continuing, the court said: "They might as well have
sworn the prisoner, and compelled her, by threats, to testify that she had been
pregnant, and had been delivered of a child, as to have compelled her, by
threats, to allow them to look into her person, with the aid of a speculum, to
ascertain whether she had been pregnant and been delivered of a child. . . .
Has this court the right to compel the prisoner now to submit to an
examination of her private parts and breasts, by physicians, and then have
them testify that from such examination they are of the opinion she is not a
virgin, and has had a child? It is not possible that this court has that right; and
it is too clear to admit of argument that evidence thus obtained would be
inadmissible against the prisoner."

It may be revealing a judicial secret, but nevertheless we cannot refrain

from saying that, greatly impressed with the weight of these decisions,
especially the one written by Mr. Justice McClain, in State vs. Height, supra,
the instant case was reported by the writer with the tentative recommendation
that the court should lay down the general rule that a defendant can be
compelled to disclose only those parts of the body which are not usually
covered. But having disabused our minds of a too sensitive appreciation of the
rights of accused persons, and having been able, as we think, to penetrate
through the maze of law reports to the policy which lies behind the
constitutional guaranty and the common law principle, we have come finally to
take our stand with what we believe to be the reason of the case.
In contradistinction to the cases above-mentioned are others which
seem to us more progressive in nature. Among these can be prominently
mentioned decisions of the United States Supreme Court, and the Supreme
Court of these Islands. Thus, the always forward looking jurist, Mr. Justice
Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in
resolving an objection based upon what he termed "an extravagant extension
of the Fifth Amendment," said: "The prohibition of compelling a man in a
criminal court to be a witness against himself is a prohibition of the use of
physical or moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material." (See also, of
same general tenor, decision of Mr. Justice Day in Adams vs. New York
[1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two
decisions, has seemed to limit the protection to a prohibition against
compulsory testimonial self-incrimination. The constitutional limitation was
said to be "simply a prohibition against legal process to extract from the
defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan
Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and
the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the
United States Supreme Court and the Supreme Court of the Philippine Islands
as authority.)

Although we have stated a proposition previously announced by this

court and by the highest tribunal in the United States, we cannot
unconcernedly leave the subject without further consideration. Even in the
opinion of Mr. Justice Holmes, to which we have alluded, there was inserted
the careful proviso that "we need not consider how far a court would go in
compelling a man to exhibit himself." Other courts have likewise avoided any
attempt to determine the exact location of the dividing line between what is
proper and what is improper in this very broad constitutional field. But here
before us is presented what would seem to be the most extreme case which
could be imagined. While the United States Supreme Court could
nonchalantly decree that testimony that an accused person put on a blouse
and it fitted him is not a violation of the constitutional provision, while the
Supreme Court of Nevada could go so far as to require the defendant to roll
up his sleeve in order to disclose tattoo marks, and while the Supreme Court
of the Philippine Islands could permit substances taken from the person of an
accused to be offered in evidence, none of these even approach in apparent
harshness an order to make a woman, possibly innocent, to disclose her body
in all of its sanctity to the gaze of strangers. We can only consistently consent
to the retention of a principle which would permit of such a result by adhering
steadfastly to the proposition that the purpose of the constitutional provision
was and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget
them entirely, and here in the Philippines, being in the agreeable state of
breaking new ground, would rather desire our decision to rest on a strong
foundation of reason and justice than on a weak one of blind adherence to
tradition and precedent. Moreover, we believe that an unbiased consideration
of the history of the constitutional provision will disclose that our conclusion is
in exact accord with the causes which led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was
recognized in England in early days, but not in the other legal systems of the

world, in a revolt against the thumbscrew and the rack. A legal shield was
raised against odious inquisitorial methods of interrogating an accused person
by which to extort unwilling confessions with the ever present temptation to
commit the crime of perjury. The kernel of the privilege as disclosed by the
textwriters was testimonial compulsion. As forcing a man to be a witness
against himself was deemed contrary to the fundamentals of republican
government, the principle was taken into the American Constitutions, and from
the United States was brought to the Philippine Islands, in exactly as wide
but no wider a scope as it existed in old English days. The provision should
here be approached in no blindly worshipful spirit, but with a judicious and a
judicial appreciation of both its benefits and its abuses. (Read the scholarly
articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L.
R., 1902, p. 610, found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S.
vs. Navarro [1904], 3 Phil., 143.)
Perhaps the best way to test the correctness of our position is to go
back once more to elementals and ponder on what is the prime purpose of a
criminal trial. As we view it, the object of having criminal laws is to purge the
community of persons who violate the laws to the great prejudice of their
fellow men. Criminal procedure, the rules of evidence, and constitutional
provisions, are then provided, not to protect the guilty but to protect the
innocent. No rule is intended to be so rigid as to embarrass the administration
of justice in its endeavor to ascertain the truth. No accused person should be
afraid of the use of any method which will tend to establish the truth. For
instance, under the facts before us, to use torture to make the defendant
admit her guilt might only result in inducing her to tell a falsehood. But no
evidence of physical facts can for any substantial reason be held to be
detrimental to the accused except in so far as the truth is to be avoided in
order to account a guilty person.
Obviously a stirring plea can be made showing that under the due
process of law clause of the Constitution every person has a natural and
inherent right to the possession and control of his own body. It is extremely

abhorrent to one's sense of decency and propriety to have to decide that such
inviolability of the person, particularly of a woman, can be invaded by
exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co.
vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and especially
a woman, to lay bare the body, or to submit to the touch of a stranger, without
lawful authority, is an indignity, an assault, and a trespass." Conceded, and
yet, as well suggested by the same court, even superior to the complete
immunity of a person to be let alone is the interest which the public has in the
orderly administration of justice. Unfortunately, all too frequently the modesty
of witnesses is shocked by forcing them to answer, without any mental
evasion, questions which are put to them; and such a tendency to degrade the
witness in public estimation does not exempt him from the duty of disclosure.
Between a sacrifice of the ascertainment of truth to personal considerations,
between a disregard of the public welfare for refined notions of delicacy, law
and justice cannot hesitate.
The protection of accused persons has been carried to such an
unwarranted extent that criminal trials have sometimes seemed to be like a
game of shuttlecocks, with the judge as referee, the lawyers as players, the
criminal as guest of honor, and the public as fascinated spectators. Against
such a loose extension of constitutional guaranties we are here prepared to
voice our protest.
Fully conscious that we are resolving a most extreme case in a sense,
which on first impression is a shock to one's sensibilities, we must
nevertheless enforce the constitutional provision in this jurisdiction in accord
with the policy and reason thereof, undeterred by merely sentimental
influences. Once' again we lay down the rule that the constitutional guaranty,
that no person shall be compelled in any criminal case to be a witness against
himself, is limited to a prohibition against compulsory testimonial selfincrimination. The corollary to the proposition is that, on a proper showing and
under an order of the trial court, an ocular inspection of the body of the
accused is permissible. The proviso is that torture or force shall be avoided.

Whether facts fall within or without the rule with its corollary and proviso must,
of course, be decided as cases arise.
It is a reasonable presumption that in an examination by reputable and
disinterested physicians due care will be taken not to use violence and not to
embarrass the patient any more than is absolutely necessary. Indeed, no
objection to the physical examination being made by the family doctor of the
accused or by doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the
assistant fiscal for an examination of the person of the defendant by
physicians was phrased in absolute terms, it should, nevertheless, be
understood as subject to the limitations herein mentioned, and therefore legal.
The writ of habeas corpus prayed for is hereby denied. The costs shall be
taxed against the petitioner. So ordered.
Mapa, C.J., Araullo, Avancea, Moir and Villamor, JJ., concur.
|||

(Villaflor v. Summers, G.R. No. 16444, [September 8, 1920], 41 PHIL 62-71)

[G.R. No. 105938. September 20, 1996.]

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V.
CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN,
VICTOR

P.

LAZATIN,

ESCUETA, petitioners, vs.

SANDIGANBAYAN,
PHILIPPINES,

EDUARDO

THE

First

ACTING

and

Division,

U.

HONORABLE
REPUBLIC

THROUGH

THE

OF

THE

PRESIDENTIAL

COMMISSION ON GOOD GOVERNMENT, and RAUL S.

ROCO, respondents.
[G.R. No. 108113. September 20, 1996.]
PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN
and THE REPUBLIC OF THE PHILIPPINES, respondents.
Manuel G. Abello for petitioners.
Roco Bunag Kapunan & Migallos for Raul S. Roco.
Mario E. Ongkiko for Presidential Commission on Good Government.
SYLLABUS
1. LEGAL ETHICS; LAWYER-CLIENT RELATIONSHIP; BOUNDED BY RULES,
ETHICAL CONDUCT AND DUTIES; RATIONALE. In the creation of lawyerclient relationship, there are rules, ethical conduct and duties that breathe life into
it, among those, the fiduciary duty to his client which is of a very delicate,
exacting and confidential character, requiring a very high degree of fidelity and
good faith, that is required by reason of necessity and public interest based on
the hypothesis that abstinence from seeking legal advice in a good cause is an
evil which is fatal to the administration of justice. It is also the strict sense of
fidelity of a lawyer to his client that distinguishes him from any other professional
in society. This conception is entrenched and embodies centuries of established

and stable tradition. Considerations favoring confidentiality in lawyer-client

relationships are many and serve several constitutional and policy concerns. In
the constitutional sphere, the privilege gives flesh to one of the most sacrosanct
rights available to the accused, the right to counsel. If a client were made to
choose between legal representation without effective communication and
disclosure and legal representation with all his secrets revealed then he might be
compelled, in some instances, to either opt to stay away from the judicial system
or to lose the right to counsel. If the price of disclosure is too high, or if it amounts
to self incrimination, then the flow of information would be curtailed thereby
rendering the right practically nugatory. The threat this represents against another
sacrosanct individual right, the right to be presumed innocent is at once selfevident. Encouraging full disclosure to a lawyer by one seeking legal services
opens the door to a whole spectrum of legal options which would otherwise be
circumscribed by limited information engendered by a fear of disclosure. An
effective lawyer-client relationship is largely between lawyer and client which in
turn requires a situation which encourages a dynamic and fruitful exchange and
flow of information. It necessarily follows that in order to attain effective
representation, the lawyer must invoke the privilege not as a matter of option but
as a matter of duty and professional responsibility.
2. ID.; ID.; AS A GENERAL RULE A LAWYER MAY NOT REFUSE TO DIVULGE
THE IDENTITY OF HIS CLIENT; RATIONALE. As a matter of public policy, a
client's identity should not be shrouded in mystery. Under this premise, the
general rule in our jurisdiction as well as in the United States is that a lawyer may
not invoke the privilege and refuse to divulge the name or identity of his client.
The reasons advanced for the general rule are well established. First, the court
has a right to know that the client whose privileged information is sought to be
protected is flesh and blood. Second, the privilege begins to exist only after the
attorney-client relationship has been established. The attorney-client privilege
does not attach until there is a client. Third, the privilege generally pertains to the
subject matter of the relationship. Finally, due process considerations require that
the opposing party should, as a general rule, know his adversary. "A party suing

or sued is entitled to know who his opponent is. He cannot be obliged to grope in
the dark against unknown forces.
3. ID.; ID.; ID.; EXCEPTION; WHEN THE CLIENT'S IDENTITY IS PRIVILEGED.
The general rule is, however, qualified by some important exception. 1) Client
identity is privileged where a strong probability exists that revealing the client's
name would implicate that client in the very activity for which he sought the
lawyer's advice. 2) Where disclosure would open the client to civil liability, his
identity is privileged. 3) Where the government's lawyers have no case against an
attorney's client unless, by revealing the client's name, the said name would
furnish the only link that would form the chain of testimony necessary to convict
an individual of a crime, the client's name is privileged. Apart from these principal
exceptions, there exist other situations which could qualify as exceptions to the
general rule. For example, the content of any client communication to a lawyer
lies within the privilege if it is relevant to the subject matter of the legal problem
on which the client seeks legal assistance. Moreover, where the nature of the
attorney-client relationship has been previously disclosed and it is the identity
which is intended to be confidential, the identity of the client has been held to be
privileged, since such revelation would otherwise result in disclosure and the
entire transaction. Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege when the client's name
itself has an independent significance, such that disclosure would then reveal
client confidences.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE
CONSTRUED. The equal protection clause is a guarantee which provides a
wall of protection against uneven application of statutes and regulations. In the
broader sense, the guarantee operates against uneven application of legal norms
so that all persons under similar circumstances would be accorded the same
treatment. (Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Those who
fall within a particular class ought to be treated alike not only as to privileges
granted but also as to the liabilities imposed. . . . What is required under this
Constitutional guarantee is the uniform operation of legal norms so that all

persons under similar circumstances would be accorded the same treatment both
in the privileges conferred and the liabilities imposed. As was noted in a recent
decision: 'Favoritism and undue preference cannot be allowed. For the principle is
that equal protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be looked upon in
terms of burden or charges, those that fall within a class should be treated in the
same fashion, whatever restrictions cast on some in the group equally binding the
rest.
VITUG, J., separate opinion:
LEGAL ETHICS; LAWYER-CLIENT RELATIONSHIP; COVERED BY THE
PROTECTION OF CONFIDENTIALITY. The legal profession, despite all the
unrestrained calumny hurled against it, is still the noblest of professions. It exists
upon the thesis that, in an orderly society that is opposed to all forms of anarchy,
it so occupies, as it should, an exalted position in the proper dispensation of
justice. In time, principles have evolved that would help ensure its effective
ministation. The protection of confidentiality of the lawyer-client relationship is
one, and it has since been an accepted firmament in the profession. It allows the
lawyer and the client to institutionalize a unique relationship based on full trust
and confidence essential in a justice system that works on the basis of
substantive and procedural due process. To be sure, the rule is not without its
pitfalls, and demands against it may be strong, but these problems are, in the
ultimate analysis, no more than mere tests of vigor that have made and will make
that rule endure.
DAVIDE, JR. J., dissenting opinion:
1. LEGAL ETHICS; LAWYER-CLIENT RELATIONSHIP; NATURE OF THE RULE
OF CONFIDENTIALITY. The rule of confidentiality under the lawyer-client
relationship is not a cause to exclude a party. It is merely a ground for
disqualification of a witness (Sec. 24, Rule 130, Rules of Court) and may only be
invoked at the appropriate time, i.e., when a lawyer is under compulsion to

answer as witness, as when, having taken the witness stand, he is questioned as

to such confidential communication or advice, or is being otherwise judicially
coerced to produce, through subpoenae duces tecum or otherwise, letters or
other documents containing the same privileged matter.
2. ID.; LAWYER-CLIENT PRIVILEGE; CONTRARY TO THE MAJORITY RULE,
AMERICAN JURISPRUDENCE SHOULD NOT BE APPLIED TO EXPAND THE
SCOPE OF THE PHILIPPINE RULE. Hypothetically admitting the allegations
in the complaint in Civil Case No. 0033, I find myself unable to agree with the
majority opinion that the petitioners are immune from suit or that they have to be
excluded as defendants, or that they cannot be compelled to reveal or disclose
the identity of their principals, all because of the sacred lawyer-client privilege.
This privilege is well put in Rule 130 of the Rules of Court. The majority seeks to
expand the scope of the Philippine rule on the lawyer-client privilege by copious
citations of American jurisprudence which includes in the privilege the identity of
the client under the exceptional situations narrated therein. From the plethora of
cases cited, two facts stand out in bold relief. Firstly, the issue of privilege
contested therein arose in grand jury proceedings on different States, which are
primarily proceedings before the filing of the case in court, and we are not even
told what evidentiary rules apply in the said hearings. In the present case, the
privilege is invoked in the court where it was already filed. Secondly, and more
important, in the cases cited by the majority, the lawyers concerned were merely
advocating the cause of their clients but were not indicted for the charges against
their said clients. Here, the counsel themselves are co-defendants duly charged
in court as co-conspirators in the offenses charged. The cases cited by the
majority evidently do not apply to them.

3. ID.; ID.; MAY NOT BE INVOKED AS A SHIELD FOR THE COMMISSION OF

CRIME. I wish to repeat and underscore the fact that the lawyer-client privilege
is not a shield for the commission of a crime or against the prosecution of the
lawyer therefor. We do not even have to go beyond our shores for an authority

that the lawyer-client privilege cannot be invoked to prevent the disclosure of a

client's identity where the lawyer and the client are conspirators in the
commission of a crime or a fraud. Under our jurisdiction, lawyers are mandated
not to counsel or abet activities aimed at defiance of the law or at lessening
confidence in the legal system (Rule 1.02, Canon 1, Code of Professional
Responsibility) and to employ only fair and honest means to attain the lawful
objectives of his client (Rule 19.01, Canon 19, Id). And under the Canons of
Professional Ethics, a lawyer must steadfastly bear in mind that his great trust is
to be performed within and not without the bounds of the law (Canon 15, Id.), that
he advances the honor of his profession and the best interest of his client when
he renders service or gives advice tending to impress upon the client and his
undertaking exact compliance with the strictest principles of moral law (Canon
32, Id.). These canons strip a lawyer of the lawyer-client privilege whenever he
conspires with the client in the commission of a crime or a fraud.
PUNO, J., dissenting opinion:
1. LEGAL ETHICS; LAWYER-CLIENT PRIVILEGE; CAN NEVER BE USED AS
A SHIELD TO COMMIT CRIME OR FRAUD. The attorney-client privilege can
never be used as a shield to commit a crime or a fraud. Communications to an
attorney having for their object the commission of a crime ". . . partake the nature
of a conspiracy, and it is not only lawful to divulge such communications, but
under certain circumstances it might become the duty of the attorney to do so.
The interests of public justice require that no such shield from merited exposure
shall be interposed to protect a person who takes counsel how he can safely
commit a crime. The relation of attorney and client cannot exist for the purpose of
counsel in concocting crimes." (125 American Law Reports Annotated 516519
citing People v. Van Alstine, 57 Mich 69, 23 NW 594)
2. ID.; ID.; DOES NOT INCLUDE THE RIGHT OF NON-DISCLOSURE OF
CLIENT IDENTITY AS A GENERAL RULE; EXCEPTIONS. As a general rule,
the attorney-client privilege does not include the right of non-disclosure of client
identity. The general rule, however, admits of well-etched exceptions which

the Sandiganbayan failed to recognize. The general rule and its exceptions are
accurately summarized in In re Grand Jury Investigation. The Circuits have
embraced various "exceptions" to the general rule that the identity of a client is
not within the protective ambit of an attorney-client privilege. All such exceptions
appear to be firmly grounded in the Ninth Circuit's seminal decision in Baird
v.Koerner, 279 F. 2d 633 (8th Cir. 1960). 'The name of the client will be
considered privileged matter where the circumstances of the case are such that
the name of the client is material only for the purpose of showing an
acknowledgment of guilt on the part of such client of the very offenses on
account of which the attorney was employed.' 'A significant exception to this
principle of non-confidentiality holds that such information may be privileged
when the person invoking the privilege is able to show that a strong possibility
exists that disclosure of the information would implicate the client in the very
matter for which legal advice was sought in the first case.' Another exception to
the general rule that the identity of a client is not privileged arises where
disclosure of the identity would be tantamount to disclosing an otherwise
protected confidential communication. To the general rule is an exception, firmly
embedded as the rule itself. The privilege may be recognized where so much of
the actual communication has already been disclosed that identification of the
client amounts to disclosure of a confidential communication. The privilege may
be recognized where so much of the actual communication has already been
disclosed [not necessarily by the attorney but by independent sources as well]
that identification of the client [or of fees paid] amounts to disclosure of a
confidential

communication. Another

exception,

articulated

in

the

Fifth

Circuit's en banc decision of In re Grand Jury Proceedings (Pavlick), 680 F, 2D

1026 5th Cir. 1982 (en banc), is recognized when disclosure of the identity of the
client would provide the "last link" of evidence.
3. ID.; ID.; PERSON CLAIMING THE PRIVILEGE OR ITS EXCEPTIONS HAS
THE

OBLIGATION

TO

PRESENT

THE

UNDERLYING

FACTS

DEMONSTRATING THE EXISTENCE OF THE PRIVILEGE. The person

claiming the privilege or its exception has the obligation to present the underlying

facts demonstrating the existence of the privilege. When these facts can be
presented only by revealing the very information sought to be protected by the
privilege, the procedure is for the lawyer to move for an inspection of the
evidence in an in camera hearing. The hearing can even be in camera and exparte. Thus, it has been held that "a well-recognized means for an attorney to
demonstrate the existence of an exception to the general rule, while
simultaneously preserving confidentiality of the identity of his client, is to move
the court for an in camera ex-parte hearing. Without the proofs adduced in
these in camera hearings, the Court has no factual basis to determine whether
petitioners fall within any of the exceptions to the general rule.
DECISION
KAPUNAN, J :
p

These cases touch the very cornerstone of every State's judicial system, upon
which the workings of the contentious and adversarial system in the Philippine
legal process are based the sanctity of fiduciary duty in the client-lawyer
relationship. The fiduciary duty of a counsel and advocate is also what makes the
law profession a unique position of trust and confidence, which distinguishes it
from any other calling. In this instance, we have no recourse but to uphold and
strengthen the mantle of protection accorded to the confidentiality that proceeds
from the performance of the lawyer's duty to his client.
The facts of the case are undisputed.
The matters raised herein are an offshoot of the institution of the Complaint on
July 31, 1987 before the Sandiganbayan by the Republic of the Philippines,
through the Presidential Commission on Good Government against Eduardo M.
Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged illgotten wealth, which includes shares of stocks in the named corporations in
PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the
Philippinesversus Eduardo Cojuangco, et al." 1

Among the defendants named in the case are herein petitioners Teodoro Regala,
Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan,
Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private
respondent Raul S. Roco, who all were then partners of the law firm Angara,
Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the
ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients,
which included, among others, the organization and acquisition of business
associations and/or organizations, with the correlative and incidental services
where its members acted as incorporators, or simply, as stockholders. More
specifically, in the performance of these services, the members of the law firm
delivered to its client documents which substantiate the client's equity holdings,
i.e., stock certificates endorsed in blank representing the shares registered in the
client's name, and a blank deed of trust or assignment covering said shares. In
the course of their dealings with their clients, the members of the law firm acquire
information relative to the assets of clients as well as their personal and business
circumstances. As members of the ACCRA Law Firm, petitioners and private
respondent Raul Roco admit that they assisted in the organization and
acquisition of the companies included in Civil Case No. 0033, and in keeping with
the office practice, ACCRA lawyers acted as nominees-stockholders of the said
corporations involved in sequestration proceedings. 2
On August 20, 1991, respondent Presidential Commission on Good government
(hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third
Amended Complaint" and "Third Amended Complaint" which excluded private
respondent Raul S. Roco from the complaint in PCGG Case No. 33 as partydefendant. 3 Respondent PCGG based its exclusion of private respondent Roco
as party-defendant on his undertaking that he will reveal the identity of the
principal/s for whom he acted as nominee/stockholder in the companies involved
in PCGG Case No. 33. 4
Petitioners were included in the Third Amended Complaint on the strength of the
following allegations:

14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C.

Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan,
Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara
Concepcion Cruz Regala and Abello law offices (ACCRA) plotted,
devised, schemed, conspired and confederated with each other in
setting up, through the use of the coconut levy funds, the financial and
corporate framework and structures that led to the establishment of
UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty
other coconut levy funded corporations, including the acquisition of San
Miguel Corporation shares and its institutionalization through presidential
directives of the coconut monopoly. Through insidious means and
machinations, ACCRA, being the wholly-owned investment arm, ACCRA
Investments Corporation, became the holder of approximately fifteen
million shares representing roughly 3.3% of the total outstanding capital
stock of UCPB as of 31 March 1987. This ranks ACCRA Investments
Corporation number 44 among the top 100 biggest stockholders of
UCPB which has approximately 1,400,000 shareholders. On the other
hand, corporate books show the name Edgardo J. Angara as holding
approximately 3,744 shares as of February, 1984. 5

In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers

alleged that:
4.4. Defendants-ACCRA lawyers' participation in the acts with which
their co-defendants are charged, was in furtherance of legitimate
lawyering.
4.4.1. In the course of rendering professional and legal services to
clients,

defendants-ACCRA

lawyers,

Jose

C.

Concepcion,

Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta,

became holders of shares of stock in the corporations listed under

their respective names in Annex 'A' of the expanded Amended

Complaint as incorporating or acquiring stockholders only and, as
such, they do not claim any proprietary interest in the said shares
of stock.
4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the
incorporators in 1976 of Mermaid Marketing Corporation, which
was organized for legitimate business purposes not related to the
allegations of the expanded Amended Complaint. However, he
has long ago transferred any material interest therein and
therefore denies that the 'shares' appearing in his name in Annex
'A' of the expanded Amended Complaint are his assets.

Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a
separate answer denying the allegations in the complaint implicating him in the
alleged ill-gotten wealth. 7
Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR
OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent
PCGG similarly grant the same treatment to them (exclusion as partiesdefendants) as accorded private respondent Roco. 8 The Counter-Motion for
dropping petitioners from the complaint was duly set for hearing on October 18,
1991 in accordance with the requirements of Rule 15 of the Rules of Court.
In its "Comment," respondent PCGG set the following conditions precedent for
the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients;
(b) submission of documents substantiating the lawyer-client relationship; and (c)
the submission of the deeds of assignments petitioners executed in favor of its
clients covering their respective shareholdings. 9
Consequently, respondent PCGG presented supposed proof to substantiate
compliance by private respondent Roco of the conditions precedent to warrant
the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter

to respondent PCGG of the counsel of respondent Roco dated May 24, 1989
reiterating a previous request for reinvestigation by the PCGG in PCGG Case No.
33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as
Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and
Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in
behalf of private respondent Roco originally requesting the reinvestigation and/or
re-examination of the evidence of the PCGG against Roco in its Complaint in
PCGG Case No. 33. 10
It is noteworthy that during said proceedings, private respondent Roco did not
refute petitioners' contention that he did actually not reveal the identity of the
client involved in PCGG Case No. 33, nor had he undertaken to reveal the
identity of the client for whom he acted as nominee-stockholder. 11
On March 18, 1992, respondent Sandiganbayan promulgated the Resolution,
herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for
their refusal to comply with the conditions required by respondent PCGG. It held:
xxx xxx xxx
ACCRA lawyers may take the heroic stance of not revealing the identity
of the client for whom they have acted, i.e. their principal, and that will be
their choice. But until they do identify their clients, considerations of
whether or not the privilege claimed by the ACCRA lawyers exists cannot
even begin to be debated. The ACCRA lawyers cannot excuse
themselves from the consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the existenceand identity
of the client.
This is what appears to be the cause for which they have been
impleaded by the PCGG as defendants herein.
5. The PCGG is satisfied that defendant Roco has demonstrated his
agency and that Roco has apparently identified his principal, which

revelation could show the lack of cause against him. This in turn has
allowed the PCGG to exercise its power both under the rules of Agency
and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's
ruling in Republic v. Sandiganbayan (173 SCRA 72).
The PCGG has apparently offered to the ACCRA lawyers the same
conditions availed of by Roco; full disclosure in exchange for exclusion
from these proceedings (par. 7, PCGG's COMMENT dated November 4,
1991). The ACCRA lawyers have preferred not to make the disclosures
required by the PCGG.
The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping
them as party defendants. In the same vein, they cannot compel the
PCGG to be accorded the same treatment accorded to Roco.
Neither can this Court.
WHEREFORE, the Counter Motion dated October 8, 1991 filed by the
ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same
treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack
of merit. 12

ACCRA lawyers moved for a reconsideration of the above resolution but the
same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers
filed the petition for certiorari, docketed as G.R. No. 105938, invoking the
following grounds:
I
The Honorable Sandiganbayan gravely abused its discretion in
subjecting petitioners ACCRA lawyers who undisputably acted as
lawyers in serving as nominee-stockholders, to the strict application of
the law of agency.

II
The Honorable Sandiganbayan committed grave abuse of discretion in
not considering petitioners ACCRA lawyers and Mr. Roco as similarly
situated and, therefore, deserving of equal treatment.
1. There is absolutely no evidence that Mr. Roco had revealed, or
had undertaken to reveal, the identities of the client(s) for
whom he acted as nominee-stockholder.
2. Even assuming that Mr. Roco had revealed, or had undertaken
to reveal, the identities of the client(s), the disclosure does
not constitute a substantial distinction as would make the
classification reasonable under the equal protection clause.
3. Respondent Sandiganbayan sanctioned favoritism and undue
preference in favor of Mr. Roco in violation of the equal
protection clause.
III
The Honorable Sandiganbayan committed grave abuse of discretion in
not holding that, under the facts of this case, the attorney-client privilege
prohibits petitioners ACCRA lawyers from revealing the identity of their
client(s) and the other information requested by the PCGG.
1. Under the peculiar facts of this case, the attorney-client
privilege includes the identity of the client(s).
2. The factual disclosures required by the PCGG are not limited to
the identity of petitioners ACCRA lawyers' alleged client(s)
but extend to other privileged matters.
IV

The Honorable Sandiganbayan committed grave abuse of discretion in

not requiring that the dropping of party-defendants by the PCGG must be
based on reasonable and just grounds and with due consideration to the
constitutional right of petitioners ACCRA lawyers to the equal protection
of the law.

Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of
the March 18, 1991 resolution which was denied by respondent Sandiganbayan.
Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113,
assailing respondent Sandiganbayan's resolution on essentially the same
grounds averred by petitioners in G.R. No. 105938.
Petitioners contend that the exclusion of respondent Roco as party-defendant in
PCGG Case No. 33 grants him a favorable treatment, on the pretext of his
alleged undertaking to divulge the identity of his client, giving him an advantage
over them who are in the same footing as partners in the ACCRA law firm.
Petitioners further argue that even granting that such an undertaking has been
assumed by private respondent Roco, they are prohibited from revealing the
identity of their principal under their sworn mandate and fiduciary duty as lawyers
to uphold at all times the confidentiality of information obtained during such
lawyer-client relationship.

cdasia

Respondent PCGG, through its counsel, refutes petitioners' contention, alleging

that the revelation of the identity of the client is not within the ambit of the lawyerclient confidentiality privilege, nor are the documents it required (deeds of
assignment) protected, because they are evidence of nominee status. 13
In his comment, respondent Roco asseverates that respondent PCGG acted
correctly in excluding him as party-defendant because he "(Roco) has not filed an
Answer. PCGG had therefore the right to dismiss Civil Case No. 0033 as to Roco
'without an order of court by filing a notice of dismissal,'" 14 and he has
undertaken to identify his principal. 15

Petitioners' contentions are impressed with merit.

I
It is quite apparent that petitioners were impleaded by the PCGG as codefendants to force them to disclose the identity of their clients. Clearly,
respondent PCGG is not after petitioners but the "bigger fish" as they say in
street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal
with petitioners the names of their clients in exchange for exclusion from the
complaint. The statement of the Sandiganbayan in its questioned resolution
dated March 18, 1992 is explicit:
ACCRA lawyers may take the heroic stance of not revealing the identity
of the client for whom they have acted, i.e., their principal, and that will
be their choice. But until they do identify their clients, considerations of
whether or not the privilege claimed by the ACCRA lawyers exists cannot
even begin to be debated. The ACCRA lawyers cannot excuse
themselves from the consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the existence and
identity of the client.

This is what appears to be the cause for which they have been
impleaded by the PCGG as defendants herein. (Italics ours)

In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third
Division, entitled "Primavera Farms, Inc., et al. vs. Presidential Commission on
Good Government" respondent PCGG, through counsel Mario Ongkiko,
manifested at the hearing on December 5, 1991 that the PCGG wanted to
establish through the ACCRA that their "so called client is Mr. Eduardo
Cojuangco"; that "it was Mr. Eduardo Cojuangco who furnished all the monies to
those subscription payments in corporations included in Annex "A" of the Third

Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds
of assignment, some in the name of particular persons, some in blank.
We quote Atty. Ongkiko:
ATTY. ONGKIKO:
With the permission of this Hon. Court. I propose to establish through
these ACCRA lawyers that, one, their so-called client is Mr. Eduardo
Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the
monies to these subscription payments of these corporations who are
now the petitioners in this case. Third, that these lawyers executed
deeds of trust, some in the name of a particular person, some in blank.
Now, these blank deeds are important to our claim that some of the
shares are actually being held by the nominees for the late President
Marcos. Fourth, they also executed deeds of assignment and some of
these assignments have also blank assignees. Again, this is important to
our claim that some of the shares are for Mr. Cojuangco and some are
for Mr. Marcos. Fifth, that most of these corporations are really just paper
corporations. Why do we say that? One: There are no really fixed sets of
officers, no fixed sets of directors at the time of incorporation and even
up to 1986, which is the crucial year. And not only that, they have no
permits from the municipal authorities in Makati. Next, actually all their
addresses now are care of Villareal Law Office. They really have no
address on records. These are some of the principal things that we
would ask of these nominees stockholders, as they called themselves.

16

It would seem that petitioners are merely standing in for their clients as
defendants in the complaint. Petitioners are being prosecuted solely on the basis
of activities and services performed in the course of their duties as lawyers. Quite
obviously, petitioners' inclusion as co-defendants in the complaint is merely being
used as leverage to compel them to name their clients and consequently to
enable the PCGG to nail these clients. Such being the case, respondent PCGG

has no valid cause of action as against petitioners and should exclude them from
the Third Amended Complaint.
II
The nature of lawyer-client relationship is premised on the Roman Law concepts
of locatio conductio operarum (contract of lease of services) where one person
lets his services and another hires them without reference to the object of which
the services are to be performed, wherein lawyers' services may be
compensated by honorarium or for hire, 17 and mandato (contract of agency)
wherein a friend on whom reliance could be placed makes a contract in his
name, but gives up all that he gained by the contract to the person who
requested him. 18 But the lawyer-client relationship is more than that of the
principal-agent and lessor-lessee.
In modern day perception of the lawyer-client relationship, an attorney is more
than a mere agent or servant, because he possesses special powers of trust and
confidence reposed on him by his client.

19

A lawyer is also as independent as

the judge of the court, thus his powers are entirely different from and superior to
those of an ordinary agent.

20

Moreover, an attorney also occupies what may be

considered as a "quasi-judicial office" since he is in fact an officer of the

Court 21 and exercises his judgment in the choice of courses of action to be taken
favorable to his client.
Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct
and duties that breathe life into it, among those, the fiduciary duty to his client
which is of a very delicate, exacting and confidential character, requiring a very
high degree of fidelity and good faith,

22

that is required by reason of necessity

and public interest 23 based on the hypothesis that abstinence from seeking legal
advice in a good cause is an evil which is fatal to the administration of justice.

24

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him
from any other professional in society. This conception is entrenched and

embodies centuries of established and stable tradition.

25

In Stockton v. Ford, 26 the

U.S. Supreme Court held:

There are few of the business relations of life involving a higher trust and
confidence than that of attorney and client, or generally speaking, one
more honorably and faithfully discharged; few more anxiously guarded
by the law, or governed by the sterner principles of morality and justice;
and it is the duty of the court to administer them in a corresponding spirit,
and to be watchful and industrious, to see that confidence thus reposed
shall not be used to the detriment or prejudice of the rights of the party
bestowing it. 27

In our jurisdiction, this privilege takes off from the old Code of Civil
Procedure enacted by the Philippine Commission on August 7, 1901. Section 383
of the Code specifically "forbids counsel, without authority of his client to reveal
any communication made by the client to him or his advice given thereon in the
course of professional employment." 28 Passed on into various provisions of
the Rules of Court, the attorney-client privilege, as currently worded provides:
Sec. 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in
the following cases:
xxx xxx xxx
An attorney cannot, without the consent of his client, be examined as to
any communication made by the client to him, or his advice given
thereon in the course of, or with a view to, professional employment, can
an attorney's secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact the
knowledge of which has been acquired in such capacity.

Further, Rule 138 of the Rules of Court states:

29

Sec. 20. It is the duty of an attorney:

(e) to maintain inviolate the confidence, and at every peril to himself, to
preserve the secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his
knowledge and approval.

This duty is explicitly mandated in Canon 17 of the Code of Professional

Responsibility which provides that:
Canon 17. A lawyer owes fidelity to the cause of his client and he shall
be mindful of the trust and confidence reposed in him.

Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity

to client:
The lawyer owes "entire devotion to the interest of the client, warm zeal
in the maintenance and defense of his rights and the exertion of his
utmost learning and ability," to the end that nothing be taken or be
withheld from him, save by the rules of law, legally applied. No fear of
judicial disfavor or public popularity should restrain him from the full
discharge of his duty. In the judicial forum the client is entitled to the
benefit of any and every remedy and defense that is authorized by the
law of the land, and he may expect his lawyer to assert every such
remedy or defense. But it is steadfastly to be borne in mind that the great
trust of the lawyer is to be performed within and not without the bounds
of the law. The office of attorney does not permit, much less does it
demand of him for any client, violation of law or any manner of fraud or
chicanery. He must obey his own conscience and not that of his client.

Considerations favoring confidentiality in lawyer-client relationships are many and

serve several constitutional and policy concerns. In the constitutional sphere, the
privilege gives flesh to one of the most sacrosanct rights available to the
accused, the right to counsel. If a client were made to choose between legal

representation without effective communication and disclosure and legal

representation with all his secrets revealed then he might be compelled, in some
instances, to either opt to stay away from the judicial system or to lose the right to
counsel. If the price of disclosure is too high, or if it amounts to self incrimination,
then the flow of information would be curtailed thereby rendering the right
practically nugatory. The threat this represents against another sacrosanct
individual right, the right to be presumed innocent is at once self-evident.
Encouraging full disclosure to a lawyer by one seeking legal services opens the
door to a whole spectrum of legal options which would otherwise be
circumscribed by limited information engendered by a fear of disclosure. An
effective lawyer-client relationship is largely dependent upon the degree of
confidence which exists between lawyer and client which in turn requires a
situation which encourages a dynamic and fruitful exchange and flow of
information. It necessarily follows that in order to attain effective representation,
the lawyer must invoke the privilege not as a matter of option but as a matter of
duty and professional responsibility.
The question now arises whether or not this duty may be asserted in refusing to
disclose the name of petitioners' client(s) in the case at bar. Under the facts and
circumstances obtaining in the instant case, the answer must be in the
affirmative.
As a matter of public policy, a client's identity should not be shrouded in
mystery. 30 Under this premise, the general rule in our jurisdiction as well as in
the United States is that a lawyer may not invoke the privilege and refuse to
divulge the name or identity of his client. 31

The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose privileged information is
sought to be protected is flesh and blood.

Second, the privilege begins to exist only after the attorney-client relationship has
been established. The attorney-client privilege does not attach until there is a
client
Third, the privilege generally pertains to the subject matter of the relationship.
Finally, due process considerations require that the opposing party should, as a
general rule, know his adversary. "A party suing or sued is entitled to know who
his opponent is." 32 He cannot be obliged to grope in the dark against unknown
forces. 33
Notwithstanding these considerations, the general rule is however qualified by
some important exceptions.
1) Client identity is privileged where a strong probability exists that revealing the
client's name would implicate that client in the very activity for which he sought
the lawyer's advice.
In Ex-Parte Enzor, 34 a state supreme court reversed a lower court order
requiring a lawyer to divulge the name of her client on the ground that the subject
matter of the relationship was so closely related to the issue of the client's identity
that the privilege actually attached to both. In Enzor, the unidentified client, an
election official, informed his attorney in confidence that he had been offered a
bribe to violate election laws or that he had accepted a bribe to that end. In her
testimony, the attorney revealed that she had advised her client to count the votes
correctly, but averred that she could not remember whether her client had been,
in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his
client's identity before a grand jury. Reversing the lower court's contempt orders,
the state supreme court held that under the circumstances of the case, and under
the exceptions described above, even the name of the client was privileged.
U.S. v. Hodge and Zweig, 35 involved the same exception, i.e. that client identity
is privileged in those instances where a strong probability exists that the

disclosure of the client's identity would implicate the client in the very criminal
activity for which the lawyer's legal advice was obtained.
The Hodge case involved federal grand jury proceedings inquiring into the
activities of the "Sandino Gang," a gang involved in the illegal importation of
drugs in the United States. The respondents, law partners, represented key
witnesses and suspects including the leader of the gang, Joe Sandino.
In connection with a tax investigation in November of 1973, the IRS issued
summons to Hodge and Zweig, requiring them to produce documents and
information regarding payment received by Sandino on behalf of any other
person, and vice versa. The lawyers refused to divulge the names. The Ninth
Circuit of the United States Court of Appeals, upholding non-disclosure under the
facts and circumstances of the case, held:
A client's identity and the nature of that client's fee arrangements may be
privileged where the person invoking the privilege can show that a strong
probability exists that disclosure of such information would implicate that
client in the very criminal activity for which legal advice was sought Baird
v. Koerner, 279 F.2d at 680. While in Baird Owe enunciated this rule as a
matter of California law, the rule also reflects federal law. Appellants
contend that the Baird exception applies to this case.
The Baird exception is entirely consonant with the principal policy behind
the attorney-client privilege. "In order to promote freedom of consultation
of legal advisors by clients, the apprehension of compelled disclosure
from the legal advisors must be removed; hence, the law must prohibit
such disclosure except on the client's consent." 8 J. Wigmore, supra
Sec. 2291, at 545. In furtherance of this policy, the client's identity and
the nature of his fee arrangements are, in exceptional cases, protected
as confidential communications. 36

2) Where disclosure would open the client to civil liability, his identity is privileged.
For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab
Corporation, 37 prompted the New York Supreme Court to allow a lawyer's claim
to the effect that he could not reveal the name of his client because this would
expose the latter to civil litigation.

llcd

In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was
riding, owned by respondent corporation, collided with a second taxicab, whose
owner was unknown. Plaintiff brought action both against defendant corporation
and the owner of the second cab, identified in the information only as John Doe.
It turned out that when the attorney of defendant corporation appeared on
preliminary examination, the fact was somehow revealed that the lawyer came to
know the name of the owner of the second cab when a man, a client of the
insurance company, prior to the institution of legal action, came to him and
reported that he was involved in a car accident. It was apparent under the
circumstances that the man was the owner of the second cab. The state supreme
court held that the reports were clearly made to the lawyer in his professional
capacity. The court said:
That his employment came about through the fact that the insurance
company had hired him to defend its policyholders seems immaterial.
The attorney in such cases is clearly the attorney for the policyholder
when the policyholder goes to him to report an occurrence contemplating
that it would be used in an action or claim against him.

38

xxx xxx xxx.

All communications made by a client to his counsel, for the purpose of
professional advice or assistance, are privileged, whether they relate to a
suit pending or contemplated, or to any other matter proper for such
advice or aid; . . . And whenever the communication made, relates to a
matter so connected with the employment as attorney or counsel as to

afford presumption that it was the ground of the address by the client,
then it is privileged from disclosure. . . .
It appears . . . that the name and address of the owner of the second cab
came to the attorney in this case as a confidential communication. His
client is not seeking to use the courts, and his address cannot be
disclosed on that theory, nor is the present action pending against him
as service of the summons on him has not been effected. The objections
on which the court reserved decision are sustained.

39

In the case of Matter of Shawmut Mining Company, 40 the lawyer involved was
required by a lower court to disclose whether he represented certain clients in a
certain transaction. The purpose of the court's request was to determine whether
the unnamed persons as interested parties were connected with the purchase of
properties involved in the action. The lawyer refused and brought the question to
the State Supreme Court. Upholding the lawyer's refusal to divulge the names of
his clients the court held:
If it can compel the witness to state, as directed by the order appealed
from, that he represented certain persons in the purchase or sale of
these mines, it has made progress in establishing by such evidence their
version of the litigation. As already suggested, such testimony by the
witness would compel him to disclose not only that he was attorney for
certain people, but that, as the result of communications made to him in
the course of such employment as such attorney, he knew that they were
interested in certain transactions. We feel sure that under such
conditions no case has ever gone to the length of compelling an
attorney, at the instance of a hostile litigant, to disclose not only his
retainer, but the nature of the transactions to which it related, when such
information could be made the basis of a suit against his client.

41

3) Where the government's lawyers have no case against an attorney's client

unless, by revealing the client's name, the said name would furnish the only link

that would form the chain of testimony necessary to convict an individual of a

crime, the client's name is privileged.
In Baird vs. Korner, 42 a lawyer was consulted by the accountants and the lawyer
of certain undisclosed taxpayers regarding steps to be taken to place the
undisclosed taxpayers in a favorable position in case criminal charges were
brought against them by the U.S. Internal Revenue Service (IRS).
It appeared that the taxpayer's returns of previous years were probably incorrect
and the taxes understated. The clients themselves were unsure about whether or
not they violated tax laws and sought advice from Baird on the hypothetical
possibility that they had. No investigation was then being undertaken by the IRS
of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird
the sum of $12,706.85, which had been previously assessed as the tax due, and
another amount of money representing his fee for the advice given. Baird then
sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note
explaining the payment, but without naming his clients. The IRS demanded that
Baird identify the lawyers, accountants, and other clients involved. Baird refused
on the ground that he did not know their names, and declined to name the
attorney and accountants because this constituted privileged communication. A
petition was filed for the enforcement of the IRS summons. For Baird's repeated
refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit
Court of Appeals held that, a lawyer could not be forced to reveal the names of
clients who employed him to pay sums of money to the government voluntarily in
settlement of undetermined income taxes, unsued on, and with no government
audit or investigation into that client's income tax liability pending. The court
emphasized the exception that a client's name is privileged when so much has
been revealed concerning the legal services rendered that the disclosure of the
client's identity exposes him to possible investigation and sanction by government
agencies. The Court held:

The facts of the instant case bring it squarely within that exception to the
general rule. Here money was received by the government, paid by
persons who thereby admitted they had not paid a sufficient amount in
income taxes some one or more years in the past. The names of the
clients are useful to the government for but one purpose to ascertain
which taxpayers think they were delinquent, so that it may check the
records for that one year or several years. The voluntary nature of the
payment indicates a belief by the taxpayers that more taxes or interest or
penalties are due than the sum previously paid, if any. It indicates a
feeling of guilt for nonpayment of taxes, though whether it is criminal guilt
is undisclosed. But it may well be the link that could form the chain of
testimony necessary to convict an individual of a federal crime. Certainly
the payment and the feeling of guilt are the reasons the attorney here
involved was employed to advise his clients what, under the
circumstances, should be done. 43

Apart from these principal exceptions, there exist other situations which could
qualify as exceptions to the general rule.
For example, the content of any client communication to a lawyer lies within the
privilege if it is relevant to the subject matter of the legal problem on which the
client seeks legal assistance. 44 Moreover, where the nature of the attorney-client
relationship has been previously disclosed and it is the identity which is intended
to be confidential, the identity of the client has been held to be privileged, since
such revelation would otherwise result in disclosure of the entire transaction. 45
Summarizing these exceptions, information relating to the identity of a client may
fall within the ambit of the privilege when the client's name itself has an
independent significance, such that disclosure would then reveal client
confidences. 46
The circumstances involving the engagement of lawyers in the case at bench,
therefore, clearly reveal that the instant case falls under at least two exceptions to

the general rule. First, disclosure of the alleged client's name would lead to
establish said client's connection with the very fact in issue of the case, which is
privileged information, because the privilege, as stated earlier, protects the
subject matter or the substance (without which there would be no attorney-client
relationship).
The link between the alleged criminal offense and the legal advice or legal
service sought was duly established in the case at bar, by no less than the PCGG
itself. The key lies in the three specific conditions laid down by the PCGG which
constitutes petitioners' ticket to non-prosecution should they accede thereto:
(a) the disclosure of the identity of its clients;
(b) submission

of

documents

substantiating

the

lawyer-client

relationship; and
(c) the submission of the deeds of assignment petitioners executed in
favor of their clients covering their respective shareholdings.

From these conditions, particularly the third, we can readily deduce that the
clients indeed consulted the petitioners, in their capacity as lawyers, regarding
the financial and corporate structure, framework and set-up of the corporations in
question. In turn, petitioners gave their professional advice in the form of, among
others, the aforementioned deeds of assignment covering their client's
shareholdings.
There is no question that the preparation of the aforestated documents was part
and parcel of petitioners' legal service to their clients. More important, it
constituted an integral part of their duties as lawyers. Petitioners, therefore, have
a legitimate fear that identifying their clients would implicate them in the very
activity for which legal advice had been sought, i.e., the alleged accumulation of
ill-gotten wealth in the aforementioned corporations.

Furthermore, under the third main exception, revelation of the client's name would
obviously provide the necessary link for the prosecution to build its case, where
none otherwise exists. It is the link, in the words of Baird, "that would inevitably
form the chain of testimony necessary to convict the (client) of a . . . crime." 47
An important distinction must be made between a case where a client takes on
the services of an attorney, for illicit purposes, seeking advice about how to go
around the law for the purpose of committing illegal activities and a case where a
client thinks he might have previously committed something illegal and consults
his attorney about it. The first case clearly does not fall within the privilege
because the same cannot be invoked for purposes illegal. The second case falls
within the exception because whether or not the act for which the client sought
advice turns out to be illegal, his name cannot be used or disclosed if the
disclosure leads to evidence, not yet in the hands of the prosecution, which might
lead to possible action against him.
These cases may be readily distinguished, because the privilege cannot be
invoked or used as a shield for an illegal act, as in the first example; while the
prosecution may not have a case against the client in the second example and
cannot use the attorney client relationship to build up a case against the latter.
The reason for the first rule is that it is not within the professional character of a
lawyer to give advice on the commission of a crime.

48

The reason for the second

has been stated in the cases above discussed and are founded on the same
policy grounds for which the attorney-client privilege, in general, exists.
In Matter of Shawmut Mining Co., supra, the appellate court therein stated that
"under such conditions no case has ever yet gone to the length of compelling an
attorney, at the instance of a hostile litigant, to disclose not only his retainer, but
the nature of the transactions to which it related, when such information could be
made the basis of a suit against his client."

49

"Communications made to an

attorney in the course of any personal employment, relating to the subject thereof,
and which may be supposed to be drawn out in consequence of the relation in
which the parties stand to each other, are under the seal of confidence and

entitled to protection as privileged communications."

50

Where the communicated

information, which clearly falls within the privilege, would suggest possible
criminal activity but there would be not much in the information known to the
prosecution which would sustain a charge except that revealing the name of the
client would open up other privileged information which would substantiate the
prosecution's suspicions, then the client's identity is so inextricably linked to the
subject matter itself that it falls within the protection. The Bairdexception,
applicable to the instant case, is consonant with the principal policy behind the
privilege, i.e., that for the purpose of promoting freedom of consultation of legal
advisors by clients, apprehension of compelled disclosure from attorneys must be
eliminated. This exception has likewise been sustained in In re Grand Jury
Proceedings 51 and Tillotson v. Boughner. 52 What these cases unanimously
seek to avoid is the exploitation of the general rule in what may amount to a
fishing expedition by the prosecution.
There are, after all, alternative sources of information available to the prosecutor
which do not depend on utilizing a defendant's counsel as a convenient and
readily available source of information in the building of a case against the latter.
Compelling disclosure of the client's name in circumstances such as the one
which exists in the case at bench amounts to sanctioning fishing expeditions by
lazy prosecutors and litigants which we cannot and will not countenance. When
the nature of the transaction would be revealed by disclosure of an attorney's
retainer, such retainer is obviously protected by the privilege.

53

It follows that

petitioner attorneys in the instant case owe their client(s) a duty and an obligation
not to disclose the latter's identity which in turn requires them to invoke the
privilege.
In fine, the crux of petitioner's objections ultimately hinges on their expectation
that if the prosecution has a case against their clients, the latter's case should be
built upon evidence painstakingly gathered by them from their own sourcesand
not from compelled testimony requiring them to reveal the name of their clients,
information which unavoidably reveals much about the nature of the transaction
which may or may not be illegal. The logical nexus between name and nature of

transaction is so intimate in this case that it would be difficult to simply dissociate

one from the other. In this sense, the name is as much "communication" as
information revealed directly about the transaction in question itself, a
communication which is clearly and distinctly privileged. A lawyer cannot reveal
such communication without exposing himself to charges of violating a principle
which forms the bulwark of the entire attorney-client relationship.
The uberrimei fidei relationship between a lawyer and his client therefore imposes
a strict liability for negligence on the former. The ethical duties owing to the client,
including confidentiality, loyalty, competence, diligence as well as the
responsibility to keep clients informed and protect their rights to make decisions
have been zealously sustained. In Milbank, Tweed, Hadley and McCloy
v. Boon, 54 the US Second District Court rejected the plea of the petitioner law
firm that it breached its fiduciary duty to its client by helping the latter's former
agent in closing a deal for the agent's benefit only after its client hesitated in
proceeding with the transaction, thus causing no harm to its client. The Court
instead ruled that breaches of a fiduciary relationship in any context comprise a
special breed of cases that often loosen normally stringent requirements of
causation and damages, and found in favor of the client.

To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley
P.A. v. Scheller 55 requiring strict obligation of lawyers vis-a-vis clients. In this
case, a contingent fee lawyer was fired shortly before the end of completion of his
work, and sought payment quantum meruit of work done. The court, however,
found that the lawyer was fired for cause after he sought to pressure his client
into signing a new fee agreement while settlement negotiations were at a critical
stage. While the client found a new lawyer during the interregnum, events forced
the client to settle for less than what was originally offered. Reiterating the
principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon 56famously
attributed to Justice Benjamin Cardozo that "Not honesty alone, but
the punctilio of an honor the most sensitive, is then the standard of behavior," the

US Court found that the lawyer involved was fired for cause, thus deserved no
attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyer-client
confidentiality privilege and lawyer's loyalty to his client is evident in the duration
of the protection, which exists not only during the relationship, but extends even
after the termination of the relationship. 57
Such are the unrelenting duties required of lawyers vis-a-vis their clients because
the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell
Holmes, 58 ". . . is an exacting goddess, demanding of her votaries in intellectual
and moral discipline." The Court, no less, is not prepared to accept respondents'
position without denigrating the noble profession that is lawyering, so extolled by
Justice Holmes in this wise:
Every calling is great when greatly pursued. But what other gives such
scope to realize the spontaneous energy of one's soul? In what other
does one plunge so deep in the stream of life so share its passions its
battles, its despair, its triumphs, both as witness and actor? . . . But that
is not all. What a subject is this in which we are united this abstraction
called the Law, wherein as in a magic mirror, we see reflected, not only
in our lives, but the lives of all men that have been. When I think on this
majestic theme by eyes dazzle. If we are to speak of the law as our
mistress, we who are here know that she is a mistress only to be won
with sustained and lonely passion only to be won by straining all the
faculties by which man is likened to God.

We have no choice but to uphold petitioners' right not to reveal the identity of their
clients under pain of the breach of fiduciary duty owing to their clients, because
the facts of the instant case clearly fall within recognized exceptions to the rule
that the client's name is not privileged information.

If we were to sustain respondent PCGG that the lawyer-client confidential

privilege under the circumstances obtaining here does not cover the identity of
the client, then it would expose the lawyers themselves to possible litigation by
their clients in view of the strict fiduciary responsibility imposed on them in the
exercise of their duties.

LLphil

The complaint in Civil Case No. 0033 alleged that the defendants therein,
including herein petitioners and Eduardo Cojuangco, Jr. conspired with each
other in setting up through the use of coconut levy funds the financial and
corporate framework and structures that led to the establishment of UCPB,
UNICOM and others and that through insidious means and machinations,
ACCRA,

using

its

wholly-owned

investment

arm,

ACCRA

Investments

Corporation, became the holder of approximately fifteen million shares

representing roughly 3.3% of the total capital stock of UCPB as of 31 March
1987. The PCGG wanted to establish through the ACCRA lawyers that Mr.
Cojuangco is their client and it was Cojuangco who furnished all the monies to
the subscription payment; hence, petitioners acted as dummies, nominees and/or
agents by allowing themselves, among others, to be used as instrument in
accumulating ill-gotten wealth through government concessions, etc., which acts
constitute gross abuse of official position and authority, flagrant breach of public
trust, unjust enrichment, violation of the Constitution and laws of the Republic of
the Philippines.
By compelling petitioners, not only to reveal the identity of their clients, but worse,
to submit to the PCGG documents substantiating the client-lawyer relationship,
as well as deeds of assignment petitioners executed in favor of its clients
covering their respective shareholdings, the PCGG would exact from petitioners a
link, "that would inevitably form the chain of testimony necessary to convict the
(client) of a crime."
III

In response to petitioners' last assignment of error, respondents allege that the

private respondent was dropped as party defendant not only because of his
admission that he acted merely as a nominee but also because of his
undertaking to testify to such facts and circumstances "as the interest of truth
may require, which includes . . . the identity of the principal." 59
First, as to the bare statement that private respondent merely acted as a lawyer
and nominee, a statement made in his out-of-court settlement with the PCGG, it
is sufficient to state that petitioners have likewise made the same claim not
merely out-of-court but also in their Answer to plaintiff's Expanded Amended
Complaint, signed by counsel, claiming that their acts were made in furtherance
of "legitimate lawyering." 60 Being "similarly situated" in this regard, public
respondents must show that there exist other conditions and circumstances
which would warrant their treating the private respondent differently from
petitioners in the case at bench in order to evade a violation of the equal
protection clause of the Constitution.
To this end, public respondents contend that the primary consideration behind
their decision to sustain the PCGG's dropping of private respondent as a
defendant was his promise to disclose the identities of the clients in question.
However, respondents failed to show and absolutely nothing exists in the
records of the case at bar that private respondent actually revealed the identity
of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of
the entire arrangement between Mr. Roco and the PCGG, an undertaking which
is so material as to have justified PCGG's special treatment exempting the private
respondent from prosecution, respondent Sandiganbayan should have required
proof of the undertaking more substantial than a "bare assertion" that private
respondent did indeed comply with the undertaking. Instead, as manifested by
the PCGG, only three documents were submitted for the purpose, two of which
were mere requests for re-investigation and one simply disclosed certain clients
which petitioners (ACCRA lawyers) were themselves willing to reveal. These
were clients to whom both petitioners and private respondent rendered legal

services while all of them were partners at ACCRA, and were not the clients
which the PCGG wanted disclosed for the alleged questioned transactions. 61
To justify the dropping of the private respondent from the case or the filing of the
suit in the respondent court without him, therefore, the PCGG should conclusively
show that Mr. Roco was treated as a species apart from the rest of the ACCRA
lawyers on the basis of a classification which made substantial distinctions based
on real differences. No such substantial distinctions exist from the records of the
case at bench, in violation of the equal protection clause.
The equal protection clause is a guarantee which provides a wall of protection
against uneven application of statutes and regulations. In the broader sense, the
guarantee operates against uneven application of legal norms so that all persons
under similar circumstances would be accorded the same treatment.

62

Those

who fall within a particular class ought to be treated alike not only as to privileges
granted but also as to the liabilities imposed.
. . . What is required under this constitutional guarantee is the uniform operation of legal
norms so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was noted in a
recent decision: 'Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding the rest.

63

We find that the condition precedent required by the respondent PCGG of the
petitioners for their exclusion as parties-defendants in PCGG Case No. 33
violates the lawyer-client confidentiality privilege. The condition also constitutes a
transgression by respondents Sandiganbayan and PCGG of the equal protection
clause of the Constitution. 64 it is grossly unfair to exempt one similarly situated
litigant from prosecution without allowing the same exemption to the others.
Moreover, the PCGG's demand not only touches upon the question of the identity

of their clients but also on documents related to the suspected transactions, not
only in violation of the attorney-client privilege but also of the constitutional right
against self-incrimination. Whichever way one looks at it, this is a fishing
expedition, a free ride at the expense of such rights.
An argument is advanced that the invocation by petitioners of the privilege of
attorney-client confidentiality at this stage of the proceedings is premature and
that they should wait until they are called to testify and examine as witnesses as
to matters learned in confidence before they can raise their objections. But
petitioners are not mere witnesses. They are co-principals in the case for
recovery of alleged ill-gotten wealth. They have made their position clear from the
very beginning that they are not willing to testify and they cannot be compelled to
testify in view of their constitutional right against self-incrimination and of their
fundamental legal right to maintain inviolate the privilege of attorney-client
confidentiality.

It is clear then that the case against petitioners should never be allowed to take
its full course in the Sandiganbayan. Petitioners should not be made to suffer the
effects of further litigation when it is obvious that their inclusion in the complaint
arose from a privileged attorney-client relationship and as a means of coercing
them to disclose the identities of their clients. To allow the case to continue with
respect to them when this Court could nip the problem in the bud at this early
opportunity would be to sanction an unjust situation which we should not here
countenance. The case hangs as a real and palpable threat, a proverbial Sword
of Damocles over petitioners' heads. It should not be allowed to continue a day
longer.
While we are aware of respondent PCGG's legal mandate to recover ill-gotten
wealth, we will not sanction acts which violate the equal protection guarantee and
the right against self-incrimination and subvert the lawyer-client confidentiality
privilege.

LibLex

WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent

Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21,
1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is
further ordered to execute petitioners Teodoro D. Regala, Edgardo J. Angara,
Avelino V. Cruz, Jose C. Conception, Victor P. Lazatin, Eduardo U. Escueta and
Paraja G. Hayudini as parties-defendants in SB Civil Case No. 0033 entitled
"Republic of the Philippines v. Eduardo Cojuangco, Jr., et al."
SO ORDERED.
|||

(Regala v. Sandiganbayan, G.R. No. 105938, 108113, [September 20, 1996])

[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.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED;
RIGHT AGAINST SELF-INCRIMINATION; RIGHT CONSTRUED. The 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. The right is NOT to "be compelled to be a witness
against himself." It prescribes an "option of refusal to answer incriminating
questions and not a prohibition of inquiry." It simply secures to a witness, whether
he be a party or not, the right to refuse to answer any particular incriminatory
question, i.e., one the answer to which has a tendency to incriminate him for
some crime.
2. ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. 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.

3. ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. The right against selfincrimination 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.
4. ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. 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 others 1) to be exempt from being a witness against himself,
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.
5. ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST
HIMSELF, CONSTRUED. 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. 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. 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."
6. ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE
IS FILED IN THE COURT. A person suspected of having committed a crime
and subsequently charged with its commission in court, has the following rights in

that 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 a) to refuse to be a witness; b) not to have
any prejudice whatsoever result to him by such refusal; c) to testify to his own
behalf, subject to cross-examination by the persecution; d) WHILE TESTIFYING,
to refuse to answer a specific question which tends to incriminate him for some
time other than that for which he is prosecuted.
7. ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT
ENCOMPASS STATEMENTS MADE DURING AN ADMINISTRATIVE INQUIRY;
CASE AT BAR. 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.
DECISION

NARVASA, J :
p

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 note 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 P76,000 (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 . . . 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, 6 which 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 . . . given on February 8, 1986," also above referred to,
which had been marked as Exhibit K.
The

defendant's

attorneys

filed

"Objections/Comments

to

Plaintiffs

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 . . . 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 . . . 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, Peo. v. Galit, 135 SCRA 467, Peo. v. Sison, 142 SCRA 219, and Peo.
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, dealth
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 rights 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 refuse 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 each 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 . . . (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 termed 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 self-incrimination 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 others
1) 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 cross-examined 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 that 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 to 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 time other than that for which he is
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 . . (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
overeagerness 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 oficio, is now
declared of no further force and effect.
|||

(People v. Ayson, G.R. No. 85215, [July 7, 1989], 256 PHIL 671-690)

[G.R. No. L-25018. May 26, 1969.]

ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF
MEDICAL
GATBONTON

EXAMINERS, respondent-appellant, SALVADOR

and

ENRIQUETA

GATBONTON, intervenors-

appellants.
Conrado B. Enriquez for petitioner-appellee.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A.
Torres and Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil & Suarez for intervenors-appellants.
SYLLABUS
1.CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT AGAINST
SELF- INCRIMINATION; APPLICABILITY THEREOF IN ADMINISTRATIVE
PROCEEDINGS. Where petitioner was the respondent in the malpractice
charge filed against him with the Board of Medical Examiners, the said Board
cannot compel him to take the witness stand as a witness for the complainants.
The principle against self-incrimination is equally applicable to a proceeding that
could possibly result in the loss of the privilege to practice the medical profession.
2.ID.; ID.; ID.; RIGHT INCLUDES RIGHT TO SILENCE. The constitutional
guarantee against self-incrimination is not limited to that of allowing a witness to
object to questions the answers to which could lead to a penal liability being
subsequently incurred. The constitutional guarantee protects as well the right to
silence.
3.ID.; ID.; ID.; ID.; REASON. Why the constitutional guarantee against selfincrimination protects as well the right to silence should be thus is not difficult to
discern. The constitutional guarantee, along with other rights granted an accused,
stands for a belief that while crime should not go unpunished and that the truth

must be revealed, such desirable objectives should not be accomplished

according to means or methods offensive to the high sense of respect accorded
the human personality. More and more in line with the democratic creed, the
deference accorded an individual even those suspected of the most heinous
crimes is given due weight.
4.ID.; ID.; ID.; SAID RIGHT IS IDENTIFIED WITH RIGHT TO PRIVACY. It is of
interest to note that while earlier decisions stressed the principle of humanity on
which the right against self-incrimination is predicated, precluding as it does all
resort to force or compulsion, whether physical or mental, current judicial opinion
places equal emphasis on its identification with the right to privacy.
DECISION
FERNANDO, J :
p

The broad, all-embracing sweep of the self-incrimination clause, 1 whenever

appropriately invoked, has been accorded due recognition by this Court ever
since the adoption of the Constitution. 2 Bermudez v. Castillo, 3 decided in 1937,
was quite categorical. As we there stated: "This Court is of the opinion that in
order that the constitutional provision under consideration may prove to be a real
protection and not a dead letter, it must be given a liberal and broad interpretation
favorable to the person invoking it." As phrased by Justice Laurel in his
concurring opinion: "The provision, as doubtless it was designed, would be
construed with the utmost liberality in favor of the right of the individual intended
to be served." 4
Even more relevant, considering the precise point at issue, is the recent case of
Cabal v. Kapunan, 5 where it was held that a respondent in an administrative
proceeding under the Anti-Graft Law 6 cannot be required to take the witness
stand at the instance of the complainant. So it must be in this case, where
petitioner was sustained by the lower court in his plea that he could not be
compelled to be the first witness of the complainants, he being the party

proceeded against in an administrative charge for malpractice. That was a correct

decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court
of First Instance of Manila an action for prohibition with prayer for preliminary
injunction against the Board of Medical Examiners, now respondent-appellant. It
was alleged therein that at the initial hearing of an administrative case 7 for
alleged immorality, counsel for complainants announced that he would present as
his first witness herein petitioner-appellee, who was the respondent in such
malpractice charge. Thereupon, petitioner-appellee, through counsel, made of
record his objection, relying on the constitutional right to be exempt from being a
witness against himself. Respondent-appellant, the Board of Examiners, took
note of such a plea, at the same time stating that at the next scheduled hearing,
on February 12, 1965, petitioner-appellee would be called upon to testify as such
witness, unless in the meantime he could secure a restraining order from a
competent authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the
witness stand, the Board of Examiners was guilty, at the very least, of grave
abuse of discretion for failure to respect the constitutional right against selfincrimination, the administrative proceeding against him, which could result in
forfeiture or loss of a privilege, being quasi-criminal in character. With his
assertion that he was entitled to the relief demanded consisting of perpetually
restraining the respondent Board from compelling him to testify as witness for his
adversary and his readiness or his willingness to put a bond, he prayed for a writ
of preliminary injunction and after a hearing or trial, for a writ of prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary injunction
issue against the respondent Board commanding it to refrain from hearing or
further proceeding with such an administrative case, to await the judicial
disposition of the matter upon petitioner-appellee posting a bond in the amount of
P500.00.

The answer of respondent Board, while admitting the facts stressed that it could
call petitioner-appellee to the witness stand and interrogate him, the right against
self-incrimination being available only when a question calling for an incriminating
answer is asked of a witness. It further elaborated the matter in the affirmative
defenses interposed, stating that petitioner-appellee's remedy is to object once
he is in the witness stand, for respondent "a plain, speedy and adequate remedy
in the ordinary course of law," precluding the issuance of the relief sought.
Respondent Board, therefore, denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta
Gatbonton, the complainants in the administrative case for malpractice against
petitioner-appellee, asking that they be allowed to file an answer as intervenors.
Such a motion was granted and an answer in intervention was duly filed by them
on March 23, 1965 sustaining the power of respondent Board, which for them is
limited to compelling the witness to take the stand, to be distinguished, in their
opinion, from the power to compel a witness to incriminate himself. They likewise
alleged that the right against self- incrimination cannot be availed of in an
administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim
of petitioner-appellee to be well-founded and prohibiting respondent Board "from
compelling the petitioner to act and testify as a witness for the complainant in
said investigation without his consent and against himself." Hence this appeal
both by respondent Board and intervenors, the Gatbontons. As noted at the
outset, we find for the petitioner-appellee.
1.We affirm the lower court decision on appeal as it does manifest fealty to the
principle announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari
and prohibition to annul an order of Judge Kapunan, it appeared that an
administrative charge for unexplained wealth having been filed against petitioner
under the Anti-Graft Act, 9 the complainant requested the investigating committee
that petitioner be ordered to take the witness stand, which request was granted.
Upon petitioner's refusal to be sworn as such witness, a charge for contempt was

filed against him in the sala of respondent Judge. He filed a motion to quash and
upon its denial, he initiated this proceeding. We found for the petitioner in
accordance with the well-settled principle that "the accused in a criminal case
may refuse, not only to answer incriminatory questions, but, also, to take the
witness stand."
It was noted in the opinion penned by the present Chief Justice that while the
matter referred to an administrative charge of unexplained wealth, with the AntiGraft Act authorizing the forfeiture of whatever property a public officer or
employee may acquire, manifestly out of proportion to his salary and his other
lawful income, there is clearly the imposition of a penalty. The proceeding for
forfeiture while administrative in character thus possesses a criminal or penal
aspect. The case before us is not dissimilar; petitioner would be similarly
disadvantaged. He could suffer not the forfeiture of property but the revocation of
his license as medical practitioner, for some an even greater deprivation.
To the argument that Cabal v. Kapunan could thus be distinguished, it suffices to
refer to an American Supreme Court opinion highly persuasive in character.

10

In

the language of Justice Douglas: "We conclude .. that the Self-Incrimination

Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it
extends its protection to lawyers as well as to other individuals, and that it should
not be watered down by imposing the dishonor of disbarment and the deprivation
of a livelihood as a price for asserting it." We reiterate that such a principle is
equally applicable to a proceeding that could possibly result in the loss of the
privilege to practice the medical profession.
2.The appeal apparently proceeds on the mistaken assumption by respondent
Board and intervenors-appellants that the constitutional guarantee against selfincrimination should be limited to allowing a witness to object to questions the
answers to which could lead to a penal liability being subsequently incurred. It is
true that one aspect of such a right, to follow the language of another American
decision, 11 is the protection against "any disclosures which the witness may
reasonably apprehend could be used in a criminal prosecution or which could

lead to other evidence that might be so used." If that were all there is then it
becomes diluted.

The constitutional guarantee protects as well the right to silence. As far back as
1905, we had occasion to declare: "The accused has a perfect right to remain
silent and his silence cannot be used as a presumption of his guilt."

12

Only last

year, in Chavez v. Court of Appeals, 13 speaking through Justice Sanchez, we

reaffirmed the doctrine anew that is the right of a defendant "to forego testimony,
to remain silent, unless he chooses to take the witness standwith undiluted,
unfettered exercise of his own free genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee,
along with other rights granted an accused, stands for a belief that while crime
should not go unpunished and that the truth must be revealed, such desirable
objectives should not be accomplished according to means or methods offensive
to the high sense of respect accorded the human personality. More and more in
line with the democratic creed, the deference accorded an individual even those
suspected of the most heinous crimes is given due weight. To quote from Chief
Justice Warren, "the constitutional foundation underlying the privilege is the
respect a government . . . must accord to the dignity and integrity of its
citizens." 14
It is likewise of interest to note that while earlier decisions stressed the principle
of humanity on which this right is predicated, precluding as it does all resort to
force or compulsion, whether physical or mental, current judicial opinion places
equal emphasis on its identification with the right to privacy. Thus according to
Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables
the citizen to create a zone of privacy which government may not force to
surrender to his detriment."

15

So also with the observation of the late Judge

Frank who spoke of "a right to a private enclave where he may lead a private life.
That right is the hallmark of our democracy." 16

In the light of the above, it could thus clearly appear that no possible objection
could be legitimately raised against the correctness of the decision now on
appeal. We hold that in an administrative hearing against a medical practitioner
for alleged malpractice, respondent Board of Medical Examiners cannot,
consistently with the self-incrimination clause, compel the person proceeded
against to take the witness stand without his consent.
WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed.
Without pronouncement as to costs.
|||

(Pascual, Jr. v. Board of Medical Examiners, G.R. No. L-25018, [May 26, 1969],

138 PHIL 361-369)

[G.R. No. L-19052. December 29, 1962.]

MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN,
JR., and THE CITY FISCAL OF MANILA, respondents.
Francisco Carreon for petitioner.
Assistant City Fiscal Manuel T . Reyes for respondents City of Manila.
SYLLABUS
1. ANTI-GRAFT LAW; FORFEITURE OF UNEXPLAINED WEALTH; NATURE OF
FORFEITURE AS PENALTY. The purpose of the charge against petitioner is
to apply the provisions of Republic Act No. 1379, as amended, otherwise known
as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a
public officer or employee which is manifestly out of proportion to his salary as
such public officer or employee and his other lawful income and the income from
legitimately acquired property. Such forfeiture has been held, however, to partake
of the nature of a penalty.
2. ID.; EXEMPTION OF DEFENDANTS FROM OBLIGATION TO BE WITNESS
AGAINST THEMSELVES. Proceedings for forfeiture of property are deemed
criminal or penal, and hence, the exemption of defendants in criminal cases from
the obligation to be witness against themselves are applicable thereto.
3. ID.; FORFEITURE OF PROPERTY IN SUBSTANCE IS A CRIMINAL
PROCEEDING FOR THE PURPOSE OF PROTECTION OF THE RIGHTS OF
THE DEFENDANT AGAINST SELF-INCRIMINATION; CASE OF BOYD vs. U.S.
and THURSTON vs. CLARK, CITED. In Boyd vs. U.S. (116 U.S. 616, 29 L.
ed., 746), it was held that the information, in a proceeding to declare a forfeiture
of certain property because of the evasion of a certain revenue law,
"though technically a civil proceeding, is in substance and effect a criminal one",
and that suits for penalties and forfeitures are within the reason of criminal
proceedings for the purposes of that portion of the Fifth Amendment of the

Constitution of the U.S. which declares that no person shall be compelled in a

criminal to be a witness against himself. Similarly, a proceeding for the removal of
an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to
be in substance criminal, for said portion of the Fifth Amendment applies "to all
cases in which the action prosecuted is not to establish, recover or
redress private and civil rights, but to try and punish persons charged with the
commission of public offenses" and "a criminal case is an action, suit or cause
instituted to punish an infraction of the criminal laws, and, with this object in
view, it matters not in what form a statute may clothe it; it is still a criminal
case . . . ."
4. ID.; ID.; CASE OF ALMEDA vs. PEREZ, DISTINGUISHED. In Almeda vs.
Perez, L-18428 (August 30, 1962) the theory that, after the filing of respondents'
answer to a petition for forfeiture under Republic Act No. 1379, said petition may
not be amended as to substance pursuant to our rules of criminal procedure, was
rejected by this Court upon the ground that said forfeiture proceeding is civil in
nature. This doctrine refers, however, to the purely procedural aspect of said
proceeding, and has no bearing on the substantial rights of the respondents
therein, particularly their constitutional right against self-incrimination.

DECISION

CONCEPCION, J :
p

This is an original petition for certiorari and prohibition with preliminary injunction,
to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court of First Instance
of Manila, from further proceeding in Criminal Case No. 60111 of said court, and
to set aside an order of said respondent, as well as the whole proceedings in said
criminal case.
On or about August 2, 1961, Col. Jose C. Maristela of the Philippine Army filed
with the Secretary of National Defense a letter-complaint charging petitioner

Manuel F. Cabal, then Chief of Staff of the Armed Forces of the Philippines, with
"graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer
and gentleman, dictatorial tendencies, giving false statements of his assets and
liabilities in 1958 and other equally reprehensible acts". On September 6, 1961,
the President of the Philippines created a committee of five (5) members,
consisting of former Justice Marceliano R. Montemayor, as Chairman, former
Justices Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J.
Valdez and Guillermo B. Francisco, to investigate the charge of unexplained
wealth

contained

in

said

letter-complaint

and

submit

its

report

and

recommendations as soon as possible. At the beginning of the investigation, on

September 15, 1961, the Committee, upon request of complainant, Col.
Maristela, ordered petitioner herein to take the witness stand and be sworn to as
witness for Maristela, in support of his aforementioned charge of unexplained
wealth. Thereupon, petitioner objected, personally and through counsel, to said
request of Col. Maristela and to the aforementioned order of the Committee,
invoking his constitutional right against self-incrimination. The Committee insisted
that petitioner take the witness stand and be sworn to, subject to his right to
refuse to answer such questions as may be incriminatory. This notwithstanding,
petitioner respectfully refused to be sworn to as a witness or take the witness
stand. Hence, in a communication dated September 18, 1961, the Committee
referred the matter to respondent City Fiscal of Manila, for such action as he may
deem proper. On September 28, 1961, the City Fiscal filed with the Court of First
Instance of Manila a "charge" reading as follows:
"The undersigned hereby charges Manuel F. Cabal with contempt under
section 580 of the Revised Administrative Code in relation to sections 1
and 7, Rule 64 of the Rules of Court, committed as follows:
That on or about September 15, 1961, in the investigation
conducted at the U.P. Little Theater, Padre Faura, Manila, by the
Presidential Committee, which was created by the President of
the Republic of the Philippines in accordance with law to
investigate the charges of alleged acquisition by respondent of

unexplained wealth and composed of Justice Marceliano

Montemayor, as Chairman, and Justices Buenaventura Ocampo
and Sotero Cabahug and Generals Basilio Valdez and Guillermo
Francisco, as members, with the power, among others, to compel
the attendance of witnesses and take their testimony under oath,
respondent who was personally present at the time before the
Committee in compliance with a subpoena duly issued to him, did
then and there willfully, unlawfully, and contumaciously, without
any justifiable cause or reason, refuse and fail and still refuse and
fail to obey the lawful order of the Committee to take the witness
stand, be sworn and testify as witness in said investigation, in
utter disregard of the lawful authority of the Committee and
thereby obstructing and degrading the proceedings before said
body.'
"Wherefore, it is respectfully prayed that respondent be summarily
adjudged guilty of contempt of the Presidential Committee and
accordingly disciplined as in contempt of court by imprisonment until
such time as he shall obey the subject order of said Committee."

This charge, docketed as Criminal Case No. 60111 of said court, was assigned
to Branch XVIII thereof, presided over by respondent Judge. On October 2, 1961,
the latter issued an order requiring petitioner to show cause and/or answer the
charge filed against him within ten (10) days. Soon thereafter, or on October 4,
1961, petitioner filed with respondent Judge a motion to quash the charge and/or
order to show cause, upon the ground: (1) that the City Fiscal has neither
authority nor personality to file said charge and the same is null and void, for, if
criminal, the charge has been filed without a preliminary investigation, and, if civil,
the City Fiscal may not file it, his authority in respect of civil cases being limited to
representing the City of Manila; (2) that the facts charged constitute no offense,
for section 580 of the Revised Administrative Code, upon which the charge is
based, violates due process, in that it is vague and uncertain as regards the
offense therein defined and the fine imposable therefor and that it fails to specify

whether said offense shall be treated as contempt of an inferior court or of a

superior court; (3) that more than one offense is charged, for the contempt
imputed to petitioner is sought to be punished as contempt of an inferior court, as
contempt of a superior court and as contempt under section 7 of Rule 64 of the
Rules of Court; (4) that the Committee had no power to order and require
petitioner to take the witness stand and be sworn to, upon the request of Col.
Maristela, as witness for the latter, inasmuch as said order violates petitioner's
constitutional right against self-incrimination.
By resolution dated October 14, 1961, respondent Judge denied said motion to
quash. Thereupon, or on October 20, 1961, petitioner began the present action
for the purpose adverted to above, alleging that, unless restrained by this Court,
respondent Judge may summarily punish him for contempt, and that such action
would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation being
conducted by the Committee above referred to is administrative, not criminal, in
nature; that the legal provision relied upon by petitioner in relation to preliminary
investigations (Section 38-C, Republic Act No. 409, as amended by Republic Act
No. 1201) is inapplicable to contempt proceedings; that, under section 580, of the
Revised Administrative Code, contempt against an administrative officer is to be
dealt with as contempt of a superior court; that petitioner herein is charged with
only one offense; and that, under the constitutional guarantee against selfincrimination, petitioner herein may refuse, not to take the witness stand, but to
answer incriminatory questions.
At the outset, it is not disputed that the accused in a criminal case may refuse,
not only to answer incriminatory questions, but, also, to take the witness stand (3
Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the
issue before us boils down to whether or not the proceedings before the
aforementioned Committee is civil or criminal in character.

In this connection, it should be noted that, although said Committee was created
to investigate the administrative charge of unexplained wealth, there seems to be
no question that Col. Maristela does not seek the removal of petitioner herein as
Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he no
longer holds such office. It seems, likewise, conceded that the purpose of the
charge against petitioner is to apply the provisions of Republic Act No. 1379, as
amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture
to the State of property of a public officer or employee which is manifestly out of
proportion to his salary as such public officer or employee and his other lawful
income and the income from legitimately acquired property. Such forfeiture has
been held, however, to partake of the nature of a penalty.
"In a strict signification, a forfeiture is a divestiture of property without
compensation, in consequence of a default or an offense, and the term
is used in such a sense in this article. A forfeiture, as thus defined, is
imposed by way ofpunishment not by the mere convention of the parties,
but by the lawmaking power, to insure a prescribed course of conduct. It
is a method deemed necessary by the legislature to restrain the
commission of an offense and to aid in the prevention of such an
offense. The effect of such a forfeiture is to transfer the title to the
specific thing from the owner to the sovereign power (23 Am. Jur. 599)
(Emphasis ours.)
"In Black's Law Dictionary a 'forfeiture' is defined to be 'the incurring of a
liability to pay a definite sum of money as the consequence of violating
the provisions of some statute or refusal to comply with some
requirement of law.' It may be said to be a penalty imposed for
misconduct or breach of duty.'" (Com. vs. French, 114 S.W. 255.)

As a consequence, proceedings for forfeiture of property are deemed criminal or

penal, and, hence, the exemption of defendants in criminal case from the
obligation to be witnesses against themselves are applicable thereto.

"Generally speaking, informations for the forfeiture of goods that seek no

judgment of fine or imprisonment against any person are deemed to be
civil proceedings in rem. Such proceedings are criminal in nature to the
extent that where the person using the res illegally is the owner of rightful
possessor of it, the forfeiture proceeding is in the nature of a
punishment. They have been held to be so far in the nature
of criminal proceedings that a general verdict on several counts in an
information is upheld if one count is good. According to the authorities
such proceedings, where the owner of the property appears, are so far
considered as quasicriminal proceedings as to relieve the owner from
being a witness against himself and to prevent the compulsory
production of his books and papers. . . ." (23 Am. Jur. 612; Emphasis
ours.)
"Although the contrary view formerly obtained, the later decisions are to
the effect that suits for forfeitures incurred by the commission of offenses
against the law are so far of a quasi-criminal nature as to be within the
reason of criminal proceedings for all purposes of . . . that portion of the
Fifth Amendment which declares that no person shall be compelled in
any criminal case to be a witness against himself . . . . It has frequently
been held upon constitutional grounds under the various State
Constitution that a witness or party called as a witness cannot be made
to testify against himself as to matters which would subject his property
to forfeiture. At early common law no person could be compelled to
testify against himself or to answer any question which would have had a
tendency to expose his property to a forfeiture, or to form a link in a
chain of evidence for that purpose as well as to incriminate him. Under
this common-law doctrine of protection against compulsory disclosures
which would tend to subject the witness to a forfeiture, such protection
was claimed and availed of in some early American cases without
placing the basis of the protection upon constitutional grounds." (23 Am.
Jur. 616; Emphasis ours.)

"Proceedings for forfeitures are generally considered to be civil and in

the nature of proceedings in rem. The statute providing that no judgment
or other proceedings in civil cases shall be arrested or reversed for any
defect or want of form is applicable to them. In some aspects, however,
suits for penalties and forfeitures are of quasi-criminal nature and within
the reason of criminal proceedings for all the purposes of . . . that portion
of the Fifth Amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself . The
proceeding is one against the owner, as well as against the goods; for it
is his breach of the laws which has to be proved to establish the
forfeiture and his property is sought to be forfeited." (15 Am. Jur., Sec.
104, p. 368; Emphasis ours.)
"The rule protecting a person from being compelled to furnish evidence
which would incriminate him exists not only when he is liable criminally to
prosecution and punishment, but also when his answer would tend to
expose him to a . . .forfeiture . . . (58 Am. Jur., Sec. 43, p. 48; Emphasis
ours.)
"As already observed, the various constitutions provide that no person
shall be compelled in any criminal case to be a witness against himself.
This prohibition against compelling a person to take the stand as a
witness against himself applies only to criminal, quasi-criminal, and
penal proceedings, including a proceeding civil in form for forfeiture of
property by reason of the commission of an offense, but not a
proceeding in which the penalty recoverable is civil or remedial in nature,
. . ." (58 Am. Jur., Sec. 44, p. 49; Emphasis ours.)
"The privilege of a witness not to incriminate himself is not infringed by
merely asking the witness a question which he refuses to answer. The
privilege is simply an option of refusal, and not a prohibition of inquiry. A
question is not improper merely because the answer may tend to
criminate but, where a witness exercises his constitutional right not to
answer, a question by counsel as to whether the reason for refusing to

answer is because the answer may tend to incriminate the witness is

improper.
"The possibility that the examination of the witness will be pursued to the
extent of requiring self incrimination will not justify the refusal to answer
questions. However, where the position of the witness is virtually that of
an accused on trial, it would appear that he may invoke the privilege in
support of a blanket refusal to answer one and all questions." (98 C.J.S.,
p. 252; Emphasis ours.)
"A person may not be compelled to testify in an action against him for a
penalty or to answer any question as a witness which would subject him
to a penalty or forfeiture, where the penalty or forfeiture is imposed as a
vindication of the public justice of the state.
"In general, both at common law and under a constitutional provision
against compulsory self-incrimination, a person may not be compelled to
answer any question as a witness which would subject him to a penalty
or forfeiture, or testify in an action against him for a penalty.
"The privilege applies where the penalty or forfeiture is recoverable, or is
imposed in vindication of the public justice of the state, as a statutory
fine or penalty, or a fine or penalty for violation of a municipal ordinance,
even though the action or proceeding for its enforcement is not brought
in a criminal court but is prosecuted through the modes of procedure
applicable to an ordinary civil remedy." (98 C.J.S., pp. 275-6.)

Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the
information, in a proceeding to declare a forfeiture of certain property because of
the evasion of a certain revenue law, "though technically a civil proceeding, is in
substance and effect a criminal one", and that suits for penalties and forfeitures
are within the reason of criminal proceedings for the purposes of that portion of
the Fifth Amendment of the Constitution of the U.S. which declares that no
person shall be compelled in a criminal case to be a witness against himself.
Similarly, a proceeding for the removal of an officer was held, in Thurston vs.

Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion
of the Fifth Amendment applies "to all cases in which the action prosecuted is not
to establish, recover or redress private and civil rights, but to try and punish
persons charged with the commission of public offenses" and "a criminal case is
an action, suit or cause instituted to punish an infraction of the criminal laws, and,
with this object in view, it matters not in what form a statute may clothe it; it is still
a criminal case . . .". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed.
1150-1151). Hence, the Lawyers Reports Annotated (Vol. 29, p. 8), after an
extensive examination of pertinent cases, concludes that said constitutional
provision applies whenever the proceeding is not "purely remedial", or intended
"as a redress for a private grievance", but primarily to punish "a violation of duty
or a public wrong and to deter others from offending in a like manner . . ."
We are not unmindful of the doctrine laid down in Almeda vs. Perez, L-18428
(August 30, 1962) in which the theory that, after the filing of respondents' answer
to a petition for forfeiture under Republic Act No. 1379, said petition may not be
amended as to substance pursuant to our rules of criminal procedure, was
rejected by this Court upon the ground that said forfeiture proceeding is civil in
nature. This doctrine refers, however, to the purely procedural aspect of said
proceeding, and has no bearing on the substantial rights of the respondents
therein, particularly their constitutional right against self-incrimination.
WHEREFORE, the writ prayed for is granted and respondent Judge hereby
enjoined permanently from proceeding further in Criminal Case No. 60111 of the
Court of First Instance of Manila. It is so ordered.
|||

(Cabal v. Capunan, G.R. No. L-19052, [December 29, 1962], 116 PHIL 1361-

1370)

[G.R. No. 32025. September 23, 1929.]

FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge
of the Second Judicial District, and FRANCISCO JOSE,
Provincial Fiscal of Isabela, respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
SYLLABUS
1. CRIMINAL

PROCEDURE;

COMPULSORY

APPEARANCE

OF

WITNESSES AT FISCAL'S INVESTIGATIONS; REFUSAL OF WITNESS TO

WRITE FROM DICTATION. The fiscal under section 1687 of the
Administrative Code, and the competent judge, at the request of the fiscal,
may compel witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice to the
constitutional rights of persons cited to appear. The petitioner, in refusing to
write down what the fiscal had to dictate to him for the purpose of verifying his
handwriting and determining whether he had written certain documents
alleged to have been falsified, seeks protection his constitutional privilege.
2. ID.; RIGHTS OF DEFENDANT; TEXT OF CONSTITUTIONAL
PROVISION. The right was promulgated, both in the Organic Law of the
Philippines of July 1, 1902 and in paragraph 3, section 3 of the Jones Law,
which provides (in Spanish); "Ni se le obligara (defendant) a declarar en
contra suya en ningun proceso criminal," and recognized in our Criminal
Procedure (General Orders, No. 58) in section 15 (No. 4) and section 56. The
English text of the Jones Law reads as follows; "Nor shall he be compelled in
any criminal case to be a witness against himself," thus, the prohibition is not
restricted to not compelling him to testify, but extends to not compelling him to
be a witness.

3. ID.; ID.; SCOPE OF CONSTITUTIONAL PRIVILEGE. "The rights

intended to be protected by the constitutional provision that no man accused
of crime shall be compelled to be a witness against himself is so sacred, and
the pressure toward their relaxation so great when the suspicion of guilt is
strong and the evidence obscure, that it is the duty of courts liberally to
construe the prohibition in favor of personal rights, and to refuse to permit any
steps tending toward their invasion. Hence, there is the well-established
doctrine that the constitutional inhibition is directed not merely to giving of oral
testimony, but embraced as well the furnishing of evidence by other means
than by word of mouth, the divulging, in short, of any fact which the accused
has a right to hold secret." (28 R. C. L., par. 20, page 434, and notes.)
4. ID.; ID.; CASES INAPPLICABLE. There have been cases where it
was lawful to compel the accuse to write in open court while he was under
cross-examination (Bradford vs. People, 43 Pacific Reporter, 1013), and to
make him write his name with his consent during the trial of his case
(Sprouse vs. Com., 81 Va., 374, 378); but in the first case, the defendant, in
testifying as witness in his own behalf waived his constitutional privilege not to
be compelled to act as witness; and in the second, he also waived said
privilege because he acted voluntarily.
5. ID.; ID.; PREPARATION AND CREATION OF EVIDENCE BY
TESTIMONIAL ACT. This constitutional prohibition embraces the
compulsory preparation and creation by a witness of self-incriminatory
evidence by means of a testimonial act. "For though the disclosure thus
sought" (the production of documents and chattels) "be not oral in form, and
thought the documents or chattels be already in existence and not desired to
be first written and created by a testimonial act or utterance of the person in
response to the process, still no line can be drawn short of any process which
treats him as a witness; because in virtue of it he would be at any time liable
to make oath to the identity or authenticity or origin of the articles produced."
(4 Wigmore on Evidence, 864, 865, latest edition.) IN the case before us,
writing is something more than moving the body, or hand, or fingers; writing is

not purely mechanical act; it requires the application of intelligence and

attention; writing means for the petitioner here to furnish, through a testimonial
act, evidence against himself.
6. ID.; ID.; PROSECUTION OF CRIMES; PRIVILEGE, REASON FOR
EXISTENCE OF. It cannot be contended in the present case that if
permission to obtain a specimen of the petitioner's handwriting is not granted,
the crime would go unpunished. The petitioner is a municipal treasurer, and it
should not be difficult for the fiscal to obtain a genuine specimen of his
handwriting by some other means. But even supposing that it is impossible to
secure such specimen without resorting to the means herein complained of by
the petitioner, that is no reason for trampling upon a personal right guaranteed
by the constitution. It might be true that in some cases criminals may succeed
in evading the hand of justice, but such cases are accidental and do not
constitute the raison d'etre of the privilege. This constitutional privilege exists
for the protection of innocent persons.
7. ID.; ID.; DISTINCTION BETWEEN VILLAFLOR-SUMMERS CASE
AND CASE AT BAR. The difference between this case and that of
Villaflor vs. Summers (41. Phil., 620, is that in the latter the object was to have
the petitioner's body examined by physicians, without being compelled to
perform a positive act, but only an omission, that is, not to prevent the
examination, which could be, and was, interpreted by this court as being no
compulsion of the petitioner to furnish evidence by means of a testimonial act;
all of which is entirely different from the case at bar, where it is sought to make
the petitioner perform a positive testimonial act, silent, indeed, but effective,
namely, to write and give a sample of his handwriting for comparison.

DECISION

ROMUALDEZ, J :
p

This is a petition for a writ of prohibition, wherein the petitioner

complains that the respondent judge ordered him to appear before the
provincial fiscal to take dictation in his won handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether or not it is he
who wrote certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaints filed in
these proceedings; but the respondents contend that the petitioner is not
entitled to the remedy applied for, inasmuch as the order prayed for by the
provincial fiscal and later granted by the court below, and against which the
instance action was brought, is based on the provisions of section 1687 of the
Administrative Code and on the doctrine laid down in the cases of
People vs.Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145);
United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by
the judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code, and
the proper judge, upon motion of the fiscal, may compel witnesses to be
present at the investigation of any crime of misdemeanor. But this power must
be exercised without prejudice to the constitutional rights of persons cited to
appear.
And the petitioner, in refusing to perform what the fiscal demanded,
seeks refuge in the constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether
the constitutional provision invoked by the petitioner prohibits compulsion to
execute what is enjoined upon him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law
which (in Spanish) reads: "Ni se le obligara a declarar en contra suya en

ningun proceso criminal" and has been incorporated in our Criminal

Procedure (General Orders, No. 58) in section 15 (No. 4) and section 56.
As to the extent of this privilege, it should be noted first of all, that the
English text of the Jones Law, which is the original one, reads as follows: "Nor
shall he be compelled in any criminal case to be a witness against himself."
This text is not limited to declaracion but says "to be a witness."
Moreover, as we are concerned with a principle contained both in the Federal
constitution and in the constitutions of several states of the United States, but
expressed differently, we should take it that these various phrasings have a
common conception.
"In the interpretation of the principle, nothing turns upon the
variations of wordings in the constitutional clauses; this much is
conceded (ante, par. 2252). It is therefore immaterial that the witness is
protected by one Constitution from 'testifying,' or by another from
'furnishing evidence,' or by another from 'giving evidence,' or by still
another from 'being a witness.' These various phrasings have a common
conception, in respect to the form of the protected disclosure. What is
that conception?" (4 Wigmore on Evidence, p. 863, 1923 ed.)

As to its scope, this privilege is not limited precisely to testimony, but

extends to all giving or furnishing of evidence.
"The rights intended to be protected by the constitutional provision
that no man accused of crime shall be compelled to be a witness against
himself is so sacred, and the pressure toward their relaxation so great
when the suspicion of guilt is strong and the evidence obscure, that it is
the duty of courts liberally to construe the prohibition in favor of personal
rights, and to refuse to permit any steps tending toward their invasion.
Hence, there is the well-established doctrine that the constitutional
inhibition is directed not merely to giving of oral testimony, but embraces
as well the furnishing of evidence by other means than by word of
mouth, the divulging, in short, of any fact which the accused has a right

to hold secret." (28 R. C. L., paragraph 20, page 434 and notes.) (Italics
ours.)

The question, then, is reduced to a determination of whether the writing

from the fiscal's dictation by the petitioner for the purpose of comparing the
latter's handwriting and determining whether he wrote certain documents
supposed to be falsified, constitutes evidence against himself within the scope
and meaning of the constitutional provision under examination.
Whenever a defendant, at the trial of his case, testifying in his own
behalf, denies that a certain writing or signature is in his own hand, he may on
cross-examination but compelled to write in open court in order that the jury
may be able to compare his handwriting with the one in question. It was so
held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch
as the defendant, in offering himself as witness in his own behalf, waived his
personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374, 378),
where the judge asked the defendant to write his name during the hearing,
and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before
us. We are not concerned here with a defendant, for it does not appear that
any information was filed against the petitioner for the supposed falsification,
and still less is it a question of a defendant on trial testifying and under crossexamination. This is only an investigation prior to the information and with a
view to filing it. And let it further be noted that in the case of
Sprouse vs. Com., the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of
writing of the defendant was obtained before the criminal action was instituted
against him. We refer to the case of People vs. Molineux (61 Northeastern
Reporter, 286).

Neither may it be applied to the instant case, because there, as in the

aforesaid case of Sprouse vs. Com., the defendant voluntarily offered to write,
to furnish a specimen of his handwriting.
We cite this case particularly because the court there given prominence
to the defendant's right to decline to write, and to the fact that he voluntarily
wrote. The following appears in the body of said decision referred to (page
307 of the volume cited):
"The defendant had the legal right to refuse to write for Kinsley.
He preferred to accede to the latter's request, and we can discover no
ground upon which the writings thus produced can be excluded from the
case." (Italics ours.)

For this reason it was held in the case of First National Bank vs. Robert
941 Mich., 709; 3 N. W., 199), that the defendant could not be compelled to
write his name, the doctrine being stated as follows:
"The defendant being sworn in his own behalf denied the
indorsement.
"He was then cross-examined and questioned in regard to his
having signed papers not in the case, and was asked in particular
whether he would not produce signatures made prior to the note in suit,
and whether he would not write his name there in court. The judge
excluded all these inquiries, on objection, and it is our these rulings that
complaint is made. The object of the questions was to bring into the case
extrinsic signatures, for the purpose of comparison by the jury, and we
think the judge was correct in ruling against it."

It is true that the eminent Professor Wigmore, in his work cited (volume
4, page 878), says:
"Measuring or photographing the party is not within the privilege.
Nor is the removal or replacement of his garments or shoes. Nor is the
requirement that the party move his body to enable the foregoing things
to be done. Requiring him to make specimens of handwriting is no more

than requiring him to move his body . . ." but he cites no case in support
of his last assertion on specimens of handwriting. We noted that in the
same paragraph 2265, where said author treats of "Bodily Exhibition,"
and under proposition "1. A great variety of concrete illustrations have
been ruled upon," he cites many cases, among them that of
People vs. Molineux (61 N. E., 286) which, as we have seen, has no
application to the case at bar because there the defendant voluntarily
gave specimens of his handwriting, while here the petitioner refuses to
do so and has even instituted these prohibition proceedings that he may
not be compelled to do so.

Furthermore, in the case before us, writing is something more than

moving the body, or the hand, or the fingers; writing is not a purely mechanical
and attention; and in the case at bar writing means that the petitioner herein is
to furnish a means to determine or not he is the falsifier, as the petition of the
respondent fiscal clearly states. Except that it is more serious, we believe the
present case is similar to that of producing documents of chattels in one's
possession. And as to such production of documents or chattels, which to our
mind is not so serious as the case now before us, the same eminent Professor
Wigmore, in his work cited, says (volume 4, page 864):
". . . 2264, Production or Inspection of Documents and Chattels.
1. It follows that the production of documents or chattels by a person
(whether ordinary witness or party-witness) in response to a subpoena,
or to a motion to order production, or to other form of process treating
him as a witness (i. e. as a person appearing before the tribunal to
furnish testimony on his moral responsibility for truth- telling), may be
refused under the protection of the privilege; and this is universally
conceded." (And he cites the case of People vs. Gardner, 144 N. Y., 119,
38 N. E., 1003.)

We say that, for the purposes of the constitutional privilege, there is a

similarity between one who is compelled to produce a document, and one who

is compelled to furnish a specimen of his handwriting, for in both cases, the

witness is required to furnish evidence against himself.
And we say that the present case is more serious than that of
compelling the production of documents or chattels, because here the witness
is compelled to write and create, by means of the act of writing, evidence
which does not exist, and which may identify him as the falsifier. And for this
reason the same eminent author, Professor Wigmore, explaining the matter of
the production of documents and chattels, in the passage cited, adds:
"For though the disclosure thus sought be not oral in form, and though
the documents or chattels be already in existence and not desired to be first
written and created by a testimonial act or utterance of the person in response
to the process, still no line can be drawn short of any process which treats him
as a witness; because in virtue of it he would be at any time liable to make
oath to the identity of authenticity or origin of the articles produced." (Ibid., pp.
864-865.) (Italics ours.)
It cannot be contended in the present case that if permission to obtain a
specimen of the petitioner's handwriting is not granted, the crime would go
unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal
to obtain genuine specimens of his handwriting. But even supposing it is
impossible to obtain a specimen or specimens without resorting to the means
complained of herein, that is not reason for trampling upon a personal right
guaranteed by the constitution. It might be true that in some cases criminals
may succeed in evading the hand of justice, but such cases are accidental
and do not constitute the raison d'etre of the privilege. This constitutional
privilege exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf
of the respondents, it should be remembered that in the case of
People vs. Badilla (48 Phil., 718), it does not appear that the defendants and
other witnesses were questioned by the fiscal against their will, and if they did

not refuse to answer, they must be understood to have waived their

constitutional privilege, as they could certainly do.
"The privilege not to give self-incriminating evidence, while
absolute when claimed, may be waived by any one entitled to invoke it."
(28 R. C. L., paragraph 29, page 442, and cases noted.)

The same holds good in the case of United States vs. Tan Teng (23
Phil., 145), where the defendant did not oppose the extraction from his body of
the substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated
that the court preferred to rest its decision on the reason of the case rather
than on blind adherence to tradition. The said reason of the case there
consisted in that it was a case of the examination of the body by physicians,
which could be and doubtless was interpreted by this court, as being no
compulsion of the petitioner therein to furnish evidence by means of
a testimonial act. In reality she was not compelled to execute any position act,
much less a testimonial act; she was only enjoined from something,
preventing the examination; all of which is very different from what is required
of the petitioner in the present case, where it is sought to compel his to
perform a positive, testimonial act, to write and give a specimen of his
handwriting for the purpose of comparison. Beside, in the case of
Villaflor vs. Summers, it was sought to exhibit something already in existence,
while in the case at bar, the question deals with something not yet in
existence, and it is precisely sought to compel the petitioner to make, prepare,
or produce by means, evidence not yet in existence; in short, to create this
evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to the case
of United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
to compelled to perform any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify or to be a witness
or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.

Wherefore, we find the present action well taken, and it is ordered that
the respondents and those under their orders desist and abstain absolutely
and forever from compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for comparison.
|||

(Beltran v. Samson, G.R. No. 32025, [September 23, 1929], 53 PHIL 570-579)

[G.R. No. 7081. September 7, 1912.]

THE

UNITED

STATES, plaintiff-appellee, vs.

TAN

TENG, defendant-appellant.
Chas. A. McDonough for appellant.
Solicitor-General Harvey for appellee.
SYLLABUS
1. RAPE; "ABUSOS DESHONESTOS." Held: Under the facts stated
in the opinion, that the defendant is guilty of the crime of "abusos
deshonestos" and that the crime was committed in the house of the offended
party, and that therefore the maximum penalty of the law of six years
of prision correccional and the costs should be imposed.
2. ID.; ADMISSIBILITY OF EVIDENCE; RIGHT OF ACCUSED. At
the time of the arrest of the defendant he was apparently suffering from some
private disorder. A portion of the substance was taken and scientifically
examined, with the result that such substance showed that he was actually
suffering from the venereal disease known as gonorrhea. The result of the
scientific examination was offered in evidence, during the trial of the cause.
The defendant objected to the admissibility of such evidence upon the ground
that it was requiring him to give testimony against himself. The objection was
overruled upon the ground that "the accused was not compelled to make any
admission or answer any questions, and the mere fact that an object found
upon his person was examined seems no more to infringe the rule invoked,
than would the introduction of stolen property taken from the person of a
thief." The substance was taken from the body of the defendant without his
objection. The examination of the substance was made by competent medical
authority and the result showed that the defendant was suffering from said
disease. Such evidence was clearly admissible. The prohibition against

compelling a man in a criminal cause to be a witness against himself is a

prohibition against physical or moral compulsion to extort communications
from him, and not an exclusion of his body as evidence, when it may be
material. The prohibition contained in the Philippine Bill (sec. 5) chat a person
shall not be compelled to be a witness against himself, is simply a prohibition
against legal process to extract from the defendant's own lips, against his will,
an admission of his guilt.

DECISION

JOHNSON, J :
p

This defendant was charged with the crime of rape. The complaint
alleged:
"That on or about September 15, 1910, and before the filing of
this complaint, in the city of Manila, Philippine Islands, the said Tan Teng
did willfully, unlawfully and criminally, and employing force, lie and have
carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age."

After hearing the evidence, the Honorable Charles S. Lobingier, judge,

found the defendant guilty of the offense of abusos deshonestos, as defined
and punished under article 439 of the Penal Code, and sentenced him to be
imprisoned for a period of 4 years 6 months and 11 days of prison
correccional, and to pay the costs.
From that sentence the defendant appealed and made the following
assignments of error in this court:
"I. The lower court erred in admitting the testimony of the
physicians about having taken a certain substance from the body of the
accused while he was confined in jail and regarding the chemical
analysis made of the substance to demonstrate the physical condition of
the accused with reference to a venereal disease.

"II. The lower court erred in holding that the complainant was
suffering from a venereal disease produced by contact with a sick man.
"III. The court erred in holding that the accused was suffering from
a venereal disease.
"IV. The court erred in finding the accused guilty from the
evidence."

From an examination of the record it appears that the offended party,

Oliva Pacomio, a girl seven years of age, was, on the 15th day of September,
1910, staying in the house of her sister, located on Ilang-Ilang Street, in the
city of Manila; that on said day a number of Chinamen were gambling in or
near the said house; that some of said Chinamen had been in the habit of
visiting the house of the sister of the offended party; that Oliva Pacomio, on
the day in question, after having taken a bath, returned to her room; that the
defendant followed her into her room and asked her for some face powder,
which she gave him; that after using some of the face powder upon his private
parts, he threw the said Oliva upon the floor, placing his private parts upon
hers, and remained in the position for some little time. Several days later,
perhaps a week or two, the sister of Oliva Pacomio discovered that the latter
was suffering from a venereal disease known as gonorrhea. It was at the time
of this discovery that Oliva related to her sister what had happened upon the
morning of the 15th of September. The sister at once put on foot an
investigation to find the Chinaman. A number of Chinamen were collected
together. Oliva was called upon to identify the one who had abused her. The
defendant was not present at first. Later he arrived and Oliva identified him at
once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the
police station and stripped of his clothing and examined. The policeman who
examined the defendant swore that his body bore every sign of the fact that he
was suffering from the venereal disease known as gonorrhea. The policeman
took a portion of the substance emitting from the body of the defendant and
turned it over to the Bureau of Science for the purpose of having a scientific

analysis made of the same. The result of the examination showed that the
defendant was suffering from gonorrhea.
During the trial the defendant objected strongly to the admissibility of
the testimony of Oliva, on the ground that because of her tender years her
testimony should not be given credit. The lower court, after carefully
examining her with reference to her ability to understand the nature of an oath,
held that she had sufficient intelligence and discernment to justify the court in
accepting her testimony with full faith and credit. With the conclusion of the
lower court, after reading her declaration, we fully concur.
The defense in the lower court attempted to show that the venereal
disease of gonorrhea might be communicated in ways other than by contact
such as is described in the present case, and called medical witnesses for the
purpose of supporting that contention. Judge Lobingier, in discussing that
question said:
"We shall not pursue the refinement of speculation as to whether
or not this disease might, in exceptional cases, arise from other than
carnal contact. The medical experts, as well as the books, agree that in
ordinary cases it arises from that cause, and if this was an exceptional
one, we think it was incumbent upon the defense to bring it within the
exception."

The offended party testified that the defendant had rested his private
parts upon hers for some moments. The defendant was found to be suffering
from gonorrhea. The medical experts who testified agreed that this disease
could have been communicated from him to her by the contact described.
Believing as we do the story told by Oliva, we are forced to the conclusion that
the disease with which Oliva was suffering was the result of the illegal and
brutal conduct of the defendant. Proof, however, that Oliva contracted said
obnoxious disease from the defendant is not necessary to show that he is
guilty of the crime. It is only corroborative of the truth of Oliva's declaration.

The defendant attempted to prove in the lower court that the

prosecution was brought for the purpose of compelling him to pay to the sister
of Oliva a certain sum of money.
The defendant testified and brought other Chinamen to support his
declaration, that the sister of Oliva threatened to have him prosecuted if he did
not pay her the sum of P60. It seems impossible to believe that the sister, after
having become convinced that Oliva had been outraged in the manner
described above, would consider for a moment a settlement for the paltry sum
of P60. Honest women do not consent to the violation of their bodies nor
those of their near relatives, for the filthy consideration of mere money.
In the court below the defendant contended that the result of the
scientific examination made by the Bureau of Science of the substance taken
from his body, at or about the time he was arrested, was not admissible in
evidence as proof of the fact that he was suffering from gonorrhea. That to
admit such evidence was to compel the defendant to testify against himself.
Judge Lobingier, in discussing that question in his sentence, said:
"The accused was not compelled to make any admissions or
answer any questions, and the mere fact that an object found on his
person was examined; seems no more to infringe the rule invoked, than
would the introduction in evidence of stolen property taken from the
person of a thief."

The substance was taken from the body of the defendant without his
objection, the examination was made by competent medical authority and the
result showed that the defendant was suffering from said disease. As was
suggested by Judge Lobingier, had the defendant been found with stolen
property upon his person, there certainly could have been no question had the
stolen property been taken for the purpose of using the same as evidence
against him. So also if the clothing which he wore, by reason of blood stains or
otherwise, had furnished evidence of the commission of a crime, there
certainly could have been no objection to taking such for the purpose of using
the same as proof. No one would think of even suggesting that stolen property

and the clothing in the case indicated, taken from the defendant, could not be
used against him as evidence, without violating the rule that a person shall not
be required to give testimony against himself.
The question presented by the defendant below and repeated in his first
assignment of error is not a new question, either to the courts or authors. In
the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the
court upon this question, said:

"But the prohibition of compelling a man in a criminal court to be a

witness against himself, is a prohibition of the use of physical or moral
compulsion, to extort communications from him, not an exclusion of his
body as evidence, when it may be material. The objection, in principle,
would forbid a jury (court) to look at a person and compare his features
with a photograph in proof. Moreover we are not considering how far a
court would go in compelling a man to exhibit himself, for when he is
exhibited, whether voluntarily or by order, even if the order goes too far,
the evidence if material, is competent."

The question which we are discussing was also discussed by the

supreme court of the State of New Jersey, in the case of State vs. Miller (71 N.
J) Law Reports, 527). In that case the court said, speaking through its
chancellor:
"It was not erroneous to permit the physician of the jail in which
the accused was confined, to testify to wounds observed by him on the
back of the hands of the accused, although he also testified that he had
the accused removed to a room in another part of the jail and divested of
his clothing. The observation made by the witness of the wounds on the
hands and testified to by him, was in no sense a compelling of the
accused to be a witness against himself. If the removal of the clothes
had been forcible and the wounds had been thus exposed, it seems that
the evidence of their character and appearance would not have been
objectionable."

In that case also (State vs. Miller) the defendant was required to place
his hand upon the wall of the house where the crime was committed, for the
purpose of ascertaining whether or not his hand would have produced the
bloody print. The court said, in discussing that question:
"It was not erroneous to permit evidence of the coincidence
between the hand of the accused and the bloody prints of a hand upon
the wall of the house where the crime was committed, the hand of the
accused having been placed thereon at the request of persons who were
with him in the house."

It may be added that a section of the wall containing the blood prints
was produced before the jury and the testimony of such comparison was like
that held to be proper in another case decided by the supreme court of New
Jersey in the case of Johnson vs. State (30 Vroom, N. J., Law Reports, 271).
The defendant caused the prints of the shoes to be made in the sand before
the jury, and witnesses who had observed shoe prints in the sand at the place
of the commission of the crime were permitted to compare them with what
they had observed at that place.
In that case also the clothing of the defendant was used as evidence
against him.
To admit the doctrine contended for by the appellant might exclude the
testimony of a physician or a medical expert who had been appointed to make
observations of a person who plead insanity as a defense, where such
medical testimony was against the contention of the defendant. The medical
expert must necessarily use the person of the defendant for the purpose of
making such examination. (People vs. Austin, 199 N. Y., 446.) The doctrine
contended for by the appellant would also prevent the courts from making an
examination of the body of the defendant where serious personal injuries were
alleged to have been received by him. The right of the courts in such cases to
require an exhibit of the injured parts of the body has been established by a
long line of decisions.

The prohibition contained in section 5 of the Philippine Bill that a person

shall not be compelled to be a witness against himself, is simply a prohibition
against legal process to extract from the defendant's own lips, against his will,
an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the
question before us, said:
"If, in other words, it (the rule) created inviolability not only for his
[physical control of his] own vocal utterances, but also for his physical
control in whatever form exercised, then it would be possible for a guilty
person to shut himself up in his house, with all the tools and indicia of his
crime, and defy the authority of the law to employ in evidence anything
that might be obtained by forcibly overthrowing his possession and
compelling the surrender of the evidential articles a clear reductio ad
absurdum. In other words, it is not merely compulsion that is the kernel
of the privilege, . . . but testimonial compulsion." (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit

compulsory oral examination of prisoners before trial, or upon trial, for the
purpose of extorting unwilling confessions or declarations implicating them in
the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)
The doctrine contended for by the appellant would prohibit courts from
looking at the face of a defendant even, for the purpose of disclosing his
identity. Such an application of the prohibition under discussion certainly could
not be permitted. Such an inspection of the bodily features by the court or by
witnesses, can not violate the privilege granted under the Philippine Bill,
because it does not call upon the accused as a witness it does not call
upon the defendant for his testimonial responsibility. Mr. Wigmore says that
evidence obtained in this way from the accused, is not testimony by his body
but his body itself.
As was said by Judge Lobingier:

"The accused was not compelled to make any admission or

answer any questions, and the mere fact that an object found upon his
body was examined seems no more to infringe the rule invoked than
would the introduction of stolen property taken from the person of a
thief."

The doctrine contended for by the appellant would also prohibit the
sanitary department of the Government from examining the body of persons
who are supposed to have some contagious disease.
We believe that the evidence clearly shows that the defendant was
suffering from the venereal disease, as above stated, and that through his
brutal conduct said disease was communicated to Oliva Pacomio. In a case
like the present it is always difficult to secure positive and direct proof. Such
crimes as the present are generally proved by circumstantial evidence. In
cases of rape the courts of law require corroborative proof, for the reason that
such crimes are generally committed in secret. In the present case, taking into
account the number and credibility of the witnesses, their interest and attitude
on the witness stand, their manner of testifying and the general circumstances
surrounding the witnesses, including the fact that both parties were found to
be suffering from a common disease, we are of the opinion that the defendant
did, on or about the 15th of September, 1910, have such relations as above
described with the said Oliva Pacomio, which under the provisions of article
439 of the Penal Code makes him guilty of the crime of "abusos
deshonestos," and taking into consideration the fact that the crime which the
defendant committed was done in the house where Oliva Pacomio was living,
we are of the opinion that the maximum penalty of the law should be imposed.
The maximum penalty provided for by law is six years of prison correccional.
Therefore let a judgment be entered modifying the sentence of the lower court
and sentencing the defendant to be imprisoned for a period of six years of
prision correccional, and to pay the costs. So ordered.
|||

(US v. Tan Teng, G.R. No. 7081, [September 7, 1912], 23 PHIL 145-154)

[G.R. Nos. 133254-55. April 19, 2001.]

THE

PEOPLE

OF

THE

PHILIPPINES, plaintiff-appellee, vs.

ROBERTO SALANGUIT y KO, accused-appellant.

DECISION
MENDOZA, J :
p

This is an appeal from the decision, 1 dated January 27, 1998, of the Regional
Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit
y Ko guilty of violation of 16 of Republic Act No. 6425, as amended, and
sentencing him accordingly to suffer imprisonment ranging from six (6) months
of arresto mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum, and of 8 of the same law and sentencing him for
such violation to suffer the penalty of reclusion perpetua and to pay a fine of
P700,000.00.
Charges against accused-appellant for violations of R.A. No. 6425 were filed on
December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:
That on or about the 26th day of December 1995, in Quezon City,
Philippines, the said accused, did then and there willfully, unlawfully and
knowingly possess and/or use 11.14 grams of Methamphetamine
Hydrochloride (Shabu) a regulated drug, without the necessary license
and/or prescription therefor, in violation of said law.
CONTRARY TO LAW. 2

In Criminal Case No. Q-95-64358, the information charged:

That on or about the 26th day of December 1995, in Quezon City,
Philippines, the said accused not being authorized by law to possess or
use any prohibited drug, did, then and there willfully, unlawfully and

knowingly have in his possession and under his custody and control
1,254 grams of Marijuana, a prohibited drug.

aSECAD

CONTRARY TO LAW. 3

When

arraigned

on

May

21,

1996,

accused-appellant

pleaded

not

guilty, 4 whereupon he was tried.

Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico,
forensic chemist and chief of the Physical Science Branch of the Philippine
National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the
Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of
Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence
established the following:
On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional
Trial Court, Branch 90, Dasmarias, Cavite, to search the residence of accusedappellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He
presented as his witness SPO1 Edmund Badua, who testified that as a poseurbuyer, he was able to purchase 2.12 grams of shabu from accused-appellant.
The sale took place in accused-appellant's room, and Badua saw that
the shabuwas taken by accused-appellant from a cabinet inside his room. The
application was granted, and a search warrant was later issued by Presiding
Judge Dolores L. Espaol.
At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along
with one civilian informer, went to the residence of accused-appellant to serve the
warrant. 6
The police operatives knocked on accused-appellant's door, but nobody opened
it. They heard people inside the house, apparently panicking. The police
operatives then forced the door open and entered the house. 7

After showing the search warrant to the occupants of the house, Lt. Cortes and
his group started searching the house. 8 They found 12 small heat-sealed
transparent plastic bags containing a white crystalline substance, a paper clip
box also containing a white crystalline substance, and two bricks of dried leaves
which appeared to be marijuana wrapped in newsprint 9 having a total weight of
approximately 1,255 grams. 10 A receipt of the items seized was prepared, but the
accused-appellant refused to sign it. 11
After the search, the police operatives took accused-appellant with them to
Station 10, EDSA, Kamuning, Quezon City, along with the items they had
seized. 12
PO3

Duazo

requested

laboratory

examination

of

the

confiscated

evidence. 13 The white crystalline substance with a total weight of 2.77 grams and
those contained in a small box with a total weight of 8.37 grams were found to be
positive for methamphetamine hydrochloride. On the other hand, the two bricks of
dried leaves, one weighing 425 grams and the other 850 grams, were found to be
marijuana. 14
For the defense, accused-appellant testified in his own behalf. His testimony was
corroborated by his mother-in-law, Soledad Arcano.
Accused-appellant testified that on the night of December 26, 1995, as they were
about to leave their house, they heard a commotion at the gate and on the roof of
their house. Suddenly, about 20 men in civilian attire, brandishing long firearms,
climbed over the gate and descended through an opening in the roof. 15
When accused-appellant demanded to be shown a search warrant, a piece of
paper inside a folder was waved in front of him. As accused-appellant fumbled for
his glasses, however, the paper was withdrawn and he had no chance to read
it. 16
Accused-appellant claimed that he was ordered to stay in one place of the house
while the policemen conducted a search, forcibly opening cabinets and taking his

bag containing money, a licensed .45 caliber firearm, jewelry, and canned
goods. 17
The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting
handcuffs on accused-appellant, took him with them to the NARCOM on EDSA,
Quezon City, where accused-appellant was detained. 18
Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony.
Arcano testified that the policemen ransacked their house, ate their food, and
took away canned goods and other valuables. 19
After hearing, the trial court rendered its decision, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered:
1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic
Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT
y KO guilty beyond reasonable doubt of the crime charged and he is
hereby accordingly sentenced to suffer an indeterminate sentence with a
minimum of six (6) months of arresto mayor and a maximum of four (4)
years and two (2) months of prision correccional; and,
2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act
No. 6425, as amended, finding the accused ROBERTO SALANGUIT y
KO guilty beyond reasonable doubt of the crime charged and he is
hereby accordingly sentenced to suffer reclusion perpetua and to pay a
fine of P700,000.00.
The accused shall further pay the costs of suit.
The 11.14 grams of methamphetamine hydrochloride and the 1,254
grams of marijuana bricks are hereby confiscated and condemned for
disposition according to law. The evidence custodian of this Court is

hereby directed to turn such substances over to the National Bureau of

Investigation pursuant to law.
SO ORDERED. 20

Hence this appeal. Accused-appellant contends that

THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH
WARRANT VALID
THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT
FOR ILLEGAL POSSESSION OF METHAMPHETAMINE HYDROCHLORIDE (SHABU)
THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT FOR VIOLATION 8, R.A. NO. 6425
THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO
(2) BRICKS OF MARIJUANA
THE COURT A QUO ERRED IN NOT FINDING THAT THE
POLICEMEN USED EXCESSIVE FORCE IN ENFORCING THE
SEARCH WARRANT.

Accused-appellant is contesting his conviction on three grounds. First, the

admissibility of the shabu allegedly recovered from his residence as evidence
against him on the ground that the warrant used in obtaining it was invalid.
Second, the admissibility in evidence of the marijuana allegedly seized from
accused-appellant pursuant to the "plain view" doctrine. Third, the employment of
unnecessary force by the police in the execution of the warrant.
First. Rule 126, 4 of the Revised Rules on Criminal Procedure

21

provides that a

search warrant shall not issue except upon probable cause in connection with
one specific offense 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 things to be seized
which may be anywhere in the Philippines.
In issuing a search warrant, judges must comply strictly with the requirements of
the Constitution and the Rules of Criminal Procedure. No presumption of
regularity can be invoked in aid of the process when an officer undertakes to
justify its issuance. 22 Nothing can justify the issuance of the search warrant
unless all the legal requisites are fulfilled.
In this case, the search warrant issued against accused-appellant reads:
SEARCH WARRANT NO. 160
For: Violation of RA 6425
SEARCH WARRANT

TO ANY PEACE OFFICER:

GREETINGS:
It appearing to the satisfaction of the undersigned after examining under
oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1
EDMUND M. BADUA, PNP that there is probable cause to believe that
ROBERT SALANGUIT has in his possession and control in his premises
Binhagan St., San Jose, Quezon City as shown in Annex "A", the
properties to wit:

TcIAHS

UNDETERMINED QUANTITY OF SHABU AND DRUG

PARAPHERNALIA
which should be seized and brought to the undersigned.
You are hereby commanded to make an immediate search anytime of
the day/night of the premises above-described and forthwith seize and

take possession of the above-stated properties and bring said properties

to the undersigned to be dealt with as the law directs.
GIVEN UNDER MY HAND this 26th day of December 1995 at Imus,
Cavite, Philippines.
(SGD.) DOLORES L. ESPAOL
Judge

Accused-appellant assails the validity of the warrant on three grounds: (1) that
there was no probable cause to search for drug paraphernalia; (2) that the search
warrant was issued for more than one specific offense; and (3) that the place to
be searched was not described with sufficient particularity.

Existence of Probable Cause

The warrant authorized the seizure of "undetermined quantity of shabu and drug
paraphernalia." Evidence was presented showing probable cause of the
existence of methamphetamine hydrochloride or shabu. Accused-appellant
contends, however, that the search warrant issued is void because no evidence
was presented showing the existence of drug paraphernalia and the same should
not have been ordered to be seized by the trial court. 23
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence
officer who acted as a poseur-buyer, did not testify in the proceedings for the
issuance of a search warrant on anything about drug paraphernalia. He stated:
Q Being a member of the Intelligence and Operation Section, NMDU,
NARCOM, do you remember if you were assigned into a
monitoring or surveillance work?
A Yes, sir.

Q Of what particular assignment or area were you assigned for

monitoring or surveillance?
A Its within the Quezon City area particularly a house without a number
located at Binhagan St., San Jose, Quezon City, sir.
Q Do you know the person who occupies the specific place?
A Yes, sir, he is ROBERT SALANGUIT @ Robert.
Q Are you familiar with that place?
A Yes, sir, as part of my surveillance, I was able to penetrate inside the
area and established contract with ROBERT SALANGUIT alias
Robert through my friend who introduced me to the former.
Q In what particular occasion did you meet ROBERT SALANGUIT alias
Robert?
A When I was introduced by my friend as a good buyer and drug pusher
of shabu, sir.
Q Were you able to buy at that time?
A Yes, sir.
Q How much if you can still remember the amount involved?
A I was able to buy two point twelve (2.12) grams of shabu in the amount
of Two Thousand Seven Hundred Fifty (P2,750.00) pesos, sir.
Q Having established contact with ROBERT SALANGUIT @ Robert, do
you know where the stuff (shabu) were being kept?
A Yes, sir, inside a cabinet inside his room.

Q How were you able to know the place where he kept the stuff?
A When I first bought the 2.12 grams of shabu from him, it was done
inside his room and I saw that the shabu was taken by him inside
his cabinet.
Q Do you know who is in control of the premises?
A Yes, sir, it was ROBERT SALANGUIT @ Robert.
Q How sure are you, that the shabu that you bought from ROBERT
SALANGUIT @ Robert is genuine shabu?
A After I left the house of ROBERT SALANGUIT @ Robert, I proceeded
back to our office and reported the progress of my mission to our
Chief and presented to him the 2.12 grams of shabu I bought from
the subject. Then afterwards, our Chief formally requested the
Chief PNP Central Crime Laboratory Services, NPDC, for
Technical Analysis which yielded positive result for shabu, a
regulated drug as shown in the attached certification of PNP CLS
result No. D-414-95 dated 19 Dec. 95.
Q Do you have anything more to add or retract from your statement?
A Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that
anything I wish to buy bigger quantity of shabu, he is willing to
transact to me on cash basis at his price of One Thousand Seven
Hundred Fifty (P1,750.00) pesos per gram.
Q Are you willing to sign your statement freely and voluntarily?
A Yes, sir. 24

However, the fact that there was no probable cause to support the application for
the seizure of drug paraphernalia does not warrant the conclusion that the search

warrant is void. This fact would be material only if drug paraphernalia was in fact
seized by the police. The fact is that none was taken by virtue of the search
warrant issued. If at all, therefore, the search warrant is void only insofar as it
authorized the seizure of drug paraphernalia, but it is valid as to the seizure of
methamphetamine hydrochloride as to which evidence was presented showing
probable cause as to its existence. Thus, in Aday v. Superior Court, 25 the warrant
properly described two obscene books but improperly described other articles. It
was held:
Although the warrant was defective in the respects noted, it does not
follow that it was invalid as a whole. Such a conclusion would mean that
the seizure of certain articles, even though proper if viewed separately,
must be condemned merely because the warrant was defective with
respect to other articles. The invalid portions of the warrant are
severable from the authorization relating to the named books, which
formed the principal basis of the charge of obscenity. The search for and
seizure of these books, if otherwise valid, were not rendered illegal by
the defects concerning other articles . . . In so holding we do not mean to
suggest that invalid portions of a warrant will be treated as severable
under all circumstances. We recognize the danger that warrants might
be obtained which are essentially general in character but as to minor
items meet the requirement of particularity, and that wholesale seizures
might be made under them, in the expectation that the seizure would in
any event be upheld as to the property specified. Such an abuse of the
warrant procedure, of course, could not be tolerated.

It would be a drastic remedy indeed if a warrant, which was issued on probable

cause and particularly describing the items to be seized on the basis thereof, is to
be invalidated in toto because the judge erred in authorizing a search for other
items not supported by the evidence.

26

Accordingly, we hold that the first part of

the search warrant, authorizing the search of accused-appellant's house for an

undetermined quantity of shabu, is valid, even though the second part, with
respect to the search for drug paraphernalia, is not.

Specificity of the Offense Charged

Accused-appellant contends that the warrant was issued for more than one
specific offense because possession or use of methamphetamine hydrochloride
and possession of drug paraphernalia are punished under two different
provisions of R.A. No. 6425. 27 It will suffice to quote what this Court said in a
similar case to dispose of this contention:
While it is true that the caption of the search warrant states that it is in
connection

with

"Violation

of R.A.

6425,

otherwise

known

as

the Dangerous Drugs Act of 1972," it is clearly recited in the text thereof
that "There is probable cause to believe that Adolfo Olaes alias 'Debie'
and alias 'Baby' of No. 628 Comia St., Filtration, Sta. Rita, Olongapo
City, has in their session and control and custody of marijuana dried
stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt
narcotics preparations which is the subject of the offense stated above."
Although the specific section of the Dangerous Drugs Act is not
pinpointed, there is no question at all of the specific offense alleged to
have been committed as a basis for the finding of probable cause. The
search warrant also satisfies the requirement in the Bill of Rights of the
particularity of the description to be made of the "place to be searched
and the persons or things to be seized."

28

Indeed, in People v. Dichoso 29 the search warrant was also for "Violation of R.A.
6425," without specifying what provisions of the law were violated, and it
authorized

the

search

and

seizure

of

"dried

marijuana

leaves

and

methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This

Court, however, upheld the validity of the warrant:
Appellant's contention that the search warrant in question was issued for
more than (1) offense, hence, in violation of Section 3, Rule 126 of the
Rules of Court, is unpersuasive. He engages in semantic juggling by
suggesting that since illegal possession of shabu, illegal possession of

marijuana and illegal possession of paraphernalia are covered by

different articles and sections of the Dangerous Drugs Act of 1972, the
search warrant is clearly for more than one (1) specific offense. In short,
following this theory, there should have been three (3) separate search
warrants, one for illegal possession of shabu, the second for illegal
possession of marijuana and the third for illegal possession of
paraphernalia. This argument is pedantic. The Dangerous Drugs Act of
1972 is a special law that deals specifically with dangerous drugs which
are subsumed into "prohibited" and "regulated" drugs and defines and
penalizes categories of offenses which are closely related or which
belong to the same class or species. Accordingly, one (1) search warrant
may thus be validly issued for the said violations of the Dangerous Drugs
Act. 30

Similarly, in another case, 31 the search warrant was captioned: "For Violation
of P.D. No. 1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant
was questioned on the ground that it was issued without reference to any
particular provision in P.D. No. 1866, which punished several offenses. We held,
however, that while illegal possession of firearms is penalized under 1 of P.D.
No. 1866 and illegal possession of explosives is penalized under 3 thereof, the
decree is a codification of the various laws on illegal possession of firearms,
ammunitions, and explosives which offenses are so related as to be subsumed
within the category of illegal possession of firearms, etc. under P.D. No. 1866.
Thus, only one warrant was necessary to cover the violations under the various
provisions of the said law.
Particularity of the Place
Accused-appellant contends that the search warrant failed to indicate the place to
be searched with sufficient particularity.
This contention is without merit. As the Solicitor General states:

. . . While the address stated in the warrant is merely "Binhagan St., San
Jose, Quezon City," the trial court took note of the fact that the records of
Search Warrant Case No. 160 contained several documents which
identified the premises to be searched, to wit: 1) the application for
search warrant which stated that the premises to be searched was
located in between No. 7 and 11 at Binhagan Street, San Jose, Quezon
City; 2) the deposition of witness which described the premises as "a
house without a number located at Binhagan St., San Jose, Quezon
City; and 3) the pencil sketch of the location of the premises to be
searched. In fact, the police officers who raided appellant's house under
the leadership of Police Senior Inspector Rodolfo Aguilar could not have
been mistaken as Inspector Aguilar resides in the same neighborhood in
Binhagan where appellant lives and in fact Aguilar's place is at the end
of appellant's place in Binhagan. Moreover, the house raided by Aguilar's
team is undeniably appellant's house and it was really appellant who
was the target. The raiding team even first ascertained through their
informant that appellant was inside his residence before they actually
started their operation. 32

The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. 33 For example, a search warrant authorized a search of
Apartment Number 3 of a building at 83 Pleasant Street, Malborough,
Massachusetts. As it turned out, there were five apartments in the basement and
six apartments on both the ground and top floors and that there was an
Apartment Number 3 on each floor. However, the description was made
determinate by a reference to the affidavit supporting the warrant that the
apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street,
Malboro Mass." 34 In this case, the location of accused-appellant's house being
indicated by the evidence on record, there can be no doubt that the warrant
described the place to be searched with sufficient particularity.

In sum, we hold that with respect to the seizure of shabu from accusedappellant's residence, Search Warrant No. 160 was properly issued, such warrant
being founded on probable cause personally determined by the judge under oath
or affirmation of the deposing witness and particularly describing the place to be
searched and the things to be seized.
Second. The search warrant authorized the seizure of methamphetamine
hydrochloride or shabu but not marijuana. However, seizure of the latter drug is
being justified on the ground that the drug was seized within the "plain view" of
the searching party. This is contested by accused-appellant.
Under the "plain view doctrine," unlawful objects within 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 in evidence.

35

For this doctrine to apply, there

must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c)
immediate apparent illegality of the evidence before the police.

36

The question is

whether these requisites were complied with by the authorities in seizing the
marijuana in this case.
Prior Justification and Discovery by Inadvertence
Because the location of the shabu was indicated in the warrant and thus known
to the police operatives, it is reasonable to assume that the police found the
packets of the shabu first. Once the valid portion of the search warrant has been
executed, the "plain view doctrine" can no longer provide any basis for admitting
the other items subsequently found. As has been explained:
What the 'plain view' cases have in common is that the police officer in
each of them had a prior justification for an intrusion in the course of
which he came inadvertently across a piece of evidence incriminating
the accused. The doctrine serves to supplement the prior justification
whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present

unconnected with a search directed against the accused and permits

the warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the
police that they have evidence before them; the 'plain view' doctrine may
not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges.

37

The only other possible justification for an intrusion by the police is the conduct of
a search pursuant to accused-appellant's lawful arrest for possession of shabu.
However, a search incident to a lawful arrest is limited to the person of the one
arrested and the premises within his immediate control.

38

The rationale for

permitting such a search is to prevent the person arrested from obtaining a

weapon to commit violence, or to reach for incriminatory evidence and destroy
it.

AHDcCT

The police failed to allege in this case the time when the marijuana was
found, i.e., whether prior to, or contemporaneous with, the shabu subject of the
warrant, or whether it was recovered on accused-appellant's person or in an area
within his immediate control. Its recovery, therefore, presumably during the
search conducted after the shabu had been recovered from the cabinet, as
attested to by SPO1 Badua in his deposition, was invalid.
Apparent Illegality of the Evidence
The marijuana bricks were wrapped in newsprint. There was no apparent
illegality to justify their seizure. This case is similar to People v. Musa 39 in which
we declared inadmissible the marijuana recovered by NARCOM agents because
the said drugs were contained in a plastic bag which gave no indication of its
contents. We explained:
Moreover, when the NARCOM agents saw the plastic bag hanging in
one corner of the kitchen, they had no clue as to its contents. They had
to ask the appellant what the bag contained. When the appellant refused

to respond, they opened it and found the marijuana. Unlike Ker

v. California, where the marijuana was visible to the police officer's eyes,
the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly
opened it. Even assuming then, that the NARCOM agents inadvertently
came across the plastic bag because it was within their "plain view,"
what may be said to be the object in their "plain view" was just the plastic
bag and not the marijuana. The incriminating nature of the contents of
the plastic bag was not immediately apparent from the "plain view" of
said object. It cannot be claimed that the plastic bag clearly betrayed its
contents, whether by its distinctive configuration, is transparency, or
otherwise, that its contents are obvious to an observer.

40

No presumption of regularity may be invoked by an officer in aid of the process

when he undertakes to justify an encroachment of rights secured by the
Constitution. 41 In this case, the marijuana allegedly found in the possession of
accused-appellant was in the form of two bricks wrapped in newsprint. Not being
in a transparent container, the contents wrapped in newsprint could not have
been readily discernible as marijuana. Nor was there mention of the time or
manner these items were discovered. Accordingly, for failure of the prosecution to
prove that the seizure of the marijuana without a warrant was conducted in
accordance with the "plain view doctrine," we hold that the marijuana is
inadmissible in evidence against accused-appellant. However, the confiscation of
the drug must be upheld.
Third. Accused-appellant claims that undue and unnecessary force was
employed by the searching party in effecting the raid.
Rule 126, 7 of the Revised Rules on Criminal Procedure 42 provides:
Right to break door or window to effect search. The officer, if refused
admittance to the place of directed search after giving notice of his
purpose and authority, may break open any outer or inner door or

window of a house or any part of a house or anything therein to execute

the warrant or liberate himself or any person lawfully aiding him when
unlawfully detained therein.

Accused-appellant's claim that the policemen had clambered up the roof of his
house to gain entry and had broken doors and windows in the process is
unsupported by reliable and competent proof. No affidavit or sworn statement of
disinterested persons, like the barangay officials or neighbors, has been
presented by accused-appellant to attest to the truth of his claim.
In contrast, Aguilar and Duano's claim that they had to use some force in order to
gain entry cannot be doubted. The occupants of the house, especially accusedappellant, refused to open the door despite the fact that the searching party
knocked on the door several times. Furthermore, the agents saw the suspicious
movements of the people inside the house. These circumstances justified the
searching party's forcible entry into the house, founded as it is on the
apprehension that the execution of their mission would be frustrated unless they
do so.
WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional
Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit
y Ko guilty of possession of illegal drugs under 16 of R.A. No. 6425, otherwise
known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a
prison term ranging from six (6) months of arresto mayor, as minimum, and four
(4) years and two (2) months of prision correccional, as maximum, and ordering
the confiscation of 11.14 grams of methamphetamine hydrochloride is
AFFIRMED.
In Criminal Case No. Q-95-64358, the decision of the same court finding
accused-appellant Roberto Salanguit y Ko guilty of possession of prohibited
drugs under 8 of R.A. No. 6425, as amended, and sentencing him to suffer the
penalty of reclusion perpetua and to pay a fine of P700,000.00 is hereby
REVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime

charged. However, the confiscation of the 1,254 grams of marijuana, as well as

the 11.14 grams of methamphetamine hydrochloride, and its disposition as
ordered by the trial court is AFFIRMED.
|||

(People v. Salanguit y Ko, G.R. Nos. 133254-55, [April 19, 2001], 408 PHIL 817-

837)

[G.R. No. 93516. August 12, 1992.]

THE

PEOPLE

appellee, vs. BASILIO

OF

PHILIPPINES, plaintiff-

THE

DAMASO

Bernardo/BERNIE

MENDOZA @ KA DADO, accused-appellant.

The Solicitor General for plaintiff-appellee.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; HEARSAY EVIDENCE; HAS NO PROBATIVE
VALUE WHETHER OBJECTED TO OR NOT; CASE AT BAR. The testimonies
in case at bar are hearsay because the witnesses testified on matters not on their
own personal knowledge. The Solicitor General, however, argues that while the
testimonies may be hearsay, the same are admissible because of the failure of
counsel for appellant to object thereto. It is true that the lack of objection to a
hearsay testimony results in its being admitted as evidence. But, one should not
be misled into thinking that since these testimonies are admitted as evidence,
they now have probative value. Hearsay evidence, whether objected to or not,
cannot be given credence. In People v. Valero, We emphatically declared that:
"The failure of the defense counsel to object to the presentation of incompetent
evidence, like hearsay evidence or evidence that violates the rule of res inter
alios acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. The lack of objection may make any incompetent
evidence admissible. But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no
probative value." (L-45283-84, March 19, 1982, 112 SCRA 675)
2. CONSTITUTIONAL

LAW;

BILL

OF

RIGHTS;

RIGHTS

AGAINST

UNREASONABLE SEARCH AND SEIZURE; PURPOSE. The right against

unreasonable searches and seizures is enshrined in the Constitution (Article III,
Section 2). The purpose of the law is to prevent violations of private security in

person and property, and unlawful invasions of the sanctity of the home by
officers of the law acting under legislative or judicial sanction and to give remedy
against such usurpations when attempted (see Alvero v. Dizon, 76 Phil. 637,
646). However, such right is not absolute.
3. ID.; ID.; ID.; EXCEPTIONS. There are instances when a warrantless search
and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search
of a moving vehicle; and (3) seizure of evidence in plain view (Manipon,
Jr. v.Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 276).
4. ID.; ID.; ID.; BEING A PERSONAL RIGHT, CANNOT BE WAIVED BY
ANYONE EXCEPT THE PERSON WHOSE RIGHTS ARE INVADED OR WHO IS
EXPRESSLY AUTHORIZED TO DO SO IN HIS BEHALF. The constitutional
immunity from unreasonable searches and seizures, being a personal one,
cannot be waived by anyone except the person whose rights are invaded or one
who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65
Phil. 689, 695). In the case at bar, the records show that appellant was not in his
house at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed
the authorities to enter it. We find no evidence that would establish the fact that
Luz Morados was indeed the appellant's helper or if it was true that she was his
helper, that the appellant had given her authority to open his house in his
absence. The prosecution likewise failed to show if Luz Tanciangco has such an
authority. Without this evidence, the authorities' intrusion into the appellant's
dwelling cannot be given any color of legality. While the power to search and
seize is necessary to the public welfare, still it must be exercised and the law
enforced without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the
basic principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a
consequence, the search conducted by the authorities was illegal. It would have
been different if the situation here demanded urgency which could have
prompted the authorities to dispense with a search warrant. But the record is
silent on this point.

5. ID.; ID.; ID.; VIOLATION THEREOF CANNOT BE JUSTIFIED BY THE

URGENCY OF THE RAID. The fact that they came to the house of the
appellant at nighttime, does not grant them the license to go inside his house. In
Alih v. Castro, We ruled that: "The respondents cannot even plead the urgency of
the raid because it was in fact not urgent. They knew where the petitioners were.
They had every opportunity to get a search warrant before making the raid. If
they were worried that the weapons inside the compound would be spirited away,
they could have surrounded the premises in the meantime, as a preventive
measure. There was absolutely no reason at all why they should disregard the
orderly processes required by the Constitution and instead insist on arbitrarily
forcing their way into the petitioner's premises with all the menace of a military
invasion." (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)
6. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS (P.D. NO. 1866);
EXISTENCE OF FIREARM AND THAT THE ACCUSED WHO POSSESSED OR
OWNED THE FIREARM DOES NOT HAVE THE CORRESPONDING LICENSE
MUST BE PROVED. In crimes of illegal possession of firearm as in this case,
the prosecution has the burden to prove the existence of the firearm and that the
accused who possessed or owned the firearm does not have the corresponding
license for it. Since the gun as identified at the trial differs from the gun described
in the amended information, the corpus delicti (the substance of the crime, the
fact that a crime has actually been committed) has not been fully established.
This circumstance coupled with dubious claims of appellant's connection to the
house (where the gun was found) have totally emasculated the prosecution's
case.
7. ID.; ID.; NOT ABSORBED IN THE CRIME OF SUBVERSION; REASON
THEREFOR. The argument raised by the defense that the crime of subversion
absorbs the crime of illegal possession of firearm in furtherance of or incident to
or in connection with the crime of subversion. It appears that the accusedappellant is facing a separate charge of subversion. The defense submits that the
trial court should have peremptorily dismissed this case in view of the subversion
charge. In People of the Philippines v. Asuncion, et al., WE set forth in no

uncertain terms the futility of such argument. We quote: "If We are to espouse the
theory of the respondents that force and violence are the very essence of
subversion, then it loses its distinction from rebellion. In People v. Liwanag (G.R.
27683, 1976, 73 SCRA 473, 480 [1976])., the Court categorically distinguished
subversion from rebellion, and held: 'Violation of Republic Act No. 1700, or
subversion, as it is more commonly called, is a crime distinct from that of actual
rebellion. The crime of rebellion is committed by rising publicly and taking up
arms against the Government for any of the purposes specified in Article 134 of
the Revised Penal Code; while the Anti-Subversion Act (Republic Act No. 1700)
punishes affiliation or membership in a subversive organization as defined
therein. In rebellion, there must be a public uprising and taking of arms against
the Government; whereas, in subversion, mere membership in a subversive
association is sufficient and the taking up of arms by a member of a subversive
organization against the Government is but a circumstance which raises the
penalty to be imposed upon the offender.' "The first Whereas clause of R.A..
1700 states that the CPP is an organized conspiracy to overthrow the
Government, not only by force and violence but also by deceit, subversion and
other illegal means. This is a recognition that subversive acts do not only
constitute force and violence (contrary to the arguments of private respondents),
but may partake of other forms as well. One may in fact be guilty of subversion by
authoring subversive materials, where force and violence is neither necessary or
indispensable." The Court upheld the validity of the charge under the third
paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the
Hernandez case is not applicable in that case, considering that the legislature
deemed it fit to provide for two distinct offenses" (1) illegal possession of firearms
qualified by subversion (P.D. 1866) and (2) subversion qualified by the taking up
of arms against the Government (R.A. 1700). 'The practical result of this may be
harsh or it may pose grave difficulty on an accused in instances similar to those
that obtain in the present case, but the wisdom of the legislature in the lawful
exercise of its power to enact laws is something that the Court cannot inquire
into. . ." (G.R. Nos. 83837-42, April 22, 1991).

DECISION

MEDIALDEA, J :
p

The accused-appellant, Basilio Damaso, was originally charged in an information

filed before the Regional Trial Court of Dagupan City with violation of Presidential
Decree No. 1866 in furtherance of, or incident to, or in connection with the crime
of subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita
Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites
Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz
Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later
amended to exclude all the above-enumerated persons except the accusedappellant from the criminal charge. The amended information reads:
"That on or about the 19th day of June, 1988, in the City of Dagupan,
Philippines, and within the territorial jurisdiction of this Honorable Court,
the above-named accused, Basilio DAMASO @ Bernardo/Bernie
Mendoza @ KA DADO, did then and there, wilfully, unlawfully and
criminally, have in his possession, custody and control one (1) M14 Rifle
bearing Serial No. 1249935 with magazine and Fifty-Seven (57) live
ammunition, in furtherance of, or incident to, or in connection with the
crime of subversion, filed against said accused in the above-entitled
case for Violation of Republic Act 1700, as amended by Executive order
No. 276.

prLL

"Contrary to Third Paragraph of Sec. 1, P.D. 1866." (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged
(Records, p. 37). Trial on the merits ensued. The prosecution rested its case and
offered its exhibits for admission. The counsel for accused-appellant interposed
his objections to the admissibility of the prosecution's evidence on grounds of its
being hearsay, immaterial or irrelevant and illegal for lack of a search warrant. On

these bases, he, thereafter, manifested that he was not presenting any evidence
for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the
trial court rendered its decision, the dispositive portion of which states:
"WHEREFORE, the Court finds accused Basilio Damaso alias
Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable
doubt of Violation of Presidential Decree Number 1866, and considering
that the Violation is in furtherance of, or incident to, or in connection with
the crime of subversion, pursuant to Section 1, Paragraph 3
of Presidential Decree Number 1866 hereby sentences the accused to
suffer the penalty of Reclusion Perpetua and to pay the costs of the
proceedings.
"The M14 Rifle bearing Serial Number 1249935 and live ammunition and
all the articles and/or items seized on June 19, 1988 in connection with
this case and marked and submitted in court as evidence are ordered
confiscated and forfeited in favor of the government, the same to be
turned over to the Philippine Constabulary Command at Lingayen,
Pangasinan.
"SO ORDERED." (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION
OF FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT
TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION DESPITE THE
WOEFULLY INADEQUATE EVIDENCE PRESENTED BY THE PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE
QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY
THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE
FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER THEY

WERE DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH

OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN
ILLEGAL SEARCH.
D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED
BY ACCUSED-APPELLANT BECAUSE THE SEPARATE CHARGE FOR
SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL
POSSESSION OF FIREARMS IN FURTHERANCE OR OF INCIDENT TO, OR
IN CONNECTION WITH THE CRIME OF SUBVERSION." (pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief, as follows:
"On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary
officer connected with the 152nd PC Company at Lingayen, Pangasinan,
and some companions were sent to verify the presence of CPP/NPA
members in Barangay Catacdang, Arellano-Bani, Dagupan City. In said
place, the group apprehended Gregorio Flameniano, Berlina Aritumba,
Revelina Gamboa and Deogracias Mayaoa. When interrogated, the
persons apprehended revealed that there was an underground
safehouse at Gracia Village in Urdaneta, Pangasinan. After coordinating
with the Station Commander of Urdaneta, the group proceeded to the
house in Gracia Village. They found subversive documents, a radio, a 1
x 7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23,
1989).

LLpr

"After the raid, the group proceeded to Bonuan, Dagupan City, and put
under surveillance the rented apartment of Rosemarie Aritumba, sister of
Berlina Aritumba whom they earlier arrested. They interviewed
Luzviminda Morados, a visitor of Rosemarie Aritumba. She stated that
she worked with Bernie Mendoza, herein appellant. She guided the
group to the house rented by appellant. When they reached the house,
the group found that it had already been vacated by the occupants.
Since Morados was hesitant to give the new address of Bernie Mendoza,
the group looked for the Barangay Captain of the place and requested

him to point out the new house rented by appellant. The group again
required Morados to go with them. When they reached the house, the
group saw Luz Tanciangco outside. They told her that they already knew
that she was a member of the NPA in the area. At first, she denied it, but
when she saw Morados she requested the group to go inside the house.
Upon entering the house, the group, as well as the Barangay Captain,
saw radio sets, pamphlets entitled 'Ang Bayan', xerox copiers and a
computer machine. They also found persons who were companions of
Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Marites
Calosa, Eric Tanciangco and Luzviminda Morados). The group
requested the persons in the house to allow them to look around. When
Luz Tanciangco opened one of the rooms, they saw books used for
subversive orientation, one M-14 rifle, bullets and ammunitions,
Kenwood radio, artificial beard, maps of the Philippines, Zambales,
Mindoro an(d) Laguna and other items. They confiscated the articles and
brought them to their headquarters for final inventory. They likewise
brought the persons found in the house to the headquarters for
investigation. Said persons revealed that appellant was the lessee of the
house and owned the items confiscated therefrom (pp. 8-12, tsn, ibid;
pp. 2-4, 6, 8-10, 31, tsn, October 31, 1989)." (p. 5, Brief of PlaintiffAppellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their drive against
lawless elements in our society, We must, however, stress that the latter's efforts
to this end must be done within the parameters of the law. In the case at bar, not
only did We find that there are serious flaws in the method used by the law
officers in obtaining evidence against the accused-appellant but also that the
evidence as presented against him is weak to justify conviction.
We reverse.
The records of this case show that the accused-appellant was singled out as the
sole violator of P.D. No. 1866, in furtherance of, or incident to, or in connection
with the crime of subversion. Yet, there is no substantial and credible evidence to

establish the fact that the appellant is allegedly the same person as the lessee of
the house where the M-14 rifle and other subversive items were found or the
owner of the said items. The prosecution presented two witnesses who attested
to this fact, thus:
"Lieutenant Candito Quijardo
Fiscal
"Q: How about this Bernie Mendoza, who was the one renting the
house?
"A: He was not around at that time, but according to Luz (Tanciangco)
who mentioned the name Bernie Mendoza (as) the one who was
renting the house and at the same time claiming that it was Bernie
Mendoza who owns the said items." (TSN of October 31, 1989, p.
40)
xxx xxx xxx
"Q: I am showing you another picture which we request to be marked as
Exhibit 'K-2,' tell us if it has any connection to the house?
"A: The same house, sir.
"Q: Now, this person who according to you allegedly occupied the house
at Bonuan Gueset, by the name of Bernie Mendoza, in your
capacity as a Military officer, did you find out the identity?
"A: I am not the proper (person) to tell the real identity of Bernie de
Guzman.

Cdpr

"Q: Can you tell the Honorable Court the proper person who could tell
the true identity of Bernie Mendoza?
"A: The Intelligence of the Pangasinan PC Command.
"Q: Can you name these officers?

"A: Captain Roberto Rosales and his assistant, First Lt. Federico Castro.
(ibid, pp. 54-55)
"M/Sgt. Artemio Gomez
"Q: That underground house, do you know who was the principal
occupant of that house?
xxx xxx xxx
"A: During our conversation with the occupants, they revealed that a
certain Ka Bernie is the one occupying the house, Bernie
Mendoza alias Basilio Damaso.
" . . . (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses

testified on matters not on their own personal knowledge. The Solicitor
General, however, argues that while the testimonies may be hearsay, the
same are admissible because of the failure of counsel for appellant to object
thereto.
It is true that the lack of objection to a hearsay testimony results in its being
admitted as evidence. But, one should not be misled into thinking that since
these testimonies are admitted as evidence, they now have probative value.
Hearsay evidence, whether objected to or not, cannot be given credence. In
People v. Valero, We emphatically declared that:
"The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates
the rule of res inter alios acta, or his failure to ask for the striking out of
the same does not give such evidence any probative value. The lack of
objection

may

make

any

incompetent

evidence

admissible.

But admissibility of evidence should not be equated with weight of

evidence. Hearsay evidence whether objected to or not has no probative
value." (L-45283-84, March 19, 1982, 112 SCRA 675, italics supplied)

It is unfortunate that the prosecution failed to present as witnesses the

persons who knew the appellant as the lessee and owner of the M-14 rifle. In
this way, the appellant could have exercised his constitutional right to confront
the witnesses and to cross-examine them for their truthfulness. Likewise, the
records do not show any other evidence which could have identified the
appellant as the lessee of the house and the owner of the subversive items.
To give probative value to these hearsay statements and convict the appellant
on this basis alone would be to render his constitutional rights useless and
without meaning.
Even assuming for the sake of argument that the appellant is the lessee of the
house, the case against him still will not prosper, the reason being that the law
enforcers failed to comply with the requirements of a valid search and seizure
proceedings.

prLL

The right against unreasonable searches and seizures is enshrined in

the Constitution Article III, Section 2. The purpose of the law is to prevent
violations of private security in person and property, and unlawful invasions of the
sanctity of the home by officers of the law acting under legislative or judicial
sanction and to give remedy against such usurpations when attempted (see
Rivero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are
instances when a warrantless search and seizure becomes valid, namely: (1)
search incidental to an arrest; (2) search of a moving vehicle, and (3) seizure of
evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986,
143 SCRA 267, 267). None of these exceptions is present in this case.
The Solicitor General argues otherwise. He claims, that the group of Lt. Quijardo
entered the appellant's house upon invitation of Luz Tanciangco and Luzviminda
Morados, helper of the appellant; that when Luz Tanciangco opened one of the
rooms, they saw a copier machine, computer, M-14 rifle, bullets and
ammunitions, radio set and more subversive items, that technically speaking,
there was no search as the group was voluntarily shown the articles used in
subversion; that besides, a search may be validly conducted without a search

warrant with the consent of the person searched as in this case, appellant's
helper and Luz Tanciangco allowed them to enter and to look around the
appellant's house; and that since the evidence seized was in plain view of the
authorities, the same may be seized without a warrant.
We are not persuaded. The constitutional immunity from unreasonable searches
and seizures, being a personal one cannot he waived by anyone except the
person whose rights are invaded or one who is expressly authorized to do so in
his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). In the case at bar, the
records show that appellant was not in his house at that time Luz Tanciangco and
Luz Morados, his alleged helper, allowed the authorities to enter it (TSN, October
31, 1989, p. 10). We find no evidence that would establish the fact that Luz
Morados was indeed the appellant's helper, or if it was true that she was his
helper, that the appellant had given her authority to open his house in his
absence. The prosecution likewise failed to show if Luz Tanciangco has such an
authority. Without this evidence, the authorities' intrusion into the appellant's
dwelling cannot be given any color of legality. While the power to search and
seize is necessary to the public welfare, still it must be exercised and the law
enforced without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the
basic principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a
consequence, the search conducted by the authorities was illegal. It would have
been different if the situation here demanded urgency which could have
prompted the authorities to dispense with a search warrant. But the record is
silent on this point. The fact that they came to the house of the appellant at
nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside his
house. In Alih v. Castro, We ruled that:
"The respondents cannot even plead the urgency of the raid because it
was in fact not urgent. They knew where the petitioners were. They had
every opportunity to get a search warrant before making the raid. If they
were worried that the weapons inside the compound would be spirited
away, they could have surrounded the premises in the meantime, as a

preventive measure. There was absolutely no reason at all why they

should disregard the orderly processes required by the Constitution and
instead insist on arbitrarily forcing their way into the petitioner's premises
with all the menace of a military invasion." (G.R. No. 69401, June 23,
1987, 151 SCRA 279, 286)

Another factor which illustrates the weakness of the case against the accusedappellant is in the identification of the gun which he was charged to have illegally
possessed. In the amended information (supra, pp. 1-2), the gun was described
as an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a
different serial number thus:
"FISCAL:
Q. Will you kindly restate again the items that you found inside the
house? Lt. Quijardo:
A. When she opened the doors of the rooms that we requested for, we
immediately saw different kinds of books of which we believed to
be used for subversive orientation and the M-14 rifle.

prcd"

Q. In what portion of the house did you find this M-14 rifle which you
mentioned?
A. In the same room of which the subversive documents were placed.
Q. If this firearm would be shown to you would you be able to identify the
same?
A. Yes, sir.
Q. I am showing to you a rifle bearing a serial number 1249985 which for
purposes of identification, may we request your Honor, that this
rifle be marked as Exhibit 'D.'
COURT:
Mark it.

"FISCAL:
Q. Kindly examine the said firearm and tell the Honorable Court the
relation of that firearm to the firearm which according to you found
inside the room allegedly occupied by one Bernie Mendoza?
A. This is the same rifle which was discovered during our raid in the
same house." (TSN, October 31, 1989, pp. 36-38, italics supplied)

The Solicitor General contends that the discrepancy is merely a typographical

error.
We do not think so. This glaring error goes into the substance of the charge. Its
correction or lack of it could spell the difference between freedom and
incarceration of the accused-appellant.
In crimes of illegal possession of firearm as in this case, the prosecution has the
burden to prove the existence of the firearm and that the accused who possessed
or owned the firearm does not have the corresponding license for it. Since the
gun as identified at the trial differs from the gun described in the amended
information, the corpus delicti (the substance of the crime, the fact that a crime
has actually been committed) has not been fully established. This circumstance
coupled with dubious claims of appellant's connection to the house (where the
gun was found) have totally emasculated the prosecution's case.
But even as We find for the accused-appellant, We, take exception to the
argument raised by the defense that the crime of subversion absorbs the crime of
illegal possession of firearm in furtherance of or incident to or in connection with
the crime of subversion. It appears that the accused-appellant is facing a
separate charge of subversion. The defense submits that the trial court should
have peremptorily dismissed this case in view of the subversion charge. In
People of the Philippines v. Asuncion, et al., We set forth in no uncertain terms
the futility of such argument. We quote:
"If We are to espouse the theory of the respondents that force and
violence are the very essence of subversion, then it loses its distinction

from rebellion. In People v. Liwanag (G.R. No. 27683, 1976, 73 SCRA

473, 480 [1976])., the Court categorically distinguished subversion from
rebellion, and held:
'Violation of Republic Act No. 1700, or subversion, as it is
more commonly called, is a crime distinct from that of actual
rebellion. The crime of rebellion is committed by rising publicly
and taking up arms against the Government for any of the
purposes specified in Article 134 of the Revised Penal Code;
while

the

Anti-Subversion

Act

(Republic

Act

No.

1700)

punishes affiliation or membership in a subversive organization as

defined therein. In rebellion, there must he a public uprising and
taking

of

arms

against

the

Government;

whereas,

in

subversion, mere membership in a subversive association is

sufficient and the taking up of arms by a member of a subversive
organization against the Government is but a circumstance which
raises the penalty to be imposed upon the offender.' (Italics
supplied)
"Furthermore, in the case of Buscayno v. Military Commission (G.R.
58284, 109 SCRA 289 [1981]), this Court said that subversion, like
treason, is a crime against national security, while rebellion is a crime
against public order. Rising publicly and taking arms against the
Government is the very element of the crime of rebellion. On the other
hand, R.A. 1700 was enacted to outlaw the Communist Party of the
Philippines (CPP), other similar associations and its successors because
their existence and activities constitute a clear, present and grave danger
to national security.
"The first Whereas clause of R.A. 1700 states that the CPP is an
organized conspiracy to overthrow the Government, not only by force
and violence but also by deceit, subversion and other illegal means. This
is a recognition that subversive acts do not only constitute force and
violence (contrary to the arguments of private respondents), but may

partake of other forms as well. One may in fact be guilty of subversion by

authoring subversive materials, where force and violence is neither
necessary or indispensable."

llcd

"Private respondents contended that the Court in Misolas v. Panga

impliedly ruled that if an accused is simultaneously charged with
violation of P.D. 1866 and subversion, the doctrine of absorption of
common crimes as applied in rebellion could have found application
therein. The respondents relied on the opinion of this Court when it said:
' . . . in the present case, petitioner is being charged
specifically for the qualified offense of illegal possession of
firearms and ammunition under PD 1866. HE IS NOT BEING
CHARGED WITH THE COMPLEX CRIME OF SUBVERSION
WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE
BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR
ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the
Court in Hernandez, Geronimo and Rodriguez find no application
in this case.'
"This is however a mere obiter. In the above case, the Court upheld the
validity of the charge under the third paragraph of Section 1 of P.D. 1866.
The Court opined that the dictum in the Hernandez case is not
applicable in that case, considering that the legislature deemed it fit to
provide for two distinct offenses: (1) illegal possession of firearms
qualified by subversion (P.D. 1866 and (2) subversion qualified by the
taking up of arms against the Government (R.A. 1700). `The practical
result of this may be harsh or it may pose grave difficulty on an accused
in instances similar to those that obtain in the present case, but the
wisdom of the legislature in the lawful exercise of its power to enact laws
is something that the Court cannot inquire into . . . " (G.R. Nos. 8383742, April 22, 1992)

Nonetheless, the evidence in hand is too weak to convict the accused-appellant

of the charge of illegal possession of firearm in furtherance of, or incident to or in
connection with the crime of subversion, We are therefore, left with no option, but
to acquit the accused on reasonable doubt. ACCORDINGLY, the decision
appealed from is hereby REVERSED and the appellant is ACQUITTED with
costs de oficio.
|||

(People v. Damaso, G.R. No. 93516, [August 12, 1992])

[G.R. Nos. 136066-67. February 4, 2003.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BINAD SY
CHUA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Ola & Asso. Law Offices for accused-appellant.
SYNOPSIS
Accused was charged with Violation of the Dangerous Drugs Law and with Illegal
Possession of Ammunition. After trial, he was acquitted of Illegal Possession of
Firearms for insufficiency of evidence, but was convicted of Illegal possession
of shabu.
On appeal, he questioned the validity of the warrantless arrest and consequent
search and seizure made upon him.
The Court acquitted the accused on the ground of reasonable doubt. The Court
ruled that neither the in flagrante delicto nor the "stop and frisk" principles are
applicable to justify the warrantless arrest and consequent search and seizure
made by the police operatives on the accused. In acquitting the accused, the
Court noted the following circumstances: the appellant was first arrested before
the search and seizure of the alleged illegal items found in his possession; at the
time of the arrest, accused did not exhibit manifest unusual or suspicious
conduct; the arrest of the accused was not a product of an "on the spot" tip which
may excuse them from obtaining a warrant of arrest; the prohibited substances
were not in plain view of the arresting officers, hence, inadmissible for being the
fruits of the poisonous tree; there was also no clear showing that the items
allegedly seized from accused were the same prohibited items presented in
court, since they were not marked at the place where they were seized.
SYLLABUS

1. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; WARRANTLESS

ARRESTS; IN FLAGRANTE DELICTO ARREST; ELEMENTS THEREOF; NOT
PRESENT IN CASE AT BAR. In in flagrante delicto arrests, the accused is
apprehended at the very moment he is committing or attempting to commit or has
just committed an offense in the presence of the arresting officer. Emphasis
should be laid on the fact that the law requires that the search be incidental to a
lawful arrest. Therefore it is beyond cavil that a lawful arrest must precede the
search of a person and his belongings. Accordingly, for this exception to apply
two elements must concur: (1) the person to be arrested must execute an overt
act indicating that he has just committed, is actually committing, or is attempting
to commit a crime; and (2) such overt act is done in the presence or within the
view of the arresting officer. We find the two aforementioned elements lacking in
the case at bar. The record reveals that when accused-appellant arrived at the
vicinity of Thunder Inn Hotel, he merely parked his car along the McArthur
Highway, alighted from it and casually proceeded towards the entrance of the
Hotel clutching a sealed Zest-O juice box. Accused-appellant did not act in a
suspicious manner. For all intents and purposes, there was no overt
manifestation that accused-appellant has just committed, is actually committing,
or is attempting to commit a crime. However, notwithstanding the absence of any
overt act strongly manifesting a violation of the law, the group of SPO2 Nulud
"hurriedly accosted" accused-appellant and later on "introduced themselves as
police officers." Accused-appellant was arrested before the alleged drop-off
of shabu was done. Probable cause in this case was more imagined than real.
Thus, there could have been no in flagrante delicto arrest preceding the search,
in light of the lack of an overt physical act on the part of accused-appellant that
he had committed a crime, was committing a crime or was going to commit a
crime. As applied to in flagrante delicto arrests, it has been held that "reliable
information" alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to constitute
probable cause that would justify an in flagrante delicto arrest.

2. ID.; ID.; ID.; NOT JUSTIFIED WHERE POLICE OFFICERS HAD PRIOR
KNOWLEDGE OF ALLEGED ILLEGAL ACTIVITIES OF ACCUSED; CASE AT
BAR. The police operatives cannot feign ignorance of the alleged illegal
activities of accused-appellant. Considering that the identity, address and
activities of the suspected culprit was already ascertained two years previous to
the actual arrest, there was indeed no reason why the police officers could not
have obtained a judicial warrant before arresting accused-appellant and
searching his person. Whatever information their civilian asset relayed to them
hours before accused-appellant's arrest was not a product of an "on-the-spot" tip
which may excuse them from obtaining a warrant of arrest. Accordingly, the
arresting team's contention that their arrest of accused-appellant was a product of
an "on-the-spot" tip is untenable.
3. ID.; ID.; ID.; STOP-AND-FRISK; THE SEARCH AND SEIZURE MUST
PRECEDE THE ARREST. In the same vein, there could be no valid "stop-andfrisk in this case. A stop-and-frisk was defined as the act of a police officer to stop
a citizen on the street, interrogate him, and pat him for weapon(s) or contraband.
The police officer should properly introduce himself and make initial inquiries,
approach and restrain a person who manifests unusual and suspicious conduct,
in order to check the latter's outer clothing for possibly concealed weapons. The
apprehending police officer must have a genuine reason, in accordance with the
police officer's experience and the surrounding conditions, to warrant the belief
that the person to be held has weapons (or contraband) concealed about him. It
should therefore be emphasized that a search and seizure should precede the
arrest for this principle to apply.
4. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. The foregoing circumstances do not
obtain in the case at bar. There was no valid "stop-and-frisk" in the case of
accused-appellant. To reiterate, accused-appellant was first arrested before the
search and seizure of the alleged illegal items found in his possession. The
apprehending police operative failed to make any initial inquiry into accusedappellant's business in the vicinity or the contents of the Zest-O juice box he was
carrying. The apprehending police officers only introduced themselves when they

already had custody of accused-appellant. Besides, at the time of his arrest,

accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and
the law. There was, therefore, no genuine reasonable ground for the immediacy
of accused-appellant's arrest. Obviously, the acts of the police operatives wholly
depended on the information given to them by their confidential informant.
Accordingly, before and during that time of the arrest, the arresting officers had
no personal knowledge that accused-appellant had just committed, was
committing, or was about to commit a crime. At any rate, even if the fact of
delivery of the illegal drugs actually occurred, accused-appellant's warrantless
arrest and consequent search would still not be deemed a valid "stop-and frisk".
For a valid "stop-and-frisk" the search and seizure must precede the arrest, which
is not so in this case. Besides, as we have earlier emphasized, the information
about the illegal activities of accused-appellant was not unknown to the
apprehending officers. Hence, the search and seizure of the prohibited drugs
cannot be deemed as a valid "stop-and-frisk."
5. ID.; ID.; WARRANTLESS ARREST AND SEARCH AND SEIZURE; SEIZURE
IN

PLAIN

VIEW;

REQUISITES

FOR

ADMISSIBILITY;

PROHIBITED

SUBSTANCES NOT IN PLAIN VIEW OF ARRESTING OFFICERS IN CASE AT

BAR. Neither can there be valid seizure in plain view on the basis of the
seized items found in accused-appellant's possession. First, there was no valid
intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O juice
box

which

contained

crystalline

substances

later

on

identified

as

methamphetamine hydrochloride (shabu) and the 20 rounds of .22 caliber

ammunition, were not inadvertently discovered. The police officers first arrested
accused-appellant and intentionally searched his person and peeked into the
sealed Zest-O juice box before they were able to see and later on ascertain that
the crystalline substance was shabu. There was no clear showing that the sealed
Zest-O juice box accused-appellant carried contained prohibited drugs. Neither
were the small plastic bags which allegedly contained crystalline substance and
the 20 rounds of .22 caliber ammunition visible. These prohibited substances

were not in plain view of the arresting officers; hence, inadmissible for being the
fruits of the poisonous tree.

IAETDc

6. ID.; ID.; ID.; ABSENCE OF ILL MOTIVE ON THE PART OF THE ARRESTING
TEAM CANNOT VALIDATE THE ILLEGALITY OF THE ARREST AND
CONSEQUENT WARRANTLESS SEARCH. All told, the absence of ill-motive
on the part of the arresting team cannot simply validate, much more cure, the
illegality of the arrest and consequent warrantless search of accused-appellant.
Neither can the presumption of regularity of performance of function be invoked
by an officer in aid of the process when he undertakes to justify an encroachment
of rights secured by the Constitution.
7. ID.; ID.; ID.; IDENTITY OF CONFISCATED ITEMS RENDERED DOUBTFUL
WHEN NOT MARKED AT THE PLACE WHERE THEY WERE SEIZED; CASE
AT BAR. We entertain doubts whether the items allegedly seized from
accused-appellant were the very same items presented at the trial of this case.
The record shows that the initial field test where the items seized were identified
as shabu, was only conducted at the PNP headquarters of Angeles City. The
items were therefore not marked at the place where they were taken. In People v.
Casimiro, we struck down with disbelief the reliability of the identity of the
confiscated items since they were not marked at the place where they were
seized.
DECISION
YNARES-SANTIAGO, J :
p

Accused-appellant Binad Sy Chua was charged with violation of Section 16,

Article III of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of
ammunitions in two separate Informations which read as follows:
Criminal Case No. 96-507 1

That on or about the 21st day of September 1996, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession and under his control two (2) plastic
bags containing Methamphetamine Hydrochloride (SHABU) weighing
more or less two (2) kilos and one (1) small plastic bag containing
Methamphetamine Hydrochloride weighing more or less fifteen (15)
grams, which is a regulated drug, without any authority whatsoever.

Criminal Case No. 96-513 2

That on or about the 21st day of September 1996, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession and under his control twenty (20)
pieces of live .22 cal. ammunitions, without first having obtained a
license or permit to possess or carry the same.

Accused-appellant pleaded "not guilty" on arraignment. The two cases were then
jointly tried.
The prosecution presented three (3) witnesses, all members of the police force of
Angeles City. Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and
PO2 Emmeraldo Nunag received a report from their confidential informant that
accused-appellant was about to deliver drugs that night at the Thunder Inn Hotel
in Balibago, Angeles City. The informer further reported that accused-appellant
distributes illegal drugs in different karaoke bars in Angeles City. On the basis of
this lead, the PNP Chief of Angeles City, Col. Neopito Gutierrez, immediately
formed a team of operatives composed of Major Bernardino, Insp. Tullao, Insp.
Emmanuel Nunag, PO2 Emmeraldo Nunag, SPO1 Fernando Go, and some
civilian assets, with SPO2 Mario Nulud, as team investigator. The group of SPO2

Nulud, PO2 Nunag and the civilian informer positioned themselves across
McArthur Highway near Bali Hai Restaurant, fronting Thunder Inn Hotel. The
other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by accusedappellant which just arrived and parked near the entrance of the Thunder Inn
Hotel. After accused-appellant alighted from the car carrying a sealed Zest-O
juice box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and introduced
themselves as police officers. As accused-appellant pulled out his wallet, a small
transparent plastic bag with a crystalline substance protruded from his right back
pocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded
twenty (20) pieces of live .22 caliber firearm bullets from his left back pocket.
When SPO2 Nunag peeked into the contents of the Zest-O box, he saw that it
contained a crystalline substance. SPO2 Nulud instantly confiscated the small
transparent plastic bag, the Zest-O juice box, the twenty (20) pieces of .22 caliber
firearm bullets and the car used by accused-appellant. Afterwards, SPO2 Nulud
and the other police operatives who arrived at the scene brought the confiscated
items to the office of Col. Gutierrez at the PNP Headquarters in Camp Pepito,
Angeles City. 3
When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic
bags containing crystalline substances. The initial field test conducted by SPO2
Danilo Cruz at the PNP Headquarters revealed that the seized items
containedshabu. 4 Thereafter, SPO2 Nulud together with accused-appellant
brought these items for further laboratory examination to the Crime Laboratory at
Camp Olivas, San Fernando, Pampanga. After due testing, forensic chemist
S/Insp. Daisy Babor concluded that the crystalline substances yielded positive
results for shabu. The small plastic bag weighed 13.815 grams while the two big
plastic bags weighed 1.942 kilograms of shabu. 5
Accused-appellant vehemently denied the accusation against him and narrated a
different version of the incident.

Accused-appellant alleged that on the night in question, he was driving the car of
his wife to follow her and his son to Manila. He felt sleepy, so he decided to take
the old route along McArthur Highway. He stopped in front of a small store near
Thunder Inn Hotel in Balibago, Angeles City to buy cigarettes and candies. While
at the store, he noticed a man approach and examine the inside of his car. When
he called the attention of the onlooker, the man immediately pulled out a .45
caliber gun and made him face his car with raised hands. The man later on
identified himself as a policeman. During the course of the arrest, the policeman
took out his wallet and instructed him to open his car. He refused, so the
policeman took his car keys and proceeded to search his car. At this time, the
police officer's companions arrived at the scene in two cars. PO2 Nulud, who just
arrived at the scene, pulled him away from his car in a nearby bank, while the
others searched his car.
Thereafter, he was brought to the Salakot Police Station and was held inside a
bathroom for about fifteen minutes until Col. Gutierrez arrived, who ordered his
men to call the media. In the presence of reporters, Col. Gutierrez opened the
box and accused-appellant was made to hold the box while pictures were being
taken. 6
Wilfredo Lagman corroborated the story of the accused-appellant in its material
points. He testified that he witnessed the incident while he was conducting a
routine security check around the premises of the Guess Building, near Thunder
Inn Hotel. 7
On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59,
rendered a decisions, 8 the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgment is hereby rendered
as follows:

1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions,

the accused is hereby acquitted of the crime charged for
insufficiency of evidence.
2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815
grams of shabu, accused Binad Sy Chua is found GUILTY beyond
reasonable doubt of the crime charge and is hereby sentenced to
suffer the penalty of reclusion perpetuaand to pay a fine of One
Million (P1,000,000.00) Pesos.
SO ORDERED. 9

Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:
A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS
LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT
CONFISCATION OF SHABU ALLEGEDLY FOUND ON HIM
WERE CONDUCTED IN A LAWFUL AND VALID MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME
CHARGED IS SUFFICIENT TO PROVE THE GUILT OF THE
ACCUSED-APPELLANT BEYOND REASONABLE DOUBT. 10

Accused-appellant maintains that the warrantless arrest and search made by the
police operatives was unlawful; that in the light of the testimony of SPO2 Nulud
that prior to his arrest he has been under surveillance for two years, there was
therefore no compelling reason for the haste within which the arresting officers
sought to arrest and search him without a warrant; that the police officers had
sufficient information about him and could have easily arrested him. Accusedappellant further argues that since his arrest was null and void, the drugs that

were seized should likewise be inadmissible in evidence since they were

obtained in violation of his constitutional rights against unreasonable search and
seizures and arrest.
Accused-appellant's argument is impressed with merit.
Although the trial court's evaluation of the credibility of witnesses and their
testimonies is entitled to great respect and will not be disturbed on appeal,
however, this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial court with regard
to the credibility of witnesses deserves the utmost respect, if not finality,
for the reason that the trial judge has the prerogative, denied to appellate
judges, of observing the demeanor of the declarants in the course of
their testimonies. The only exception is if there is a showing that the trial
judge

overlooked,

misunderstood,

or

misapplied

some

fact

or

circumstance of weight and substance that would have affected the

case. 11

In the case at bar, there appears on record some facts of weight and substance
that have been overlooked, misapprehended, or misapplied by the trial court
which casts doubt on the guilt of accused-appellant. An appeal in a criminal case
opens the whole case for review and this includes the review of the penalty and
indemnity imposed by the trial court. 12 We are clothed with ample authority to
review matters, even those not raised on appeal, if we find that their
consideration is necessary in arriving at a just disposition of the case. Every
circumstance in favor of the accused shall be considered. 13 This is in keeping
with the constitutional mandate that every accused shall be presumed innocent
unless his guilt is proven beyond reasonable doubt.
First, with respect to the warrantless arrest and consequent search and seizure
made upon accused-appellant, the court a quo made the following findings:

Accused was searched and arrested while in possession of regulated

drugs (shabu). A crime was actually being committed by the accused
and he was caught in flagrante delicto. Thus, the search made upon his
personal effects . . . allow a warrantless search incident to a lawful
arrest. . . .
While it is true that the police officers were not armed with a search
warrant when the search was made over the personal affects (sic) of the
accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was
then and there committing a crime.
xxx xxx xxx
In the present case, the police received information that the accused will
distribute illegal drugs that evening at the Thunder Inn Hotel and its
vicinities. The police officer had to act quickly and there was no more
time to secure a search warrant. The search is valid being akin to a "stop
and frisk". 14

A thorough review of the evidence on record belies the findings and conclusion of
the trial court. It confused the two different concepts of a search incidental to a
lawful arrest (in flagrante delicto) and of a "stop-and-frisk."
In Malacat v. Court of Appeals, 15 we distinguished the concepts of a "stop-andfrisk" and of a search incidental to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a
"stop-and-frisk" and of a search incidental to a lawful arrest. These two
types of warrantless searches differ in terms of the requisite quantum of
proof before they may be validly effected and in their allowable Scope.
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest

is questioned in a large majority of these cases, e.g., whether an arrest

was merely used as a pretext for conducting a search. In this
instance, the law requires that there first be arrest before a search can
be madethe process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and
the area within which the latter may reach for a weapon or for evidence
to destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence.
xxx xxx xxx
We now proceed to the justification for and allowable scope of a "stopand-frisk" as a "limited protective search of outer clothing for weapons,"
as laid down in Terry, thus:
We merely hold today that where a police officer
observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may
be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety, he
is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons
which might be used to assault him. Such a search is a
reasonable search under the Fourth amendment.

Other notable points of Terry are that while probable cause is not
required to conduct a "stop-and-frisk," it nevertheless holds that mere
suspicion or a hunch will not validate a "stop-and-frisk." A genuine
reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained
has weapons concealed about him. Finally, a "stop-and-frisk" serves a
two-fold interest: (1) the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and
self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police
officer. 16 (Emphasis ours)

In the case at bar, neither the in flagrante delicto nor the "stop and frisk"
principles is applicable to justify the warrantless arrest and consequent search
and seizure made by the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment he
is committing or attempting to commit or has just committed an offense in the
presence of the arresting officer. Emphasis should be laid on the fact that the law
requires that the search be incidental to a lawful arrest. Therefore it is beyond
cavil that a lawful arrest must precede the search of a person and his
belongings. 17 Accordingly, for this exception to apply two elements must concur:
(1) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the arresting officer. 18
We find the two aforementioned elements lacking in the case at bar. The record
reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel,
he merely parked his car along the McArthur Highway, alighted from it and

casually proceeded towards the entrance of the Hotel clutching a sealed Zest-O
juice box. Accused-appellant did not act in a suspicious manner. For all intents
and purposes, there was no overt manifestation that accused-appellant has just
committed, is actually committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a
violation of the law, the group of SPO2 Nulud "hurriedly accosted"

19

accused-

appellant and later on "introduced themselves as police officers."

20

Accused-

appellant was arrested before the alleged drop-off of shabu was done. Probable
cause in this case was more imagined than real. Thus, there could have been
no in flagrante delicto arrest preceding the search, in light of the lack of an overt
physical act on the part of accused-appellant that he had committed a crime, was
committing a crime or was going to commit a crime. As applied to in flagrante
delicto arrests, it has been held that "reliable information" alone, absent any overt
act indicative of a felonious enterprise in the presence and within the view of the
arresting officers, is not sufficient to constitute probable cause that would justify
an in flagrante delicto arrest. 21 Hence, in People v.Amminudin, 22 we ruled
that "the accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so.
What he was doing was descending the gangplank of the M/V Wilcon 9 and there
was no outward indication that called for his arrest. To all appearances, he was
like any of the other passengers innocently disembarking from the vessel. It was
only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension" (Emphasis supplied).
The reliance of the prosecution in People v. Tangliben 23 to justify the police's
actions is misplaced. In the said case, based on the information supplied by
informers, police officers conducted a surveillance at the Victory Liner Terminal
compound in San Fernando, Pampanga against persons who may commit
misdemeanors and also on those who may be engaged in the traffic of
dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying
a red travelling bag who was acting suspiciously. They confronted him and
requested him to open his bag but he refused. He acceded later on when the

policemen identified themselves. Inside the bag were marijuana leaves wrapped
in a plastic wrapper. The police officers only knew of the activities of Tangliben on
the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge
from the very same informant of accused-appellant's activities. No less than
SPO2 Mario Nulud, the team leader of the arresting operatives, admitted that
their informant has been telling them about the activities of accused-appellant for
two years prior to his actual arrest on September 21, 1996. An excerpt of the
testimony of SPO2 Mario Nulud reveals the illegality of the arrest of accusedappellant as follows:
Q. Did the civilian informer of yours mentioned to you the name of this
chinese drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you even before
September 21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been telling you about the
activities of this chinese drug pusher reckoning in relation to
September 21, 1996?
A. That was about two years already.
Q. Notwithstanding his two years personal knowledge which you gained
from the civilian informant that this chinese drug pusher have
been engaged pushing drugs here in Angeles City, you did not
think of applying for a search warrant for this chinese drug
pusher?
A. No, sir.

xxx xxx xxx

Q. When you accosted this Binad Chua, he was casually walking along
the road near the Thunder Inn Hotel, is that right?
A. He was pinpointed by the civilian informer that he is the chinese drug
pusher that will deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the
accused in this case he alighted with a Corolla car with plate
number 999, I think, he just alighted when you saw him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked towards near the
entrance of the Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn Hotel but he was
pinpointed already by the civilian informer.
Q. But he was just walking towards the entrance of the Thunder Inn
Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.
xxx xxx xxx
Q. While he was walking, then you and PO2 Nunag pounced on him as
you used pounced on him in your affidavit?
A. Yes, sir.
xxx xxx xxx
Q. And you pounced on Jojo Chua before you saw that alleged small
plastic bag, is that correct?

A. Yes, sir.
Q. And after that you also confiscated this Zesto juice box?
A. Yes, sir.
xxx xxx xxx
Q. But would you agree with me that not all crystalline substance
is shabu?
A. No, that is shabu and it is been a long time that we have been tailing
the accused that he is really a drug pusher.
Q. So you have been tailing this accused for quite a long time that you
are very sure that what was brought by him was shabu?
A. Yes, sir. 24

The police operatives cannot feign ignorance of the alleged illegal activities of
accused-appellant. Considering that the identity, address and activities of the
suspected culprit was already ascertained two years previous to the actual arrest,
there was indeed no reason why the police officers could not have obtained a
judicial warrant before arresting accused-appellant and searching his person.
Whatever information their civilian asset relayed to them hours before accusedappellant's arrest was not a product of an "on the-spot" tip which may excuse
them from obtaining a warrant of arrest. Accordingly, the arresting team's
contention that their arrest of accused-appellant was a product of an "on-thespot" tip is untenable.
In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-andfrisk was defined as the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s)

25

or contraband. The police officer

should properly introduce himself and make initial inquiries, approach and
restrain a person who manifests unusual and suspicious conduct, in order to

check the latter's outer clothing for possibly concealed weapons.

26

The

apprehending police officer must have a genuine reason, in accordance with the
police officer's experience and the surrounding conditions, to warrant the belief
that the person to be held has weapons (or contraband) concealed about
him. 27 It should therefore be emphasized that a search and seizure should
precede the arrest for this principle to apply. 28
This principle of "stop-and-frisk" search was invoked by the Court in Manalili
v. Court of Appeals. 29 In said case, the policemen chanced upon the accused
who had reddish eyes, walking in a swaying manner, and who appeared to be
high on drugs. Thus, we upheld the validity of the search as akin to a "stop-andfrisk." In People v. Solayao, 30 we also found justifiable reason to "stop-and-frisk"
the accused after considering the following circumstances: the drunken
actuations of the accused and his companions, the fact that his companions fled
when they saw the policemen, and the fact that the peace officers were precisely
on an intelligence mission to verify reports that armed persons where roaming
the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid
"stop-and-frisk" in the case of accused-appellant. To reiterate, accused-appellant
was first arrested before the search and seizure of the alleged illegal items found
in his possession. The apprehending police operative failed to make any initial
inquiry into accused-appellant's business in the vicinity or the contents of the
Zest-O juice box he was carrying. The apprehending police officers only
introduced themselves when they already had custody of accused-appellant.
Besides, at the time of his arrest, accused-appellant did not exhibit manifest
unusual and suspicious conduct reasonable enough to dispense with the
procedure outlined by jurisprudence and the law. There was, therefore, no
genuine reasonable ground for the immediacy of accused-appellant's arrest.
Obviously, the acts of the police operatives wholly depended on the information
given to them by their confidential informant. Accordingly, before and during that

time of the arrest, the arresting officers had no personal knowledge that accusedappellant had just committed, was committing, or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred,
accused-appellant's warrantless arrest and consequent search would still not be
deemed a valid "stop-and frisk". For a valid "stop-and frisk" the search and
seizure must precede the arrest, which is not so in this case. Besides, as we
have earlier emphasized, the information about the illegal activities of accusedappellant was not unknown to the apprehending officers. Hence, the search and
seizure of the prohibited drugs cannot be deemed as a valid "stop-and-frisk".
Neither can there be valid seizure in plain view on the basis of the seized items
found in accused-appellant's possession. First, there was no valid intrusion.
Second, the evidence, i.e., the plastic bags found in the Zest-O juice box which
contained crystalline substances later on identified as methamphetamine
hydrochloride (shabu) and the 20 rounds of .22 caliber ammunition, were not
inadvertently discovered. The police officers first arrested accused-appellant and
intentionally searched his person and peeked into the sealed Zest-O juice box
before they were able to see and later on ascertain that the crystalline substance
was shabu. There was no clear showing that the sealed Zest-O juice box
accused-appellant carried contained prohibited drugs. Neither were the small
plastic bags which allegedly contained crystalline substance and the 20 rounds of
.22 caliber ammunition visible. These prohibited substances were not in plain
view of the arresting officers; hence, inadmissible for being the fruits of the
poisonous tree.
In like manner, the search cannot be categorized as a search of a moving
vehicle, a consented warrantless search, or a customs search. It cannot even fall
under exigent and emergency circumstances, for the evidence at hand is bereft
of any such showing.
All told, the absence of ill-motive on the part of the arresting team cannot simply
validate, much more cure, the illegality of the arrest and consequent warrantless

search of accused-appellant. Neither can the presumption of regularity of

performance of function be invoked by an officer in aid of the process when he
undertakes

to

justify

an

encroachment

of

rights

secured

by

the

Constitution. 31 In People v. Nubla, 32 we clearly stated that:

The presumption of regularity in the performance of official duty cannot
be used as basis for affirming accused-appellant's conviction because,
first, the presumption is precisely just that a mere presumption. Once
challenged by evidence, as in this case, . . . [it] cannot be regarded as
binding truth. Second, the presumption of regularity in the performance
of official functions cannot preponderate over the presumption of
innocence that prevails if not overthrown by proof beyond reasonable
doubt.

Furthermore, we entertain doubts whether the items allegedly seized from

accused-appellant were the very same items presented at the trial of this case.
The record shows that the initial field test where the items seized were identified
as shabu, was only conducted at the PNP headquarters of Angeles City.

33

The

items were therefore not marked at the place where they were taken. In People
v. Casimiro, 34 we struck down with disbelief the reliability of the identity of the
confiscated items since they were not marked at the place where they were
seized, thus:
The narcotics field test, which initially identified the seized item
as marijuana, was likewise not conducted at the scene of the crime, but
only at the narcotics office. There is thus reasonable doubt as to whether
the item allegedly seized from accused-appellant is the same brick
of marijuana marked by the policemen in their headquarters and given
by them to the crime laboratory.

The government's drive against illegal drugs needs the support of every citizen.
But it should not undermine the fundamental rights of every citizen as enshrined
in the Constitution. The constitutional guarantee against warrantless arrests and

unreasonable searches and seizures cannot be so carelessly disregarded as

overzealous police officers are sometimes wont to do. Fealty to the constitution
and the rights it guarantees should be paramount in their minds, otherwise their
good intentions will remain as such simply because they have blundered. The
criminal goes free, if he must, but it is the law that sets him free. Nothing can
destroy a government more quickly than its failure to observe its own laws, or
worse, its disregard of the charter of its own existence. 35
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-513,
convicting accused-appellant Binad Sy Chua of violation of Section 16, Article
III, Republic Act No. 6425 and sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine of P1,000,000.00, is REVERSED and SET ASIDE.
Accused-appellant Binad Sy Chua is ACQUITTED on the ground of reasonable
doubt. Consequently, he is ordered forthwith released from custody, unless he is
being lawfully held for another crime.
|||

(People v. Chua, G.R. Nos. 136066-67, [February 4, 2003], 444 PHIL 757-777)

[G.R. No. 72564. April 15, 1988.]

PEOPLE

OF

THE

PHILIPPINES, plaintiff-appellee, vs. ANITA

CLAUDIO Y BAGTANG, accused-appellant.

The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; DANGEROUS DRUGS ACT; NOT ONLY DELIVERY BUT
ALSO SALE, ADMINISTRATION, DISTRIBUTION AND TRANSPORTATION
ARE PENALIZED; CASE AT BAR. Section 4 of RA. No. 6425 shows that it is
not only delivery which is penalized but also the sale, administration, distribution
and transportation of prohibited drugs. Claudio was caught transporting 1.1 kilos
of marijuana, thus the lower court did not err in finding her guilty of violating Sec.
4.
2. ID.; ID.; INTENTION TO SELL, DISTRIBUTE AND DELIVER, MANIFEST IN
POSSESSION OF 1.1. KILO OF MARIJUANA. The accused also alleges that
before the completion of delivery, the intention of the possessor is unknown. This
allegation is also unavailing. It is undisputed that Claudio had in her possession
1.1 kilos of marijuana. This is a considerable quantity. As held in the case
of People v. Toledo, (140 SCRA 259, 267) "the possession of such considerable
quantity as three plastic bags of marijuana leaves and seeds coupled with the
fact that he is not a user of prohibited drugs cannot indicate anything except the
intention of the accused to sell, distribute and deliver said marijuana."
3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;
LEGAL WHERE ACCUSED WAS CAUGHT IN FLAGRANTE DELICTO.
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia
did not need a warrant to arrest Claudio as the latter was caught in flagrante
delicto. The warrantless search being an incident to a lawful arrest is in itself

lawful. (Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the
seizure of the 1.1 kilos of marijuana.
4. ID.; EVIDENCE; FINDINGS OF TRIAL COURT UPHELD; PRESUMPTION OF
REGULARITY APPLIED TO POLICEMEN AND NO MOTIVE WAS SHOWN TO
IMPLICATE APPELLANTS. We have carefully examined the records of the
case and we find no ground to alter the trial court's findings and appreciation of
the evidence presented. Credence is accorded to the prosecution's evidence,
more so as it consisted mainly of testimonies of policemen. Law enforcers are
presumed to have regularly performed their duty in the absence of proof to the
contrary (People v. De Jesus, 145 SCRA 521). We also find no reason from the
records why the prosecution witnesses should fabricate their testimonies and
implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA
500).
5. ID.; ID.; ALIBI; UNAVAILING, WHERE DEFENSE WAS TESTIFIED ONLY BY
ACCUSED. The accused testified that she was not on that bus that came from
Baguio City but rather she was in Olongapo City all that time. She alleged that
she was arrested by Pat. Obia for no reason at all. In the case at bar, alibi does
not deserve much credit as it was established only by the accused herself
(People v. De la Cruz, 148 SCRA 582).
6. ID.; ID.; ID.; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. It is a
well-established rule that alibi cannot prevail over positive testimony (People v.
De La Cruz, supra).

DECISION

GUTIERREZ, JR., J :
p

This is an appeal from the decision of the Regional Trial Court of Olongapo City,
Branch 73 finding the accused Anita Claudio y Bagtang guilty beyond reasonable
doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as

amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a
fine of P20,000.00, and to pay the costs.
The information filed against the accused alleged:
"That on or about the 21st day of July 1981, in the City of Olongapo,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused without being lawfully authorized, did then and there
wilfully, unlawfully and knowingly transport 1.1 kilos of Marijuana dried
leaves, which are prohibited drugs for the purpose of selling the same
from Baguio City to Olongapo City." (Rollo, p. 13)

The lower court established her guilt beyond reasonable doubt on the basis of
the prosecution's evidence as follows:
"To prove the guilt of the accused, the prosecution offered the following
documentary and testimonial evidence as follows: Exhibit "A" Letter
request for Examination of suspected marijuana dried leaves weighing
approximately 1.1 kilos dated July 25, 1981; "B" plastic container; "B"
marijuana contained in the plastic container; "B"-1-a" another plastic
container; "C" Chemistry Report No. D-668-81;"C " Findings: Positive
for marijuana; "D, "D-1," D-2 and "D-3;" "E" and "E" photographs of
accused with Pat. Daniel Obia and Paulino Tiongco showing the
marijuana, "F Victory Liner Ticket No. 84977; "G" Sworn Statement
of Pat. Daniel Obia, "H" Request for Field Test on suspected
marijuana from accused by P/Lt. Antonio V. Galindo; "H"-1 date of
receipt of the request; "L" Certificate of Field Test dated duly 22, 1981;
"B-2" and "B-2-a" additional wrapping paper; and the testimonies of
witnesses of the prosecution, Theresa Ann Bugayong; Pat. Daniel
Obia, Cpl. Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio
Bagang.
"Theresa Ann Bugayong - 22 years old, single, Forensic Chemist and a
resident of 1150 Sampaloc, Metro Manila, testified that she received a
request from the Task Force Bagong Buhay, Olongapo City, dated July

25, 1981, on specimen of marijuana submitted for examination. The

specimen consisted of 900 grams of suspected dried marijuana flowering
tops wrapped in a newspaper placed in a plastic bag with a marking "MB
Store" (Exh. "B").
"The examination conducted by her proved to be positive for marijuana.
After her examination, she prepared Chemistry Report No. D-668-81
dated July 29, 1981 (Exhs. "C" and "C-1"). She conducted three
examinations: microscopic examination, the duguenoi levine test and
thirdly, the confirmatory examination of thin layer chromatographic test.
The said specimen was submitted to them by OIC Danilo Santiago, a
representative of the CANU, Olongapo City.

LexLib

"The second witness for the prosecution was Daniel Obia, 37 years old,
married, policeman and residing at 34 Corpuz St., East Tapinac,
Olongapo City. Obia testified that he has been a member of the INP,
since 1970 up to the present. He was assigned in June, 1972 at the
Investigation Division as operative. His job then was among other things
to follow up reports in their office, recover stolen items and apprehend
suspects. On July 21, 1981, he was on Detached Service with the ANTINARCOTICS Unit; and that on that date, he came from Baguio City and
arrived in Olongapo City at about 1:30 o'clock in the afternoon having left
Baguio at about 8:30 o'clock in the morning. He took the Victory Liner in
going back to Olongapo City. His family lives in Baguio City. On board
the Victory Liner, he was seated on the second seat at the back. While
he was thus seated, suspect Anita Claudio boarded the same bus and
took the seat in front of him after putting a bag which she was carrying at
the back of the seat of Obia. The bag placed by suspect behind his
seat was a wooven buri bag made of plastic containing some
vegetables. The act of the accused putting her bag behind Pat. Obia
seat aroused his suspicion and made him felt (sic) nervous. With the
feeling that there was something unusual, he had the urge to search the
woven plastic bag. But it was only at San Fernando, Pampanga when he

was able to go to the bag. He inserted one of his fingers in a plastic bag
located at the bottom of the woven bag and smelt marijuana. The plastic
woven bag appearing to contain camote tops on the top has a big bundle
of plastic of marijuana at the bottom. He could recognize the smell of
marijuana because he was assigned at that time at the ANTINARCOTICS Unit. He did not, however, do anything after he discovered
that there was marijuana inside the plastic bag of the accused until they
reached Olongapo City and the accused alighted from the bus in front of
the Caltex Gasoline Station in Sta. Rita. Right after the accused alighted
from the bus, policeman Obia intercepted her and showed her his ID
identifying himself as a policeman and told her he will search her bag
because of the suspicion that she was carrying marijuana inside said
bag. In reply, accused told him, "Please go with me, let us settle this at
home." However, the witness did not heed her plea and instead
handcuffed her right hand and with her, boarded a tricycle right away and
brought the suspect to the police headquarters with her bag appearing to
contain vegetables.
"At the police headquarters Investigation Section. the bag was searched
in the presence of Investigator Cpl. Tiongco; Pat. Obia, the accused
and Sgt. Leoncio Bagang. Inside the plastic bag was found a big bundle
of plastic containing marijuana weighing about one kilo. Witness stated
that he could detect marijuana even before the application of chemicals
because of his one year and a half assignment with the CANU. After the
marijuana was taken from the bag of the accused, photographs were
taken of the accused and the marijuana confiscated from her possession
with Pat. Obia and that of Investigator Tiongco, accused and himself
identified photographs shown to him in open Court. (Exhs. "D," "D-1," "D2" and "D-3"). Witness was likewise shown a plastic bag of marijuana
contained in a plastic container (Exhs. "B," "B-1" and "B-1-a") and
identified it as the one confiscated from the accused and pointed to his
initials on the newspaper wrapping which also shows the date and time,

although the wrapper at the time he testified appeared to be soiled

already. The marijuana was allegedly still fresh when confiscated.
"To prove further that the accused transported the confiscated marijuana
from Baguio City to Olongapo City, witness identified Victory Liner Ticket
No. 684977 which was confiscated from the accused and for
identification purposes, the witness presented the body number of the
bus he wrote at the back of the ticket which is "309" (Exhs. "F" and "F1"). Regarding himself, he did not pay his fare from Baguio City because
as a policeman, he used his badge and a free ride.

"On cross-examination, witness stated that he went to Baguio City on

July 15, 1981 and underwent treatment of his heart while he was there.
He was given a furlough for medical treatment. He stayed in Baguio City
for about five days and returned to Olongapo City or July 21, 1981. Prior
to July 21, 1981, witness never knew the accused, and the first time he
saw her was in Baguio when she boarded the same Victory Liner he
took. When the accused who was bringing with her a woven plastic bag
placed the bag right behind his seat instead of placing it in front of her or
beside her seat Witness Obia became suspicious and his suspicion
was confirmed when they reached San Fernando, Pampanga, after he
checked the buri bag. The bus stopped at said town to load some
gasoline. Witness inserted one of his fingers inside the buri bag and
thereafter smelt marijuana. He confirmed his testimony on direct that
when witness confronted accused he was invited to go with her in order
to settle the matter to which he refused. Accused further testified that
from the time the accused placed her bag behind his seat from Baguio
City, he felt so nervous and had to take his medicine at the Tarlac
Station. It was only after having taken his medicine that his apprehension
was contained and thus was able to insert his right hand inside the buri
bag in San Fernando, Pampanga. His fingers reached the very bottom of
the bag. He identified his sworn statement regarding this incident given

on July 21, 1981 which is Exhibit "G." Witness likewise identified

accused Anita Claudio in open court.
"Paulino Tiongco, 52 years old, married and resident of 31 Canada St.,
East Bajac Bajac, Olongapo City, testified that as a policeman on the
afternoon of July 21, 1981, he was inside the Investigation Division of the
Police Station, Olongapo City. As Duty Investigator, between 1:46 and
2:00 o'clock in the afternoon of the same day, Pat. Daniel Obia arrived
at the Police Station with a woman and identified her in the courtroom as
Anita Claudio. Pat. Obia reported to him that he apprehended Anita
Claudio inside the Victory Liner bus for possession of marijuana dried
leaves. The marijuana leaves were contained in a buri bag with some
vegetables such as camote tops, bananas and some other vegetable".
The marijuana was placed in a plastic wrapper with the name National
Book Store colored black and white. Witness identified the wrapper (Exh.
"B-2"). The bag contained the markings of Pat. Obia which are his
initials, (Exh. "B-2-a"), and numbers 210781 representing the date which
was placed by Pat. Obia after Cpl. Tiongco examined the suspected
marijuana. cdrep
"After examining and seeing the marijuana together with the vegetables,
he interviewed apprehending officer Obia and reduced his statements
in writing. Cpl. Tiongco identified the sworn statement of Obia (Exh. 'G).
He also interviewed accused Anita Claudio who was all the while inside
the Investigation Room seated on a chair. After appraising her of her
constitutional rights, he asked the accused whether she was willing to
give her written statements to which the accused refused. Hence, no
statements were taken of her. However, pictures were taken inside the
investigation room. Exhs. "D" and "E," series which were already
previously identified by Pat. Obia. Witness identified the persons
appearing in the pictures as that of Pat. Obia and the accused and also
of himself. Thereafter, the marijuana contained in the plastic bag were
turned over to Lt. Galindo and Anita Claudio was detained.

"Ernesto Abello, 41 years old, married and residing at No. 29 Alba

Street, East Tapinac, Olongapo City, testified he was since March 1972 a
policeman and was stationed at Police Station 21, Olongapo City,
Metrodiscom. However, in 1981, he was already assigned to the CANUGeneral Anti-NARCOTICS Unit. On July 22, 1981, he reported for work
at the CANU and received from Lt. Galindo more than a kilo of suspected
marijuana dried leaves. As requested by Lt. Galindo, he conducted a
field test on this marijuana which he received from Lt. Galindo, as
evidenced by a request signed by him dated July 22, 1981 (Exh. "H").
"In connection with the field test conducted by him on the specimen, he
prepared a Certificate of Field Test dated July 22, 1981 (Exhs. "I"). The
Certificate of Field Test indicated the presence of tetra-hydrocannabinol
(THC), an active substance that can only be found in marijuana, a
prohibited drug. Cpl. Abello identified a plastic bag of marijuana received
from Lt. Galindo which he later give to CIC Danilo Santiago, the
Evidence Custodian, for the latter to bring the specimen to the PC Crime
Laboratory.
"The last witness for the prosecution was Leoncio Bagang, 40 years old,
married, residing at No. 27 Jones St., East Tapinac, Olongapo City, a
policeman of Olongapo City, assigned with Police Station "21." He has
been a policeman since 1966 up to the present. In July, 1981, he was
then assigned at the Patrol Division and his duty was to patrol the city
proper from Magsaysay Drive up to east Bajac Bajac.
"He narrated that on July 21, 1981, between the hours of 1:00 and 2:00
o'clock in the afternoon, he was at the Caltex Gasoline Station, East
Bajac Bajac, Olongapo City along Rizal Avenue. He was then on duty
patrol using a motorcycle. While he was at the said place, he saw Pat.
Obia alighted from the Victory Liner bus ordering somebody to alight
from the same bus. When he heard Pat. Obia, he approached him and
asked him what was happening. Pat. Obia told him he apprehended a
certain woman possessing dried marijuana. The woman was still then

inside the bus. Pat. Obia then brought the woman to the police
department who was bringing with her a buri bag. They boarded a
tricycle, the woman riding inside the tricycle while Pat. Obia sat behind
the driver. He then followed in his motorcycle the said tricycle to the
police station. He went inside the Investigation Section of the Police
Station and he was there when Pat. Obia reported to Cpl. Tiongco his
apprehension of the woman possessing marijuana. He saw the
marijuana for the first time inside the Investigation Section placed in a
buri bag covered with newspaper. He witnessed the taking out of the
marijuana from inside the bag by Pat. Obia in the presence of Cpl.
Tiongco and the woman or the accused in this case, and himself.
Policeman Bagang identified the accused in open Court. When asked
about the nature of the marijuana when it was brought out from the bag,
he said that the marijuana was dried but not well dried. Aside from the
marijuana inside the buri bag, there were vegetables and bananas.
Witness identified in open court, the marijuana he saw found in the buri
bag of the accused. His means of identification was the signature of Pat.
Obia, (Exh. "B-1"). He likewise identified a newspaper wrapping which
was already torn.
"While in the Investigation Division, witness Bagang heard the accused's
answer to Cpl. Tiongco's question that she was going to deliver the
marijuana to Sta. Rita. He, however, did not linger long at the
investigation Division. After he saw the marijuana and heard the answer
of the accused to Cpl. Tiongco's question the place of delivery of the
marijuana, he left the police station. Witness likewise identified an initial
DO-21-07-81 already marked as Exhibit "B-2." DO which is an initial, and
not a signature, stands for Daniel Obia. After the testimony of Leoncio
Bagang, the prosecution rested its case." (Rollo, pp. 42-47)

Accused Claudio raised the following assignments of errors in this appeal:

I

"CONVICTION

UNDER

SECTION

4, ART.

II

OF R.A.

6425 IS

IMPROPER IF ONE OR SOME OF THE ELEMENTS OF THE

OFFENSE IS OR ARE ABSENT.
II
"CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A.
6425 IF THE ALLEGED BUYMAN WAS NOT PRESENTED TO
TESTIFY.
III
"APPELLANT'S CONVICTION FOR DELIVERY (SEC. 4, ART II,
OF R.A. 6424) IS WRONG BECAUSE SOME MATERIAL FACTS
WERE OVERLOOKED AND

NOT

CONSIDERED

IN

FAVOR

OF

APPELLANT. (Rollo, p. 91)

The accused alleges that she is only liable, at the most, for possession under
Sec. 8, Art. II of Rep. Act No. 6425 and not for violating Sec. 4 of the same Act.
The latter section, Sec. 4 provides:
"Sec. 4. Sale, Administration, Delivery Distribution and Transportation of
Prohibited Drugs. The penalty of life imprisonment to death and a fine
ranging from twenty thousand to thirty thousand 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.
If the victim of the offense is a minor, or should a prohibited drug involved
in any offense under this Section be the proximate cause of the death of
a victim thereof, the maximum penalty herein provided shall be
imposed."

Claudio contends that there was no delivery as there was no recipient of the
prohibited drugs. Therefore, she may not be convicted under Sec. 4 of Rep. Act
No. 6425.

LibLex

The contention is without merit. A closer perusal of the subject provision shows
that it is not only delivery which is penalized but also the sale, administration,
distribution

and transportation of

prohibited

drugs.

Claudio

was

caught

transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her
guilty of violating Sec. 4.
The accused also alleges that before the completion of delivery, the intention of
the possessor is unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her
possession 1.1 kilos of marijuana. This is a considerable quantity. As held in the
case of People v. Toledo, (140 SCRA 259, 267) "the possession of such
considerable quantity as three plastic bags of marijuana leaves and seeds
coupled with the fact that he is not a user of prohibited drugs cannot indicate
anything except the intention of the accused to sell, distribute and deliver said
marijuana."

The accused next contends the warrantless search, seizure and apprehension as
unlawful.
The applicable provisions on this issue are found in the 1985 Rules on Criminal
Procedure.
Rule 113, Sec. 5(a) of the said Rules provides:
" . . . 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.
xxx xxx xxx

Meanwhile, its Rule 126, Sec. 12 provides:

"Section 12. Search incident to lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything which

may be used as proof of the commission of an offense, without a search

warrant. (12a)"

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia
did not need a warrant to arrest Claudio as the latter was caught in flagrante
delicto. The warrantless search being an incident to a lawful arrest is in itself
lawful. (Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the
seizure of the 1.1 kilos of marijuana.
The accused takes inconsistent positions in her appellant's brief At first, she does
not deny having had with her marijuana at the time of her arrest. Instead, she
claims that she should just be guilty of possession. In a complete turnabout, in
the latter portion of said brief, she claims that the evidence against her were
mere fabrications and the marijuana allegedly found in her possession was only
planted.
We have carefully examined the records of the case and we find no ground to
alter the trial court's findings and appreciation of the evidence presented.
Credence is accorded to the prosecution's evidence, more so as it consisted
mainly of testimonies of policemen. Law enforcers are presumed to have
regularly performed their duty in the absence of proof to the contrary (People v.
De Jesus, 145 SCRA 521). We also find no reason from the records why the
prosecution witnesses should fabricate their testimonies and implicate appellant
in such a serious crime (See People v. Bautista, 147 SCRA 500).

cdphil

The accused testified that she was not on that bus that came from Baguio City
but rather she was in Olongapo City all that time. She alleged that she was
arrested by Pat. Obia for no reason at all.
In the case at bar, alibi does not deserve much credit as it was established only
by the accused herself (People v. De la Cruz, 148 SCRA 582).
Moreover, it is a well-established rule that alibi cannot prevail over positive
testimony (People v. De La Cruz, supra).
WHEREFORE, the judgment appealed from is AFFIRMED.

SO ORDERED.
|||

(People v. Claudio y Bagtang, G.R. No. 72564, [April 15, 1988], 243 PHIL 795-

805)

[G.R. No. 121917. July 31, 1996.]

ROBIN CARIO PADILLA, accused-appellant, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, plaintiff-appellee.
Raval & Lokin; Robert A. Padilla and Philip Jurado; R.A.V. Saguisag and Gina C.
Garcia for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; WHEN MAY BE AVAILED
OF. Bail is a matter of right or discretion. It is a matter of right when the offense
charged is not punishable by death, reclusion perpetua or life imprisonment. On
the other hand, upon conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life imprisonment, bail becomes a
matter of discretion. Similarly, if the court imposed a penalty of imprisonment
exceeding six (6) years but not more than twenty (20) years then bail is a matter
of discretion, except when any of the enumerated circumstances under
paragraph 3 of Section 5, Rule 114 is present then bail shall be denied. But when
the accused is charged with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment, and evidence of guilt is strong, bail
shall be denied, as it is neither a matter of right nor of discretion. If the evidence,
however, is not strong bail becomes a matter of right.
2. ID.; ID.; ID.; WHEN MAY ADMINISTRATIVE CIRCULAR NO. 2-92 BE
APPLIED. Administrative Circular No. 2-92, applies in this case. The circular
unequivocably provides that 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. Appellant's application must, perforce, fail as he is no longer entitled

to bail.
RESOLUTION
FRANCISCO, J :
p

On appellant Robin C. Padilla's application for bail.

In an information filed before the Regional Trial Court of Angeles City, appellant
was charged with violation of P.D No. 1866 for illegal possession of firearms
punishable by reclusion temporal maximum to reclusion perpetua. 1 Pending trial,
appellant was release on bail. Thereafter, appellant was convicted as charged
and meted an indeterminate penalty of 17 years 4 months and 1 day of reclusion
temporal to 21 years of reclusion perpetua. He appealed to public respondent
Court of Appeals, but judgment was rendered affirming his conviction.
Respondent court cancelled his bailbond and ordered his arrest for confinement
at the New Bilibid Prison. Appellant filed a motion for reconsideration but was
denied. Dissatisfied, appellant is now before us by way of a petition for review on
certiorari with an application for bail praying, among others, to be allowed to post
bail for his temporary liberty. In his subsequent pleading, 2appellant moved for
the separate resolution of his bail application.
The threshold issue is whether or not appellant is entitled to bail.
Bail is either a matter of right, or discretion. It is a matter of right when the offense
charged is not punishable by death, reclusion perpetua or life imprisonment. 3 On
the other hand, upon conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life imprisonment, bail becomes a
matter of discretion. 4 Similarly, if the court imposed a penalty of imprisonment
exceeding six (6) years but not more that twenty (20) years then bail is a matter
of

discretion,

except

when

any

of

the

enumerated

circumstances 5 under paragraph 3 of Section 5, Rule 114 is present then bail

shall be denied. But when the accused is charged with a capital offense, or an

offense punishable by reclusion perpetua or life imprisonment, and evidence of

guilt is strong, bail shall be denied, 6 as it is neither a matter of right nor
discretion. If the evidence, however, is not strong bail becomes a matter of right. 7
In People v. Nitcha, 8 the Court, reiterating established jurisprudence, there said:
". . . if an accused who is charged with a crime punishable by reclusion
perpetua is convicted by the trial court and sentenced to suffer such a
penalty, bail is neither a matter of right on the part of the accused nor of
discretion on the part of the court. In such a situation the court would not
have only determined that the evidenced of guilt is strong which would
have been sufficient to deny bail even before conviction it would have
likewise ruled that the accused's guilt has been proven beyond
reasonable doubt. Bail must not then be granted to the accused during
the pendency of his appeal from the judgment of conviction. Construing
Section 3, Rule 114 of the 1985 Rules on Criminal Procedure, as
amended, this Court, in the en banc Resolution of 15 October 1991 in
People v. Ricardo Cortez, ruled that:
'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.'" 9

In this case, appellant was convicted of a crime punishable by reclusion

perpetua. Applying the aforequoted rule, we find appellant not entitled to bail as
his conviction clearly imports that the evidence of his guilt is strong. And contrary
to appellant's asseveration, a summary hearing for his bail of application for the
sole purpose of determining whether or not evidence is strong is unnecessary.
Indeed, the extensive trial before the lower court and the appeal before

respondent court are more than sufficient in accomplishing the purpose for which
a summary hearing for bail application is designed.
Rule 114, Section 7 of the Rules of Court, moreover, is clear. Thus:
"SEC. 7. Capital offense or an offense punishable by reclusion perpetua
or life imprisonment, not bailable. No person charged with a capital
offense, or an offense

punishable by reclusion

perpetua or life

imprisonment, when evidence of guilt is strong, shall be admitted to bail

regardless of the stage of the criminal prosecution."

Administrative Circular No. 2-92, in addition, applies in this case. The circular
unequivocably provides that when an accused is charged with a capital 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. Appellant's application must, perforce, fail as he is no
longer entitled to bail.
Be that as it may, we are not unwilling to accommodate his request for an X-ray
and Magnetic Resonance Imaging (MRI) at St. Luke's Hospital as follow-up
examinations for his 1994 slipped-disc operation. It has been said that while
justice is the first virtue of the court, yet admittedly, humanity is the second.
Hence, petitioner's request for the badly needed X-ray and MRI examinations for
which the New Bilibid Prison Hospital is inadequately equipped, as certified to by
its Chief Officer, deserves attention. We recall that way back in 1946, we allowed
in Dela Rama v. People's court, 10 a precedent on which appellant now anchors
his application, a prisoner to be released on bail when his continued detention
would be injurious to his health. This trend, however, has changed with the
development of times. Besides, appellant's situation is not akin to Dela
Rama's factual milieu. While appellant now shall be denied bail, nevertheless, we
cannot be indifferent to his medical needs. And by granting appellant's request,

the Court is merely performing its supervisory powers over detainees to

safeguard, among others, their proper accommodation and health pursuant
to Section 25 of Rule 114 of the Rules of Court, as amended.
ACCORDINGLY, the cancellation of appellant's bailbond by public respondent
court is AFFIRMED and the instant application for bail is DENIED for lack of
merit. Appellant's request for an X-ray and MRI examinations at St. Luke's
Hospital is GRANTED which should be conducted at the first opportune time to
be arranged by the Director of the New Bilibid prison with the responsible officers
of the hospital, provided that appellant shall be at all times subject to the security
conditions imposed by the prison's director. The responsibility for the enforcement
of the subject request, as well as the security of the appellant, devolves upon the
Director of the New Bilibid Prison. Upon termination of the medical examinations,
appellant shall be recommitted to prison without delay. As much as possible, any
unnecessary publicity should be avoided.
|||

(Padilla v. Court of Appeals, G.R. No. 121917 (Resolution), [July 31, 1996], 328

PHIL 1266-1271)

[G.R. No. 74869. July 6, 1988.]

PEOPLE

OF

THE

PHILIPPINES, plaintiff-appellee, vs.

IDEL

AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General, for plaintiff-appellee.
Herminio T. Llariza counsel de-officio, for defendant-appellant.
SYLLABUS
1. CONSTITUTIONAL

LAW;

BILL

OF

RIGHTS;

RIGHTS

AGAINST

UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS ARREST

AND SEIZURE BASED ON AN INFORMER'S TIP, AT A TIME WHEN ACCUSED
WAS NOT COMMITTING A CRIME, ILLEGAL; EVIDENCE OBTAINED,
INADMISSIBLE. Where it is not disputed that the PC officers had no warrant
when they arrested Aminnudin while he was descending the gangplank of the
M/V Wilcon 9 and seized the bag he was carrying, and that their only justification
was the tip they had earlier received from a reliable and regular informer who
reported to them that Aminnudin was arriving in Iloilo by boat with marijuana, the
search was not an incident of a lawful arrest because there was no warrant of
arrest and warrantless arrest did not come under the exceptions allowed by the
Rules of Court. Hence, the warrantless search was also illegal and the evidence
obtained was inadmissible.
2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE INVOKED IN PRESENT CASE
TO DISPENSE WITH OBTENTION OF ARREST AND SEARCH WARRANT.
The present case presented no such urgency. From the conflicting declarations of
the PC witnesses, it is clear that they had at least two days within which they
could have obtained a warrant to arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified.
The date of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause, indeed, to

justify the issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."
3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT BAR WAS NOT COMMITTING A
CRIME WHEN HE WAS ARRESTED. In the case at bar, the accusedappellant was not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so. What he was
doing was descending the gangplank of the M/V Wilcon 9 and there was no
outward indication that called for his arrest. To all appearances, he was like any
of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that
triggered his arrest. The identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him.
AQUINO, J., Dissenting:
CONSTITUTIONAL

LAW;

BILL

OF

RIGHTS;

RIGHT

AGAINST

UNREASONABLE SEARCHES AND SEIZURES; ARREST AT TIME OF

COMMISSION OF CRIME IS LAWFUL; SEARCH LIKEWISE LAWFUL. I hold
that the accused was caught in flagrante, for he was carrying marijuana leaves in
his bag at the moment of his arrest. He was not "innocently disembarking from
the vessel." The unauthorized transportation of marijuana (Indian hemp), which is
a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was
committing a crime, his arrest could be lawfully effected without a warrant (Sec.
6-a, Rule 113, Rules of Court), and the search of his bag (which yielded the
marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126,
Rules of Court).
DECISION

CRUZ, J :
p

The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana.
The trial court, disbelieving him, held it was high time to put him away and
sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from
the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who
were in fact waiting for him simply accosted him, inspected his bag and finding
what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was
filed against him. 2 Later, the information was amended to include Farida Ali y
Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn
statement

of

the

arresting

officers

absolving

her

after

"thorough

investigation."5 The motion was granted, and trial proceeded only against the
accused-appellant, who was eventually convicted. 6
According to the prosecution, the PC officers had earlier received a tip from one
of their informers that the accused-appellant was on board a vessel bound for
Iloilo City and was carrying marijuana. 7 He was identified by name. 8 Acting on
this tip, they waited for him in the evening of June 25, 1984, and approached him
as he descended from the gangplank after the informer had pointed to
him. 9 They detained him and inspected the bag he was carrying. It was found to
contain three kilos of what were later analyzed as marijuana leaves by an NBI
forensic examiner, 10 who testified that she conducted microscopic, chemical and
chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in
his bag was his clothing consisting of a jacket, two shirts and two pairs of
pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed.
His bag was confiscated without a search warrant. At the PC headquarters, he
was manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed.

12

He insisted he did not even

know what marijuana looked like and that his business was selling watches and
sometimes cigarettes. 13 He also argued that the marijuana he was alleged to
have been carrying was not properly identified and could have been any of
several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused
that he claimed to have come to Iloilo City to sell watches but carried only two
watches at the time, traveling from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the
two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they
damaged as a result of his manhandling.

1 6 He

also said he sold one of the

watches for P400.00 and gave away the other, although the watches belonged
not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing
that he had not sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering that it was
the trial judge who had immediate access to the testimony of the witnesses and
had the opportunity to weigh their credibility on the stand. Nuances of tone or
voice, meaningful pauses and hesitation, flush of face and dart of eyes, which
may reveal the truth or expose the lie, are not described in the impersonal record.
But the trial judge sees all of this, discovering for himself the truant fact amidst
the falsities.

The only exception we may make in this case is the trial court's conclusion that
the accused-appellant was not really beaten up because he did not complain
about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that
time under detention by the PC authorities and in fact has never been set free
since he was arrested in 1984 and up to the present. No bail has been allowed
for his release.
There is one point that deserves closer examination, however, and it is
Aminnudin's claim that he was arrested and searched without warrant, making
the marijuana allegedly found in his possession inadmissible in evidence against
him under the Bill of Rights. The decision did not even discuss this point. For his
part, the Solicitor General dismissed this after an all-too-short argument that the
arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This made the search also valid as
incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized
the bag he was carrying. Their only justification was the tip they had earlier
received from a reliable and regular informer who reported to them that
Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as
to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25."

22

On this

matter, we may prefer the declaration of the chief of the arresting team, Lt.
Cipriano Querol, Jr., who testified as follow:
"Q You mentioned an intelligence report, you mean with respect to the
coming of Idel Aminnudin on June 25, 1984?
"A Yes, sir.
"Q When did you receive this intelligence report?

"A Two days before June 25, 1984 and it was supported by reliable
sources.
"Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
"A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984
we have already reports of the particular operation which was
being participated by Idel Aminnudin.
"Q You said you received an intelligence report two days before June 25,
1984 with respect to the coming of Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this intelligence report?
"A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.
"COURT:
"Q Previous to that particular information which you said two days before
June 25, 1984, did you also receive any report regarding the
activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the activities of Idel
Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.

"Q From whom did you get that information?

"A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot identify the
person.
"Q But you received it from your regular informer?
"A Yes, sir.
"ATTY. LLARIZA:
"Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?
"A Marijuana, sir.
"Q And this information respecting Idel Aminnudin's coming to Iloilo with
marijuana was received by you many days before you received
the intelligence report in writing?
"A Not a report of the particular coming of Aminnudin but his activities.
"Q You only knew that he was coming on June 25, 1984 two days
before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know that Aminnudin
was coming?
"A Before June 23, 1984, I, in my capacity, did not know that he was
coming but on June 23, 1984 that was the time when I received
the information that he was coming. Regarding the reports on his
activities, we have reports that he has already consummated the
act of selling and shipping marijuana stuff.

"COURT:
"Q And as a result of that report, you put him under surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
"A Yes, sir.
"Q Are you sure of that?
"A On the 23rd he will be coming with the woman.
"Q So that even before you received the official report on June 23, 1984,
you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for the seizure or search of
the subject mentioned in your intelligence report?
"A No, more.
"Q Why not?
"A Because we were very very sure that our operation will yield positive
result.
"Q Is that your procedure that whenever it will yield positive result you do
not need a search warrant anymore?
"A Search warrant is not necessary." 23

That last answer is a cavalier pronouncement, especially as it comes from a mere

lieutenant of the PC. The Supreme Court cannot countenance such a statement.
This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
"Sec. 2. 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."

In the case at bar, there was no warrant of arrest or search warrant issued by a
judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been
committed to justify the warrantless arrest allowed under Rule 113 of the Rules of
Court. Even expediency could not be invoked to dispense with the obtention of
the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that
vessels and aircraft are subject to warrantless searches and seizures for violation
of the customs law because these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of
the PC witnesses, it is clear that they had at least two days within which they
could have obtained a warrant to arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified.
The date of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to

comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own
authority that "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of
violators of the Dangerous Drugs Act, it has always been shown that they were
caught red-handed, as result of what are popularly called "buy-bust" operations of
the narcotics agents. 25 Rule 113 was clearly applicable because at the precise
time of arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It
was the furtive finger that triggered his arrest. The identification by the informer
was the probable cause as determined by the officers (and not a judge) that
authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen
years of the despised dictatorship, when any one could be picked up at will,
detained without charges and punished without trial, we will have only ourselves
to blame if that kind of arbitrariness is allowed to return, to once more flaunt its
disdain of the Constitution and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very
own words suggest that he is lying, that fact alone does not justify a finding that
he is guilty. The constitutional presumption is that he is innocent, and he will be
so declared even if his defense is weak as long as the prosecution is not strong
enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case
of the prosecution must fall. That evidence cannot be admitted, and should never
have been considered by the trial court for the simple fact is that the marijuana
was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes'
felicitous phrase. The search was not an incident of a lawful arrest because there
was no warrant of arrest and the warrantless arrest did not come under the
exceptions allowed by the Rules of Court. Hence, the warrantless search was
also illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law-enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more
so than the compulsions of the Bill of Rights for the protection of the liberty of
every individual in the realm, including the basest of criminals. The Constitution
covers with the mantle of its protection the innocent and the guilty alike against
any manner of high-handedness from the authorities, however praiseworthy their
intentions.
Those who are supposed to enforce the law are not justified in disregarding the
rights of the individual in the name of order. Order is too high a price for the loss
of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal
should escape than that the government should play an ignoble part." It is simply
not allowed in the free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond reasonable
doubt and he must therefore be discharged on the presumption that he is
innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accusedappellant is ACQUITTED. It is so ordered.

Narvasa, Gancayco and Medialdea JJ. concur.

|||

(People v. Aminnudin y Ahni, G.R. No. 74869, [July 6, 1988], 246 PHIL 424-

435)

[G.R. No. 185379. November 27, 2009.]

PEOPLE

OF

THE

PHILIPPINES, appellee, vs.

ZENAIDA

QUEBRAL y MATEO, FERNANDO LOPEZ y AMBUS and

MICHAEL SALVADOR y JORNACION, appellants.
DECISION
ABAD, J :
p

This case is about the requirement of authentication of seized prohibited drugs

and the conduct of warrantless search of a suspect by the roadside based on
probable cause.
The Facts and the Case
The provincial prosecutor of Bulacan charged the accused Zenaida Quebral,
Eusebio Quebral, Fernando Lopez, and Michael Salvador before the Regional
Trial Court (RTC) of Malolos, Bulacan, in Criminal Case 3331-M-2002 with
violation

of

Section

5,

Article

II

of Republic

Act

9165 or

the

Comprehensive Dangerous Drugs Act of 2002.

At the trial of this case, the prosecution presented PO3 Cecilio Galvez of the
police force of Balagtas, Bulacan, who testified that at 7:00 p.m. on September 7,
2002, the Chief of the Drug Enforcement Unit called him and other police officers
to a briefing regarding a police informer's report that two men and a woman on
board an owner type jeep with a specific plate number would deliver shabu, a
prohibited drug, on the following day at a Petron Gasoline Station in Balagtas to
Michael Salvador, a drug pusher in the police watch list. 1
After a short briefing on the morning of September 8, 2002, PO3 Galvez and six
other police officers went to the North Luzon Expressway Balagtas Exit at Burol
2nd, watching out for the owner type jeep mentioned. They got there at around
7:45 a.m. Since the informer did not give the exact time of the delivery

of shabu, the police officers staked out the expressway exit until late afternoon. At
around 4:00 p.m., such a jeep, bearing the reported plate number and with two
men and a woman on board, came out of the Balagtas Exit. Galvez identified the
two men as accused Eusebio Quebral, who drove the jeep, and accusedappellant Fernando Lopez and the woman as accused-appellant Zenaida
Quebral. The police trailed the jeep as it proceeded to the town proper of
Balagtas and entered a Petron gas station along the McArthur Highway.

AaSIET

After a few minutes, a Tamaraw FX arrived from which accused-appellant

Michael Salvador alighted. He walked towards the jeep and talked to accused
Zenaida Quebral, who then handed a white envelope to him. On seeing this, PO3
Galvez, who was watching from about 15 meters in a tinted car, signaled his
back-up team to move. The police officers alighted from their vehicles and
surrounded the jeep. Galvez took the envelope from Michael, opened it, and saw
five plastic sachets containing white crystalline substance which he believed
was shabu.
The Bulacan Provincial Crime Laboratory Office later examined the substance
and

submitted

chemistry

report, 2 stating

that

it

was shabu or

methylamphetamine hydrochloride, a prohibited drug.

Appellants denied having committed the crime, claiming only that PO3 Galvez
and his fellow police officers merely framed them up.
On March 18, 2004 the RTC found all four accused guilty of the crime charged
and sentenced them to suffer the penalty of life imprisonment and to pay a fine of
P5 million.
On May 20, 2005, while the Court of Appeals (CA) was reviewing the case on
appeal in CA-G.R. CR-HC 01997, accused Eusebio Quebral died, prompting it to
dismiss the case against him. On February 13, 2008, the CA rendered
judgment, 3entirely affirming the decision of the RTC. The remaining accused
appealed to this Court.

The Issues Presented

Appellants basically raise two issues for this Court's resolution:
1. Whether or not the CA erred in not excluding the evidence of the
seized shabu on the ground that, having illegally arrested the accused,
the police officers' subsequent search of their persons incident to such
arrest was also illegal; and
2. Whether or not the prosecution presented ample proof of appellants'
guilt beyond reasonable doubt.

The Rulings of the Court

One. The accused claim that since the police did not have valid ground to arrest
them, their subsequent search of them was illegal and the evidence of the
seized shabu cannot be admitted in evidence against them. With the exclusion of
the seized drugs, there would not be proof that they were passing them.
The accused-appellants invoke the rule that a person may be arrested even
without a warrant only a) if he is caught in the act of committing a crime, b) if he
has just committed a crime and the arresting officer pursued him, or c) if he
escaped from a legal confinement. 4 But in the first two instances, the officer
must have personal knowledge of the facts underlying the arrest. The target
person's observable acts must clearly spell a crime. If no crime is evident from
those acts, no valid arrest can be made. An informant whispering to the police
officer's ear that the person walking or standing on the street has committed or is
committing a crime will not do. The arresting officer must himself perceive the
manifestations of a crime. 5

ETIHCa

The accused-appellants point out that in this case the police officers cannot say
that what they saw from a distance constituted a crime. Two men and a woman
arrived on board a jeep at the gas station. A third man approached the jeep,
spoke to the woman and she handed him a folded white envelope that appeared

to contain something. These acts do not constitute a crime per se. Consequently,
their arrest at this point was illegal. The subsequent search of their persons, not
being based on a valid arrest, was itself illegal.
But, actually, it was more of a search preceding an arrest. The police officers had
information that two men and a woman on board an owner type jeep would arrive
in Balagtas and hand over a consignment of shabu at a gas station in town to a
known drug dealer whose name was on the police watch list. When these things
unfolded before their eyes as they watched from a distance, the police came
down on those persons and searched them, resulting in the discovery and
seizure of a quantity of shabu in their possession. In such a case, the search is a
valid search justifying the arrest that came after it.
This Court held in People v. Bagista 6 that the NARCOM officers had probable
cause to stop and search all vehicles coming from the north at Acop, Tublay,
Benguet, in view of the confidential information they received from their regular
informant that a woman fitting the description of the accused would be bringing
marijuana from up north. They likewise had probable cause to search her
belongings since she fitted the given description. In such a case, the warrantless
search was valid and, consequently, any evidence obtained from it is admissible
against the accused.
As the lower court aptly put it in this case, the law enforcers already had an
inkling of the personal circumstances of the persons they were looking for and
the criminal act they were about to commit. That these circumstances played out
in their presence supplied probable cause for the search. The police acted on
reasonable ground of suspicion or belief supported by circumstances sufficiently
strong in themselves to warrant a cautious man to believe that a crime has been
committed or is about to be committed. 7 Since the seized shabu resulted from a
valid search, it is admissible in evidence against the accused.
It would have been impractical for the police to apply with the appropriate court
for a search warrant since their suspicion found factual support only at the

moment accused Eusebio Quebral, Fernando Lopez, and Zenaida Quebral

rendezvoused with Michael Salvador at the Petron gas station for the hand over
of the drugs. An immediate search was warranted since they would have gone
away by the time the police could apply for a search warrant. 8 The drugs could
be easily transported and concealed with impunity. 9
The case of People v. Aminnudin 10 cannot apply to this case. In Aminnudin, the
informant gave the police the name and description of the person who would be
coming down from a ship the following day carrying a shipment of drugs. In such
a case, the Court held that the police had ample time to seek a search warrant
against the named person so they could validly search his luggage. In the
present case, all the information the police had about the persons in possession
of the prohibited drugs was that they were two men and a woman on board an
owner type jeep. A search warrant issued against such persons could be used by
the police to harass practically anyone.

EIDTAa

Two. The accused-appellants point out that the testimony of PO3 Galvez cannot
support their conviction since it does not bear the corroboration of the other
officers involved in the police operation against them. But the failure of these
other officers did not weaken the prosecution evidence. The lone declaration of
an eyewitness is sufficient to convict if, as in this case, the court finds the same
credible. 11 Credibility goes into a person's integrity, to the fact that he is worthy of
belief, 12 and does not come with the number of witnesses. 13
The accused-appellants also point out that, since the chemist who examined the
seized substance did not testify in court, the prosecution was unable to establish
the indispensable element of corpus delicti. But this claim is unmeritorious. This
Court has held that the non-presentation of the forensic chemist in illegal drug
cases is an insufficient cause for acquittal.

14

The corpus delicti in dangerous

drugs cases constitutes the dangerous drug itself. This means that proof beyond
doubt of the identity of the prohibited drug is essential. 15

Besides, corpus delicti has nothing to do with the testimony of the laboratory
analyst. In fact, this Court has ruled that the report of an official forensic chemist
regarding a recovered prohibited drug enjoys the presumption of regularity in its
preparation. Corollarily, under Section 44 of Rule 130, Revised Rules of Court,
entries in official records made in the performance of official duty are prima
facie evidence of the facts they state.

16

Therefore, the report of Forensic

Chemical Officer Sta. Maria that the five plastic sachets PO3 Galvez gave to her
for examination contained shabu is conclusive in the absence of evidence
proving the contrary. At any rate, as the CA pointed out, the defense agreed
during trial to dispense with the testimony of the chemist and stipulated on his
findings. 17

Parenthetically, the accused-appellants raised their objection to the police

chemist's report only on appeal when such objection should have been made
when the prosecution offered the same in evidence. They may, thus, be
considered to have waived their objection to such report.

18

The familiar rule in

this jurisdiction is that the inadmissibility of certain documents, if not urged before
the court below, cannot be raised for the first time on appeal. 19
The accused-appellants take advantage of PO3 Galvez's testimony that they
conducted their operation on September 2, 2002, the date that the informant gave
them, and that the following day was September 8, 2002

20

to attack his

credibility. But inconsistency is trivial and appears to be a pure mistake. Lapses

like this even enhance the truthfulness of the testimony of a witness as they
erase any suspicion of a rehearsed declaration.

21

Besides, PO3 Galvez

corrected this mistake on cross-examination. He said that their informant gave

them his tip at 7:00 p.m. of September 7, 2002. 22
Finally, the accused-appellants contend that the prosecution evidence failed to
show compliance with the requirements of law for handling evidence. But, as has
been held in a recent case,

23

failure to comply strictly with those requirements

will not render the seizure of the prohibited drugs invalid for so long as the
integrity and evidentiary value of the confiscated items are properly preserved by
the apprehending officers. Besides, the accused-appellants did not raise it before
the trial court, hence, they cannot raise it for the first time on appeal. 24

ECaSIT

The CA and the RTC gave credence to the testimony of PO3 Galvez and this
Court finds no reason for disagreement. His narration was clear and candid. On
the other hand, the accused-appellants' claim of a "frame-up" was easy to
concoct and so has been the common line of defense in most cases involving
violations of the Dangerous Drugs Act. 25 Such defense requires strong and
convincing evidence which the accused-appellants failed to satisfy.
As the trial court correctly observed, the accused-appellants failed to provide any
reason why of all the people plying through the roads they had taken, the police
chose to frame them up for the crime. They also failed to explain why the police
would plant such huge amount of shabu if a small quantity would be sufficient to
send them to jail. 26 No arresting officer would plant such quantity of shabu solely
to incriminate the accused who have not been shown to be of good financial
standing. 27
WHEREFORE, the Court DENIES the appeal and AFFIRMS the decision of the
Court of Appeals dated February 13, 2008 and of the Regional Trial Court of
Malolos dated March 18, 2004.
SO ORDERED.
|||

(People v. Quebral y Mateo, G.R. No. 185379, [November 27, 2009], 621 PHIL

226-236)

[G.R. No. 136051. June 8, 2006.]

ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P.
ROSETE, petitioners, vs.

JULIANO

LIM

and

LILIA

LIM, respondents.
DECISION
CHICO-NAZARIO, J :
p

Before Us is a petition for review on certiorari which seeks to set aside the
Decision 1 of the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August
1998 which upheld the Orders of Branch 77 of the Regional Trial Court (RTC) of
Quezon City in Civil Case No. Q-95-25803 dated 22 July 1997 2 and 27 August
1997, 3 allowing the taking of deposition upon oral examination of petitioners
Oscar P. Mapalo and Chito P. Rosete, and its Resolution 4 dated 19 October 1998
denying petitioners' Motion for Reconsideration.
Relevant to the petition are the following antecedents:
On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch
77 of the RTC of Quezon City a Complaint for Annulment, Specific Performance
with Damages against AFP Retirement and Separation Benefits System (AFPRSBS), Espreme Realty and Development Corporation (Espreme Realty),
Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete, Bank of the Philippine
Islands (BPI), and Register of Deeds of the Province of Mindoro Occidental,
docketed as Civil Case No. Q-95-25803. 5 It asked, among other things, that the
Deed of Sale executed by AFP-RSBS covering certain parcels of lands in favor of
Espreme Realty and the titles thereof under the name of the latter be annulled;
and that the AFP-RSBS and Espreme Realty be ordered to execute the
necessary documents to restore ownership and title of said lands to respondents,
and that the Register of Deeds be ordered to cancel the titles of said land under

the name of Espreme Realty and to transfer the same in the names of
respondents.
On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the
court has no jurisdiction over the subject matter of the action or suit and that
venue has been improperly laid. 6 A Supplemental Motion to Dismiss was filed by
petitioner Alfredo P. Rosete on 23 January 1996. 7 Respondents opposed the
Motion to Dismiss filed by petitioners 8 to which petitioners filed their
Reply. 9 Respondents filed a Comment on the Reply. 10 AFP-RSBS, 11 Espreme
Realty, 12 and, BPI 13 filed their respective Motions to Dismiss which respondents
opposed.

HDIaET

In an Order dated 12 March 1996, the Motions to Dismiss filed by all the
defendants

were

denied. 14 The

Motions

for

Reconsideration

filed

by

petitioners 15 and BPI, 16 which respondents opposed, 17 were also denied in an

Order dated 24 May 1996. 18
On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Crossclaim 19 to

which

respondents

filed

their

Reply

Counterclaim. 20 Respondents also filed a Motion

21

and

Answer

to

to Serve Supplemental

Allegation against BPI and petitioner Chito Rosete which the trial court granted in
an order dated 28 July 1996. 22
On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a
Petition 23 for Certiorari and Prohibition in the Court of Appeals, docketed as CAG.R. SP No. 40837, challenging the trial court's Orders dated 12 March 1996 and
24 May 1996 that denied their Motions to Dismiss and Reconsideration,
respectively. 24 They likewise informed the trial court that on 6 June 1996, they
filed an Ex-Parte Motion 25 to Admit Answers Ex Abudanti Cautela. 26
On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order
granting the Motion to Serve Supplemental Allegation against BPI and him be
reconsidered and set aside, and that respondents be ordered to reduce their

supplemental allegations in the form and manner required by the Rules of

Court. 27 Same was denied in an order dated 12 August 1996.

28

This denial was

appealed to the Court of Appeals on 26 August 1996, which was docketed as

CA-G.R. SP No. 41821. 29
Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on
9 September 1996. 30
On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral
Examination giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will
cause the deposition of petitioners Oscar Mapalo and Chito Rosete. 31
On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to
Take Deposition Upon Oral Examination. 32 They argued that the deposition may
not be taken without leave of court as no answer has yet been served and the
issues have not yet been joined since their Answer was filed ex abudanti cautela,
pending resolution of the Petition for Certiorari challenging the orders dated 12
March 1996 and 24 May 1996 that denied their Motions to Dismiss and for
Reconsideration, respectively. This is in addition to the fact that they
challenged via a Petition for Certiorari before the Court of Appeals the lower
court's Orders dated 23 July 1996 and 12 August 1996 which, respectively,
granted respondents' Motion to Serve Supplemental Allegation Against
Defendants BPI and Chito Rosete, and for the latter to plead thereto, and denied
Chito Rosete's Motion for Reconsideration of the order dated 23 July 1996.
Moreover, they contend that since there are two criminal cases pending before
the City Prosecutors of Mandaluyong City and Pasig City involving the same set
of facts as in the present case wherein respondent Juliano Lim is the private
complainant and petitioners are the respondents, to permit the taking of the
deposition would be violative of their right against self-incrimination because by
means of the oral deposition, respondents would seek to establish the allegations
of fact in the complaint which are also the allegations of fact in the complaintaffidavits in the said criminal cases.

Respondents filed their Comment on the Objection to Deposition Taking

33

to

which petitioners filed their Reply. 34

In an Order dated 22 July 1997, the lower court denied petitioners' motion and
objection to take deposition upon oral examination, and scheduled the taking
thereof. 35 On

August

1997,

petitioners

filed

Motion

for

Reconsideration. 36They filed a Supplemental Motion for Reconsideration on 11

August 1997. 37
On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or
Suspend the Taking of the Deposition Upon Oral Examination. 38
In an Order dated 27 August 1997, the lower court denied petitioners' Motion for
Reconsideration and Supplemental Motion for Reconsideration, and scheduled
the taking of the Deposition Upon Oral Examination. 39
On 22 September 1997, respondents filed an Omnibus Motion: (1) To Strike Out
Answer of Defendants Mapalo and Chito Rosete; (2) to Declare Defendants
Mapalo and Chito Rosete In Default; and (3) For Reception of Plaintiffs'
EvidenceEx-parte, 40 which petitioners opposed. 41
On 29 September 1997, petitioners filed with the Court of Appeals a Petition
for Certiorari and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the
lower court dated 22 July 1997 and 27 August 1997. 42
In an Order dated 29 October 1997, the lower court: (1) ordered the striking out
from the record of the Answer ex abudanti cautela filed by petitioners Mapalo and
Chito Rosete for their continued unjustified refusal to be sworn pursuant to Rule
29 of the 1997 Rules of Civil Procedure; (2) declared defendants Mapalo and
Chito Rosete in default; and I allowed plaintiffs to present their evidence exparte as regards the latter. 43 On 25 November 1997, petitioners filed an
Urgent Ex-parte Omnibus Motion (1) For Reconsideration; (2) To Lift Order of
Default; and (3) To Hold In Abeyance Presentation of Plaintiffs' Evidence Exparte. 44 The day after, petitioners filed an Amended Omnibus Motion. 45

On 28 November 1997, respondents filed a Motion to Set Case for Exparte Presentation of Evidence 46 which the lower court set for 11 December
1997. 47
In an Order dated 11 December 1997, the lower court denied petitioners'
urgent ex-parte omnibus motion. 48 On even date, the ex-parte presentation of
evidence against petitioners Mapalo and Chito Rosete was terminated. 49
On 10 February 1998, petitioners filed a Petition

50

for Certiorari and Prohibition

before the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower
court's Orders dated 29 October 1997 and 11 December 1997. 51
On

24

August

1998,

the

Court

of

Appeals

dismissed

the

Petition

for Certiorari and Prohibition, and upheld the Orders of the lower court dated 22
July 1997 and 27 August 1997 (CA-G.R. SP No. 45400). 52 The Motion for
Reconsideration 53which was opposed 54 by respondents was denied on 19
October 1998. 55
Petitioners assail the ruling of the Court of Appeals via a Petition for Review
on Certiorari. They anchor their petition on the following grounds:
I.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27,
1997

THAT

THE

CONSTITUTIONAL

RIGHT

AGAINST

SELF

INCRIMINATION OF OSCAR MAPALO AND CHITO ROSETE WOULD

NOT BE VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE
CIVIL CASE FILED IN THE LOWER COURT ALTHOUGH THEY ARE
ALSO

RESPONDENTS

OR

DEFENDANTS

IN

THE

AFOREMENTIONED CRIMINAL CASES FILED BY HEREIN PRIVATE

RESPONDENT JULIANO LIM INVOLVING THE SAME OR IDENTICAL
SET OF FACTS; AND

EAcCHI

II.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997
THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL
EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN
ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED; AND (B)
JOINDER OF ISSUES IS NOT REQUIRED IN ORDER THAT THE
SECTION 1, RULE 23 56 OF THE RULES OF CIVIL PROCEDURE MAY
BE AVAILED OF.

Petitioners argue that the Court of Appeals gravely erred when it found that the
trial court did not abuse its discretion when it refused to recognize petitioners
Oscar Mapalo and Chito Rosete's constitutional right against self-incrimination
when, through its Orders dated 22 July 1997 and 27 August 1997, it allowed and
scheduled the taking of their depositions by way of oral examination. They
explain they refuse to give their depositions due to the pendency of two criminal
cases against them, namely, Batasan Pambansa Blg. 22 and Estafa, because
their answers would expose them to criminal action or liability since they would
be furnishing evidence against themselves in said criminal cases. They allege
there can be no doubt that the questions to be asked during the taking of the
deposition would revolve around the allegations in the complaint in the civil case
which are identical to the allegations in the complaint-affidavits in the two criminal
cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito
Rosete. Moreover, they explain that while an ordinary witness may be compelled
to take the witness stand and claim the privilege against self-incrimination as
each question requiring an incriminating answer is shot at him, an accused may
altogether refuse to answer any and all questions because the right against selfincrimination includes the right to refuse to testify.

In short, petitioners Mapalo and Chito Rosete refuse to have their depositions
taken in the civil case because they allegedly would be incriminating themselves
in the criminal cases because the testimony that would be elicited from them may
be used in the criminal cases. As defendants in the civil case, it is their claim that
to allow their depositions to be taken would violate their constitutional right
against self-incrimination because said right includes the right to refuse to take
the witness stand.
In order to resolve this issue, we must determine the extent of a person's right
against self-incrimination. A person's right against self-incrimination is enshrined
in Section 17, Article III of the 1987 Constitution which reads: "No person shall be
compelled to be a witness against himself."
The right against self-incrimination is accorded to every person who gives
evidence, whether voluntary or under compulsion of subpoena, in any civil,
criminal or administrative proceeding. The right is not to be compelled to be a
witness against himself. It secures to a witness, whether he be a party or not, the
right to refuse 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, 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 which may
incriminate himself for some offense that he may refuse to answer on the strength
of the constitutional guaranty. 57
As to an accused in a criminal case, it is settled that he can refuse outright to
take the stand as a witness. In People v. Ayson, 58 this Court clarified the rights of
an accused in the matter of giving testimony or refusing to do so. We said:

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 others
1) to be exempt from being a witness against himself, and

AIDTSE

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.
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. 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. . . . (Underscoring supplied.)

It is clear, therefore, that only an accused in a criminal case can refuse to take
the witness stand. The right to refuse to take the stand does not generally apply
to parties in administrative cases or proceedings. The parties thereto can only
refuse to answer if incriminating questions are propounded. This Court applied
the exception a party who is not an accused in a criminal case is allowed not
to take the witness stand in administrative cases/proceedings that partook of
the nature of a criminal proceeding or analogous to a criminal proceeding.

59

It is

likewise the opinion of the Court that said exception applies to parties in civil
actions which are criminal in nature. As long as the suit is criminal in nature, the

party thereto can altogether decline to take the witness stand. It is not the
character of the suit involved but the nature of the proceedings that controls. 60
In the Ayson case, it is evident that the Court treats a party in a civil case as an
ordinary witness, who can invoke the right against self-incrimination only when
the incriminating question is propounded. Thus, for a party in a civil case to
possess the right to refuse to take the witness stand, the civil case must also
partake of the nature of a criminal proceeding.
In the present controversy, the case is civil it being a suit for Annulment, Specific
Performance with Damages. In order for petitioners to exercise the right to refuse
to take the witness stand and to give their depositions, the case must partake of
the nature of a criminal proceeding. The case on hand certainly cannot be
categorized as such. The fact that there are two criminal cases pending which
are allegedly based on the same set of facts as that of the civil case will not give
them the right to refuse to take the witness stand and to give their depositions.
They are not facing criminal charges in the civil case. Like an ordinary witness,
they can invoke the right against self-incrimination only when the incriminating
question is actually asked of them. Only if and when incriminating questions are
thrown their way can they refuse to answer on the ground of their right against
self-incrimination.
On the second assigned error, petitioners contend that the taking of their oral
depositions should not be allowed without leave of court as no answer has yet
been served and the issues have not yet been joined because their answers
were

filed ex

abudanti

cautela pending

final

resolution

of

the

petition

for certiorari challenging the trial court's Orders dated 12 March 1996 and 24 May
1996 that denied their motions to dismiss and for reconsideration, respectively.
Section 1 of Rule 24 61 of the Revised Rules of Court reads:
Section 1. Depositions pending action, when may be taken. By leave
of court after jurisdiction has been obtained over any defendant or over

property which is the subject of the action, or without such leave after an
answer has been served, the testimony of any person, whether a party
or not, may be taken, at the instance of any party, by deposition upon
oral examination or written interrogatories. The attendance of witnesses
may be compelled by the use of a subpoena as provided in Rule 23.
Depositions shall be taken only in accordance with these rules. The
deposition of a person confined in prison may be taken only by leave of
court on such terms as the court prescribes.

From the quoted section, it is evident that once an answer has been served, the
testimony of a person, whether a party or not, may be taken by deposition upon
oral examination or written interrogatories. In the case before us, petitioners
contend they have not yet served an answer to respondents because the
answers that they have filed with the trial court were made ex abudanti cautela. In
other words, they do not consider the answers they filed in court and served on
respondents as answers contemplated by the Rules of Court on the ground that
same were filed ex abudanti cautela.
We find petitioners' contention to be untenable. Ex abudanti cautela means "out
of abundant caution" or "to be on the safe side." 62 An answer ex abudanti
cautela does not make their answer less of an answer. A cursory look at the
answers filed by petitioners shows that they contain their respective defenses. An
answer is a pleading in which a defending party sets forth his defenses

63

and the

failure to file one within the time allowed herefore may cause a defending party to
be declared in default. 64 Thus, petitioners, knowing fully well the effect of the
non-filing of an answer, filed their answers despite the pendency of their appeal
with the Court of Appeals on the denial of their motion to dismiss.
Petitioners' argument that the issues of the case have not yet been joined must
necessarily fail in light of our ruling that petitioners have filed their answers
although the same were made ex abudanti cautela. Issues are joined when all
the parties have pleaded their respective theories and the terms of the dispute
are plain before the court. 65 In the present case, the issues have, indeed, been

joined when petitioners, as well as the other defendants, filed their answers. The
respective claims and defenses of the parties have been defined and the issues
to be decided by the trial court have been laid down.

cHECAS

We cannot also sustain petitioners' contention that the lower court erred when it
said that the joinder of issues is not required in order that Section 1, Rule 23 of
the 1997 Rules of Civil Procedure may be availed of. Under said section, a
deposition pending action may be availed of: (1) with leave of court when an
answer has not yet been filed but after jurisdiction has been obtained over any
defendant or property subject of the action, or (2) without leave of court after an
answer to the complaint has been served. In the instant case, the taking of the
deposition may be availed of even without leave of court because petitioners
have already served their answers to the complaint.
WHEREFORE, all the foregoing considered, the instant petition is dismissed for
lack of merit.
|||

(Rosete v. Lim, G.R. No. 136051, [June 8, 2006], 523 PHIL 498-515)

[G.R. No. 187536. August 10, 2011.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MICHAEL
BOKINGO alias "MICHAEL BOKINGCO" and REYNANTE
COL, accused-appellants.
DECISION
PEREZ, J :
p

For review is the Amended Decision 1 dated 14 November 2008 of the Court of
Appeals

in

CA-G.R.

CR-H.C.

No.

00658,

finding

appellants

Michael

Bokingco 2 (Bokingco) and Reynante Col (Col) guilty as conspirators beyond

reasonable doubt of the crime of Murder and sentencing them to suffer the
penalty of reclusion perpetua.

DIEcHa

On 31 July 2000, an Information 3 was filed against appellants charging them of

the crime of murder committed as follows:
That on or about the 29th day of February, 2000 in the City of Angeles,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and mutually
helping each other, armed with a claw hammer and with intent to kill by
means of treachery, evident premeditation, abuse of confidence, and
nighttime, did then and there willfully, unlawfully and feloniously attack,
assault and maul NOLI PASION, by hitting and beating his head and
other parts of his body with said hammer, thereby inflicting upon said
NOLI PASION fatal wounds on his head and body which caused his
death. 4

On arraignment, Bokingco entered a guilty plea while Col pleaded not guilty.
During the pre-trial, Bokingco confessed to the crime charged. 5

The victim, Noli Pasion (Pasion) and his wife, Elsa, were residing in a house
along Mac Arthur Highway in Balibago, Angeles City. Pasion owned a pawnshop,
which formed part of his house. He also maintained two (2) rows of apartment
units at the back of his house. The first row had six (6) units, one of which is
Apartment No. 5 and was being leased to Dante Vitalicio (Vitalicio), Pasion's
brother-in-law, while the other row was still under construction at the time of his
death. Appellants, who were staying in Apartment No. 3, were among the 13
construction workers employed by Pasion. 6
The prosecution's evidence show that at around 1:00 a.m. on 29 February 2000,
Vitalicio was spin-drying his clothes inside his apartment when Pasion came from
the front door, passed by him and went out of the back door. 7 A few minutes
later, he heard a commotion from Apartment No. 3. He headed to said unit to
check. He peeped through a screen door and saw Bokingco hitting something on
the floor. Upon seeing Vitalicio, Bokingco allegedly pushed open the screen door
and attacked him with a hammer in his hand. A struggle ensued and Vitalicio was
hit several times. Vitalicio bit Bokingco's neck and managed to push him away.
Bokingco tried to chase Vitalicio but was eventually subdued by a co-worker.
Vitalicio proceeded to his house and was told by his wife that Pasion was found
dead in the kitchen of Apartment No. 3. Vitalicio went back to Apartment No. 3
and saw Pasion's body lying flat on the kitchen floor. Pasion and Vitalicio were
brought to the hospital. Pasion expired a few hours later while Vitalicio was
treated for his injuries. 8
Elsa testified that she was in the master's bedroom on the second floor of the
house when she heard banging sounds and her husband's moans. She
immediately got off the bed and went down. Before reaching the kitchen, Col
blocked her way. Elsa asked him why he was inside their house but Col suddenly
ran towards her, sprayed tear gas on her eyes and poked a sharp object under
her chin. Elsa was wounded when she bowed her head to avoid the tear
gas. 9 Col then instructed her to open the vault of the pawnshop but Elsa
informed him that she does not know the combination lock. Elsa tried offering him
money but Col dragged her towards the back door by holding her neck and

pulling her backward. Before they reached the door, Elsa saw Bokingco open the
screen door and heard him tell Col: "tara, patay na siya." 10 Col immediately let
her go and ran away with Bokingco. Elsa proceeded to Apartment No. 3. Thereat,
she saw her husband lying on the floor, bathed in his own blood. 11
PO3 Quirino Dayrit (PO3 Dayrit) was stationed at Police Station No. 4
in Barangay Salakot, Balibago, Angeles City. At 1:20 a.m. of 29 February 2000,
he received a phone call regarding the incident. He, together with a certain
P/Insp. Maniago, proceeded to Apartment No. 3 and conducted an investigation.
He noticed a pool of blood on the cemented floor of the kitchen. He also saw a
claw hammer with a green lead pipe handle approximately 13 inches long near
the kitchen sink. A lead pipe measuring 40 inches and a chisel were also found in
the nearby construction site. The police went to Angeles University Medical
Center afterwards. PO3 Dayrit saw Pasion lying in one of the beds while Vitalicio
was still loitering around the emergency room. He approached Vitalicio and Elsa
who both informed him of the incident. 12 He prepared a police report on the
same day narrating the result of his investigation. 13
Evelyn Gan, the stenographic reporter of Prosecutor Lucina Dayaon, jotted down
notes during the preliminary investigation. She attests that Bokingco admitted
that he conspired with Col to kill Pasion and that they planned the killing several
days before because they got "fed up" with Pasion. 14
The necropsy report prepared by Dr. Joven G. Esguerra (Dr. Esguerra),
contained the following findings:

DaACIH

1.Marked pallor of lips and nailbeds

2.Body in rigor mortis
3.Contusion with hematoma, right medial infraorbital region extending to
the right of the root of the nose.
4.Contusion with hematoma, left post-auricular region.

5.Contusion with hematoma, right angle of mandible.

6.Contusion with hematoma, right mandibular region.
7.Contusion with hematoma, left occipital region.
8.Contusion with hematoma, right fronto-parietal region.
9.Contusion with hematoma, right supraorbital region.
10.Abrasions, linear, confluent, proximal third, right leg anterior 2 1/2 x 6
1/2 cm.
11.Contusion with hematoma, left shoulder, level of head of left
humerus.
12.Stab wound, anterior chest along the anterior median line, 7 cm
above the nipple line, 0.8 cm length, 0.5 cm wide and 1 cm deep,
hitting and puncturing the manubrium sterni, not entering the
thoracic cavity. Both extremities round.
13.2 stab wounds, non-penetrating, anterior chest, 13 cm to the left of
the anterior median line, 3 cm below injury (12) 14 cm the right of
the anterior median line 4 1/2 on below injury (12). Wound 0.8 cm
in length, both extremities round.
14.Lacerated wound, semi-lunar shape, 3 cm length, left shoulder.
15.Lacerated wound, right eyebrow area, C-shaped 2 1/2 cm length.
16.Lacerated wound, lateral angle, right eye, 0.8 cm length.
17.Lacerated wound, right supraorbital region, medial aspect, 2 cm
length.

18.Lacerated wound, semi-lunar, 5 cm length, occipital region 5 cm

length involving all layers of the scalp with brain tissue seen on
the gaping wound.
19.Lacerated wound, 4 cm length, C-shaped 2 1/2 cm to the right of
injury (18) 1 1/2 cm below, wound involving the whole scalp.
20.Lacerated wound, left post-auricular region, C-shaped 4 cm length, 3
cm length.
21.Lacerated wound left post-auricular region, region of the squamous
part of the left temporal bone, C-shaped (2) 3.5 cm and 4 cm
lengths.
22.Lacerated wound, right mandibular region 4 cm length, 1 cm wide.
23.Lacerated wound, stellate, 5.5 x 5 x 5 cm, right fronto-parietal region
with brain tissue out of the gaping wound.
24.Lacerated wound, right submandibular region 0.3 x 3.5 cm.
25.Lacerated wound, right cheek 0.8 cm length.
26.Depressed, complete fracture, occipital bone right with stellate linear
extensions, with gaping, with brain tissue maseration.
27.Skull fracture, right fronto-parietal region, depressed, complete, Cshaped with linear extensions, with gaping of bone with brain
tissue maceration and expulsion.
28.Hemorrhage, massive, subdural and epidural.
29.Brain tissue damage. 15

Dr. Esguerra concluded that the injuries sustained by Pasion on his skull proved
fatal. 16

acAIES

Appellants testified on their own behalf. Bokingco recalled that he was sleeping in
Apartment No. 3 at around 1:20 a.m. on 29 February 2000 when he was
awakened by Pasion who appeared to be intoxicated. The latter wanted to know
why he did not see Bokingco at the construction site on 28 February 2000. When
Bokingco replied that he just stayed at the apartment the whole day, Pasion
suddenly hit him in the head. This prompted Bokingco to take a hammer and hit
Pasion. They both struggled and Bokingco repeatedly hit Pasion. Bokingco
escaped to Manila right after the incident. He was subsequently arrested in
Mindanao on 11 June 2000. 17 During the cross-examination, Bokingco admitted
that he harbored ill feelings towards Pasion. 18
Col confirmed that he was one of the construction workers employed by Pasion.
He however resigned on 26 February 2000 because of the deductions from his
salary. He went home to Cainta, Rizal, where he was apprehended and brought
to Camp Olivas. Upon reaching the camp, he saw Bokingco who pointed to him
as the person who killed Pasion. He insisted that he doesn't know Bokingco very
well. 19
On 16 December 2004, the trial court rendered judgment

20

finding appellants

guilty beyond reasonable doubt of murder, viz.:

WHEREFORE, the Court finds accused MICHAEL BOKINGO alias
MICHAEL BOKINGCO and REYNANTE COL guilty beyond reasonable
doubt of the crime of MURDER, defined and penalized in Art. 248 of the
Revised Penal Code, and there being the two aggravating circumstances
of nighttime and abuse of confidence to be considered against both
accused and the mitigating circumstance of voluntary plea of guilty in
favor of accused Bokingo only, hereby sentences each of them to suffer
the penalty of DEATH. Each accused is ordered to indemnify the heirs of
victim Noli Pasion in the amount of Seventy five thousand pesos
(P75,000.00) to pay the heirs of the victim Seventeen thousand six
hundred pesos (P17,600.00) as actual damages, Fifteen thousand

pesos (P15,000.00) as attorney's fees, Twenty five thousand pesos

(P25,000.00) as exemplary damages, and to pay the costs.

21

In its Decision dated 24 July 2008, the Court of Appeals affirmed the findings of
the trial court but reduced the penalty to reclusion perpetua in view of Republic
Act No. 7659, thus:
WHEREFORE,

the

assailed

Decision

is

AFFIRMED

with

MODIFICATION. Accused-appellant REYNANTE COL is found GUILTY

as conspirator beyond reasonable doubt of MURDER as defined in
Article 248 of the Revised Penal Code, as amended byRepublic Act No.
7659, qualified by treachery and evident premeditation and with the
attendant aggravating circumstances of nighttime and abuse of
confidence, with no mitigating circumstances. The proper imposable
penalty would have been death. However, pursuant to Republic Act No.
9346, appellant is sentenced to suffer the penalty of Reclusion Perpetua.
Accused-appellant is further ordered to indemnify the heirs of victim Noli
Pasion in the amount of Seventy five thousand pesos (P75,000.00); Fifty
thousand pesos (P50,000.00) as moral damages; Twenty five thousand
pesos (P25,000.00) as exemplary damages; Twenty five thousand pesos
(P25,000.00)

as

temperate

damages;

Fifteen

(P15,000.00) as attorney's fees; and to pay the costs.

Appellants filed a Motion for Reconsideration

23

thousand

pesos

22

and called the appellate court's

attention on the omission to rule on Bokingco's fate when it rendered the

challenged decision. Appellants also noted the absence of other evidence, aside
from Bokingco's admission, to prove that conspiracy existed in the instant case.
Appellants maintained that the admission made by Bokingco cannot be used as
evidence against his alleged co-conspirator. Appellants also took exception to the
findings of the lower courts that the aggravating circumstances of treachery,
evident premeditation, nighttime and abuse of confidence attended the
commission of the crime. 24

The Court of Appeals merely modified its Decision by including the criminal
liability of Bokingco in its dispositive portion of its Amended Decision, which
reads:

CDAEHS

WHEREFORE,

the

MODIFICATION.

assailed

Decision

Accused-appellants

is

MICHAEL

AFFIRMED

with

BOKINGCO

and

REYNANTE COL are found GUILTY as conspirators beyond reasonable

doubt of MURDER as defined in Article 248 of the Revised Penal Code,
as amended by Republic Act No. 7659, qualified by treachery and
evident premeditation and with the attendant aggravating circumstances
of nighttime and abuse of confidence, with no mitigating circumstances.
The proper imposable penalty would have been death. However,
pursuant to Republic Act No. 9346, the accused-appellant are sentenced
to suffer the penalty of Reclusion Perpetua without the possibility of
parole (in accordance with Section 3 of the said law). Each of the
accused-appellants is further ordered to indemnify the heirs of victim Noli
Pasion in the amount of Seventy five thousand pesos (P75,000.00); Fifty
thousand pesos (P50,000.00) as moral damages; Twenty five thousand
pesos (P25,000.00) as exemplary damages; Twenty five thousand pesos
(P25,000.00)

as

temperate

damages;

Fifteen

(P15,000.00) as attorney's fees; and to pay the costs.

thousand

pesos

25

Appellants filed a notice of appeal. In its Resolution dated 26 October 2009, this
Court required the parties to submit their Supplemental Briefs within 30 days from
notice thereof if they so desire.

26

Appellants manifested that they are no longer

filing a Supplemental Brief and are adopting their arguments in the Appellant's
Brief submitted before the Court of Appeals.

27

The appellee likewise manifested

that it is dispensing with the filing of a Supplemental Brief.

28

The instant case

was thus submitted for deliberation.

In seeking the reversal of the Court of Appeals' Amended Decision, two issues
were raised: 1) whether the qualifying circumstances were properly appreciated

to convict appellant Bokingco of murder and 2) whether appellant Col is guilty

beyond reasonable doubt as a co-conspirator.
There is no question that Bokingco attacked and killed Pasion. Bokingco made
two (2) separate and dissimilar admissions: first, in his extrajudicial confession
taken during the preliminary investigation where he admitted that he and Col
planned the killing of Pasion; and second, when he testified in open court that he
was only provoked in hitting Pasion back when the latter hit him in the head. On
the basis of his extrajudicial confession, Bokingco was charged for murder
qualified by evident premeditation and treachery.
Appellants maintain that they could not be convicted of murder. They question the
presence of treachery in the commission of the crime considering that no one
from the prosecution witnesses testified on how Pasion was attacked by
Bokingco. They also submit that evident premeditation was not proven in the
case. They belittle Bokingco's extrajudicial admission that he and Col planned the
killing. The attendance of the aggravating circumstances of nighttime and abuse
of confidence was likewise assailed by appellants. They aver that nighttime was
not purposely sought but it was merely co-incidental that the crime took place at
that time. Neither has trust and confidence been reposed on appellants by the
victim to aggravate the crime by abuse of confidence. Appellants claim that they
were living in an apartment owned by Pasion, not because the latter trusted them
but because they worked in the construction of the victim's apartment.
On the other hand, the OSG emphasizes that the prosecution has established
that Pasion was defenseless when fatally attacked by Bokingco and there was no
opportunity for him to defend himself from the unexpected assaults of Bokingco.
The OSG agrees as well with the trial court's findings that evident premeditation,
nighttime, and abuse of confidence attended the commission of the crime.
We agree with appellants that treachery cannot be appreciated to qualify the
crime to murder in the absence of any proof of the manner in which the
aggression was commenced. For treachery to be appreciated, the prosecution

must prove that at the time of the attack, the victim was not in a position to
defend himself, and that the offender consciously adopted the particular means,
method or form of attack employed by him.

29

Nobody witnessed the

commencement and the manner of the attack. While the witness Vitalicio
managed to see Bokingco hitting something on the floor, he failed to see the
victim at that time. 30
Bokingco admitted in open court that he killed Pasion.

31

But the admitted

manner of killing is inconsistent with evident premeditation. To warrant a finding

of evident premeditation, the prosecution must establish the confluence of the
following requisites: (a) the time when the offender was determined to commit the
crime; (b) an act manifestly indicating that the offender clung to his determination;
and (c) a sufficient interval of time between the determination and the execution
of the crime to allow him to reflect upon the consequences of his act.

32

It is

indispensable to show how and when the plan to kill was hatched or how much
time had elapsed before it was carried out.

33

In the instant case, no proof was

shown as to how and when the plan to kill was devised. Bokingco admitted in
court that he only retaliated when Pasion allegedly hit him in the head.

34

Despite

the fact that Bokingco admitted that he was treated poorly by Pasion, the
prosecution failed to establish that Bokingco planned the attack.

STCDaI

It was during the preliminary investigation that Bokingco mentioned his and Col's
plan to kill Pasion. 35 Bokingco's confession was admittedly taken without the
assistance of counsel in violation of Section 12, Article III of the 1987Constitution,
which provides:
Section 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.

In People v. Sunga, 36 we held that "the right to counsel applies in certain pretrial
proceedings that can be deemed 'critical stages' in the criminal process. The
preliminary investigation can be no different from the in-custody interrogations by
the police, for a suspect who takes part in a preliminary investigation will be
subjected to no less than the State's processes, oftentimes intimidating and
relentless, of pursuing those who might be liable for criminal prosecution."

37

In

said case, Sunga made an uncounselled admission before the police. He later
acknowledged the same admission before the judge in a preliminary
investigation. Sunga was thrust into the preliminary investigation and while he did
have a counsel, for the latter's lack of vigilance and commitment to Sunga's
rights, he was virtually denied his right to counsel. Thus, the uncounselled
admission was held inadmissible. 38 In the instant case, the extrajudicial
confession is inadmissible against Bokingco because he was not assisted at all
by counsel during the time his confession was taken before a judge.
The finding that nighttime attended the commission of the crime is anchored on
the presumption that there was evident premeditation. Having ruled however that
evident premeditation has not been proved, the aggravating circumstance of
nighttime cannot be properly appreciated. There was no evidence to show that
Bokingco purposely sought nighttime to facilitate the commission of the offense.
Abuse of confidence could not also be appreciated as an aggravating
circumstance in this case. Taking into account that fact that Bokingco works for
Pasion, it may be conceded that he enjoyed the trust and confidence of Pasion.
However, there was no showing that he took advantage of said trust to facilitate
the commission of the crime.

A downgrade of conviction from murder to homicide is proper for Bokingco for

failure of the prosecution to prove the presence of the qualifying circumstances.
Under Article 249 of the Revised Penal Code, the applicable penalty for homicide
is reclusion temporal. There being no mitigating or aggravating circumstance
alleged and proven in the instant case, the penalty should be applied in its
medium period pursuant to Article 64 (1) of the Revised Penal Code, which
ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17
years and 4 months. Applying the Indeterminate Sentence Law, the imposable
penalty shall be within the range of prision mayor in any of its periods as
minimum to reclusion temporal in its medium period as the maximum. The range
of prision mayor is from 6 years and 1 day to 12 years, while reclusion temporalin
its medium period, ranges from 14 years, 8 months and 1 day to 17 years and 4
months. Therefore, the indeterminate penalty of six years and one day of prision
mayor as minimum to 14 years, eight months and one day of reclusion temporal,
as maximum is appropriate under the circumstances.

39

The award of exemplary

damages should be deleted as no aggravating circumstance was proven.

Col, on the other hand, was charged as a co-conspirator. He contends that to
hold him guilty as co-conspirator, it must be established that he performed an
overt act in furtherance of the conspiracy. Applying Section 30, Rule 130 of the
Rules of Court, Col asserts that Bokingco's uncounselled testimony that
appellants planned to kill Pasion bears no relevance considering the fact that
there was no other evidence which will prove the conspiracy. Col also claims that
Elsa's statements during trial, such as the presence of Col inside her house and
his forcing her to open the vault of the pawnshop, as well as the alleged
statement she heard from Bokingco "Tara, patay na siya," are not adequate to
support the finding of conspiracy.

DcHaET

The Office of the Solicitor General (OSG) justifies Col's conviction of murder by
conspiracy by mentioning that starting from the declaration of Bokingco, the
victim's wife, Elsa, also positively declared that Col blocked and attacked her with
a knife when she tried to check on her husband. She was left alone by Col when

he was told by Bokingco that the victim was already dead. For the OSG,
appellants' acts are indicative of conspiracy. The OSG contends that the
prosecution witnesses had no ill-motive to lie and falsely accuse appellants of the
crime of murder.
The lower courts concluded that there was conspiracy between appellants.
We disagree.
This Court is well aware of the policy to accord proper deference to the factual
findings of the trial court, owing to their unique opportunity to observe the
witnesses firsthand and note their demeanor, conduct, and attitude under
grueling examination. 40 However, this rule admits of exceptions, namely: 1) when
the trial court's findings of facts and conclusions are not supported by the
evidence on record, or 2) when certain facts of substance and value likely to
change the outcome of the case have been overlooked by the lower court, or 3)
when the assailed decision is based on a misapprehension of facts.

41

The

second exception obtains in this case.

Indeed, in order to convict Col as a principal by direct participation in the case
before us, it is necessary that conspiracy between him and Bokingco be proved.
Conspiracy exists when two or more persons come to an agreement to commit
an unlawful act. It may be inferred from the conduct of the accused before,
during, and after the commission of the crime. Conspiracy may be deduced from
the mode and manner in which the offense was perpetrated or inferred from the
acts of the accused evincing a joint or common purpose and design, concerted
action, and community of interest.

42

Unity of purpose and unity in the execution

of the unlawful objective are essential to establish the existence of conspiracy. 43

As a rule, conspiracy must be established with the same quantum of proof as the
crime itself and must be shown as clearly as the commission of the crime. 44
The finding of conspiracy was premised on Elsa's testimony that appellants fled
together after killing her husband and the extrajudicial confession of Bokingco.

Nobody witnessed the commencement of the attack. Col was not seen at the
apartment where Pasion was being attacked by Bokingco. In fact, he was at
Elsa's house and allegedly ordering her to open the pawnshop vault, thus:
Q:Do you remember any unusual incident that happened on that time
and date when you were in your master's bedroom?
A:I heard a bumping sound (kalabog) at the back portion of our building
where we reside.
xxx xxx xxx
Q:What did you do when you heard those sounds in the wee hours of the
morning on that day when you were in your master's bedroom?
A:I wondered why and I immediately went down to the kitchen since the
door of the kitchen was directly leading to the back door or back
portion of the building where the apartments were situated.
Q:Why, on what floor is this master's bedroom located?
A:Second floor.
Q:Were you actually able to go down and see what was happening?
A:Yes, sir, but I was only able to reach the stairs leading to the kitchen. I
was not able to go out of the kitchen because I was blocked.

DHcEAa

Q:You were blocked by whom?

A:By Reynante Col.
Q:Are you referring to the same Reynante Col, the accused in this case?
A:Yes, sir.

xxx xxx xxx

Q:You said you were blocked by Reynante Col. How did he block you?
A:As soon as I reached the stairs, I was blocked by Reynante Col and he
was situated near the back door of the pawnshop. There is a
pawnshop in the front portion of our residence.
Q:When you saw him near the door of your pawnshop, did you confront
him?
A:Yes, sir.
Q:How did you confront him?
A:I asked him, Reynante, what are you doing here?
Q:What was the reaction of Reynante Col?
A:He ran towards me and sprayed something into my eyes and he put a
sharp object under my chin. (Witness demonstrating by putting
her hand under her chin)
Q:How far was he before he attacked you?
A:Probably, from the witness stand up to the chair of Fiscal Hilario.
Maybe two steps away from him. (Around 3 meters)
Q:Were you able to identify what this spray is and what part of your body
was hit?
A:My eyes were sprayed with tear gas.
Q:What did you feel when your eyes was (sic) sprayed with tear gas?
A:It was "mahapdi" (painful).

Q:When you felt pain in your eyes, how were you able to see something
or a sharp weapon under your chin?
A:Before he sprayed the tear gas to my eyes, I was able to see him poke
the sharp object under my chin and I bowed my head a little to
avoid the tear gas. I was wounded under my chin and I felt the
sharpness of the object. 45
xxx xxx xxx
Q:What else happened while he was doing that to you?
A:He sprayed tear gas in my eyes and told me to be silent.
Q:What else, if any, did he tell you?
A:To open the combination of the vault.
Q:Did you comply to his order that you open the combination of the
vault?
A:No, sir. I do not know the combination.
Q:What vault are you referring to?
A:Vault of the pawnshop.
Q:Where is that pawnshop located with reference to your residence?
A:At the first floor is the pawnshop and at the back is our kitchen.
Q:When you refused to open the vault of the pawnshop, what did
Reynante Col do about it?
A:He did not say anything.

DAaHET

Q:How about you, was there anything else you did?

A:I offered him money so he will not kill me.
Q:When you offered him money so he will not kill you, did he agree?
A:No, sir.
Q:What else happened next when he did not agree to your offer of
money?
A:He dragged me going towards the back door.

46

Based on these acts alone, it cannot be logically inferred that Col conspired with
Bokingco in killing Pasion. At the most, Col's actuations can be equated to
attempted robbery, which was actually the initial information filed against
appellants before it was amended, on motion of the prosecution, for murder. 47
Elsa testified that she heard Bokingco call out to Col that Pasion had been killed
and that they had to leave the place. This does not prove that they acted in
concert towards the consummation of the crime. It only proves, at best, that there
were two crimes committed simultaneously and they were united in their efforts to
escape from the crimes they separately committed.
Their acts did not reveal a unity of purpose that is to kill Pasion. Bokingco had
already killed Pasion even before he sought Col. Their moves were not
coordinated because while Bokingco was killing Pasion because of his pent-up
anger, Col was attempting to rob the pawnshop.
In as much as Bokingco's extrajudicial confession is inadmissible against him, it
is likewise inadmissible against Col, specifically where he implicated the latter as
a cohort. Under Section 28, Rule 130 of the Rules of Court, the rights of a party
cannot be prejudiced by an act, declaration or omission of another. Res inter
alios acta alteri nocere non debet. Consequently, an extrajudicial confession is
binding only on the confessant, is not admissible against his or her co-accused,

and is considered as hearsay against them. 48 An exception to the res inter alios
acta rule is an admission made by a conspirator. Section 30, Rule 130 of the
Rules of Court provides that the act or declaration of the conspirator relating to
the conspiracy and during its existence may be given in evidence against the coconspirator provided that the conspiracy is shown by evidence other than by such
act or declaration. 49 In order that the admission of a conspirator may be received
against his or her co-conspirators, it is necessary that first, the conspiracy be first
proved by evidence other than the admission itself; second, the admission relates
to the common object; and third, it has been made while the declarant was
engaged in carrying out the conspiracy.

50

As we have previously discussed, we

did not find any sufficient evidence to establish the existence of conspiracy.
Therefore, the extrajudicial confession has no probative value and is inadmissible
in evidence against Col.
Bokingco's judicial admission exculpated Col because Bokingco admitted that he
only attacked Pasion after the latter hit him in the head.
All told, an acquittal for Col is in order because no sufficient evidence was
adduced to implicate him.
WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 00658 is REVERSED and SET ASIDE. Appellant
Reynante Col is ACQUITTED on ground of reasonable doubt. The Bureau of
Corrections is ordered to cause the immediate release of accused-appellant,
unless he is being lawfully held for another cause, and to inform this Court of
action taken within ten (10) days from notice.
Appellant Michael Bokingco is found GUILTY beyond reasonable doubt of the
crime of Homicide. He is hereby sentenced to suffer the penalty of six years (6)
and one (1) day of prision mayor as minimum to 14 years, eight (8) months and
one (1) day of reclusion temporal, as maximum Appellant is further ordered to
indemnify the heirs of Noli Pasion in the amount of Seventy five thousand pesos
(P75,000.00); Fifty thousand pesos (P50,000.00) as moral damages; Twenty five

thousand pesos (P25,000.00) as temperate damages; Fifteen thousand pesos

(P15,000.00) as attorney's fees; and to pay the costs.
|||

(People v. Bokingo, G.R. No. 187536, [August 10, 2011], 671 PHIL 71-94)

[G.R. No. L-71092. September 30, 1987.]

PEOPLE

OF

appellee, vs. ANACLETO

VILLAROJO,

PHILIPPINES, plaintiff-

THE
Q.

LEONARDO

OLVIS,

Acquitted,

CADEMAS

and

ROMULO

DOMINADOR

SORELA, accused-appellants.
DECISION
SARMIENTO, J :
p

This is an appeal from the decision of the Regional Trial Court to Zamboanga Del
Norte sitting in Dipolog City. 1 The case was certified to this Court on January 19,
1985 following the death sentences imposed on each of the three accusedappellants, Romulo Villarojo, Leonardo Cademas, and Dominador Sorela (the
accused first-named, Anacleto Olvis, was acquitted), over which, under
the Constitution then

in

force, 2 we

exercised

exclusive

appellate

jurisdiction. 3 With the promulgation of the 1987 Charter, abolishing the death
penalty

and

perpetua, 4 we,

commuting
on

May

death
14,

penalties
1987,

already

issued

imposed

a death

to reclusion

penalty

abolition

resolution requiring the three accused-appellants to file a statement, personally

signed by them with the assistance of counsel, stating whether or not they wished
to continue with the case as an appealed case. 5 We have since observed this
procedure with respect to all pending capital cases.

LLjur

In compliance with our resolution, the three accused-appellants, on May 28,

1987, filed a statement informing us that they desire to continue with this case as
an appealed case. 6
This appeal stemmed from an information dated November 11, 1976 charging all
four accused with the murder of Deosdedit Bagon. The same reads as follows:
xxx xxx xxx

The undersigned First Assistant Provincial Fiscal accuses ANACLETO

Q. OLVIS, as principal by inducement, ROMULO VILLAROJO,
LEONARDO CADEMAS and DOMINADOR SORELA, as principals by
direct participation, of the crime of murder, committed as follows:
That in the evening on or about the 7th day of September 1975, in the
Municipality of Polanco, Zamboanga del Norte, within the jurisdiction of
this Honorable Court, the above named accused, conspiring and
confederating with one another and acting upon the direction and
instruction of ANACLETO Q. OLVIS who master-minded the bizarre plot
and directly induced ROMULO VILLAROJO, LEONARDO CADEMAS
and DOMINADOR SORELA to execute the conspiracy and who, armed
with boloes and a hunting knife, with intent to kill by means of treachery
and evident premeditation, and for a consideration of a price or reward,
did, then and there willfully, unlawfully and feloniously attack, assault,
hack and stab one DEOSDEDIT BAGON, thereby inflicting upon him
multiple incised (hack) and stab wounds which caused his instantaneous
death.
CONTRARY TO LAW, with the qualifying circumstances of treachery and
evident premeditation and the generic aggravating circumstances of
superior strength, nighttime and in consideration of a price or reward.

xxx xxx xxx

The four accused entered identical "not guilty" pleas.

After trial, the court a quo rendered the decision under appeal, the dispositive
portion whereof reads as follows:
FOREGOING CONSIDERED, and on the part of accused ANACLETO
Q. OLVIS, SR., there being no evidence, direct or indirect, whether
testimonial, documentary or physical evidence, that tend to establish his

complicity in this case, said accused has to be, as he hereby is,

ACQUITTED.
On the part of the three (3) remaining accused ROMULO VILLAROJO,
LEONARDO CADEMAS, and DOMINADOR SORELA, the degree of
moral, certainty establishing their authorship of the crime is irreversibly
positive. The three (3) accused conspired and confederated with one
another to successfully achieve their ghastly, evil ends. Their guilt has
been proved beyond reasonable doubt.
Treachery and evident premeditation are qualifying circumstances in this
case of MURDER. But said offense was attended by the aggravating
circumstances of superior strength and nighttime. No mitigating
circumstance has been shown to offset the two (2) aggravating
circumstances, as a consequence of which, the Court hereby renders
judgment sentencing the accused ROMULO VILLAROJO, LEONARDO
CADEMAS, and DOMINADOR SORELA, to suffer the maximum penalty
of DEATH.
The said accused are further sentenced to pay, jointly and severally, to
the heirs of the Murder victim, DEOSDEDIT BAGON, the sum of
P12,000.00 as death indemnity, P60,000.00 as moral damages,
P20,000.00 for exemplary damages, and costs.
SO ORDERED." 8

We come to the facts.

On September 9, 1975, Alfredo and Estrella Bagon, brother and sister, arrived at
the local Integrated National Police station of Barrio Polanco, in Zamboanga del
Norte, to report their brother, Deosdedit Bagon, missing. The station commander,
Captain Ruperto Encabo, received their report.

Bagon had been in fact missing since two days before. He was last seen by his
wife in the afternoon of September 7, 1975, on his way home to Sitio Sebaca
where they resided. She did not, however, find him there when she arrived in the
evening. She then set out to locate him in three probable places, but her efforts
were in vain.
It was Captain Encabo himself who led a search party to mount an inquiry. As a
matter of police procedure, the team headed off to Sitio Sebaca to question
possible witnesses. There, Captain Encabo's men chanced upon an unnamed
volunteer, who informed them that Deosdedit Bagon was last seen together with
Dominador Sorela, one of the accused herein. Encabo then instructed one of his
patrolmen to pick up Sorela.
Sorela bore several scratches on his face, neck, and arms when the police found
him. According to him, he sustained those wounds while clearing his ricefield.
Apparently unconvinced. Captain Encabo had Sorela take them to the ricefield
where he sustained his injuries. But half way there, Sorela allegedly broke down,
and, in what would apparently crack the case for the police, admitted having
participated in the killing of the missing Bagon. By then, the police of Polanco
knew that they had a murder case in their hands.
Sorela allegedly confessed having been with Deosdedit Bagon, a friend of his, in
the evening of September 7, 1975 in Sitio Sebaca after some marketing. They
were met by Romulo Villarojo and Leonardo Cademas, Sorela's co-accused
herein and likewise friends of the deceased, who led them to a secluded place in
the ricefields. It does not appear from the records how the three were able to
have the deceased join them.

LLphil

It was then that Villarojo allegedly attacked Bagon with a bolo, hacking him at
several parts of the body until he, Bagon, was dead. Moments later, Sorela fled,
running into thick cogon grasses where he suffered facial and bodily scratches.

The police soon picked up Villarojo and Cademas. Together with Sorela, they
were turned over to the custody of Captain Encabo.
The police thereafter made the three re-enact the crime. Patrolman Dionisio
Capito directed Sorela to lead them to the grounds where Deosdedit Bagon was
supposed to have been buried. But it was Villarojo who escorted them to a watery
spot somewhere in the ricefields, where the sack covered, decomposing cadaver
of Bagon lay in a shallow grave.
The actual exhumation of the body of the victim was witnessed by Polanco
policemen and Civilian Home Defense Forces volunteers, numbering about thirty.
The body was transported to the Polanco municipal hall the following day,
September 10, 1975. It was displayed, morbidly, in front of the building where
Mrs. Catalina Bagon, widow of the deceased, and her four children viewed it. The
exhumation, as well as the transfer of Bagon's cadaver, were captured by the
lens of a photographer. (Exhibits "I", "J", "K", "L", "M", and "N").
The "ceremonies" continued in the parish church of the Polanco, where the body
of the victim was transferred. It was laid on the altar, in full public view. Again the
proceedings were recorded by the camera of a photographer. (Exhibits "Q", "R",
"S".)
But it was only later on that the body itself was uncovered from the sack that had
concealed it. (Exhibits "T", "U", "V".) Thereupon, it was readied for autopsy.
The necropsy report prepared by the provincial health officer disclosed that the
deceased suffered twelve stab and hack wounds, six of which were determined to
be fatal.
In the re-enactment, the suspects, the three accused herein, demonstrated how
the victim was boloed to death. Exhibit "Y," a photograph, shows the appellant
Villarojo in the posture of raising a bolo as if to strike another, while Solera and
Cademas look on. Exhibit "X", another photograph, portrays Villarojo in the act of

concealing the murder weapon behind a banana tree, apparently after having
done the victim in.
The investigation yielded several effects of the offense: a twenty-inch long bolo,
the shovel used to inter the victim's remains, a nylon rope with which the dead
body was tied, and the sack itself.
Initial findings of investigators disclosed that the threesome of Solero, Villarojo,
and Cademas executed Deosdedit Bagon on orders of Anacleto Olvis, then
Polanco municipal mayor, for a reward of P3,000.00 each.
While in custody, the three executed five separate written confessions each. The
first confessions were taken on September 9, 1975 in the local Philippine
Constabulary headquarters. The second were made before the Polanco police.
On September 18, 1975, the three accused reiterated the same confessions
before the National Bureau of Investigation Dipolog City sub-office. On
September 21, 1975 and September 25, 1975, they executed two confessions
more, again before the Philippine Constabulary and the police of Polanco.
In their confessions of September 9, 1975, September 14, 1975, September 21,
1975, and September 25, 1975, the said accused again pointed to the then
accused Anacleto Olvis as principal by inducement, who allegedly promised them
a reward of P3,000.00 each.
In their confessions of September 18, 1975, sworn before agents of the National
Bureau of Investigation, however, they categorically denied Olvis' involvement in
the killing. We note that the three were transported to the Dipolog City NBI suboffice following a request on September 10, 1975 by Mrs. Diolinda O. Adaro,
daughter of Olvis, and upon complaint by her of harassment against her father by
his supposed political enemies.

Based on these subsequent statements, the court a quo rendered separate

verdicts on the three accused on the one hand, and Anacleto Olvis on the other.
As earlier stated Olvis was acquitted, while the three were all sentenced to die for
the crime of murder.

prLL

In acquitting Olvis, the trial court rejected the three accused's earlier confessions
pointing to him as the mastermind, and denied the admissibility thereof insofar as
far as he was concerned. It rejected claims of witnesses that the three accusedappellants would carry out Olvis' alleged order to kill Bagon upon an offer of a
reward when in fact no money changed hands. It likewise noted that Olvis had,
two days after the murder, been in Cebu City, and who, upon arriving in Dipolog
City, was in fact informed by the Philippine Constabulary that he was a "wanted"
man, "to which said accused (Olvis) meekly complied" 9 (that is, he assented,
ambiguously, to the remark). According to the court, this was inconsistent with a
guilty mind.

LibLex

The court repudiated claims that Olvis had motives to do away with the deceased
arising from alleged attempts on his (Olvis') part to eject the deceased from his
landholding (the deceased having been a tenant of his), the case in fact having
reached the then Ministry of Agrarian Reform. It dismissed insinuations that his
children had a score to settle with the victim, who had earlier brought a physical
injuries suit against the former, that case having been dismissed. It observed,
furthermore, that he was not questioned by the police after the killing,
notwithstanding efforts by the three herein accused-appellants to implicate him. It
relied, finally, on the retraction of the accused themselves, absolving Olvis of any
liability. It was satisfied, overall, that he had a "clean bill of health"
connection with the murder case.

10

in

cdphil

With the acquittal of Olvis, we are left with the murder cases against the three
accused-appellants. The accused-appellants subsequently repudiated their
alleged confessions in open court alleging threats by the Polanco investigators of
physical harm if they refused to "cooperate" in the solution of the case. They
likewise alleged that they were instructed by the Polanco police investigators to

implicate Anacleto Olvis in the case. They insisted on their innocence. The
accused Romulo Villarojo averred, specifically, that it was the deceased who had
sought to kill him, for which he acted in self-defense.
The murder of Deosdedit Bagon was witnessed by no other person. The police of
Polanco had but the three accused-appellants' statements to support its claims.
The fundamental issue then is whether or not these statements, as any
extrajudicial confession confronting us, can stand up in court.
We hold that, based on the recorded evidence, the three accused-appellants'
extrajudicial confessions are inadmissible in evidence.
It was on May 7, 1987 that we promulgated People v. Decierdo. 11 In that
decision, we laid down the rule with respect to extrajudicial confessions:
xxx xxx xxx
". . . Prior to any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed. The defendant, may waive
effectuation of those rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he indicates in any manner and
at any stage of the process that he wishes to consult with an attorney
before speaking, there can be no questioning. Likewise, if the individual
is alone and indicates in any manner that he does not wish to be
interrogated, so police may not question him. The mere fact that he may
have answered some questions or voluteered some statements on his
own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter
consent to be questioned."
xxx xxx xxx

In People v. Duero, we added:

xxx xxx xxx
"At the outset, if a person in custody is to be subjected to interrogation,
he must first be informed in clear and unequivocal terms that he has the
right to remain silent.
"For those unaware of the privilege, the warning is needed simply to
make them aware of it the threshold requirement for an intelligent
decision as to its exercise.
"More important, such a warning is an absolute pre-requisite in
overcoming the inherent pressures of the interrogation atmosphere ..
"Further, the warning will show the individual that his interrogators are
prepared to recognize his privilege should he choose to exercise it ..
"The warning of the right to remain silent must be accompanied by the
explanation that anything said can and will be used against the individual
in court. This warning is needed in order to make him aware not only of
the privilege, but also of the consequences of foregoing it . . .
"An individual need not make a pre-interrogation request for a lawyer.
While such request affirmatively secures his right to have one, his failure
to ask for a lawyer does not constitute a waiver. No effective waiver of
the right to counsel during interrogation can be recognized unless
specifically made after the warnings we here delineate have been given.
The accused who does not know his rights and therefore does not make
a request may be the person who most needs counsel . . .
"If an individual indicates that he wishes the assistance of counsel before
any interrogation occurs, the authorities cannot rationally ignore or deny

his request on the basis that the individual does not have or cannot
afford a retained attorney ..
"In order fully to apprise a person interrogated the extent of his rights
under this system then, it is necessary to warn him not only that he has
the right to consult with an attorney, but also that if he is indigent a
lawyer will be appointed to represent him . . .
"Once warnings have been given, the subsequent procedure is clears. If
the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease
. . . If the individual cannot obtain an attorney and he indicates that he
wants one before speaking to policy, they must respect his decision to
remain silent . . .
"If the interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived his
privilege against self-incrimination and his right to retained or appointed
counsel . . ." 12

xxx xxx xxx

Like the Decierdo confessions, the confessions in the case at bar suffer from a
Constitutional infirmity. In their supposed statements dated September 9, 14, and
21, 1975, the accused-appellants were not assisted by counsel when they
"waived" their rights to counsel. As we said in Decierdo, the lack of counsel
"makes [those] statement[s], in contemplation of law, 'involuntary,' even if it were
otherwise voluntary, technically." 13
With respect to the confessions of September 18, 1975, while it is stated therein
that "[t]his Office had just requested the services of Atty. NARVARO VELAR
NAVARRO of the Citizens Legal Assistance Office, Department of Justice,
Dipolog District Office, are you willing to accept the legal assistance of Atty.

NAVARRO to handle your case,"

14

the same nonetheless call for a similar

rejection. There is nothing there that would show that Atty. Navarro was the
accused-appellants' counsel of choice (specifically, the appellant Romulo Villarojo
who admitted therein having been the bolo-wielder). On the contrary, it is clear
therefrom that Atty. Navarro was summoned by the NBI. He cannot therefore be
said to have been acting on behalf of the accused-appellants when he lent his
presence at the confession proceedings. What we said in People v.
Galit, 15 applies with like force here:
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.

16

We cast aside, for the same reason, the confessions of September 25, 1975.
But the accused-appellants were denied their right to counsel not once, but twice.
We refer to the forced re-enactment of the crime the three accused were made to
perform shortly after their apprehension.
Forced re-enactments, like uncounselled and coerced confessions come within
the ban against self-incrimination. The 1973 Constitution, the Charter prevailing
at the time of the proceedings below, says:
No person shall be compelled to be a witness against himself.

17

This constitutional privilege has been defined as a protection against testimonial

compulsion, 18 but this has since been extended to any evidence "communicative
in nature" 19 acquired under circumstances of duress. Essentially, the right is
meant to avoid and prohibit positively the repetition and recurrence of the
certainly inhuman procedure of compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary for his conviction."

20

This was

the lesson learned from the ancient days of the inquisition in which accusation
was equivalent to guilt. 21 Thus, an act, whether testimonial or passive, that would

amount to disclosure of incriminatory facts is covered by the inhibition of

the Constitution.
This should be distinguished, parenthetically, from mechanical acts the accused
is made to execute not meant to unearth undisclosed facts but to ascertain
physical attributes determinable by simple observation. This includes requiring
the accused to submit to a test to extract virus from his body,

22

or compelling him

to expectorate morphine from his mouth, 23 or making her submit to a pregnancy

test 24 or a footprinting test, 25 or requiring him to take part in a police lineup in
certain cases. 26 In each case, the accused does not speak his guilt. It is not a
prerequisite therefore that he be provided with the guiding hand of counsel.

LibLex

But a forced re-enactment is quite another thing. Here, the accused is not merely
required to exhibit some physical characteristics; by and large, he is made to
admit criminal responsibility against his will. It is a police procedure just as
condemnable as an uncounselled confession.
Accordingly, we hold that an evidence based on such a re-enactment to be in
violation of the Constitution and hence, incompetent evidence.
It should be furthermore observed that the three accused-appellants were in
police custody when they took part in the re-enactment in question. It is under
such circumstances that the Constitution holds a strict application. As for the
accused Dominador Sorela, we cannot accept the trial judge's finding that he
acted

"with

unexpected

spontaneity" 27 when

he

allegedly

"spilled

the

beans" 28 before the law enforcers on September 9, 1975. What is to be borne in

mind is that Sorela was himself under custody. Any statement he might have
made thereafter is therefore subject to the Constitutional guaranty.
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. 29

We indeed doubt whether Sorela's admissions, under the circumstances, were

truly his voluntary statements. Chavez v. Court of Appeals 30 tells us:
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."

31

In such a case, he should have been provided with counsel.

Indeed, the three accused-appellants had languished in jail for one year and two
months before the information was filed, and only after they had gone to court on
an application for habeas corpus. For if the authorities truly had a case in their
hands, we are puzzled why they, the accused, had to be made to suffer
preventive imprisonment for quite an enormous length of time.

Cdpr

What is more, there are striking aspects in the case that we find distressing. For
one, there was no trace of grief upon the faces of the deceased's bereaved
relatives, more so his widow and children, upon witnessing his cadaver
wrapped in a sack and all although it was supposedly the first time that they
saw his remains after two days of frantic search.

32

Exhibits "K", "L", "M", "N", and

"R", for another, depict the deceased's relatives in fixed poses, while the
deceased's corpse lay in the foreground. 33
Moreover, the victim was transferred to the municipal hall building and then
subsequently, to the parish church, again, for a photographing session an
unusual procedure when the perfunctory police procedure should have been
to bring the corpse to the health officer for autopsy.
It was in fact only on September 10, 1975 that Deosdedit Bagon's remains were
unwrapped, at the parish church at that, as if pursuant to a script or as part of
some eerie ceremony.

To the mind of this Court, the disposition of the case was characterized by
unusual grandstanding, for reasons as yet unclear to us. It leaves us with an
uncomfortable impression that each scene was an act in some contrived tragedy.
We likewise find the authorities' haste in securing the accused Anacleto Olvis'
acquittal, at the expense of the present three accused, quite disconcerting. It
should be noted that the three appellants had initially implicated Olvis as the
mastermind. Yet, Olvis was never invited for the usual questioning.
To us, there is more to Exhibit "20," the request to transfer Olvis' case to the
jurisdiction of the National Bureau of Investigation for reinvestigation, than meets
the eye. As it happened, happily for Olvis, the three accused-appellants while
under NBI custody, retracted their earlier statements indicting him as a coconspirator. Why the NBI should intervene in the case when the Polanco police
had apparently "solved" it, is, in the first place, suspicious enough, but why the
three appellants should, in an instant, make a turn-about there leaves us even
more disturbed.

LLjur

While we do not challenge the verdict of acquittal rendered in favor of Olvis, for it
is not within our power to overturn acquittals,

34

what is our concern is the

apparent design to use three ill-lettered peasants,

35

the three herein accused, as

fall guys in an evident network of political intrigue.

Still, we are not prepared to hand down a judgment of acquittal upon all the three
accused-appellants.
In his counter-affidavit, 36 marked as Exhibit "44-A" for the defense, the accused
Romulo Villarojo admitted hacking the victim to death with a bolo. He stressed,
however, that he did so in self-defense. ("[H]e pulled out a hunting knife in order
to stab me and in order also to defend my body, I hack[ed] him.")

37

He

completely absolved his co-accused Dominador Sorela and Leonardo Cademas

from any liability.

Villarojo's admission inflicting the fatal wounds upon the deceased is binding on
him. 38 But it is still our business to see whether his defense can stand scrutiny.
The records will disclose that the deceased suffered twelve assorted wounds
caused by a sharp instrument. The assault severed his right hand and left his
head almost separated from his body. This indicates a serious intent to kill, rather
than self-defense. 39
In finding that Villarojo did take the life of the victim, we cannot, however,
appreciate superior strength or nocturnity. These qualifying circumstances were
considered by the court a quo on the basis of the extrajudicial statements
executed by the accused, statements we reject for the reasons earlier discussed.
In the absence of any other proof, the severity and number of wounds sustained
by the deceased are not, by themselves, sufficient proof to warrant the
appreciation of the generic aggravating circumstance of abuse of superior
strength. Hence, Villarojo should be liable for plain homicide.

LLjur

WHEREFORE, judgment is hereby rendered modifying the Decision dated

November

30,

1984.

The

accused-appellants

Leonardo

Cademas

and

Dominador Sorela are ACQUITTED on the ground of reasonable doubt. The

accused-appellant Romulo Villarojo is found guilty of homicide, and is sentenced
to suffer an indeterminate penalty of eight years and one day of prision mayor as
minimum, to fourteen years, eight months, and one day of reclusion temporal, as
maximum. He is furthermore ordered to indemnify the heirs of Deosdedit Bagon
in the sum of P30,000.00.
No special pronouncement as to costs.
|||

(People v. Olvis , G.R. No. L-71092, [September 30, 1987])

[G.R. No. 200748. July 23, 2014.]
JAIME D. DELA CRUZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
SERENO, C.J :
p

This is a Petition for Review an Certiorari, filed by petitioner Jaime D. dela Cruz,
from the Decision 1 dated 22 June 2011 issued by the Twentieth Division of the
Court of Appeals (CA) and Resolution 2 dated 2 February 2012 issued by the
Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II
of Republic Act No. (R.A.) 9165, or the Comprehensive Dangerous Drugs Act of
2002, by the Graft Investigation and Prosecution Officer of the Office of the
Ombudsman Visayas, in an Information 3 dated 14 February 2006, which
reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, JAIME D. DE LA CRUZ, a public officer, having been duly
appointed and qualified to such public position as Police Officer 2 of
the Philippine National Police (PNP) assigned in the Security Service
Group of the Cebu City Police Office, after having been arrested by
agents of the National Bureau of Investigation (NBI) in an entrapment
operation, was found positive for use of METHAMPHETAMINE
HYDROCHLORIDE commonly known as "Shabu", the dangerous drug
after a confirmatory test conducted on said accused.

TAIaHE

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to

the charge. The records do not reveal whether De la Cruz was likewise charged
for extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the
agents and special investigators of the National Bureau of Investigation, Central
Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from
Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants
claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in
partner of Corazon and son of Charito, was picked up by several unknown male
persons believed to be police officers for allegedly selling drugs. An errand boy
gave a number to the complainants, and when the latter gave the number a ring,
they were instructed to proceed to the Gorordo Police Office located along
Gorordo Avenue, Cebu City. In the said police office, they met "James" who
demanded from them PhP100,000, later lowered to PhP40,000, in exchange for
the release of Ariel. After the meeting, the complainants proceeded to the NBICEVRO to file a complaint and narrate the circumstances of the meeting to the
authorities. While at the NBI-CEVRO, Charito even received calls supposedly
from "James" instructing her to bring the money as soon as possible.
The special investigators at the NBI-CEVRO verified the text messages received
by the complainants. A team was immediately formed to implement an
entrapment operation, which took place inside a Jollibee branch at the corner of
Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab
Jaime dela Cruz by using a pre-marked PhP500 bill dusted with fluorescent
powder, which was made part of the amount demanded by "James" and handed
by Corazon. Petitioner was later brought to the forensic laboratory of the NBICEVRO where forensic examination was done by forensic chemist Rommel
Paglinawan. Petitioner was required to submit his urine for drug testing. It later
yielded a positive result for presence of dangerous drugs as indicated in the
confirmatory test result labeled as Toxicology (Dangerous Drugs) Report No.
2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly
for extortion by NBI agents. When he was at the NBI Office, he was required to
extract urine for drug examination, but he refused saying he wanted it to be done
by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His
request was, however, denied. He also requested to be allowed to call his lawyer
prior to the taking of his urine sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6
June 2007, found the accused guilty beyond reasonable doubt of violating
Section 15, Article II of R.A. 9165 and sentenced him to suffer the penalty of
compulsory rehabilitation for a period of not less than six (6) months at the Cebu
Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas,
Lahug, Cebu City. 5
Petitioner filed an appeal assigning as error the RTC's validation of the result of
the urine test despite its dubiousness having been admitted in spite of the lack of
legal basis for its admission. First, he alleges that the forensic laboratory
examination was conducted despite the fact that he was not assisted by counsel,
in clear violation of his constitutional right. Secondly, he was allegedly held guilty
beyond reasonable doubt notwithstanding the lack of sufficient basis to convict
him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA
overlooked prevailing jurisprudence, which states that drug testing conducted
under circumstances similar to his would violate a person's right to privacy. The
appellate court nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as
errors the use of hearsay evidence as basis for his conviction and the
questionable circumstances surrounding his arrest and drug test.
Respondent, through the Office of the Solicitor General, filed its
Comment, 6 saying that "petitioner's arguments cannot be the subject of a petition
for review on certiorari under Rule 45, as they involve questions of facts which
may not be the subject thereof; after his arraignment, he can no longer contest
the validity of his arrest, less so at this stage of the proceedings; his guilt has
been adequately established by direct evidence; and the manner in which the
laboratory examination was conducted was grounded on a valid and existing
law.

SCDaET

THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the
issue of whether or not the drug test conducted upon the petitioner is legal.
OUR RULING
We declare that the drug test conducted upon petitioner is not grounded upon
any existing law or jurisprudence.
We gloss over petitioner's non-compliance with the Resolution 7 ordering him to
submit clearly legible duplicate originals or certified true copies of the assailed
Decision and Resolution.
Petitioner was charged with use of dangerous drugs in violation of the law, the
pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. A person apprehended or
arrested, who is found to be positive for use of any dangerous drug,
after a confirmatory test, shall be imposed a penalty of a minimum of
six (6) months rehabilitation in a government center for the first offense,

subject to the provisions of Article VIII of this Act. If apprehended using

any dangerous drug for the second time, he/she shall suffer the penalty
of imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and a fine ranging from Fifty thousand pesos
(PhP50,000.00) to Two hundred thousand pesos
(PhP200,000.00): Provided, That this Section shall not be applicable
where the person tested is also found to have in his/her possession
such quantity of any dangerous drug provided for under Section 11 of
this Act, in which case the provisions stated therein shall apply.

The RTC subsequently convicted petitioner, ruling that the following elements of
Section 15 were established: (1) the accused was arrested; (2) the accused was
subjected to drug test; and (3) the confirmatory test shows that he used a
dangerous drug.
Disregarding petitioner's objection regarding the admissibility of the evidence, the
lower court also reasoned that "a suspect cannot invoke his right to counsel when
he is required to extract urine because, while he is already in custody, he is not
compelled to make a statement or testimony against himself. Extracting urine
from one's body is merely a mechanical act, hence, falling outside the concept of
a custodial investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent
affirmation by the CA, erroneous on three counts.
The drug test in Section 15 does not
cover persons apprehended or
arrested for any unlawful act, but
only for unlawful acts listed under
Article II of R.A. 9165.
First, "[a] person apprehended or arrested" cannot literally mean any
person apprehended or arrested for any crime. The phrase must be read in

context and understood in consonance with R.A. 9165. Section 15 comprehends

persons arrested or apprehended for unlawful acts listed under Article II of
the law.
Hence, a drug test can be made upon persons who are apprehended or arrested
for, among others, the "importation", 9 "sale, trading, administration, dispensation,
delivery, distribution and transportation", 10 "manufacture" 11 and
"possession" 12 of dangerous drugs and/or controlled precursors and essential
chemicals; possession thereof "during parties, social gatherings or
meetings"; 13 being "employees and visitors of a den, dive or
resort"; 14 "maintenance of a den, dive or resort"; 15 "illegal chemical diversion of
controlled precursors and essential chemicals"; 16 "manufacture or delivery" 17 or
"possession" 18 of equipment, instrument, apparatus, and other paraphernalia for
dangerous drugs and/or controlled precursors and essential chemicals;
possession of dangerous drugs "during parties, social gatherings or
meetings"; 19 "unnecessary" 20 or "unlawful" 21 prescription thereof; "cultivation or
culture of plants classified as dangerous drugs or are sources thereof"; 22 and
"maintenance and keeping of original records of transactions on dangerous drugs
and/or controlled precursors and essential chemicals." 23 To make the provision
applicable to all persons arrested or apprehended for any crime not listed under
Article II is tantamount to unduly expanding its meaning. Note that accused
appellant here was arrested in the alleged act of extortion.

cCaIET

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the

intent of the law to rehabilitate persons apprehended or arrested for the unlawful
acts enumerated above instead of charging and convicting them of other crimes
with heavier penalties. The essence of the provision is more clearly illustrated
in People v. Martinez 24 as follows:
On a final note, this Court takes the opportunity to be instructive on Sec.
11 (Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous
Drugs) of R.A. No. 9165, with regard to the charges that are filed by law
enforcers. This Court notes the practice of law enforcers of filing charges

under Sec. 11 in cases where the presence of dangerous drugs as basis

for possession is only and solely in the form of residue, being subsumed
under the last paragraph of Sec. 11. Although not incorrect, it would be
more in keeping with the intent of the law to file charges under Sec.
15 instead in order to rehabilitate first time offenders of drug use,
provided that there is a positive confirmatory test result as required
under Sec. 15. The minimum penalty under the last paragraph of Sec.
11 for the possession of residue is imprisonment of twelve years and one
day, while the penalty under Sec. 15 for first time offenders of drug use is
a minimum of six months rehabilitation in a government center. To file
charges under Sec. 11 on the basis of residue alone would frustrate the
objective of the law to rehabilitate drug users and provide them with an
opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the
form of residue on the drug paraphernalia, and the accused were found
positive for use of dangerous drugs. Granting that the arrest was legal,
the evidence obtained admissible, and the chain of custody intact, the
law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or
for use of dangerous drugs and, if there was no residue at all, they
should have been charged under Sec. 14 (Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings). Sec. 14 provides that the
maximum penalty under Sec. 12 (Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) shall be
imposed on any person who shall possess any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs. Under Sec. 12,
the maximum penalty is imprisonment of four years and a fine of
PhP50,000.00. In fact, under the same section, the possession of such
equipment, apparatus or other paraphernalia is prima facie evidence that
the possessor has used a dangerous drug and shall be presumed to
have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug

users, this Court thus calls on law enforcers and prosecutors in
dangerous drugs cases to exercise proper discretion in filing
charges when the presence of dangerous drugs is only and solely
in the form of residue and the confirmatory test required under Sec.
15 is positive for use of dangerous drugs. In such cases, to afford the
accused a chance to be rehabilitated, the filing of charges for or involving
possession of dangerous drugs should only be done when another
separate quantity of dangerous drugs, other than mere residue, is found
in the possession of the accused as provided for in Sec. 15. (Emphasis
supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section

15 applicable to all persons arrested or apprehended for unlawful acts, not only
under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug
testing of all persons apprehended or arrested for any crime. To overextend the
application of this provision would run counter to our pronouncement in Social
Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency, 25 to wit:
. . .[M]andatory drug testing can never be random and suspicionless.
The ideas of randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are singled out and
are impleaded against their will. The persons thus charged, by the bare
fact of being haled before the prosecutor's office and peaceably
submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to
privacy. To impose mandatory drug testing on the accused is a
blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 6195. Drug
testing in this case would violate a person's right to privacy

guaranteed under Sec. 2, Art. III of the Constitution. Worse still,

the accused persons are veritably forced to incriminate
themselves. (Emphasis supplied)

The drug test is not covered by

allowable non-testimonial compulsion.
We find that petitioner never raised the alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is
deemed to have waived his right to question the validity of his arrest curing
whatever defect may have attended his arrest. 26 However, "a waiver of an illegal
warrantless arrest does not mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest." 27
We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has
been allowed reveal, however, that the pieces of evidence obtained were all
material to the principal cause of the arrest.

AIcaDC

The constitutional right of an accused against self-incrimination

proscribes the use of physical or moral compulsion to extort
communications from the accused and not the inclusion of his body in
evidence when it may be material. Purely mechanical acts are not
included in the prohibition as the accused does not thereby speak his
guilt, hence the assistance and guiding hand of counsel is not required.
(People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against
self-incrimination is testimonial compulsion, that is, the giving of
evidence against himself through a testimonial act. (People vs. Casinillo,
213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People
vs. Rondero, 378 Phil. 123 [1999]) Hence, it has been held that a woman
charged with adultery may be compelled to submit to physical
examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil.
62 [1920]) and an accused may be compelled to submit to physical

examination and to have a substance taken from his body for medical
determination as to whether he was suffering from gonorrhea which was
contracted by his victim; (U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel
morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917])
to have the outline of his foot traced to determine its identity with bloody
footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil.
308 [1921]) and to be photographed or measured, or his garments or
shoes removed or replaced, or to move his body to enable the foregoing
things to be done. (People vs. Otadora, 86 Phil. 244
[1950]) 28 (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the
charge of extortion. The RTC and the CA, therefore, both erred when they held
that the extraction of petitioner's urine for purposes of drug testing was "merely a
mechanical act, hence, falling outside the concept of a custodial investigation."
We note a case where a urine sample was considered as admissible. In Gutang
v. People, 29 the petitioner therein and his companions were arrested in
connection with the enforcement of a search warrant in his residence. A PNPNARCOM team found and confiscated shabu materials and paraphernalias. The
petitioner and his companions in that case were also asked to give urine
samples, which yielded positive results. Later, the petitioner therein was found
guilty of the crime of illegal possession and use of prohibited drugs. Gutang
claimed that the latter's urine sample was inadmissible in evidence, since it was
derived in effect from an uncounselled extrajudicial confession.
In the Gutang, et al. case, the Court clarified that "what the Constitution prohibits
is the use of physical or moral compulsion to extort communication from the
accused, but not an inclusion of his body in evidence, when it may be material".
The situation in Gutang was categorized as falling among the exemptions under
the freedom from testimonial compulsion since what was sought to be examined
came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was
not meant to unearth undisclosed facts but to ascertain physical
attributes determinable by simple observation. In fact, the record shows
that petitioner and his co-accused were not compelled to give samples of
their urine but they in fact voluntarily gave the same when they were
requested to undergo a drug test.
Assuming arguendo that the urine samples taken from the petitioner are
inadmissible in evidence, we agree with the trial court that the record is
replete with other pieces of credible evidence including the testimonial
evidence of the prosecution which point to the culpability of the petitioner
for the crimes charged.

We emphasize that the circumstances in Gutang are clearly different from the
circumstances of petitioner in the instant case. First, Gutang was arrested in
relation to a drug case. Second, he volunteered to give his urine. Third, there
were other pieces of evidence that point to his culpability for the crimes charged.
In the present case, though, petitioner was arrested for extortion; he resisted
having his urine sample taken; and finally, his urine sample was the only available
evidence that was used as basis for his conviction for the use of illegal drugs.
The drug test was a violation of
petitioner's right to privacy and right
against self-incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested
for drugs. He also asked for a lawyer prior to his urine test. He was adamant in
exercising his rights, but all of his efforts proved futile, because he was still
compelled to submit his urine for drug testing under those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. 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.

AEaSTC

Section 17. No person shall be compelled to be a witness against

himself.

In the face of these constitutional guarantees, we cannot condone drug testing of

all arrested persons regardless of the crime or offense for which the arrest is
being made.
While we express our commendation of law enforcement agents as they
vigorously track down offenders in their laudable effort to curb the pervasive and
deleterious effects of dangerous drugs on our society, they must, however, be
constantly mindful of the reasonable limits of their authority, because it is not
unlikely that in their clear intent to purge society of its lawless elements, they may
be knowingly or unknowingly transgressing the protected rights of its citizens
including even members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011
issued by the Twentieth Division, and the Resolution dated 2 February 2012
issued by the former Twentieth Division of the Court of Appeals, in CA-G.R. C.R.
No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.
|||

(Dela Cruz v. People, G.R. No. 200748, [July 23, 2014])