You are on page 1of 70

RULE 113 Arrest

SECTION 1. Definition of Arrest.


G.R. No. 204589 November 19, 2014

RIZALDY SANCHEZ y CAJILI, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

This is a petition for certiorari under Rule 65 seeking to reverse and set aside the July 25, 2012 Decision and
1

the November 20, 2012 Resolution of the Court of Appeals (CA), in CA-G.R. CR No. 31742 filed by petitioner
2

Rizaldy Sanchez y Cajili (Sanchez), affirming the April 21, 2005 Decision of the Regional Trial Court of Imus,
3

Cavite, Branch 20 (RTC), which convicted him for Violation of Section 11, Article l l of Republic Act (R.A.) No.
9165. The dispositive portion of the RTC decision reads:

WHEREFORE, premises considered, judgment is rendered convicting accused Rizaldy Sanchez y Cajili of
Violation of Section 11, Article II of Republic Act No. 9165 and hereby sentences him to suffer imprisonment
from twelve (12) to fifteen (15) years and to pay a fine of Php300,000.00. SO ORDERED. 4

Sanchez was charged with violation of Section 11, Article II of R.A. No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, in the Information, dated March 20, 2003, filed before the RTC
5

and docketed as Criminal Case No. 10745-03. The accusatory portion of the Information indicting Sanchez
reads:

That on or about the 19th day of March 2003, in the Municipality of Imus, Province of Cavite, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then
and there willfully, unlawfully and feloniously have in his possession, control and custody, 0.1017 gram of
Methamphetamine Hydrochloride, commonly known as "shabu," a dangerous drug, in violation of the
provisions of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

When arraigned, Sanchez pleaded not guilty to the offense charged. During the pre-trial, the prosecution and
the defense stipulated on the existence and due execution of the following pieces of evidence: 1] the request
for laboratory examination; 2]certification issued by the National Bureau of Investigation (NBI);3] Dangerous
Drugs Report; and 4] transparent plastic sachet containing small transparent plastic sachet of white crystalline
substance. Thereafter, trial on the merits ensued.
6

Version of the Prosecution

The prosecutions version of the events as summarized by the Office of the Solicitor General (OSG)in its
Comment on the petition is as follows:
7

Around 2:50 pm of March 19, 2003, acting on the information that Jacinta Marciano, aka "Intang," was selling
drugs to tricycle drivers, SPO1 Elmer Amposta, together with CSU Edmundo Hernandez, CSU Jose Tagle, Jr.,
and CSU Samuel Monzon, was dispatched to Barangay Alapan 1-B, Imus, Cavite to conduct an operation.

While at the place, the group waited for a tricycle going to, and coming from, the house of Jacinta. After a few
minutes, they spotted a tricycle carrying Rizaldy Sanchez coming out of the house. The group chased the
tricycle. After catching up with it, they requested Rizaldy to alight. It was then that they noticed Rizaldy holding
a match box.

SPO1 Amposta asked Rizaldy if he could see the contents of the match box. Rizaldy agreed. While examining
it, SPO1 Amposta found a small transparent plastic sachet which contained a white crystalline substance.
Suspecting that the substance was a regulated drug, the group accosted Rizaldy and the tricycle driver. The
group brought the two to the police station.

On March 20, 2003, Salud M. Rosales, a forensic chemist from the NBI, submitted a Certification which reads:

This certifies that on the above date at 9:25 a.m. one PO1 Edgardo Nario of Imus, Mun. PS, PNP, Imus, Cavite
submitted to this office for laboratory examinations the following specimen/s to wit:
White crystalline substance contained in a small plastic sachet, marked "RSC," placed in a plastic pack,
marked "Mar. 19, 2003." (net wt. = 0.1017 gm)

Examinations conducted on the above-mentioned specimen/s gave POSITIVE RESULTS for


METHAMPHETAMINE HYDROCHLORIDE.

Said specimen/s were allegedly confiscated from RIZALDY SANCHEZ y CAJILI and DARWIN REYES y
VILLARENTE.

Official report follows:

This certification was issued uponrequest for purpose of filing the case. 8

Version of the Defense

In the present petition, Sanchez denied the accusation against him and presented a different version of the
9

events that transpired in the afternoon of March 19, 2003, to substantiate his claim of innocence:

On 24 February 2005, the accused Rizaldy Sanchez took the witness stand. He testified that on the date and
time in question, he, together with a certain Darwin Reyes, were on their way home from Brgy. Alapan, Imus,
Cavite, where they transported a passenger, when their way was blocked by four (4) armed men riding an
owner-type jeepney. Without a word, the four men frisked him and Darwin. He protested and asked what
offense did they commit. The arresting officers told him that they had just bought drugs from Alapan. He
reasoned out that he merely transported a passenger there but the policemen still accosted him and he was
brought to the Imus Police Station where hewas further investigated. The police officer, however, let
DarwinReyes go. On cross-examination, the accused admitted that it was the first time that he saw the police
officers at the time he was arrested. He also disclosed that he was previously charged with the same offense
before Branch 90 of this court which was already dismissed, and that the police officers who testified in the
said case are not the same as those involved in this case. 10

The Ruling of the RTC

On April 21, 2005, the RTC rendered its decision finding that Sanchez was caught in flagrante delicto,in actual
11

possession of shabu. It stated that the police operatives had reasonable ground to believe that Sanchez was in
possession of the said dangerous drug and such suspicion was confirmed when the match box Sanchez was
carrying was found to contain shabu. The RTC lent credence to the testimony of prosecution witness, SPO1
Elmer Amposta (SPO1 Amposta) because there was no showing that he had been impelled by any ill motive to
falsely testify against Sanchez. The dispositive portion of which reads:

WHEREFORE, premises considered, judgment is rendered convicting accused Rizaldy Sanchez y Cajili of
Violation of Section 11, Article II of Republic Act No. 9165 and hereby sentences him to suffer imprisonment
from twelve (12) to fifteen (15) years and to pay a fine of Php300,000.00. SO ORDERED. 12

Unfazed, Sanchez appealed the RTC judgment of conviction before the CA. He faulted the RTC for giving
undue weight on the testimony of SPO1 Amposta anchored merely on the presumption of regularity in the
performance of duty of the said arresting officer. He insisted that the prosecution evidence was insufficient to
establish his guilt.

The Ruling of the CA

The CA found no cogent reason to reverse or modify the findings of facts and conclusions reached by the RTC
and, thus, upheld the conviction of the accused for violation of Section 11, Article II of R.A. No. 9165. According
to the CA, there was probable cause for the police officers to believe that Sanchez was then and there
committing a crime considering that he was seen leaving the residence of a notorious drug dealer where,
according to a tip they received, illegal drug activities were being perpetrated. It concluded that the confiscation
by the police operative of the subject narcotic from Sanchez was pursuant to a valid search. The CA then went
on to write that non-compliance by the police officers on the requirements of Section 21, paragraph 1, Article II
of R.A. No. 9165, particularly on the conduct of inventory and photograph of the seized drug, was not fatal to
the prosecutions causesince its integrity and evidentiary value had been duly preserved. The falloof the
decision reads:

WHEREFORE, the Decision of the Regional Trial Court, Branch 20, Imus, Cavite dated April 21, 2005 and
Order dated October 1, 2007 in Criminal Case No. 10745-03 finding accused appellant Rizaldy C. Sanchez
guilty beyond reasonable doubt of violation of Section 11, Article II of Republic Act No. 9165, is AFFIRMED.

SO ORDERED. 13
Sanchez filed a motion for reconsideration of the July 25, 2012 Decision, but it was denied by the CA in its
November 20, 2012 Resolution.

Hence, this petition.

Bewailing his conviction, Sanchez filed the present petition for "certiorari"under Rule 65 of the Rules of Court
and anchored on the following

GROUNDS:

1. THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT
HELD THAT ACCUSED WAS CAUGHT IN FLAGRANTE DELICTO, HENCE,A SEARCH WARRANT
WAS NO LONGER NECESSARY; AND

2. THE HONORABLE COURT OFAPPEALS, WITH DUE RESPECT, COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT HELD THAT
NON-COMPLIANCE WITH SECTION 21, PARAGRAPH 1, ARTICLE II OF REPUBLIC ACT NO. 9165
DOES NOT AUTOMATICALLY RENDER THE SEIZED ITEMS INADMISSIBLE IN EVIDENCE. 14

Sanchez insists on his acquittal. He argues that the warrantless arrest and search on him were invalid due to
the absence of probable cause on the part of the police officers to effect an in flagrante delicto arrest under
Section 15, Rule 113 of the Rules of Court. He also contends that the failure of the police operatives to comply
with Section 21, paragraph 1, Article II of R.A. No. 9165 renders the seized item inadmissible in evidence and
creates reasonable doubt on his guilt. By way of Comment to the petition, the OSG prays for the affirmance of
15

the challenged July 25, 2012 decision of the CA. The OSG submits that the warrantless search and seizure of
the subject narcotic were justified under the plain view doctrine where a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes across an incriminating object.

The Courts Ruling

Preliminarily, the Court notes that this petition suffers from procedural infirmity. Under Section 1, Rule 45 of the
Rules of Court, the proper remedy to question the CA judgment,final order or resolution, as in the present case,
is a petition for review on certiorari, which would be but a continuation of the appellate process over the original
case. By filing a special civil action for certiorari under Rule 65, Sanchez therefore clearly availed himself of
16

the wrong remedy.

Be that as it may, the Court, in several cases before, had treated a petition for certiorari as a petition for review
under Rule 45, in accordance with the liberal spirit and in the interest of substantial justice, particularly (1) if the
petition was filed within the reglementary period for filing a petition for review; (2) errors of judgment are
averred; and (3) there is sufficient reason to justify the relaxation of the rules. The case at bench satisfies all
17

the above requisites and, hence, there is ample justification to treat this petition for certiorari as a petition for
review. Besides, it is axiomatic that the nature of an action is determined by the allegations of the complaint or
petition and the character of the relief sought. Here, stripped of allegations of "grave abuse of discretion," the
18

petition actually avers errors of judgment rather than of jurisdiction, which are the appropriate subjects of a
petition for review on certiorari.

Going now into the substance of the petition, the Court finds the same to be impressed with merit.

Although it is true that the trial courts evaluation of the credibility of witnesses and their testimonies is entitled
to great respect and not to be disturbed on appeal, this rule, however, 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. But an exception exists if there
is a showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of
weight and substance that would have affected the case. After going over the records of the case at bench,
19

the Court finds some facts of weight and substance that have been overlooked, misapprehended, or
misapplied by the trial court which cast doubt on the guilt of Sanchez.

In sustaining the conviction of Sanchez, the CA ratiocinated that this was a clear case of an in flagrante delicto
arrest under paragraph (a) Section 5, Rule 113 of the Rules on Criminal Procedure. In this regard, the CA
wrote:

In the case at Bar, the acquisition of the regulated drug by the police officers qualifies as a valid search
following a lawful operation by the police officers. The law enforcers acted on the directive of their superior
based on an information that the owner of the residence where Sanchez came from was a notorious drug
dealer. As Sanchez was seen leaving the said residence, the law enforcers had probable cause to stop
Sanchez on the road since there was already a tip that illegal drug-related activities were perpetrated in the
place where he came from and seeing a match box held on one hand, the police officers action were justified
to inspect the same. The search therefore, is a sound basis for the lawful seizure of the confiscated drug,
arrest and conviction of Sanchez.

The case of People vs. Valdez (G.R. No. 127801, March 3, 1999) is instructive. In that case, the police officers,
by virtue of an information that a person having been previously described by the informant, accosted Valdez
and upon inspection of the bag he was carrying, the police officers found the information given to them to be
true as it yielded marijuana leaves hidden in the water jug and lunch box inside Valdezs bag. The Supreme
Court in affirming the trial courts ruling convicting Valdez declared that:

In this case, appellant was caught in flagrante since he was carrying marijuana at the time of his arrest. A1wphi1

crime was actually being committed by the appellant, thus, the search made upon his personal effects falls
squarely under paragraph (a) of the foregoing provisions of law, which allow a warrantless search incident to
lawful arrest. While it is true that SPO1 Mariano was not armed with a search warrant when the search was
conducted over the personal effects of appellant, nevertheless, under the circumstances of the case, there was
sufficient probable cause for said police officer to believe that appellant was then and there committing a crime.
The cited case is akin to the circumstances in the instant appeal as in this case, Sanchez, coming from the
house of the identified drug dealer, previously tipped by a concerned citizen, walked to a parked tricycle and
sped towards the direction of Kawit, Cavite. The search that gave way to the seizure of the match box
containing shabu was a reasonable course of event that led to the valid warrantless arrest since there was
sufficient probable cause for chasing the tricycle he was in. (Underscoring supplied)

A judicious examination of the evidence on record belies the findings and conclusions of the RTC and the CA.

At the outset, it is observed that the CA confused the search incidental to a lawful arrest withthe stop-and-frisk
principle, a wellrecognized exception to the warrant requirement. Albeit it did not expressly state so, the CA
labored under the confused view that one and the other were indistinct and identical. That confused view
guided the CA to wrongly affirm the petitioner's conviction. The Court must clear this confusion and correct the
error.

It is necessary to remind the RTC and the CA that the Terry stop- and-frisk search is entirely different from and
20

should not be confused with the search incidental to a lawful arrest envisioned under Section 13, Rule 126 of
the Rules on Criminal Procedure. The distinctions have been made clear in Malacat v. Court of Appeals : 21

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 a lawful arrest
before a search can be made -- the 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.

xxxx

We now proceed to the justification for and allowable scope of a "stop-and-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 x x x x.

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.
22

In the case at bench, neither the in flagrante delictoarrest nor the stop- and-frisk principle was applicableto
justify the warrantless search and seizure made by the police operatives on Sanchez. An assiduous scrutiny of
the factual backdrop of this case shows that the search and seizure on Sanchez was unlawful. A portion of
SPO1 Ampostas testimony on direct examination is revelatory, viz:

Pros. Villarin:

Q: On March 19, 2003 at around 2:50 p.m., can you recall where were you?

A: Yes, Mam.

Q: Where were you? A: We were in Brgy. Alapan 1-B, Imus, Cavite.

Q: What were you doing at Alapan 1-B, Imus, Cavite? A: We were conducting an operation against illegal
drugs.

Q: Who were with you? A: CSU Edmundo Hernandez, CSU Jose Tagle, Jr. and CSU Samuel

Monzon.

Q: Was the operation upon the instruction of your Superior?

A: Our superior gave us the information that there were tricycle drivers buying drugs from "Intang" or Jacinta
Marciano.

Q: What did you do after that?

A: We waited for a tricycle who will go to the house of Jacinta Marciano.

Q: After that what did you do?

A: A tricycle with a passenger went to the house of "Intang" and when the passenger boarded the tricycle, we
chase[d] them.

Q: After that, what happened next?

A: When we were able to catch the tricycle, the tricycle driver and the passenger alighted from the tricycle.

Q: What did you do after they alighted from the tricycle?

A: I saw the passenger holding a match box.

Q: What did you do after you saw the passenger holding a match box?

A: I asked him if I can see the contents of the match box.

Q: Did he allow you?

A: Yes, mam. He handed to me voluntarily the match box.

Court:

Q: Who, the driver or the passenger?

A: The passenger, sir.

Pros. Villarin:

Q: After that what did you find out?


A: I opened the match box and I found out that it contained a small transparent plastic sachet containing white
crystalline substance.23

A search as an incident to a lawfularrest is sanctioned by the Rules of Court. It bears emphasis that the law
24

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; the process cannot be reversed. 25

Here, the search preceded the arrest of Sanchez. There was no arrest prior to the conduct of the search.
Arrest is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody that he
may be bound to answer for the commission of an offense. Under Section 2, of the same rule, an arrest is
effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the
person making the arrest. Even casting aside the petitioners version and basing the resolution of this case on
26

the general thrust of the prosecution evidence, no arrest was effected by the police operatives upon the person
of Sanchez before conducting the search on him. It appears from the above quoted testimony of SPO1
Amposta that after they caught up with the tricycle, its driver and the passenger, Sanchez, alighted from it; that
he noticed Sanchez holding a match box; and that he requested Sanchez if he could see the contents of the
match box, to which the petitioner acceded and handed it over to him. The arrest of Sanchez was made only
after the discovery by SPO1 Amposta of the shabu inside the match box. Evidently, what happened in this case
was that a search was first undertaken and then later an arrest was effected based on the evidence produced
by the search.

Even granting arguendo that Sanchez was arrested before the search, still the warrantless search and seizure
must be struck down as illegal because the warrantless arrest was unlawful. Section 5, Rule 113 of the Rules
of Criminal Procedure lays down the basic rules on lawful warrantless arrests, either by a peace officer or a
private person, as follows:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest
a person:

(a) When, in his presence, the person to be arrested has committed, is actuallly 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.

xxx

For warrantless arrest under paragraph (a) of Section 5 (in flagrante delicto arrest) to operate, 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 tocommit a crime; and (2) such overt act is done in the presence or
withinthe view of the arresting officer. On the other hand, paragraph (b) of Section 5 (arrest effected in hot
27

pursuit) requires for its application that at the time of the arrest, an offense has in fact just been committed and
the arresting officer has personal knowledge of facts indicating that the person to be apprehended has
committed it. These elements would be lacking in the case at bench.

The evidence on record reveals that no overt physical act could be properly attributed to Sanchez as to rouse
suspicion in the minds of the police operatives that he had just committed, was committing, or was about to
commit a crime. Sanchez was merely seen by the police operatives leaving the residence of a known drug
peddler, and boarding a tricycle that proceeded towards the direction of Kawit, Cavite. Such acts cannot in any
way be considered criminal acts. In fact, even if Sanchez had exhibited unusual or strange acts, or at the
veryleast appeared suspicious, the same would not have been considered overt acts in order for the police
officers to effect a lawful warrantless arrest under paragraph (a) of Section 5, Rule 113.

It has not been established either that the rigorous conditions set forth in paragraph (b) of Section 5 have been
complied with in this warrantless arrest. When the police officers chased the tricycle, they had no personal
knowledge to believe that Sanchez bought shabu from the notorious drug dealer and actually possessed the
illegal drug when he boarded the tricycle. Probable cause has been held to signify 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. The police officers in this case had no
28

inkling whatsoever as to what Sanchez did inside the house of the known drug dealer. Besides, nowhere in the
prosecution evidence does it show that the drug dealer was conducting her nefarious drug activities inside her
house so as to warrant the police officers to draw a reasonable suspicion that Sanchez must have gotten
shabu from her and possessed the illegal drug when he came out of the house. In other words, there was no
overt manifestation on the part of Sanchez that he had just engaged in, was actually engaging in or was
attempting to engage in the criminal activity of illegal possession of shabu. Verily, probable cause in thiscase
was more imagined than real.

In the same vein, there could be no valid "stop-and-frisk" search in the case at bench. Elucidating on what
constitutes "stop-and-frisk" operation and how it is to be carried out, the Court in People v. Chua wrote:
29

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 latters
outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason,
in accordance with the police officers 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. 30

In this jurisdiction, what may be regarded as a genuine reason or a reasonable suspicion justifying a Terry
stop-and-frisk search had been sufficiently illustrated in two cases. In Manalili v. Court of Appeals and
People, a policeman chanced upon Manalili in front of the cemetery who appeared to be "high" on drugs as
31

he was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be
trying to avoid the policemen and when approached and asked what he was holding in his hands, he tried to
resist. When he showed his wallet, it contained marijuana. The Court held that the policeman had sufficient
reason to accost Manalili to determine if he was actually "high" on drugs due to his suspicious actuations,
coupled with the fact that the area was a haven for drug addicts.

In People v. Solayao, the Court also found justifiable reason for the police to stop and frisk the accused after
32

considering the following circumstances: the drunken actuations of the accused and his companions; the fact
that his companions fled whenthey 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. Seemingly, the
common thread of these examples isthe presence of more than one seemingly innocent activity, which, taken
together, warranted a reasonable inference of criminal activity. It was not so in the case at bench.

The Court does not find the totality of the circumstances described by SPO1 Amposta as sufficient to incite a
reasonable suspicion that would justify a stop-and-frisk search on Sanchez. Coming out from the house of a
drug pusher and boarding a tricycle, without more, were innocuous movements, and by themselves alone
could not give rise in the mind of an experienced and prudent police officer of any belief that hehad shabu in
his possession, or that he was probably committing a crime in the presence of the officer. There was even no
allegation that Sanchez left the house of the drug dealer in haste or that he acted in any other suspicious
manner. There was no showing either that he tried toevade or outmaneuver his pursuers or that he attempted
to flee when the police officers approached him. Truly, his acts and the surrounding circumstances could not
have engendered any reasonable suspicion on the part of the police officers that a criminal activity had taken
place or was afoot.

In the recent case of People v. Cogaed, where not a single suspicious circumstance preceded the search on
33

the accused, the Court ruled that the questioned act of the police officer did not constitute a valid stop-and-frisk
operation. Cogaed was a mere passenger carrying a blue bag and a sack and travelling aboard a jeepney. He
did not exhibit any unusual or suspicious behavior sufficient to justify the law enforcer in believing that he was
engaged in a criminal activity. Worse, the assessment of suspicion was made not by the police officer but by
the jeepney driver, who signaled to the police officer that Cogaed was "suspicious." In view of the illegality of
the search and seizure, the 12,337.6 grams of marijuana confiscated from the accused was held as
inadmissible.

The OSG characterizes the seizure of the subject shabu from Sanchez as seizure of evidence in plain view.
The Court disagrees.

Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position
to have that view are subject to seizure and may be presented as evidence. The plain view doctrine applies
34

when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the
evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject to seizure. 35

Measured against the foregoing standards, it is readily apparent that the seizure of the subject shabu does
notfall within the plain view exception. First, there was no valid intrusion. As already discussed, Sanchez was
illegally arrested. Second, subject shabu was not inadvertently discovered, and third, it was not plainly exposed
to sight. Here, the subject shabu was allegedly inside a match box being thenheld by Sanchez and was not
readily apparent or transparent to the police officers. In fact, SPO1 Amposta had to demand from Sanchez the
possession of the match box in order for him to open it and examine its content. The shabu was not in plain
view and its seizure without the requisite search warrant is in violation of the law and the Constitution. In the
light of the foregoing, there being no lawful warrantless arrest and warrantless search and seizure, the shabu
purportedly seized from Sanchez is inadmissible in evidence for being the proverbial fruit of the poisonous tree.
As the confiscated shabu is the very corpus delicti of the crime charged, the accused must be acquitted and
exonerated from the criminal charge of violation of Section 11, Article II of R.A. No. 9165.

Furthermore, the Court entertains doubts whether the shabu allegedly seized from Sanchez was the very same
item presented during the trial of this case. The Court notes that there wereseveral lapses in the law enforcers
handling of the seized item which, when taken collectively, render the standards of chain of custody seriously
breached.

Chain of custody means the duly recorded authorized movements and custody of seized drugs or controlled
chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. The function of the chain of custody requirement is to ensure that the
36

integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to
the identity of the evidence are removed. Thus, the chain of custody requirement has a two-fold purpose: (1)
37

the preservation of the integrity and evidentiary value of the seized items, and (2) the removal of unnecessary
doubts as to the identity of the evidence.38

In this case, the prosecution failed to account for each and every link in the chain of custody of the shabu, from
the moment it was allegedly confiscated up to the time it was presented before the court as proof of the corpus
delicti. The testimony of SPO 1 Amposta was limited to the fact that he placed the marking "RSC" on the
seized drug; and that he and the three other police officers brought Sanchez and the subject shabu to their
station and turned them over to their investigator. The prosecution evidence did not disclose where the marking
of the confiscated shabu took place and who witnessed it. The evidence does not show who was in possession
of the seized shabu from the crime scene to the police station. A reading of the Certification, dated March 20,
2003, issued by Forensic Chemist Salud Rosales shows that a certain PO I Edgardo Nario submitted the
specimen to the NBI for laboratory examination, but this piece of evidence does not establish the identity of the
police investigator to whom SPO 1 Amposta and his group turned over the seized shabu. The identities of the
person who received the specimen at the NBI laboratory and the person who had the custody and safekeeping
of the seized marijuana after it was chemically analyzed pending its presentation in court were also not
disclosed.

Given the procedural lapses pointed out above, a serious uncertainty hangs over the identity of the seized
shabu that the prosecution introduced in evidence. The prosecution failed to establish an unbroken chain of
custody, resulting in rendering the seizure and confiscation of the shabu open to doubt and suspicion. Hence,
the incriminatory evidence cannot pass judicial scrutiny. WHEREFORE, the petition is GRANTED. The
assailed July 25, 2012 Decision and the November 20, 2012 Resolution of the Court of Appeals in CA-G.R. CR
No. 31742 are REVERSED and SET ASIDE. Petitioner Rizaldy Sanchez y Cajili is ACQUITTED on reasonable
doubt. Accordingly, the Court orders the immediate release of the petitioner, unless the latter is being lawfully
held for another cause; and to inform the Court of the date of his release, or reason for his continued
confinement, within ten (10) days from receipt of notice.

SO ORDERED.

SECTION 2. ARREST; HOW MADE


SECOND DIVISION

G.R. No. 182534, September 02, 2015

ONGCOMA HADJI HOMAR, Petitioner, v. PEOPLE OF THE


PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before the Court is a petition for review on certiorari filed by Ongcoma Hadji
Homar (petitioner) seeking the reversal of the Decision1 of the Court of
Appeals (CA) dated January 10, 2008, and its Resolution dated April 11,
2008 in CA-G.R. CR No. 29364. These assailed CA rulings affirmed the
decision of the Regional Trial Court (RTC) of Paraaque City, Branch 259 in
Criminal Case No. 02-0986 which convicted the petitioner for violation of
Republic Act (RA) No. 9165 entitled "An Act Instituting the Comprehensive
Dangerous Drugs Act of 2002."

The Factual Antecedents

The petitioner was charged for violation of Section 11, Article II 2 of RA


9165. The Information states that on or about August 20, 2002, the
petitioner was found to possess one heat-sealed transparent plastic sachet
containing 0.03 grams of methylamphetamine hydrochloride, otherwise
known as shabu. The petitioner pleaded not guilty during arraignment.3

PO1 Eric Tan (Tan) was the lone witness for the prosecution. As stated in
the RTC decision, he testified that on August 20, 2002, at around 8:50 in
the evening, their Chief, P/Chief Supt. Alfredo C. Valdez, ordered him and
civilian agent (C/A) Ronald Tangcoy (Tangcoy) to go to the South Wing,
Roxas Boulevard. While proceeding to the area onboard a mobile hunter,
they saw the petitioner crossing a "No Jaywalking" portion of Roxas
Boulevard. They immediately accosted him and told him to cross at the
pedestrian crossing area.

The petitioner picked up something from the ground, prompting Tangcoy to


frisk him resulting in the recovery of a knife. Thereafter, Tangcoy conducted
a thorough search on the petitioner's body and found and confiscated a
plastic sachet containing what he suspected as shabu. Tangcoy and Tan
executed a sinumpaang salaysay on the incident.4

The petitioner was the sole witness for the defense.5 He testified that on
August 20, 2002, he was going home at around 6:30 p.m. after selling
imitation sunglasses and other accessories at the BERMA Shopping Center.
After crossing the overpass, a policeman and a civilian stopped and frisked
him despite his refusal. They poked a gun at him, accused him of being
a holdupper, and forced him to go with them. They also confiscated the
kitchen knife, which he carried to cut cords. He was likewise investigated
for alleged possession of shabu and detained for one day. He was criminally
charged before the Metropolitan Trial Court of Paraaque City, Branch 77
for the possession of the kitchen knife but he was eventually acquitted. 6

The RTC's Ruling

The RTC convicted the petitioner. It ruled that PO1 Tan and C/A Tangcoy
were presumed to have performed their duties regularly in arresting and
conducting a search on the petitioner. The RTC also noted that PO1 Eric Tan
was straightforward in giving his testimony and he did not show any ill
motive in arresting the petitioner.7

The RTC also did not believe the petitioner's defense of denial and ruled
that it is a common and standard defense ploy in most prosecutions in
dangerous drugs cases. This defense is weak especially when it is not
substantiated by clear and convincing evidence as in this case. 8

The petitioner filed an appeal with the CA.

The CA's ruling

The CA dismissed the petition and affirmed the RTC's findings.

According to the CA, Section 5, paragraph (a) of Rule 113 of the Revised
Rules of Criminal Procedure enumerates the circumstances when a
warrantless arrest is legal, valid, and proper. One of these is when the
person to be arrested has committed, is actually committing, or is
attempting to commit an offense in the presence of a peace officer or a
private person. In the present case, the petitioner committed jaywalking in
the presence of PO1 Tan and C/A Tangcoy; hence, his warrantless arrest for
jaywalking was lawful.9

Consequently, the subsequent frisking and search done on the petitioner's


body which produced the knife and the shabu were incident to a lawful
arrest allowed under Section 13, Rule 126 of the Revised Rules of Criminal
Procedure.10

The CA likewise ruled that PO1 Tan11 clearly showed that the petitioner was
caught in flagrante delicto in possession of shabu.12

The petitioner filed a motion for reconsideration which was denied by the
CA.13 Hence, this appeal.

The Petitioner's Position

The petitioner argues that the CA erred in affirming his conviction on the
following grounds:chanRoblesvirtualLawlibrary

First, the shabu, which was allegedly recovered from the petitioner, is
inadmissible as evidence because it was obtained as a result of his unlawful
arrest and in violation of his right against unreasonable search and seizure.
The petitioner has not committed, was not committing and was not
attempting to commit any crime at the time of his arrest. In fact, no report
or criminal charge was filed against him for the alleged jaywalking. 14

Second, assuming for the sake of argument that there was a valid arrest,
Section 13, Rule 126 of the Revised Rules of Criminal Procedure permits a
search that is directed only upon dangerous weapons or "anything which
may have been used or constitute proof in the commission of an offense
without a warrant." In the present case, the offense, for which the
petitioner was allegedly caught in flagrante delicto, is jaywalking. The
alleged confiscated drug has nothing to do with the offense of jaywalking. 15

Finally, the non-presentation of Tangcoy, who allegedly recovered


the shabu from the petitioner, renders the prosecution's evidence weak and
uncorroborated. Consequently, the sole testimony of Tan cannot sustain the
petitioner's conviction beyond reasonable doubt.

The Respondent's Position

In his Comment, the respondent argues that the guilt of the petitioner was
conclusively established beyond reasonable doubt. 16 He reiterates that the
warrantless frisking and search on the petitioner's body was an incident to a
lawful warrantless arrest for jaywalking.17 The non-filing of a criminal
charge of jaywalking against the petitioner does not render his arrest
invalid.18

The respondent also assails the petitioner's defense that the shabu is
inadmissible as evidence. According to the respondent, the petitioner can
no longer question his arrest after voluntarily submitting himself to the
jurisdiction of the trial court when he entered his plea of not guilty and
when he testified in court.19

The Court's Ruling

We find the petition meritorious.

The prosecution failed to prove that a lawful warrantless arrest preceded


the search conducted on the petitioner's body.

The Constitution guarantees the right of the people to be secure in their


persons, houses, papers, and effects against unreasonable searches and
seizures. Any evidence obtained in violation of these rights shall be
inadmissible for any purpose in any proceeding. While the power to search
and seize may at times be necessary to the public welfare, the exercise of
this power and the implementation of the law should not violate the
constitutional rights of the citizens.20

To determine the admissibility of the seized drugs in evidence, it is


indispensable to ascertain whether or not the search which yielded the
alleged contraband was lawful.21 There must be a valid warrantless search
and seizure pursuant to an equally valid warrantless arrest, which must
precede the search. For this purpose, the law requires that there be first a
lawful arrest before a search can be made the process cannot be
reversed.22

Section 5, Rule 11323 of the Revised Rules of Criminal Procedure provides


the only occasions when a person may be lawfully arrested without a
warrant. In the present case, the respondent alleged that the petitioner's
warrantless arrest was due to his commission of jaywalking in flagrante
delicto and in the presence of Tan and Tangcoy.

To constitute a valid in flagrante delicto arrest, 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 of or within the view
of the arresting officer.24

The prosecution has the burden to prove the legality of the warrantless
arrest from which the corpus delicti of the crime - shabu - was obtained.
For, without a valid warrantless arrest, the alleged confiscation of
the shabu resulting from a warrantless search on the petitioner's body is
surely a violation of his constitutional right against unlawful search and
seizure. As a consequence, the alleged shabu shall be inadmissible as
evidence against him.

On this point, we find that aside from the bare testimony of Tan as quoted
by the CA in its decision, the prosecution did not proffer any other proof to
establish that the requirements for a valid in flagrante delicto arrest were
complied with. Particularly, the prosecution failed to prove that the
petitioner was committing a crime.

The respondent failed to specifically identify the area where the petitioner
allegedly crossed. Thus, Tan merely stated that the petitioner "crossed the
street of Roxas Boulevard, in a place not designated for crossing." Aside
from this conclusion, the respondent failed to prove that the portion of
Roxas Boulevard where the petitioner crossed was indeed a "no jaywalking"
area. The petitioner was also not charged of jaywalking. These are pieces of
evidence that could have supported the conclusion that indeed the
petitioner was committing a crime of jaywalking and therefore, the
subsequent arrest and search on his person was valid. Unfortunately, the
prosecution failed to prove this in the present case.

We clarify, however, that the filing of a criminal charge is not a condition


precedent to prove a valid warrantless arrest. Even if there is a criminal
charge against an accused, the prosecution is not relieved from its burden
to prove that there was indeed a valid warrantless arrest preceding the
warrantless search that produced the corpus delicti of the crime.

Neither can the presumption of regularity in the performance of official duty


save the prosecution's lack of evidence to prove the warrantless arrest and
search. This presumption cannot overcome the presumption of innocence or
constitute proof of guilt beyond reasonable doubt. Among the constitutional
rights enjoyed by an accused, the most primordial yet often disregarded is
the presumption of innocence. This elementary principle accords every
accused the right to be presumed innocent until the contrary is proven
beyond reasonable doubt; and the burden of proving the guilt of the
accused rests upon the prosecution.25cralawred

It may not be amiss to point out also the contrary observation of the Court
as regards the findings of the RTC when it held, rather hastily, that in the
process of accosting the petitioner for jaywalking, Tangcoy recovered from
his possession a knife and a small plastic sachet containing shabu26 The
testimony of Tan, as quoted in the CA decision, and the findings of the RTC,
cast doubt on whether Tan and Tangcoy intended to arrest the petitioner
for jaywalking.
Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense. It is effected by an
actual restraint of the person to be arrested or by that person's voluntary
submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical
restraint, nor a formal declaration of arrest, is required. It is enough that
there be an intention on the part of one of the parties to arrest the
other, and that there be an intent on the part of the other to submit,
under the belief and impression that submission is necessary. 27

The pertinent testimony28 of Tan, as quoted by the CA, is as follows:


Q: What happened after you obeyed the order of your immediate superior?
A: At 8:50 in the evening of August 20, 2002, we saw a male person
crossed the street of Roxas Boulevard, in a place not designated for
crossing.
Q: What did you do when you saw this person crossed the street of Roxas
Boulevard, in a place not designated for crossing?
A: We accosted him.
Q: How did you accost that person?
A: We accosted him and pointed to him the right place for crossing.
Pero napansin namin siya na parang may kinukuha, so he was
frisked by Ronald Tangcoy and a knife was recovered from his
possession.
Q: After a knife was recovered by your companions (sic) from that person
who allegedly crossed the wrong side of the street, what happened after
that?
A: After recovering the knife, nakaalalay lang ako and he was frisked
again by Tangcoy and a plastic sachet was recovered from his
possession.
Q: Did you know the contents of that plastic sachet which your companion
recovered from that person who crossed the wrong side of the street?
A: Yes, sir.
Q: What about the contents?
A: Suspected shabu or methylamphetamine hydrochloride.
Q: After the drug was recovered from the possession of that man,
what did you do?
A: We brought him to our precinct and informed him of his
constitutional rights and brought him to the Paraaque
Community Hospital and the suspected shabu or
methylamphetamine was brought to the PNP Crime Lab at Fort
Bonifacio.
Q: Did you come to know the name of that person whom you arrested in
the morning of August 20, 2002?
A: Yes, sir.
Q: What is his name?
A: Ongcoma Hadji Omar, sir.
Q: Is he the same Ongcoma Hadji Omar y Para, the accused in this case?
A: Yes, sir.
[emphasis and underscoring supplied]
Clearly, no arrest preceded the search on the person of the petitioner.
When Tan and Tangcoy allegedly saw the petitioner jaywalking, they did not
arrest him but accosted him and pointed to him the right place for crossing.
In fact, according to the RTC, Tan and Tangcoy "immediately accosted
him and told him to cross [at] the designated area."29

Tan and Tangcoy did not intend to bring the petitioner under custody or to
restrain his liberty. This lack of intent to arrest him was bolstered by the
fact that there was no criminal charge that was filed against the petitioner
for crossing a "no jaywalking" area.

From Tan's testimony, the intent to arrest the petitioner only came after
they allegedly confiscated the shabu from the petitioner, for which they
informed him of his constitutional rights and brought him to the police
station.

The indispensability of the intent to arrest an accused in a warrantless


search incident to a lawful arrest was emphasized in Luz vs. People of the
Philippines.30 The Court held that the shabu confiscated from the accused in
that case was inadmissible as evidence when the police officer who flagged
him for traffic violation had no intent to arrest him. According to the
Court, due to the lack of intent to arrest, the subsequent search was
unlawful. This is notwithstanding the fact that the accused, being
caught in flagrante delicto for violating an ordinance, could have
been therefore lawfully stopped or arrested by the apprehending
officers.

In the light of the discussion above, the respondent's argument that there
was a lawful search incident to a lawful warrantless arrest for jaywalking
appears to be an afterthought in order to justify a warrantless search
conducted on the person of the petitioner. In fact, the illegality of the
search for the shabu is further highlighted when it was not recovered
immediately after the alleged lawful arrest, if there was any, but only after
the initial search resulted in the recovery of the knife. Thereafter, according
to Tan, Tangcoy conducted another search on the person of the petitioner
resulting in the alleged confiscation of the shabu. Clearly, the petitioner's
right to be secure in his person was callously brushed aside twice by the
arresting police officers.31chanroblesvirtuallawlibrary

The waiver of an illegal warrantless arrest does not also mean a


waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest.

We agree with the respondent that the petitioner did not timely object to
the irregularity of his arrest before his arraignment as required by the
Rules. In addition, he actively participated in the trial of the case. As a
result, the petitioner is deemed to have submitted to the jurisdiction of the
trial court, thereby curing any defect in his arrest.
However, this waiver to question an illegal arrest only affects the
jurisdiction of the court over his person. It is well-settled that a waiver of
an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. 32

Since the shabu was seized during an illegal arrest, its inadmissibility as
evidence precludes conviction and justifies the acquittal of the petitioner.

WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the
Decision of the Court of Appeals dated January 10, 2008, and its Resolution
dated April 11, 2008 in CA-G.R. CR No. 29364. Petitioner ONGCOMA
HADJI HOMAR is ACQUITTED and ordered immediately RELEASED from
detention, unless he is confined for any other lawful cause.

SO ORDERED.chanroblesvirtuallawlibrary

Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.

Sanchez v. People, Id.

RODEL LUZ y ONG, G. R. No. 197788


Petitioner,

Present:

CARPIO, J.,
- versus - Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

PEOPLE OF THE
[1]
PHILIPPINES, Promulgated:
Respondent.
February 29, 2012
x--------------------------------------------------x

DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set aside
the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February
2011[2] and Resolution dated 8 July 2011.
Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the
version of the prosecution, are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the
Naga City Police Station as a traffic enforcer, substantially testified that on March
10, 2003 at around 3:00 oclock in the morning, he saw the accused, who was
coming from the direction of Panganiban Drive and going to Diversion Road, Naga
City, driving a motorcycle without a helmet; that this prompted him to flag down
the accused for violating a municipal ordinance which requires all motorcycle
drivers to wear helmet (sic) while driving said motor vehicle; that he invited the
accused to come inside their sub-station since the place where he flagged down the
accused is almost in front of the said sub-station; that while he and SPO1 Rayford
Brillante were issuing a citation ticket for violation of municipal ordinance, he
noticed that the accused was uneasy and kept on getting something from his jacket;
that he was alerted and so, he told the accused to take out the contents of the
pocket of his jacket as the latter may have a weapon inside it; that the accused
obliged and slowly put out the contents of the pocket of his jacket which was a
nickel-like tin or metal container about two (2) to three (3) inches in size, including
two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife; that upon
seeing the said container, he asked the accused to open it; that after the accused
opened the container, he noticed a cartoon cover and something beneath it; and that
upon his instruction, the accused spilled out the contents of the container on the
table which turned out to be four (4) plastic sachets, the two (2) of which were
empty while the other two (2) contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of


Not guilty to the charge of illegal possession of dangerous drugs. Pretrial was
terminated on 24 September 2003, after which, trial ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist
testified for the prosecution. On the other hand, petitioner testified for himself and
raised the defense of planting of evidence and extortion.

In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal


possession of dangerous drugs[5] committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested for a
traffic violation and then subjected to a valid search, which led to the discovery on
his person of two plastic sachets later found to contain shabu. The RTC also found
his defense of frame-up and extortion to be weak, self-serving and unsubstantiated.
The dispositive portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ


y ONG GUILTY beyond reasonable doubt for the crime of violation of Section 11,
Article II of Republic Act No. 9165 and sentencing him to suffer the indeterminate
penalty of imprisonment ranging from twelve (12) years and (1) day, as minimum,
to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand
Pesos (300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine Drug
Enforcement Agency for its proper disposition and destruction in accordance with
law.

SO ORDERED.[6]

Upon review, the CA affirmed the RTCs Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for
Review on Certiorari dated 1 September 2011. In a Resolution dated 12 October
2011, this Court required respondent to file a comment on the Petition. On 4
January 2012, the latter filed its Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT


SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE


PERFORMANCE OF DUTY OF THE POLICE OFFICER CANNOT
BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE


ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT


PROVEN BEYOND THE REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no
lawful arrest. He claims that the finding that there was a lawful arrest was
erroneous, since he was not even issued a citation ticket or charged with violation of
the city ordinance. Even assuming there was a valid arrest, he claims that he had
never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held
thus:

It is beyond dispute that the accused was flagged down and apprehended in this
case by Police Officers Alteza and Brillante for violation of City Ordinance No.
98-012, an ordinance requiring the use of crash helmet by motorcycle drivers and
riders thereon in the City of Naga and prescribing penalties for violation
thereof. The accused himself admitted that he was not wearing a helmet at the time
when he was flagged down by the said police officers, albeit he had a helmet in his
possession. Obviously, there is legal basis on the part of the apprehending officers
to flag down and arrest the accused because the latter was actually committing a
crime in their presence, that is, a violation of City Ordinance No. 98-012. In other
words, the accused, being caught in flagrante delicto violating the said Ordinance,
he could therefore be lawfully stopped or arrested by the apprehending officers. x x
x.[8]
We find the Petition to be impressed with merit, but not for the particular reasons
alleged. In criminal cases, an appeal throws the entire case wide open for review
and the reviewing tribunal can correct errors, though unassigned in the appealed
judgment, or even reverse the trial courts decision based on grounds other than
those that the parties raised as errors.[9]
First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.

Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense. [10] It is effected by an actual
restraint of the person to be arrested or by that persons voluntary submission to the
custody of the one making the arrest. Neither the application of actual force, manual
touching of the body, or physical restraint, nor a formal declaration of arrest, is
required. It is enough that there be an intention on the part of one of the parties to
arrest the other, and that there be an intent on the part of the other to submit, under
the belief and impression that submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender, but the
confiscation of the drivers license of the latter:

SECTION 29. Confiscation of Driver's License. Law enforcement and peace


officers of other agencies duly deputized by the Director shall, in apprehending a
driver for any violation of this Act or any regulations issued pursuant thereto, or of
local traffic rules and regulations not contrary to any provisions of this Act,
confiscate the license of the driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize the driver to operate a motor
vehicle for a period not exceeding seventy-two hours from the time and date of
issue of said receipt. The period so fixed in the receipt shall not be extended, and
shall become invalid thereafter. Failure of the driver to settle his case within fifteen
days from the date of apprehension will be a ground for the suspension and/or
revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual [12] provides the
following procedure for flagging down vehicles during the conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in
Mobile Car. This rule is a general concept and will not apply in hot pursuit
operations. The mobile car crew shall undertake the following, when applicable: x
xx

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket


(TCT) or Traffic Violation Report (TVR). Never indulge in prolonged,
unnecessary conversation or argument with the driver or any of the vehicles
occupants;
At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been under arrest. There was no intention on the
part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into
custody. Prior to the issuance of the ticket, the period during which petitioner was at
the police station may be characterized merely as waiting time. In fact, as found by
the trial court, PO3 Alteza himself testified that the only reason they went to the
police sub-station was that petitioner had been flagged down almost in front of that
place. Hence, it was only for the sake of convenience that they were waiting there.
There was no intention to take petitioner into custody.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed


at length whether the roadside questioning of a motorist detained pursuant to a
routine traffic stop should be considered custodial interrogation. The Court held
that, such questioning does not fall under custodial interrogation, nor can it be
considered a formal arrest, by virtue of the nature of the questioning, the
expectations of the motorist and the officer, and the length of time the procedure is
conducted. It ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails


the freedom of action of the driver and the passengers, if any, of the detained
vehicle. Under the law of most States, it is a crime either to ignore a policemans
signal to stop ones car or, once having stopped, to drive away without permission.
xxx

However, we decline to accord talismanic power to the phrase in the


Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in
Miranda requires that it be enforced strictly, but only in those types of situations in
which the concerns that powered the decision are implicated. Thus, we must decide
whether a traffic stop exerts upon a detained person pressures that sufficiently
impair his free exercise of his privilege against self-incrimination to require that he
be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced to speak where he would not otherwise do so freely,
Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to
a traffic stop is presumptively temporary and brief. The vast majority of
roadside detentions last only a few minutes. A motorists expectations, when he sees
a policemans light flashing behind him, are that he will be obliged to spend a short
period of time answering questions and waiting while the officer checks his license
and registration, that he may then be given a citation, but that in the end he most
likely will be allowed to continue on his way. In this respect, questioning incident
to an ordinary traffic stop is quite different from stationhouse interrogation, which
frequently is prolonged, and in which the detainee often is aware that questioning
will continue until he provides his interrogators the answers they seek. See id., at
451.

Second, circumstances associated with the typical traffic stop are not
such that the motorist feels completely at the mercy of the police. To be sure,
the aura of authority surrounding an armed, uniformed officer and the knowledge
that the officer has some discretion in deciding whether to issue a citation, in
combination, exert some pressure on the detainee to respond to questions. But
other aspects of the situation substantially offset these forces. Perhaps most
importantly, the typical traffic stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-
called Terry stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal
arrest. x x x The comparatively nonthreatening character of detentions of this sort
explains the absence of any suggestion in our opinions that Terry stops are subject
to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic
stops prompts us to hold that persons temporarily detained pursuant to such stops
are not in custody for the purposes of Miranda.

xxxxxxxxx

We are confident that the state of affairs projected by respondent will not
come to pass. It is settled that the safeguards prescribed by Miranda become
applicable as soon as a suspects freedom of action is curtailed to a degree
associated with formal arrest. California v. Beheler, 463 U. S. 1121, 1125 (1983)
(per curiam). If a motorist who has been detained pursuant to a traffic stop
thereafter is subjected to treatment that renders him in custody for practical
purposes, he will be entitled to the full panoply of protections prescribed by
Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam).
(Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only
subjected to modest questions while still at the scene of the traffic stop, he was not
at that moment placed under custody (such that he should have been apprised of
his Miranda rights), and neither can treatment of this sort be fairly characterized as
the functional equivalent of a formal arrest. Similarly, neither can petitioner here be
considered under arrest at the time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by
petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized
by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if
the information or charge was filed for an offense penalized by a fine only. It may
be stated as a corollary that neither can a warrantless arrest be made for such an
offense.

This ruling does not imply that there can be no arrest for a traffic violation.
Certainly, when there is an intent on the part of the police officer to deprive the
motorist of liberty, or to take the latter into custody, the former may be deemed to
have arrested the motorist. In this case, however, the officers issuance (or intent to
issue) a traffic citation ticket negates the possibility of an arrest for the same
violation.

Even if one were to work under the assumption that petitioner was deemed
arrested upon being flagged down for a traffic violation and while awaiting the
issuance of his ticket, then the requirements for a valid arrest were not
complied with.
This Court has held that at the time a person is arrested, it shall be the duty of
the arresting officer to inform the latter of the reason for the arrest and must show
that person the warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any statement they
might make could be used against them.[14] It may also be noted that in this case,
these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also
be given to a person apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the
police do not coerce or trick captive suspects into confessing, to relieve the
inherently compelling pressures generated by the custodial setting itself, which
work to undermine the individuals will to resist, and as much as possible to free
courts from the task of scrutinizing individual cases to try to determine, after the
fact, whether particular confessions were voluntary. Those purposes are implicated
as much by in-custody questioning of persons suspected of misdemeanors as they
are by questioning of persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged
down for a traffic violation and while he waiting for his ticket, then there would
have been no need for him to be arrested for a second timeafter the police officers
allegedly discovered the drugsas he was already in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it
was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in plain view;
(iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs
search; (vi) a stop and frisk search; and (vii) exigent and emergency circumstances.
[15]
None of the above-mentioned instances, especially a search incident to a lawful
arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently


discovered, was not in plain view. It was actually concealed inside a metal container
inside petitioners pocket. Clearly, the evidence was not immediately apparent. [16]

Neither was there a consented warrantless search. Consent to a search is not to be


lightly inferred, but shown by clear and convincing evidence. [17] It must be
voluntary in order to validate an otherwise illegal search; that is, the consent must
be unequivocal, specific, intelligently given and uncontaminated by any duress or
coercion. While the prosecution claims that petitioner acceded to the instruction of
PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent
consent. In fact, the RTC found that petitioner was merely told to take out the
contents of his pocket.[18]
Whether consent to the search was in fact voluntary is a question of fact to be
determined from the totality of all the circumstances. Relevant to this determination
are the following characteristics of the person giving consent and the environment
in which consent is given: (1) the age of the defendant; (2) whether the defendant
was in a public or a secluded location; (3) whether the defendant objected to the
search or passively looked on; (4) the education and intelligence of the defendant;
(5) the presence of coercive police procedures; (6) the defendants belief that no
incriminating evidence would be found; (7) the nature of the police questioning; (8)
the environment in which the questioning took place; and (9) the possibly
vulnerable subjective state of the person consenting. It is the State that has the
burden of proving, by clear and positive testimony, that the necessary consent was
obtained, and was freely and voluntarily given.[19] In this case, all that was alleged
was that petitioner was alone at the police station at three in the morning,
accompanied by several police officers. These circumstances weigh heavily against
a finding of valid consent to a warrantless search.

Neither does the search qualify under the stop and frisk rule. While the rule
normally applies when a police officer observes suspicious or unusual conduct,
which may lead him to believe that a criminal act may be afoot, the stop and frisk is
merely a limited protective search of outer clothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops
a person for speeding and correspondingly issues a citation instead of arresting the
latter, this procedure does not authorize the officer to conduct a full search of the
car. The Court therein held that there was no justification for a full-blown search
when the officer does not arrest the motorist. Instead, police officers may only
conduct minimal intrusions, such as ordering the motorist to alight from the car or
doing a patdown:

In Robinson, supra, we noted the two historical rationales for the search
incident to arrest exception: (1) the need to disarm the suspect in order to take him
into custody, and (2) the need to preserve evidence for later use at trial. x x x But
neither of these underlying rationales for the search incident to arrest exception is
sufficient to justify the search in the present case.

We have recognized that the first rationaleofficer safetyis both legitimate and
weighty, x x x The threat to officer safety from issuing a traffic citation, however,
is a good deal less than in the case of a custodial arrest. In Robinson, we stated that
a custodial arrest involves danger to an officer because of the extended exposure
which follows the taking of a suspect into custody and transporting him to the
police station. 414 U. S., at 234-235. We recognized that [t]he danger to the police
officer flows from the fact of the arrest, and its attendant proximity, stress, and
uncertainty, and not from the grounds for arrest. Id., at 234, n. 5. A routine traffic
stop, on the other hand, is a relatively brief encounter and is more analogous
to a so-called Terry stop . . . than to a formal arrest. Berkemer v. McCarty, 468
U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973)
(Where there is no formal arrest . . . a person might well be less hostile to the
police and less likely to take conspicuous, immediate steps to destroy incriminating
evidence).
This is not to say that the concern for officer safety is absent in the case
of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson,
supra, at 413-414. But while the concern for officer safety in this context may
justify the minimal additional intrusion of ordering a driver and passengers
out of the car, it does not by itself justify the often considerably greater
intrusion attending a full fieldtype search. Even without the search authority
Iowa urges, officers have other, independent bases to search for weapons and
protect themselves from danger. For example, they may order out of a vehicle both
the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414;
perform a patdown of a driver and any passengers upon reasonable suspicion that
they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a
Terry patdown of the passenger compartment of a vehicle upon reasonable
suspicion that an occupant is dangerous and may gain immediate control of a
weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full
search of the passenger compartment, including any containers therein, pursuant to
a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to
arrestthe need to discover and preserve evidence. Once Knowles was stopped for
speeding and issued a citation, all the evidence necessary to prosecute that offense
had been obtained. No further evidence of excessive speed was going to be found
either on the person of the offender or in the passenger compartment of the car.
(Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to
object to the illegality of his arrest at the earliest opportunity, a waiver of an illegal
warrantless arrest does not, however, mean a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.[22]

The Constitution guarantees the right of the people to be secure in their


persons, houses, papers and effects against unreasonable searches and seizures.
[23]
Any evidence obtained in violation of said right shall be inadmissible for any
purpose in any proceeding. While the power to search and seize may at times be
necessary to the public welfare, still it must be exercised and the law implemented
without contravening the constitutional rights of citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the basic principles of
government.[24]

The subject items seized during the illegal arrest are inadmissible. [25] The
drugs are the very corpus delicti of the crime of illegal possession of dangerous
drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of
the accused.[26]

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision


of the Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of
conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region,
Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is
hereby ACQUITTED and ordered immediately released from detention, unless his
continued confinement is warranted by some other cause or ground.

SO ORDERED.

SECTION 3. DUTY OF ARRESTING OFFICER

[G.R. Nos. 153524-25. January 31, 2005]

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


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

DECISION
CHICO-NAZARIO, J.:

Yet again, we are tasked to substitute our judgment for that of the Office of the
Ombudsman in its finding of lack of probable cause made during preliminary
investigation. And, yet again, we reaffirm the time-honored practice of non-interference
in the conduct of preliminary investigations by our prosecutory bodies absent a
showing of grave abuse of discretion on their part.
Petitioners, thru a special civil action for certiorari,[1] contend precisely that the
public respondents herein officers of the Office of the Ombudsman gravely abused
their discretion in dismissing the complaint for violation of Article 125 of the Revised
Penal Code (Delay in the delivery of detained persons) against private respondents
herein, members of the Philippine National Police stationed at the Municipality of
Santa, Ilocos Sur.
From the respective pleadings[2] of the parties, the following facts appear to be
indubitable:

1.Onorabout8:30intheeveningof13May2001(aSundayandthedaybeforethe14May
2001Elections[3]),petitionerswerearrestedwithoutawarrantbyrespondentspoliceofficersfor
allegedillegalpossessionoffirearmsandammunition;

2.PetitionerSoriawasarrestedforallegedillegalpossessionof.38cal.revolver(acrime
whichcarrieswithitthepenaltyofprisioncorreccionalinitsmaximumperiod)andfor
violationofArticle261par.(f)oftheOmnibusElectionCodeinrelationtotheCommissionon
ElectionResolutionNo.3328(whichcarriesthepenaltyofimprisonmentofnotlessthanone
[1]yearbutnotmorethansix[6]years);

3.PetitionerBistawasarrestedforallegedillegalpossessionofsubmachinepistolUZI,cal.
9mmanda.22cal.revolverwithammunition;
4.Immediatelyaftertheirarrest,petitionersweredetainedattheSanta,IlocosSur,Police
Station.ItwasattheSantaPoliceStationthatpetitionerBistawasidentifiedbyoneofthe
policeofficerstohaveastandingwarrantofarrestforviolationofBatasPambansaBlg.6
issuedbytheMunicipalTrialCourt(MTC)ofVigan,IlocosSur,docketedasCriminalCase
No.12272;

5.Thenextday,atabout4:30p.m.of14May2001(Mondayandelectionday),petitioners
werebroughttotheresidenceofProvincialProsecutorJessicaViloriainSanJuan,IlocosSur,
beforewhomaJointAffidavitagainstthemwassubscribedandsworntobythearresting
officers.Fromthere,thearrestingofficersbroughtthepetitionerstotheProvincialProsecutors
OfficeinVigan,IlocosSur,andthereatabout6:00p.m.theJointAffidavitwasfiledand
docketed;

6.Atabout6:30intheeveningofthesameday,14May2001,petitionerSoriawas
releasedupontheorderofProsecutorViloriatoundergotherequisitepreliminary
investigation,whilepetitionerBistawasbroughtbackandcontinuedtobedetainedattheSanta
PoliceStation.FromthetimeofpetitionerSoriasdetentionuptothetimeofhis
release,twentytwo(22)hourshadalreadyelapsed;

7.On15May2001,ataround2:00intheafternoon,petitionerBistawasbroughtbeforethe
MTCofVigan,IlocosSur,wherethecaseforviolationofBatasPambansaBlg.6waspending.
PetitionerBistapostedbailandanOrderofTemporaryReleasewasissuedthereafter;

8.Atthispointintime,noorderofreleasewasissuedinconnectionwithpetitionerBistas
arrestforallegedillegalpossessionoffirearms.At4:30intheafternoonofthesameday(15
May2001),aninformationforIllegalPossessionofFirearmsandAmmunition,docketedas
CriminalCaseNo.4413S,wasfiledagainstpetitionerBistawiththe4thMunicipalCircuitTrial
CourtofNarvacan,IlocosSur.At5:00intheafternoon,informationsforIllegalPossessionof
FirearmsandAmmunitionandviolationofArticle261par.(f)oftheOmnibusElectionCodein
relationtoCOMELECResolutionNo.3328,docketedasCriminalCasesNo.2269NandNo.
2268N,respectively,werefiledintheRegionalTrialCourtatNarvacan,IlocosSur;

9.On08June2001,petitionerBistawasreleaseduponfilingofbailbondsinCriminalCases
No.2268NandNo.4413S.Hewasdetainedfor26days.

10.On15August2001,petitionersfiledwiththeOfficeoftheOmbudsmanforMilitary
AffairsacomplaintaffidavitforviolationofArt.125oftheRevisedPenalCodeagainstherein
privaterespondents.

11.Afterconsideringthepartiesrespectivesubmissions,theOfficeoftheOmbudsman
renderedthefirstassailedJointResolutiondated31January2002dismissingthecomplaintfor
violationofArt.125oftheRevisedPenalCodeforlackofmerit;and

12.On04March2002,petitionersthenfiledtheirmotionforreconsiderationwhichwas
deniedforlackofmeritinthesecondassailedResolutiondated25March2002.

Article 125 of the Revised Penal Code states:

Art.125.Delayinthedeliveryofdetainedpersonstotheproperjudicialauthorities.The
penaltiesprovidedinthenextprecedingarticleshallbeimposeduponthepublicofficeror
employeewhoshalldetainanypersonforsomelegalgroundandshallfailtodeliversuch
persontotheproperjudicialauthoritieswithintheperiodof:twelve(12)hours,forcrimesor
offensespunishablebylightpenalties,ortheirequivalent;eighteen(18)hours,forcrimesor
offensespunishablebycorrectionalpenalties,ortheirequivalent;andthirtysix(36)hours,for
crimesoroffensespunishablebyafflictiveorcapitalpenalties,ortheirequivalent.

Ineverycase,thepersondetainedshallbeinformedofthecauseofhisdetentionandshallbe
allowed,uponhisrequest,tocommunicateandconferatanytimewithhisattorneyorcounsel.

It is not under dispute that the alleged crimes for which petitioner Soria was
arrested without warrant are punishable by correctional penalties or their equivalent,
thus, criminal complaints or information should be filed with the proper judicial
authorities within 18 hours of his arrest. Neither is it in dispute that the alleged crimes
for which petitioner Bista was arrested are punishable by afflictive or capital penalties,
or their equivalent, thus, he could only be detained for 36 hours without criminal
complaints or information having been filed with the proper judicial authorities.
The sole bone of contention revolves around the proper application of the 12-18-36
periods. With respect specifically to the detention of petitioner Soria which lasted for 22
hours, it is alleged that public respondents gravely erred in construing Article 125 [4] as
excluding Sundays, holidays and election days in the computation of the periods
prescribed within which public officers should deliver arrested persons to the proper
judicial authorities as the law never makes such exception. Statutory construction has it
that if a statute is clear and unequivocal, it must be given its literal meaning and
applied without any attempts at interpretation. [5] Public respondents, on the other hand,
relied on the cases of Medina v. Orozco, Jr.,[6] and Sayo v. Chief of Police of
Manila[7] and on commentaries[8] of jurists to bolster their position that Sundays,
holidays and election days are excluded in the computation of the periods provided in
Article 125,[9] hence, the arresting officers delivered petitioners well within the allowable
time.
In addition to the foregoing arguments and with respect specifically to petitioner
Bista, petitioners maintain that the filing of the information in court against petitioner
Bista did not justify his continuous detention. The information was filed at 4:30 p.m. of
15 May 2001 but the orders for his release were issued by the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that
based on law and jurisprudence, if no charge is filed by the prosecutor within the period
fixed by law, the arresting officer must release the detainee lest he be charged with
violation of Article 125.[10] Public respondents countered that the duty of the arresting
officers ended upon the filing of the informations with the proper judicial authorities
following the rulings in Agbay v. Deputy Ombudsman for the Military,[11] and People v.
Acosta.[12]
From a study of the opposing views advanced by the parties, it is evident that public
respondents did not abuse their discretion in dismissing for lack of probable cause the
complaint against private respondents.
Grave abuse of discretion is such capricious and whimsical exercise of judgment on
the part of the public officer concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. [13]
No grave abuse of discretion, as defined, can be attributed to herein public
respondents. Their disposition of petitioners complaint for violation of Article 125 of the
Revised Penal Code cannot be said to have been conjured out of thin air as it was
properly backed up by law and jurisprudence. Public respondents ratiocinated thus:
AsaptlypointedoutbytherespondentsinsofarasthecomplaintofRodolfoSoriaisconcerned,
basedonapplicablelawsandjurisprudence,anelectiondayoraspecialholiday,shouldnotbe
includedinthecomputationoftheperiodprescribedbylawforthefilingof
complaint/informationincourtsincasesofwarrantlessarrests,itbeinganoofficeday.
(Medinavs.Orosco,125Phil.313.)Intheinstantcase,whileitappearsthatthecomplaints
againstSoriaforIllegalPossessionofFirearmandViolationofCOMELECResolutionNo.
3328werefiledwiththeRegionalTrialCourtandMunicipalTrialCourtofNarvacan,Ilocos
Sur,onlyonMay15,200[1]at4:30p.m.,hehadalreadybeenreleasedthedaybeforeoron
May14,2001atabout6:30p.m.bytherespondents,asdirectedbyProv.ProsecutorJessica
[Viloria].Hence,therecouldbenoarbitrarydetentionorviolationofArticle125oftheRevised
PenalCodetospeakof.[14]

Indeed, we did hold in Medina v. Orozco, Jr.,[15] that

...Thearrestingofficersdutyunderthelawwaseithertodeliverhimtotheproperjudicial
authoritieswithin18hours,orthereafterreleasehim.Thefacthoweveristhathewasnot
released.Fromthetimeofpetitionersarrestat12:00oclockp.m.onNovember7to3:40p.m.
onNovember10whentheinformationagainsthimformurderactuallywasincourt,over75
hourshaveelapsed.

But,stockshouldbetakenofthefactthatNovember7wasaSunday;November8wasdeclared
anofficialholiday;andNovember9(electionday)wasalsoanofficialholiday.Inthesethree
noofficedays,itwasnotaneasymatterforafiscaltolookforhisclerkandstenographer,draft
theinformationandsearchfortheJudgetohavehimactthereon,andgettheclerkofcourtto
openthecourthouse,docketthecaseandhavetheorderofcommitmentprepared.Andthen,
wheretolocateandtheuncertaintyoflocatingthoseofficersandemployeescouldverywell
compoundthefiscalsdifficulties.Theseareconsiderationssufficientenoughtodeterusfrom
declaringthatArthurMedinawasarbitrarilydetained.For,hewasbroughttocourtonthevery
firstofficedayfollowingarrest.

And, in Sayo v. Chief of Police of Manila[16] --

...Ofcourse,forthepurposeofdeterminingthecriminalliabilityofanofficerdetaininga
personformorethansixhoursprescribedbytheRevisedPenalCode,themeansof
communicationaswellasthehourofarrestandothercircumstances,suchasthetimeof
surrenderandthematerialpossibilityforthefiscaltomaketheinvestigationandfileintimethe
necessaryinformation,mustbetakenintoconsideration.

As to the issue concerning the duty of the arresting officer after the information has
already been filed in Court, public respondents acted well within their discretion in
ruling thus:

Inthesamevein,thecomplaintofEdimarBistaagainsttherespondentsforViolationofArticle
125,willnotprosperbecausetherunningofthethirtysix(36)hourperiodprescribedbylaw
forthefilingofthecomplaintagainsthimfromthetimeofhisarrestwastolledbyoneday
(electionday).Moreover,hehasastandingwarrantofarrestforViolationofB.P.Blg.6andit
wasonlyonMay15,2001,atabout2:00p.m.thathewasabletopostbailandsecureanOrder
ofRelease.Obviously,however,hecouldonlybereleasedifhehasnootherpendingcriminal
caserequiringhiscontinuousdetention.

ThecriminalInformationsagainstBistaforViolationsofArticle125,RPCandCOMELEC
ResolutionNo.3328werefiledwiththeRegionalTrialCourtandMunicipalTrialCourtof
Narvacan,IlocosSur,onMay15,2001(AnnexesGandI,ComplaintAffidavitofEdimar
Bista)buthewasreleasedfromdetentiononlyonJune8,2001,onordersoftheRTCandMTC
ofNarvacan,IlocosSur(AnnexesJandK,ComplaintAffidavit).Wasthereadelayinthe
deliveryofdetainedpersontotheproperjudicialauthoritiesunderthecircumstances?The
answerisinthenegative.Thecomplaintsagainsthimwas(sic)seasonablyfiledinthecourtof
justicewithinthethirtysix(36)hourperiodprescribedbylawasdiscussedabove.Thedutyof
thedetainingofficersisdeemedcompliedwithuponthefilingofthecomplaints.Furtheraction,
likeissuanceofaReleaseOrder,thenrestsuponthejudicialauthority(Peoplev.Acosta[CA]
54O.G.4739).[17]

The above disposition is in keeping with Agbay v. Deputy Ombudsman for the
Military,[18] wherein we ordained that

...Furthermore,uponthefilingofthecomplaintwiththeMunicipalTrialCourt,theintent
behindArt.125issatisfiedconsideringthatbysuchact,thedetainedpersonisinformedofthe
crimeimputedagainsthimand,uponhisapplicationwiththecourt,hemaybereleasedonbail.
PetitionerhimselfacknowledgedthispoweroftheMCTCtoorderhisreleasewhenheapplied
forandwasgrantedhisreleaseuponpostingbail.Thus,theverypurposeunderlyingArticle
125hasbeendulyservedwiththefilingofthecomplaintwiththeMCTC.Weagreewiththe
positionoftheOmbudsmanthatsuchfilingofthecomplaintwiththeMCTCinterruptedthe
periodprescribedinsaidArticle.

All things considered, there being no grave abuse of discretion, we have no choice
but to defer to the Office of the Ombudsmans determination that the facts on hand do
not make out a case for violation of Article 125 of the Revised Penal Code.
As we have underscored in numerous decisions --

Wehaveconsistentlyrefrainedfrominterferingwiththeinvestigatoryandprosecutorialpowers
oftheOmbudsmanabsentanycompellingreason.Thispolicyisbasedonconstitutional,
statutoryandpracticalconsiderations.WearemindfulthattheConstitutionandRA6770
endowedtheOfficeoftheOmbudsmanwithawidelatitudeofinvestigatoryandprosecutorial
powers,virtuallyfreefromlegislative,executiveorjudicialintervention,inordertoinsulateit
fromoutsidepressureandimproperinfluence.Moreover,apreliminaryinvestigationisineffect
arealisticjudicialappraisalofthemeritsofthecase.Sufficientproofoftheguiltoftheaccused
mustbeadducedsothatwhenthecaseistried,thetrialcourtmaynotbebound,asamatterof
law,toorderanacquittal.Hence,iftheOmbudsman,usingprofessionaljudgment,findsthe
casedismissible,theCourtshallrespectsuchfindings,unlessclothedwithgraveabuseof
discretion.Otherwise,thefunctionsofthecourtswillbegrievouslyhamperedbyinnumerable
petitionsassailingthedismissalofinvestigatoryproceedingsconductedbytheOfficeofthe
Ombudsmanwithregardtocomplaintsfiledbeforeit.Inmuchthesameway,thecourtswillbe
swampedwithcasesiftheywillhavetoreviewtheexerciseofdiscretiononthepartoffiscals
orprosecutingattorneyseachtimethelatterdecidetofileaninformationincourtordismissa
complaintbyaprivatecomplainant.[19](Emphasissupplied)

WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby


DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and the
Order dated 25 March 2002 of the Office of the Ombudsman are hereby AFFIRMED.
No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
SEC. 4. EXECUTION OF WARRANT

[G.R. No. 132159. January 18, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR GIVERA y


GAROTE, accused-appellant.

DECISION
MENDOZA, J.:

This is an appeal from the decision [1] of the Regional Trial Court, Branch 102, Quezon City
finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas
and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties
prescribed by law, to indemnify the heirs of the deceased in the amount of P50,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs of the suit.
The information in this case, dated April 10, 1995, charged as follows:

Thatonoraboutthe2nddayofMay,1993,inQuezonCity,Philippines,thesaidaccused
[CESARGIVERA],conspiringtogether,confederatingwithEPEFANIOGAYONy
GERALDE[2]andARTUROGAYONyGERALDE,andmutuallyhelpingoneanotherwho
werechargedwiththesameoffenseattheRegionalTrialCourtofQuezonCity,Branch104,
anddocketedasCriminalCaseNo.Q9344315,did,thenandthere,willfully,unlawfullyand
feloniously,withintenttokill,takingadvantageofsuperiorstrength,withevident
premeditationandtreachery,attack,assault,andemploypersonalviolenceuponthepersonof
EUSEBIOGARDONyARRIVAS,bythenandtherestabbinghimwithaknifehittinghimon
thedifferentpartsofhisbody,andstrikinghimwithapieceofstoneonthehead,thereby
inflictinguponhimseriousandmortalwoundswhichwerethedirectandimmediatecauseof
hisuntimelydeath,tothedamageandprejudiceoftheheirsofEUSEBIOGARDONy
ARRIVAS.

CONTRARYTOLAW.[3]

Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon
he was tried.
Accused-appellants companions, namely Epifanio Gayon, Arturo Gayon, and Maximo
Givera, were separately prosecuted and found guilty of murder by the Regional Trial Court,
Branch 104, Quezon City in a decision, dated June 6, 1994, in Crim. Case No. Q-93-44315. The
three were sentenced to suffer the penalty of reclusion perpetua with the accessory penalties
prescribed by law, to indemnify the heirs of the deceased the sum of P100,000.00 without
subsidiary imprisonment in case of insolvency and to pay the costs of the suit. On appeal to this
Court, the decision of the trial court was affirmed with modification. The dispositive portion of
the decision reads:

WHEREFORE,thejudgmentappealedfromisMODIFIED.Weinsteadfindaccusedappellants
EPIFANIOGAYON,ARTUROGAYONandMAXIMOGIVERAguiltybeyondreasonable
doubtofMURDERcommittedwithgraveabuseofsuperiorstrengthandimposesuponeachof
themthepenaltyofreclusionperpetuawiththeaccessorypenaltiesprovidedbylaw,and
orderingthemtoindemnifytheheirsofthedeceasedEusebioGardonintheamount
ofP100,000.00.Costsagainstaccusedappellants.[4]

For the prosecution, the victims daughter Milagros Gardon and his niece Melinda Delfin
were presented as witnesses. On the other hand, only accused-appellant testified in his defense.
The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura St., Old
Balara, in Diliman, Quezon City.
Milagros Gardon testified on direct examination:[5]
Q: Particularly about 4:00 p.m., were you at your residence at that time?
A: Yes, sir.
Q: And what were you doing there at that time?
A: I was in the house because I was watching my father, sir.
Q: What was your father doing at that time?
A: I let him go to sleep because he was a little bit drunk, and I was watching him so that he will not go
outside.
Q: Why do you say you were watching him so that he would not anymore go out?
A: Because he was warned by [accused-appellant Cesar Givera] that if he goes outside, he will kill my father.
Q: At that time and place while you were watching your father, what else happened if any?
....
A: [O]ur house was being stoned.
Q: Who was stoning your house? Could you tell us who was throwing stones to your house?
....
COURT:
She mentioned that because her father was not coming out of the house, the accused started stoning the
house.
Q: Who was stoning your house?
A: Cesar Givera, sir.
Q: Was he alone at that time?
A: They were in a group, sir, but he was the only one stoning the house. And the other one, who was already
arrested, by the name of Onying went inside the house.
Q: You said a while ago that there was somebody with Cesar who went to your house, could you recall that
somebody?
A: Onying [Epifanio Gayon], sir.
Q: You said he was already nakakulong?
A: Yes, sir.
Q: Now, what happened after this person Cesar and the other one Onying went inside the house?
A: Onying asked my father to go out of the house while Cesar was stoning the house. Onying led my father
out of the house, and when they were already outside, Cesar was waiting for them. Then Cesar
scampered away and my father followed him. Cesar caused my father to run after him until they reached
the place where there was another person, and that person stabbed my father.
Q: So how many persons in all have you seen?
A: They were four in all, sir.
....
Q: What did these 4 persons do when her father was with them if any?
....
A: Cesar was stoning the house. Then Onying got my father from the house. Turing [Arturo Gayon] told the
other one to stab my father while the one who stabbed my father was waiting under the bridge.
....
Q: What happened to your father after you said he was stabbed or mauled?
A: After he was stabbed, the person who stabbed him ran away, sir.
On cross-examination, Milagros Gardon said:[6]
Q: Who else were with you at that time?
A: My brother and sister, sir.
Q: They were Laura Gardon and Leonardo Gardon, correct?
A: Yes, sir.
Q: And your father inside the house because he was already resting after having been from a drinking spree,
correct?
A: Yes, sir.
....
Q: And you were watching TV at that time, correct?
A: Yes, sir.
Q: And then suddenly you heard stones being thrown on the roof of your house, is that correct?
A: Yes, sir.
....
Q: This Onying [Epifanio Gayon] suddenly entered your house, correct?
A: Yes, sir.
Q: He was alone when he entered your house, correct?
A: Yes, sir.
Q: How did he effect his entrance in your house?
A: He went inside directly, sir.
....
Q: At that time were you in a position so as to see him actually effect his entrance through the front door?
A: Yes, sir.
Q: Why? Where were you at that time?
A: I was in the sala, sir.
Q: You were in the sala right next to your father, is that correct?
A: Yes, sir.
Q: And likewise with your two other companions Laura and Leonardo, they were situated right near to your
father, correct?
A: Yes, sir.
....
Q: Now, when this Onying entered the house, did he call out the name of your father if you can remember?
A: Yes, sir.
Q: And your father, did he give any response thereto?
A: Yes, sir.
Q: What was his response if any?
A: He asked Onying if he need anything. And Onying asked him to go out with him.
....
Q: And your father stood up and joined Onying in going out of the house?
A: Yes, sir.
....
Q: Then you together with your two other companions got back to watching the television show is that
correct?
A: No, sir.
Q: But you stayed inside the house, you and your two other companions?
A: No, sir.
Q: Now, thereafter you heard stones thrown again towards your house, is that correct?
A: Yes, sir.
Q: But just the same, you did not peep out through any opening of your house for safety?
A: We were already outside when they were stoning the house. We followed him outside.
....
Q: Was Onying also hit by any of those stones?
A: No, sir. Only my father and my sister.
Q: What is the name of that sister of yours who was also hit?
A: Laura Gardon, sir.
....
Q: And where was Laura hit?
A: At her left shoulder, sir.
Q: And how many stones if you know hit Laura?
A: Only one, sir, because while they were stoning they were running away.
Q: Who were these people running away?
A: Onying and Cesar, sir.
Q: Are you saying that Onying also stoned your father?
A: No, sir.
Q: Because he was right next by your father at that time, that is why he was not at all stoning your father,
correct?
A: He was boxing him.
....
Q: You saw Cesar Givera actually stoning towards the direction of your father, is that what you mean?
A: Yes, sir.
....
Q: And your father followed Cesar Givera, is that what you mean?
A: Yes, sir.
Q: Likewise, with Onying, he followed Cesar Givera?
A: Yes, sir.
Q: And they ran quite a distance, correct?
A: Yes, sir.
Q: And then you lost sight of them yes or no?
A: No, sir.
Q: But you stayed in the house, correct?
A: No, sir. I was outside the house. When the incident happened, I was already outside the house.
Q: But because you did not state that you also followed your father as he ran after Cesar, does that mean that
you just stayed in front of your house?
A: We stopped because we already saw the place where my father was stabbed, that is why we did not follow
them.
Q: How far did they get, using as reference the front door of your house? How far did they get as they ran
away?
A: About fifteen meters away, sir.
Q: Did they not turn corners?
A: It is straight, sir. They only made a turn after the stabbing incident, sir.
Q: They turned a corner after your father was stabbed?
A: Yes, sir, because they ran away, sir.
Q: Only one of the accused stabbed your father, correct?
A: Yes, sir.
Q: And who was this?
A: Bingo Givera [Maximo Givera], sir.
Q: Did you actually see him stab your father?
A: Yes, sir.
On re-direct examination, Milagros said:[7]
Q: Madam witness, you said a while ago that you saw while your father was stabbed, and the name of that
person is Onying who stabbed your father?
A: Maximo Givera, sir.
....
Q: Now, when you saw Maximo Givera stab your father, where was Cesar at that time?
....
A: He was also at the same place, sir.
Q: And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where they were when
Maximo was stabbing your father?
A: They were also at that place, sir.
Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She
said:[8]
Q: At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time?
A: Yes, sir, I was about to reach the house of Eusebio Gardon.
Q: What was your purpose in going there?
A: Eusebio Gardon called me up because he has just come from Bicol and he will give me rice.
Q: You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on May 4, 1993, what
did you notice or observe when you were about to arrived at that place of his residence?
A: I saw Onying [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon going out of their yard.
(Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.)
....
Q: What else did you notice?
A: When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon.
(Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio Gardon.)
....
Q: What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio Gardon?
A: Cesar boxed him and also Onying boxed him, they both helped each other in boxing Eusebio Gardon, and
then they back to the house of Eusebio Gardon and my uncle followed them. Not quite far, Bingo
[Maximo Givera] and Turing [Arturo Gayon] were there.
....
Q: And what happened when you said this Bingo was there?
A: Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by Bingo, and they were
also kicking Eusebio Gardon.
Q: Eusebio Gardon was boxed by Onying and Cesar Givera?
A: Yes, sir.
Q: And stabbed by?
A: Bingo, sir.
Q: Actually, how many persons were there when [Eusebio] Gardon was stabbed and being boxed?
A: I saw four of them, sir.
Q: Would you made these four (4)?
A: Turing, Bingo, Cesar and Onying.
....
Q: And what happened to Eusebio Gardon, whom you said was boxed, mauled and then stabbed?
A: He was lying down under the bridge for about thirty (30) minutes, and then his children arrived.
....
Q: You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards the victims house,
is that true?
PROSECUTOR CONCHA:
Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying and Cesar boxing - - ?
WITNESS:
Suntok, bato at sipa.
ATTY. MASCALAS:
Q: Where did you see them doing these acts on Eusebio?
A: Outside the premises, sir.
Q: Whose premises?
A: The premises of Eusebio Gardon, sir.
Q: Did you not say earlier that Onying came out with Eusebio Gardon from the latters house?
A: I saw Onying, akbay-akbay niya..
Q: You even saw Onying embracing Eusebio Gardon, correct?
A: Yes, sir.
....
Q: Were there stones being hurled to Onying and Eusebio?
A: Yes, sir.
Q: Did you see who were throwing those stones?
A: It was Cesar, sir.
....
Q: Did you see if Gardon was hit by any of these stones?
A: Yes, sir.
Q: And you also saw Onying hit by stones, correct?
A: No, sir.
....
Q: Who boxed your uncle?
A: Cesar, sir.
Q: Are you saying that Cesar while throwing stones to your uncle was so close to him that he was able to box
him?
A: Because they were advancing towards my uncle and Onying. They were going towards them.
....
Q: And when they were able to come near, how near did Cesar get to your uncle?
A: Maybe three to four meters, sir.
Q: That was when Cesar boxed your uncle?
A: Not yet, sir.
Q: When did Cesar box your uncle?
A: When they come near to my uncle.
....
Q: And then Cesar Givera ran away and your uncle gave chase?
A: Yes, sir.
Q: And upon reaching the bridge which is about fifteen (15) meters away from the victims house, you saw
Bingo stabbed your uncle?
A: Yes, sir.
Q: There were only -- You said that there were only four (4) persons in that place where your uncle was
stabbed and those persons do not include Milagros Gardon?
A: No, sir.
Q: Because Milagros Gardon was still in their house?
A: She was already outside their house.
Q: She was outside their house -- although outside their house she was still inside the premises of their lot?
A: She was still inside, but she saw the incident.
Q: And that premises of the victim was about 15 meters away from the bridge where the alleged incident
took place?
A: Yes, sir.
Q: Were you also with Milagros Gardon at the time that stabbing was done?
A: We were not together but I was approaching their house.
....
Q: So you were also about 15 meters away from the bridge where the alleged incident took place?
A: Yes, sir.
Q: And that is your distance when you were claiming that you saw this incident?
A: It was just a little less.
(Makalampas lang ng konti).
....
Q: It was Turing Gayon [Arturo Gayon] whom you heard shout: Sige, todasin na yan!
A: Yes, sir.
Q: And it was Bingo [Maximo Givera] whom you saw stabbed your uncle?
A: Yes, sir.
....
Q: You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you saw it?
A: Yes, sir.
Q: What was Cesar Givera doing when the victim was stabbed by Bingo?
A: They were kicking and boxing my uncle.
Q: Givera was doing that? I was asking you about Cesar Givera?
A: He was boxing and kicking my uncle.
Q: Who, Eusebio Gardon, the victim?
A: Yes, sir.
To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in
evidence the testimony[9] of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal
Case No. Q-93-44315. The testimony shows that the victim sustained one fatal stab wound
possibly caused by a single bladed weapon.[10] In addition, he sustained abrasions in his lower
chin, possibly hitting a rough surface, as well as an incised wound caused by a bladed weapon,
on his posterior middle left arm.[11] The stab wound appears to be fatal because it pierced the
pericardium and left ventricle of the heart, which could be the immediate effect of hemorrhage,
shock and eventual death of the victim. [12] A death certificate[13] evidencing the death of the
victim was presented by the prosecution.
Accused-appellant testified in his behalf. He was a resident of Laura St., Old Balara,
Quezon City at the time of the incident. He denied any involvement in the killing of the victim
who was his relative by affinity.[14]
Accused-appellant claimed that at the time of the incident on May 2, 1993, at around 4:00
p.m., he was having a drink in his cousins house, some 30 meters away from the victims
house. On the other hand, Maximo Givera and Arturo Gayon were in the victims house also
having drinks. Accused-appellant said he was fetched by his cousin, Recto Gardon, because
Maximo and the victim Eusebio Gardon were having an altercation. He went to pacify the
protagonists and then led the victim to his house. Without his knowledge, however, Eusebio
went back and again engagedMaximo in a fist fight, as a result of which the victim Eusebio was
knocked down. Accused-appellant said he was going to help the victim get up, but he saw the
victims son, Ronilo Gardon, coming with a bolo. He, therefore, ran away and left the victim
behind. He added, that he did not see if his three companions did anything more than box the
victim.[15] Accused-appellant said he learned that the victim had died only two days after the
incident.[16]
Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical Center. He
stated that the children of the victim implicated him in the killing of Eusebio Gardon only
because he was present when the incident happened.[17]
On August 29, 1997, the trial court rendered its decision finding accused-appellant guilty of
murder. The dispositive portion of its decision reads:[18]
WHEREFORE,judgmentisherebyrenderedfindingtheaccusedCesarGiveraguiltybeyond
reasonabledoubtofthecrimeofmurderascharged.

Theaccusedisherebysentencedtoreclusionperpetua,withtheaccessorypenaltiesofthelaw,
andtoindemnifytheheirsofthedeceasedintheamountofP50,000.00withoutsubsidiary
imprisonmentincaseofinsolvency,andtopaythecosts.

SOORDERED.

Hence, this appeal. Accused-appellants sole assignment of error is that

DUETOTHEPRESENCEOFREASONABLEDOUBT,THECOURTAQUOHAS
COMMITTEDANERRORINCONVICTINGTHEACCUSEDAPPELLANTOFTHE
CRIMECHARGED

The appeal has no merit.


First. The prosecution presented evidence which shows beyond reasonable doubt that
accused-appellant and his companions (Epifanio Gayon, Arturo Gayon, and Maximo Givera),
all of whom were convicted of murder in another case, were responsible for the killing of
Eusebio Gardon on May 2, 1993. Milagros Gardons testimony, an excerpt from which is quoted
at the beginning of this opinion, is spontaneous, detailed, and consistent. The defense tried to
discredit through cross examination, but, as shown earlier, the defense only succeeded in
enabling her to give further details of her testimony in chief. There are apparent lapses in the
testimony of Milagros, as when she testified that she knew at the very beginning that it was
accused-appellant who was stoning their house when in fact, as she admitted, she only knew
this because the victim said so. Moreover, it may be doubted whether the victims other
daughter, Laura, was hit by the stones hurled by accused-appellant as she came out of their
house, since the door of the house was so narrow that only one person at a time could pass
through it. Nonetheless, a close reading of the records will show that indeed it was accused-
appellant who was stoning the house because when the witness followed the victim outside, she
saw accused-appellant throwing stones at their house.She then saw accused-appellant hitting the
victim with stones. In the process, Laura was also hit.
In any event, these discrepancies are minor and insignificant and do not detract from the
substance of her testimony. This Court has time and again said that a few discrepancies and
inconsistencies in the testimonies of witnesses referring to minor details and not in actuality
touching upon the central fact of the crime do not impair the credibility of the witnesses. Instead
of weakening their testimonies, such inconsistencies tend to strengthen their credibility because
they discount the possibility of their being rehearsed testimony.[19]
Thus, according to Milagros Gardon, accused-appellant taunted the victim and challenged
him to come out of the house. After succeeding in drawing the victim out of his house, accused-
appellant and his companions ganged up on him, kicking and pummeling him and finally
stabbing him.
Milagros testimony belies accused-appellants claim that he was merely trying to pacify the
victim and Maximo Givera and that he ran away because the victims son, armed with a bolo,
charged at him (accused-appellant). There was no reason for the victims son to want to attack
accused-appellant, if the latter was merely trying to help the victim.
Nor is it probable that accused-appellant did not see what his companions did to the victim
aside from giving him fist blows and kicks, because according to accused-appellant, he ran
away shortly after they had attacked the victim. As accused-appellant said he saw the assailants
run way, this could only be after they had been done with their victim.
The defense also tries to discredit the testimony of the other prosecution witness, Melinda
Delfin. It is contended that, contrary to her claim, she was not really present at the incident. For
this purpose, it is pointed out that she failed to give a sworn statement regarding said incident to
the police.
The contention has no merit. As Melinda explained, she did not give a statement to the
police because she was told they would call on her later for her statement. Melinda testified:[20]
Q: The police did not get your statement because you did not tell them that you were an eyewitness and if it
is true, correct?
A: No, sir.
Q: You were only asked by your relatives - - You testified in this case in the sala of Judge Asuncion after the
children of the victim asked you to? Correct?
A: They did not tell me. I voluntarily testified, sir, because I saw the incident.
Q: What do you mean by saying that you voluntarily testified? Did you just come to court and asked the
court to take you as witness in this case?
A: No, sir, because in the police station the police told me that they will not take my statement. They will just
ihahabol na lang ako.
Q: Did you not inquire from them why your statement will not longer be taken and what do you mean by that
ihahabol na lang ikaw?
A: I did not ask because I do not know anything about that. That was the first time that incident happened to
my life.
It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and
the other assailants, and that in fact some of them are related to the witnesses. Accused-
appellant has not shown that these witnesses were motivated by ill will against him. As
correctly observed by the trial court:[21]

[T]hecourthasnoreasontodoubtthetestimoniesoftheprosecutionwitnesses.

Inthefirstplace,accusedCesarGiverahasnotshownanymotiveonthepartoftheprosecution
witnessestotestifyastheydidagainstsaidaccused.

Second,accusedCesarGiveraandtheotheraccusedinthiscaseareallresidingwithinthe
vicinitywherethecrimewascommitted,andareevenrelatedbyaffinitytothedeceased.There
is,therefore,noreasontodoubttheiridentificationbytheprosecutionwitnesses.

All things considered, we think the trial court correctly dismissed accused-appellants claim
and gave credence to the testimonies of the prosecution witnesses. From the fact that the victim
died and that accused-appellant and his companions were the last persons seen with the victim
before he died, it can be concluded that they are responsible for the victims death.
Second. The allegations of conspiracy in the information have been established. The victim
was at home sleeping after coming from a drinking session, when the accused-appellant and his
companions stoned his house to force him to come out. When they failed, one of them, Epifanio
(Onying) Gayon, went inside the victims house and told him to come out. Disoriented because
he was drunk, the victim went with Onying. Once the victim was outside, accused-appellant
pelted him with stones, while Onying started raining fistic blows on him. Then Onying and
accused-appellant ran away to lure him to go toward the bridge where the other two, Arturo
Gayon and Maximo Givera, were waiting. When the victim reached the place, he was attacked
by the gang. He was kicked and boxed by Onying and when Arturo shouted Sige todasin na
yan!, Maximo stabbed the victim.
The evidence thus clearly and convincingly shows a coordinated action by the group in the
execution of the crime. In conspiracy, it is not necessary to show that all the conspirators
actually hit and killed the victim. What is important is that all participants performed specific
acts with such closeness and coordination as to unmistakably indicate a common purpose or
design to bring about the death of the victim. The act of each conspirator in furtherance of the
common purpose is in contemplation of law the act of all. Consonant with this legal principle,
accused-appellant is guilty of the crime of murder as if he himself dealt the deathblow that sent
the victim to his grave.[22]
Third. However, evident premeditation cannot be appreciated in this case. Where
conspiracy is directly established, with proof of the attendant deliberation and selection of the
method, time and means of executing the crime, the existence of evident premeditation can be
appreciated.[23] But in an implied conspiracy, such as in this case, evident premeditation cannot
be appreciated in the absence of proof as to how and when the plan to kill the victim was
hatched or what time elapsed before it was carried out, so that it cannot be determined if the
accused had sufficient time between its inception and its fulfillment dispassionately to consider
and accept the consequences. There should be a showing that the accused had the opportunity
for reflection and persisted in effectuating his criminal design which the prosecution failed to
establish in the case at bar.[24]
Nor can the qualifying circumstance of treachery be taken into account. The trial court held:
[25]

...[T]reacherywillalsobededucedfromtheevidenceonrecord.Thedeceasedwasunarmed
whenhewasstabbedbyonMaximoGiveraandboxedandkickedbyaccusedCesarGiveraand
twootheraccused.

...Fromtheevidenceadduced,accusedGiveraandEpifanioGayontauntedandprovokedthe
deceasedbythrowingstonesathimandthenluredhimtorunafterthemtowardsthebridge
wheretheotheraccusedwerelyinginwaitreadytopounceonthedeceasedwithoutriskto
themselvesasthedeceasedwasthendefenseless.

Treachery is the deliberate and unexpected attack on the victim, without any warning and
without giving him an opportunity to defend himself or repel the initial assault. For treachery to
be appreciated, it must be shown to be present at the inception of the attack, otherwise, even if
present at a subsequent stage, it cannot be considered.[26] In the instant case, the victim cannot be
said to have been totally oblivious of the impending attack by all the group of accused-
appellant. He thus had every opportunity to escape from the attack. In fact, his daughter
Milagros testified that prior to the stoning incident, the victim had been threatened with harm by
accused-appellant the moment he went out of his house, which is why she stayed beside her
father to make sure he did not go out of the house. Indeed, the victim had been forewarned of
the danger posed by accused-appellant and his group.
Moreover, by coming out of his house and running after two of the assailants, the victim
showed that he was prepared for the attack by accused-appellant and his gang and could have
been hardly surprised when he was actually attacked. Treachery must be proven by convincing
evidence. The fact that the victim may have been surprised because he had not expected that he
would be outnumbered when he saw two other attackers waiting for him under the bridge is not
sufficient to show that the victim was completely unaware of the attack that might come from
his assailants.[27]
However, the presence of the qualifying circumstance of abuse of superiority was correctly
appreciated in this case. The victim was unarmed and was clearly outnumbered by the four
assailants, with one of them armed with a knife.[28]
Fourth. Accused-appellant claims that his arrest at the East Avenue Medical Center on May
4, 1996 was made without a warrant. This is not true. He was arrested by virtue of a warrant
issued by the court on April 27, 1995. However, as the records show, the warrant of arrest was
returned unserved by the arresting officer on June 7, 1995 as accused-appellant could not be
found.He was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed to
make the arrest. Unless specifically provided in the warrant, the same remains enforceable until
it is executed, recalled or quashed. The ten-day period provided in Rule 113, 4 is only a
directive to the officer executing the warrant to make a return to the court.[29]
At any rate, accused-appellant must be deemed to have waived his right to object thereto
because he failed to move for the quashal of the information before the trial court, entered a
plea of not guilty and participated in the trial. [30] As this Court has held, 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.[31]
On the matter of the admissibility of the testimony of the medico-legal taken in the first
case, involving the three other accused for the death of the same victim, offered in evidence in
the case at bar, this Court must declare the same inadmissible. As correctly contended by the
defense, because they did not have the opportunity to cross-examine Dr. Baltazar, his testimony
cannot be used in evidence against accused-appellant. Indeed, where the opposing party failed
to cross-examine a witness, this Court in several cases held:[32]

Oraltestimonymaybetakenintoaccountonlywhenitiscomplete,thatis,ifthewitnesshas
beenwhollycrossexaminedbytheadversepartyortherighttocrossexamineislostwhollyor
inpartthruthefaultofsuchadverseparty.Butwhencrossexaminationisnotandcannotbe
doneorcompletedduetocausesattributabletothepartyofferingthewitness,theuncompleted
testimonyistherebyrenderedincompetent.

Still and all, the fact and cause of death of the victim had been sufficiently proved by the
accounts of the two eyewitnesses, corroborated by the offer in evidence of the death certificate
of the victim.
Fifth. The award of damages by the trial court in favor of the victim should be
modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are
entitled to an award of P50,000.00 as moral damages irrespective of proof thereof.[33]
WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City finding
accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and
sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties
prescribed by law is AFFIRMED with the MODIFICATION that, in addition to the amount
of P50,000.00 to be paid as indemnity, accused-appellant is hereby ordered to pay to the heirs of
Eusebio Gardon amount of P50,000.00 as moral damages, plus the costs of the suit.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

SEC. 5. ARREST WITHOUT WARRANT; WHEN LAWFUL

HOMAR V. PEOPLE, id.


PP v. Breis (separate pdf)
Comerciante v. people (separate pdf)
In re salibo v. warden (separate pdf)
Pestillos v. Generoso, supra.
SEC. 6. TIME OF MAKING ARREST

THIRD DIVISION

MIGUEL E. COLORADO, A.M. No. MTJ-06-1658


Complainant, [Formerly OCA IPI No. 01-1014-MTJ]

Present:
- versus - YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
JUDGE RICARDO M. AGAPITO, NACHURA, JJ.
Municipal Circuit Trial Court,
Laur, Nueva Ecija, Promulgated:
Respondent. July 3, 2007
x--------------------------------------------------x

RESOLUTI ON

AUSTRIA-MARTINEZ, J.

Before us is a sworn letter-complaint[1] dated January 31, 2001 of Miguel E.


Colorado (complainant) charging Judge Ricardo M. Agapito (respondent),
Municipal Circuit Trial Court (MCTC), Laur, Nueva Ecija, with Gross Ignorance of
the Law and Grave Abuse of Authority relative to Criminal Case Nos. 3461-G and
3462-G, entitled People v. Miguel Colorado, with Grave Slander and Grave
Threats.

Complainant alleges: He is the accused in the aforementioned criminal cases. The


cases were directly filed with the court without first passing the Office of
the Barangay Chairman, although he and private complainants are permanent
residents of Barangay Bagong Sikat, Gabaldon, Nueva Ecija. Respondent ignored
the glaring deficiency in private complainants filing of the cases without attaching
the requisite certifications to file action from the barangay. On the date the two
cases were filed, respondent immediately issued two warrants for his arrest. He was
arrested on a Friday and languished in the municipal jail for two days and two
nights. He posted bail and filed a motion to inhibit respondent from hearing the
case, but the same was not acted upon. He received an envelope from the court with
nothing inside and found out later that the same was supposed to be a notice of
hearing; thus, he was ordered arrested in view of his non-appearance in court.

On February 22, 2001, respondent compulsorily retired from the judiciary.

In a 1st Indorsement dated June 8, 2001, respondent was directed to file his
comment on the complaint. A 1st Tracer dated October 17, 2001 was sent to
respondent giving him a non-extendible period of five days to file his
comment. However, the said tracer was returned unserved due to respondents
retirement from the judiciary.Another Tracer dated July 30, 2002 was sent to
respondent in his residential address giving him a chance to file his comment, but
none was filed.

Acting on the complaint, the Court, in its Resolution of March 24, 2003, required
respondent to manifest whether he was willing to submit the administrative matter
against him for resolution without his comment. Respondent failed to comply with
the Court Resolution. Thus, in the Resolution of January 26, 2005, the Court
ordered respondent to show cause why he should not be disciplinarily dealt with or
held in contempt for failure to manifest and to comply with the Resolution of March
24, 2003. Still, respondent failed to comply with the Resolution of January 26,
2005. In the Resolution of August 24, 2005, the Court imposed upon respondent a
fine of P1,000.00 and deemed respondent to have waived the filing of a comment
on the complaint.

In the Agenda Report[2] dated October 12, 2005, the Office of the Court
Administrator (OCA) found respondent guilty as charged and recommended that he
be fined in the amount of Twenty Thousand Pesos (P20,000.00) to be deducted from
his retirement benefits.

On November 8, 2005, respondent paid the fine of P1,000.00 imposed on him in the
Resolution of August 24, 2005 and submitted his Comment on the complaint.

In his Comment[3] dated October 31, 2005, respondent denied the allegations
contained in the complaint reasoning that he acted in good faith and within the
scope of his duties. He further contends: Based on Administrative Circular No. 140-
93, the crimes committed by the accused are not within
the Katarungan Pambarangay Law because the imposable penalty exceeds one
year. Both cases are within the original jurisdiction of the court and, finding a
probable cause against the accused, the court issued the warrant of arrest. There is
no law or circular issued by this Court that a court cannot issue a warrant of arrest
on Friday. If the accused was not able to post bail on time, it is not his fault or of the
court. The motion for inhibition filed by complainant must be set for hearing. But in
spite of several settings to hear the motion, complainant failed to appear. In the
hearing of both cases, complainant failed to appear in court; thus, the assistant
provincial prosecutor moved for the arrest of the complainant. At the hearing
of November 17, 2000 and January 5, 2001, complainant failed to appear in court,
and orders of arrest were issued against him, but said orders were reconsidered by
the court. In spite of all the orders of the court for the arrest of complainant, none of
the orders were implemented. Neither was the accused arrested and detained in jail.
And if the complainant received an envelope from the MCTC of Laur without
content, complainant should have immediately informed the court of the said
circumstance so that proper action may be done on the employee in charge of the
mailing of notices.

In the Resolution of March 29, 2006, the Court referred back the instant
administrative matter to the OCA for evaluation, report and recommendation.

In a letter[4] dated November 21, 2005, respondent requested the Court that his
retirement benefits be released subject to the withholding of P20,000.00 pending
resolution of the present complaint.
In the Resolution[5] of June 28, 2006, the Court granted the partial release of
respondent's compulsory retirement benefits and withheld therefrom the amount
of P20,000.00 to answer for whatever liability respondent may incur in the present
administrative case.

In the Agenda Report dated August 30, 2006, the OCA submitted its evaluation and
recommendation, to wit:

The charges against respondent judge are summarized as follows:

1. Gross Ignorance of the law for his failure to remand or dismiss the case in
view of the absence of the requisite certificate to file action issued by
the Barangay as a mandatory requirement of
the Katarungan Pambarangay Law and the Local Government Code.

2. Grave abuse of authority for the issuance of a warrant of arrest on a


Friday to ensure complainants incarceration for two days.

3. Grave abuse of authority and bias in continuing the hearing of the cases
and for failure to act on the motion for inhibition.
4. An intention on the part of respondent to prevent complainants
appearance in court by sending an envelope, with a supposed notice of
hearing but with nothing inside.

xxxx

Respondent judge argued that under Administrative Circular No. 14-93 dated
August 3, 1993 issued by this Court as Guidelines for the Implementation of
the BarangayConciliation Procedure, based on the Local Government Code of
1991, R.A. 7160, which took effect on January 1, 1992, one of the exceptions to
the coverage of the circular is Offense[s] for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or a fine over five thousand pesos
(P5,000.00). Considering that the offenses for which accused was charged have
corresponding penalties of more than one year there is no need for a certification to
file action from the Barangay.

There was likewise no grave abuse of discretion in the issuance of warrant of


arrest. The subject criminal cases were within the original jurisdiction of the MTC
and after finding probable cause against the accused, respondent issued the
questioned warrant of arrest. Respondent pointed out that there is no law or circular
issued by the Honorable Court prohibiting the issuance of a warrant of arrest on
Friday.

With regard to the charge of grave abuse of discretion relative to the motion
for inhibition, respondent submitted that there should be a hearing on the motion
before it could be acted upon. But in spite of the several settings of said motion the
complainant as accused failed to appear.

Respondent contended that if it were true that complainant received an


envelope from the MCTC of Laur, Nueva Ecija, without any contents, he should
have immediately informed the court about it so that the proper action could have
been done.

Lastly, respondent invited the Courts attention to the fact that complainant
was also accused of Grave Slander by Darlito Urbano and Violeta Urbano which
case were docketed as Criminal Case No. 3648-G and 3649-G, MCTC Laur-
Gabaldon, Nueva Ecija. It is argued that this shows the character of Miguel
Colorado.
After careful evaluation of the record of the case, the undersigned finds
merit in the neglect of respondent judge to resolve the pending issue of the motion
for inhibition which was not acted upon up to the time of his compulsory
retirement from the service.

It should be noted that respondent never gave any valid justification for the delay
in the filing of his comment. It seems that he believed that the mere payment of the
fine obliterated the charge of contumacious refusal to obey the order of this
Court. Respondent's conduct cannot be left unnoticed by the Court. Judges are the
visible representations of law and justice, from whom the people draw the will and
inclination to obey the law (Moroo v. Lomeda, 316 Phil. 103, July 14, 1995) How
can the respondent judge expect others to respect the law when he himself cannot
obey orders as simple as the show-cause resolution? {Longboan v.
Hon. Polig (A.M. No. R-704-RTJ, June 14, 1990, 186 SCRA 557) cited in the case
of Bonifacio Guintu v. Judge Aunario L. Lucero, A.M. No. MTJ-93-794, August
23, 1996}.

In a catena of cases this Court has unhesitatingly imposed the penalty of dismissal
on those who have persistently failed to comply with orders requiring them either
to file comment or to show cause and comply. Respondent's belated filing of his
comment cannot cure or obliterate[d] his shortcomings with this Court. The fact
remains that he ignored the lawful directive of the Court and in fact offered no
valid justification or excuse for it. This Court could have imposed the penalty of
dismissal and forfeiture of all of respondent's retirement benefit had it not been for
this Courts compassion in allowing him to retire with the mere retention
of P20,000.00. Respondents comment should not have been received in the first
place as the same was already considered waived pursuant to the Resolution of the
Honorable Court dated 24 August 2005.

IN VIEW OF THE FOREGOING, the undersigned respectfully recommends to


the Honorable Court that:

1. Judge Ricardo M. Agapito, former judge of


MCTC, Laur, Nueva Ecija be found guilty of gross neglect for failure to
act on the motion for inhibition filed by accused-complainant and for his
failure to promptly comply with the lawful order of Court and not
offering a valid excuse therefor and should be FINED in the amount of
Twenty Thousand Pesos (P20,000); and
2. The withheld amount of Twenty Thousand Pesos (P20,000) shall be
considered the payment of the fine.[6]

We agree in toto with the findings and recommendations of the OCA.

First of all, we deem it necessary to determine the applicability of A.M. No. 03-10-
01-SC, a Resolution Prescribing Measures to Protect Members of the Judiciary
from Baseless and Unfounded Administrative Complaints, which took effect
on November 3, 2003.

Recognizing the proliferation of unfounded or malicious administrative or


criminal cases against members of the judiciary for purposes of harassment, we
issued said Resolution, which provides:

2. If the complaint is (a) filed within six months before the compulsory retirement of
a Justice or Judge; (b) for an alleged cause of action that occurred at least a year
before such filing; and (c) shown prima facie that it is intended to harass the
respondent, it must forthwith be recommended for dismissal. If such is not the case,
the Office of the Court Administrator must require the respondent to file a comment
within ten (10) days from receipt of the complaint, and submit to the Court a report
and recommendation not later than thirty (30) days from receipt of the
comment. The Court shall act on the recommendation before the date of compulsory
retirement of the respondent, or if it is not possible to do so, within six (6) months
from such date without prejudice to the release of the retirement benefits less such
amount as the Court may order to be withheld, taking into account the gravity of the
cause of action alleged in the complaint.
Thus, in order for an administrative complaint against a retiring judge or justice to
be dismissed outright, the following requisites must concur: (1) the complaint must
have been filed within six months from the compulsory retirement of the judge or
justice; (2) the cause of action must have occurred at least a year before such filing;
and (3) it is shown that the complaint was intended to harass the respondent.

In the present case, the first two requisites are present. The sworn letter-complaint
was received by the Office of the Court Administrator on January 31, 2001. The
respondent retired compulsorily from the service barely three weeks after or
on February 22, 2001; and the ground for disciplinary action alleged to have been
committed by the respondent occurred five months before the respondents
separation from the service.

As to the third requirement, although the first and second charges against
respondent are outrightly without merit as aptly found by the OCA, the complaint
that respondent failed to act on his motion for inhibition and intentionally prevented
complainant from appearing in a scheduled hearing was not prima facie shown to
be without merit; nor was the filing thereof shown to be intended merely to harass
the respondent.[7] Thus, the OCA correctly proceeded with the administrative case
against respondent.
Moreover, the fact that a judge has retired or has otherwise been separated from the
service does not necessarily divest the Court of its jurisdiction to determine the
veracity of the allegations of the complaint, pursuant to its disciplinary authority
over members of the bench. As we held in Gallo v. Cordero,[8] citing Zarate v.
Judge Romanillos:[9]

The jurisdiction that was ours at the time of the filing of the administrative
complaint was not lost by the mere fact that the respondent had ceased in office
during the pendency of his case. The Court retains jurisdiction either to pronounce
the respondent public official innocent of the charges or declare him guilty
thereof. A contrary rule would be fraught with injustice and pregnant with dreadful
and dangerous implications... If innocent, respondent public official merits
vindication of his name and integrity as he leaves the government which he has
served well and faithfully; if guilty, he deserves to receive the corresponding
censure and a penalty proper and imposable under the situation.

We now go to the four charges against respondent.

1. Gross Ignorance of the law for his failure to remand or dismiss the case in view
of the absence of the requisite certificate to file action issued by the barangay as a
mandatory requirement of the Katarungan Pambarangay Law and the Local
Government Code.

As we earlier stated, the Court finds that the OCA is correct in not finding
respondent administratively liable therefor. Complainant is charged
with grave slander, the maximum penalty for which is 2 years and 4 months under
Article 358 of the Revised Penal Code. Thus, respondent is not guilty of gross
ignorance of the law in taking jurisdiction over said criminal case, considering that
prior recourse to barangay conciliation is not required where the law provides a
maximum penalty of imprisonment exceeding one year.

2. Grave abuse of authority for the issuance of a warrant of arrest on a Friday to


ensure complainants incarceration for two days.

Complainant faults respondent for having been arrested on a Friday, causing


him to languish in jail for two days and two nights. Respondent cannot be held
administratively liable for this particular matter.

Section 6, Rule 113 of the Revised Rules of Criminal Procedure provides that
an arrest may be made on any day and at any time of the day or night.

It is of no moment that the warrant of arrest was issued by respondent on a Friday,


because it is clear from the foregoing that an arrest may be made on any day
regardless of what day the warrant of arrest was issued. Nowhere in the Rules or in
our jurisprudence can we find that a warrant of arrest issued on a Friday
is prohibited.
Granting that complainant was arrested on a Friday, he was not without recourse, as
he could have posted bail for his temporary liberty in view of Supreme Court
Circular No. 95-96[10] dated December 5, 1996, providing for a skeletal force on a
Saturday from 8:00 a.m. to 1:00 p.m. primarily to act on petitions for bail and other
urgent matters. And on Saturday afternoons, Sundays and non-working holidays,
any judge may act on bailable offenses. Thus, we agree with the OCA that
respondent did not commit grave abuse of authority for issuing the warrant of arrest
on a Friday, the same not being prohibited by law.

3. Grave abuse of authority and bias in continuing the hearing of the cases
and for failure to act on the motion for inhibition.

While there is no evidence in support of the claim that respondent committed grave
abuse of authority and bias in continuing the hearing of cases, we find respondent
liable for failure to act upon complainants motion for inhibition.

As borne by the records, complainant filed his motion for respondent's


inhibition sometime in September 2000 but up to the time of respondents
compulsory retirement from the judiciary on February 22, 2001, the same
remained unacted upon. Verily, the undue delay of respondent by five months in
resolving the pending incident before his court erodes the peoples faith in the
judiciary and the same is tantamount to gross inefficiency. Respondents explanation
that despite the fact that the motion was set for hearing several times, complainant
repeatedly failed to appear thereat, is untenable. Respondent must know that he
may act motu proprio on the motion for inhibition without requiring the attendance
of complainant. A judge, in the exercise of his sound discretion, may disqualify
himself from sitting on a case for just or valid reasons.[11]

Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine
Judiciary,[12] mandates judges to perform all judicial duties, including the delivery of
reserved decisions, efficiently, fairly and with reasonable promptness. Similarly,
Supreme Court Circular No. 13 dated July 1, 1987 directs judges to observe
unscrupulously the periods prescribed by the Constitution in the adjudication and
resolution of all cases or matters submitted to their court.

In Visbal v. Buban,[13] the Court held that failure to decide cases and other
matters within the reglementary period constitutes gross inefficiency and warrants
the imposition of administrative sanction against the erring magistrate. [14] Delay in
resolving motions and incidents pending before a judge within
the reglementary period of ninety (90) days fixed by the Constitution and the law is
not excusable and constitutes gross inefficiency.[15] Further, such delay constitutes a
violation of Rule 3.05, Canon 3 of the Code of Judicial Conduct, which mandates
that a judge should dispose of the courts business promptly and decide cases within
the required periods. As a trial judge, respondent is a frontline official of the
judiciary and should at all times act with efficiency and with probity.[16] Undue delay
in the disposition of cases and motions erodes the faith and confidence of the
people in the judiciary and unnecessarily blemishes its stature.[17]

4. An intention on the part of respondent to prevent complainants appearance


in court by sending an envelope, with a supposed notice of hearing but with nothing
inside.

Suffice it to be stated that in the absence of evidence to show that the sending of an
empty envelope to complainant was malicious on the part of respondent, he cannot
be held liable therefor.
Section 9 (1) and 11 (B), Rule 140 of the Rules of Court, as amended by A.M. No.
01-8-10-SC, classifies gross neglect or undue delay in rendering a decision or order
as a less serious charge which carries any of the following sanctions: suspension
from office without salary and other benefits for not less than one (1) nor more than
three (3) months or a fine of more than P10,000.00 but not
exceeding P20,000.00. We adopt the recommendation of the OCA that respondent
should be imposed a fine in the amount of P20,000.00.[18]
WHEREFORE, the Court finds respondent Judge Ricardo M. Agapito guilty of
gross neglect and is FINED in the amount of Twenty Thousand Pesos
(P20,000.00).The withheld amount of Twenty Thousand Pesos (P20,000.0) from
respondents retirement benefits is considered as payment of the fine.

SO ORDERED.

SEC. 7. METHOD OF ARREST BY OFFICER BY VIRTUE


OF WARRANT

[G.R. No. 110569. December 9, 1996]


DIOSDADO MALLARI, petitioner, vs. THE HON. COURT OF APPEALS
and THE PEOPLE OF THE PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:

Given credence by respondent Court of Appeals is the following narration of the


factual antecedents of this case by the People.
SometimeonDecember27,1990,ataround2:30p.m.,PatManiponandPfc.Esguerra,who
wereboththenassignedattheCapasPoliceStation,receivedreliableinformationthatappellant
DiosdadoMallari,whohasastandingwarrantofarrestinconnectionwithCriminalCaseNo.
471forhomicidein1989,wasseenatSitio14,Sta.Rita,Capas,Tarlac(tsn,April18,1991,pp.
34;June27,1991,p.3).

Immediatelyuponreceiptofsuchinformation,Pfc.Manipon,accompaniedbyPat.Esguerra
andPat.NarcisoSimbulan,withpersonalknowledgeoftheexistenceofastandingwarrantof
arrestagainstappellantinconnectionwithCriminalCaseNo.471forHomicide,immediately
proceededtoSitio14,Sta.Rita,Capas,Tarlac.Uponreachingtheplace,thearrestingofficers
surroundedthehouseofappellant,arrestedhimandtoldhimtoremainstationary.Thereupon,
thearrestingofficerssearchedhimandfoundahomemadegun(paltik)withoneM16live
ammunition(tsn,April18,1991,pp.56,8;June27,1991,pp.35,7).

AppellantwashandcuffedandbroughttotheCapasPoliceStationwherehewasendorsedto
thechiefinvestigatorwhilethehomemadegunandliveammunitionwereendorsedtothe
propertycustodian.Theincidentwasthenenteredinthepoliceblotterafterwhichthespotand
investigationreportswereprepared(tsn,June,April18,1991,p.5,10;June27,1991,p.6).[1]

After investigation, the petitioner was charged with the crime of Illegal Posession of
Firearms and Ammunition, and pleaded not guilty on arraignment. Trial on the merits
ensued, after which, the Regional Trial Court of Capas, Tarlac convicted petitioner of
the crime charged, as follows:

WHEREFORE,accusedDiosdadoMallariisherebyfoundguiltybeyondreasonabledoubtof
thecrimeofIllegalPosessionofFirearmsandAmmunitionsandherebysentenceshimtosuffer
anindeterminatepenaltyofseventeenyears,fourmonthsandonedayasminimumtoeighteen
yearsandeightmonthsasmaximum.

Accused,whoisadetentionprisonerisgivenfullcreditfortheperiodofhispreventive
imprisonment,aftercompliancewithArticle29oftheRevisedpenalCode.

SOORDERED.[2]

Assailed in this petition for review on certiorari is the decision of respondent Court
of Appeals affirming in toto the abovequoted decision of the trial court. In its decision,
the Court of Appeals held that the testimonies of the prosecution witnesses, Pfc.
Manipon and Pat Esguerra unequivocally proved that the handgun (paltik) and the live
M-16 ammunition were recovered from the person of the appellant (herein petitioner).
[3]
The Court of Appeals further held that the search conducted on the petitioner and the
seizure of the subject firearm and ammunition were done on the occasion of a lawful
arrest as there was then an outstanding warrant for petitioners arrest in Criminal Case
No. 471.[4] It likewise found that petitioner was arrested while committing the crime of
illegal possession of firearms in the presence of the police authorities. Thus, anent
petitioners insistence that there was no standing warrant for his arrest, thereby making
the search and seizure invalid, the Court of Appeals stated that, under the prevailing
factual milieu, even in the absence of a warrant, still appellants arrest would fall
squarely within the context of Rule 113, Sec. 5 (b), Rules of Court x x x [5] which cites
the instances when a warrantless arrest may be valid.
In seeking the reversal of his conviction, petitioner questions the factual finding of
the Court of Appeals that at the time of his arrest, there was a standing warrant against
him in Criminal Case No. 471. Petitioner posits that the absence of the requisite
warrant is fatal and renders the search and seizure unlawful. Corrolarily, the handgun
and ammunition seized from him are inadmissible in evidence. Petitioner also contends
that it was error for the Court of Appeals to conclude that the search and seizure could
be validly effected as it was done on the occasion of a lawful warrantless arrest,
particularly, while in the act of committing the crime of illegal possession of firearms in
the presence of the arresting officers. Finally, petitioner claims that even assuming that
the handgun and ammunition had in fact been found in his possession, the prosecution
failed to prove that he had no license therefor and absent this essential element of the
crime of illegal possession of firearms, it was manifest error for the Court of Appeals to
uphold his conviction.
The threshold issue is factual: whether or not there indeed existed a standing
warrant for the arrest of the petitioner. At the outset, this Court reiterates the general
rule that when supported by substantial evidence, factual findings of the Court of
Appeals are final and conclusive and may not be reviewed on appeal. [6] A careful
scrunity of the records of the case at bench leads this Court to concur with the Court of
Appeals in its finding that when the petitioner was arrested, there was then a standing
warrant of arrest against him in connection with Criminal Case No. 471. This fact is
manifest from the testimonies of the arresting officers which the defense failed to rebut
during trial.
Pfc. Danilo Manipon:
Q When you arrested Diosdado Mallari Mr. Witness, were you carrying a warrant of arrest then?
A No, sir.
Q Neither you did not have with you a seize and search warrant and despite the fact that you
have no search and seize warrant you have still pursued in getting the ammunition you have
just mentioned, the home made gun and the live bullet?
A Yes, sir.
COURT:
You are referring to what case?
A Homicide, maam, Criminal Case No. 471.
COURT:
Alright.
Q Was the seizure of the home made gun related to the warrant of arrest being issued by this
honorable court with respect to criminal case No. 471?
COURT:
Will you clarify, I heard him saying that he did not have a warrant of arrest, is that correct?
A Yes, maam.
COURT:
What about with respect to Criminal Case No. 471 you do not have a warrant of arrest issued
by this court?
A There was, maam, I know that there was a warrant of arrest issued, that is why we proceeded
to Sitio 14, maam.
COURT:
Alright you proceeded to Sitio 14 because of the warrant of arrest issued by this court to to
apprehend Diosdado Mallari in Criminal Case No. 471, is that correct?
A Yes, maam.[7] [Underscoring supplied]
Pat. Jose Esguerra:
Q Do you have with you at the time when you arrested or when you seized the gun and the live
ammunition, a search and seize warrant?
A None, your honor.
COURT:
Q Did you have with you the warrant of arrest you mentioned with respect to CR. No. 471?
A When we went to him, we did not have a warrant of arrest because we were in a hurry but
when we returned, we reached the warrant officer, you honor.
Q Where did you return?
A When we returned to the Capas Police Station there was the warrant officer already, your
Honor.
Proceed.
ATTY. DULDULAO:
Q You said you did not bring the warrant of arrest when you arrested the the accused how did
you come to know that Diosdado Mallari was indeed the accused despite the fact that you did
not bring with you the warrant of arrest then?
A When we went there, sir, we did not have a warrant of arrest because we were in a hurry if we
will wait our warrant officer, we may not reach Diosdado Mallari, but we know that he has a
standing warrant of arrest.[8] [Underscoring provided]
Further bolstering the arresting officers testimonies is the absence of any motive on
their part to falsely testify against the petitioner. And it has been repeatedly held that
without proof of such motive, law enforcers are presumed to have regularly performed
their duties.[9] Thus, absent strong and convincing proof to the contrary, this Court is
bound by the presumption that the arresting officers were aware of the legal mandates
in effecting an arrest and strictly complied with the same.
At this juncture, the Court would like to stress that this is not a case of a warrantless
arrest but merely an instance of an arrest effected by the police authorities without
having the warrant in their possession at that precise moment. Finding as it does, this
Court deems it unnecessary to delve into the applicability of Section 5, Rule 113 of the
Rules of Court and on the merits of both the petitioners and the Office of the Solicitor
Generals arguments with respect thereto. The applicable provision is not Section 5,
Rule 118 of the Rules of Court on warrantless arrests, but Section 7, Rule 113 which
provides as follows:

Sec.8.MethodofArrestbyofficerbyvirtueofwarrant.Whenmakinganarrestbyvirtueofa
warranttheofficershallinformthepersontobearrestedofthecauseofthearrestandthefact
thatawarranthasbeenissuedforhisarrest,exceptwhenhefleesorforciblyresistsbeforethe
officerhasopportunitysotoinformhimorwhenthegivingofsuchinformationwillimperilthe
arrest.Theofficerneednothavethewarrantinhispossessionatthetimeofthearrestbutafter
thearrest,ifthepersonarrestedsorequires,thewarrantshallbeshowntohimassoonas
practicable.[Underscoringsupplied]

The abovequoted rule clearly allows a police officer to effect arrest without the
warrant in his possession at the time of the arrest. Thus, appellants arrest being lawful,
the search and seizure made incidental thereto is likewise valid, albeit conducted
without a warrant.[10] In the case of People v. Acol,[11] where the unlicensed firearms
were found when the police team apprehended the accused for robbery and not for
illegal possession of firearms and ammunition, this Court held that the unlicensed
firearms may be seized without the necessity of obtaining a search
warrant. Expounding thereon, it stated that:
`xxxTheillegalityofthesearchisindependentfromtheillegalpossessionofprohibited
arms.Theillegalityofthesearchdidnotmakelegalanillegalpossessionoffirearms.When,in
pursuinganillegalactionorinthecommissionofacriminaloffense,theoffendingpolice
officersshouldhappentodiscoveracriminaloffensebeingcommittedbyanyperson,theyare
notprecludedfromperformingtheirdutiesaspoliceofficersfortheapprehensionoftheguilty
andthetakingofthecorpusdelicti.[12]

Finally, petitioner contends that the prosecution failed to discharge its burden of
proving that he did not have the requisite license for the firearm and ammunition found
in his possession. Anent this contention, the Office of the Solicitor General does not
even attempt to point out any evidence on record of petitioners non-possession of a
license or permit for there really is no such evidence. It relies on the theory that as the
firearm involved is a homemade gun or paltik and is illegal per se, it could not have
been the subject of license.[13] This, according to the Solicitor General, dispenses with
the necessity of proving that petitioner had no license to possess the firearm. This is
where the prosecutions case fails and miserably so. This Court has ruled that:

WedonotagreewiththecontentionoftheSolicitorGeneralthatsinceapaltikisahomemade
gun,isillegallymanufacturesasrecognizedinPeoplevs.Fajardo,andcannotbeissueda
licenseorpermit,itisnolongernecessarytoprovethatitisunlicensed.Thisappearstobeat
firstblush,averylogicalproposition.Wecannot,however,yieldtoitbecauseFajardodidnot
saythatpaltikscaninnocasebeissuedalicenseorpermitandthatproofthatafirearmis
apaltikwithproofthatitisunlicensed.[14]

In crimes involving illegal possession of firearm, the prosecution has the burden of
proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the
fact that the accused who owned or possessed it does not have the corresponding
license or permit to possess the same.[15] The latter is a negative fact which constitutes
an essential ingredient of the offense of illegal possession, and it is the duty of the
prosecution not only to allege it but also to prove it beyond reasonable doubt. [16] In the
case at bench, the testimony of a representative of, a certification from the PNP (FEU)
that petitioner was not a licensee of the said firearm would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of
illegal possession.[17] The absence of the foregoing is fatal to the prosecutions case
and renders petitioners conviction erroneous.
True that in the case of People vs. Mesal[18], this Court dispensed with a certification
from the Firearms and Explosives Unit (FEU) of the Philippine National Police (PNP) to
establish the alleged lack of license or permit on the part of the accused-appellant to
possess the M-14 rifle found in his possession. This was, however, premised on the
fact that:

Therecordsrevealthattheallegationwassuccessfullysubstantiatedbyotherevidencewhich
firmlyandundisputablyestablishedthataccusedappellantdidnothaveandcouldnotpossibly
have,therequisitelicenseorauthoritytopossesstheM14rifleconcerned.TechnicalSgt.
AlfredoRomasanta,SupplyOfficerofthePCINP253 PCCompany,testifiedthattherifle
rd

concernedisthetypeofweaponwhichonlymilitarymenareauthorizedtopossessxxx.[19]

The above enunciated doctrine is not applicable to this case. The records are bereft
of any evidence similar to that offered by the prosecution in Mesal to prove that the
petitioner did not have and could not possibly have the requisite license or authority to
possess the paltik and the M-16 live ammunition.
In view of the foregoing, the petition is hereby GRANTED and the assailed
decision is REVERSED and SET ASIDE. Petitioner Diosdado Mallari is hereby
ACQUITTED for insufficiency of evidence and ordered immediately released unless
there are other legal grounds for his continued detention.
SO ORDERED.
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.

SEC. 8. METHOD OF ARREST BY OFFICER W.O WARRANT


[G.R. Nos. 116200-02. June 21, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 ELEUTERIO
TAN, PO3 LEONILO MARANGA, PO3 ALEXANDER PACIOLES,
PO1 PAULO DE LA PEA, PNP, NAVAL, BILIRAN, accused-appellants.

DECISION
YNARES-SANTIAGO, J.:

Four policemen were charged with murder and two counts of attempted murder for the
killing of Ramon Gabitan and the wounding of Judith Cerilles and Edward Villaflor
The facts as condensed from the records are as follows:
At around 10:30 pm on May 12, 1991, PT Officer Second Class Ramon Gabitan, CAFGU
member Andres Lapot, and one Danilo Dumdum, all belonging to the Philippine Coast Guard,
together with the Chiefmate and other crew members of M/V Dang Delima, a foreign vessel,
were drinking beer at the Twins Disco Pub in Naval, Leyte (now in Biliran province). The group
danced with some of the waitresses of the disco house. One of them, Froilan Acorda, a crew
member of the M/V Dang Delima, danced most of the time with waitress Rosie Catigbe, an
alleged girlfriend of accused-appellant PO3 Eleuterio Tan, who was also in the said disco house
with two companions. After dancing, Rosie Catigbe sat beside Acorda, and the latter rested his
hand on the thigh of the former. Later, Gabitans group left the disco house together with five
waitresses, among whom were Rosie Catigbe and Jovith Cerilles. [1] They were to proceed back
to the foreign vessel M/V Dang Delima which was anchored a few miles away from the shores
of Naval, Leyte by riding the pumpboat owned by Lapot. As they were leaving the disco house,
accused-appellant Tan approached them and talked to two of the waitresses who were walking
behind the group. The two waitresses turned back and did not join the group anymore after they
were told by Tan that they will be brought to the foreign vessel. Thereafter, Tan confronted
Froilan Acorda and introduced himself as a police officer. Froilan asked for his badge. Tan
instead took out his .38 caliber gun. Froilan hit Tan with a karate blow and the gun fell to the
ground. Disarmed, Tan rode his bicycle and left.
Gabitans group, together with the three remaining waitresses, Jovith Cerilles, Ina Corpin
and Rosie Catigbe, boarded the pumpboat. As they were about to leave the pier, a fire truck
arrived.Tan was on top of the water tank. Accused-appellant PO3 Leonilo Maranga jumped off
as the truck stopped and positioned himself in front. Accused-appellant PO3 Alexander Pacioles
was behind the wheel of the truck. Accused-appellant SPO1 Paulo dela Pea also jumped off the
rear of the truck. Armed with M-16 rifles, one of the accused-appellants allegedly fired two
warning shots to stop the pumpboat. But as the small vessel moved on, accused-appellants
opened fire at the moving pumpboat. Gabitan was hit by a bullet and fell overboard, [2] as the
pumpboat sped away. His dead body was recovered the following day in the ocean by
fishermen. Jovith Cerilles sustained five wounds while Edward Villaflor, who was also on board
the pumpboat, was hit in the right leg.The latter two were brought to different hospitals and
survived their wounds.
All the accused-appellants were subsequently charged with murder and two counts of
attempted murder before the Regional Trial Court of Biliran, which were respectively docketed
as Criminal Cases Nos. 1530, 1531 and 1532. However, upon motion of the prosecution, this
Court ordered a change of venue and the cases were transferred to the RTC of Tacloban City.
[3]
The cases were re-raffled and docketed anew as Criminal Cases Nos. 92-07-343, 92-09-477
and 92-09-478. The Informations read:

CriminalCaseNo.9209343[4]

ThatonoraboutMay12,1991ataround10:30oclockintheeveningintheMunicipalityof
Naval,ProvinceofBiliranandwithinthejurisdictionofthisHonorableCourtabovenamed
accusedconspiring,confederatingandmutuallyhelpingeachotherwithevidentpremeditation
andtreacheryandwithintenttokilldidthenandtherewilfully,unlawfullyandfeloniouslyfire,
shoot,anddischargetheirM16ArmaliteriflesatRamonGabitanwhowasatthatprecisetime
ridinginapumpboatcatchingthelatterbysurprisehittinghiminhischestwhichcausedhis
instantaneousanduntimelydeath.

CONTRARYTOLAW.(Italicssupplied)

CriminalCaseNo.9209477[5]

ThatonoraboutMay12,1991ataround10:30oclockintheeveningintheMunicipalityof
Naval,ProvinceofBiliranandwithinthejurisdictionofthisHonorableCourtabovenamed
accusedconspiring,confederatingandmutuallyhelpingeachotherwithevident
premeditationandwithintenttokilldidthenandtherewilfully,unlawfullyandfeloniouslyfire,
shootanddischargetheirM16armaliteriflesatJudithCerilleswhowasatthatprecisetime
ridinginapumpboatcatchingthelatterbysurprisehittingandwoundingthevictimatherleft
shoulderwhichrequiredimmediatemedicalassistanceresultingto(sic)thedamageand
prejudiceofthevictim.

CONTRARYTOLAW.(Italicssupplied)

CriminalCaseNo.9209478[6]

ThatonoraboutMay12,1991ataround10:30intheeveningintheMunicipalityofNaval,
ProvinceofBiliranandwithinthejurisdictionofthisHonorableCourtabovenamedaccused
conspiring,confederatingandmutuallyhelpingeachotherwithevidentpremeditationand
treacheryandwithintenttokilldidthenandtherewilfully,unlawfullyandfeloniouslyfire,
shootanddischargetheirM16armaliteriflesatEdwardVillaflorwhowasatthatprecisetime
ridinginapumpboatcatchingthelatterbysurprisehittingandwoundingthevictiminhisright
thighwhichrequiredimmediatemedicalassistanceresultingto(sic)thedamageandprejudice
ofthevictim.

CONTRARYTOLAW.(Italicssupplied)

After arraignment, where they all pleaded not guilty, accused-appellants were tried and
thereafter convicted as charged. The dispositive portion of the trial courts decision reads:

WHEREFORE,findingaccusedEleuterioTan,LeoniloMaranga,AlexanderPaciolesandPaulo
delaPeaguiltybeyondreasonabledoubtasprincipalsofthecrimeofMurderqualifiedby
treacheryinCriminalCaseNo.9207343forthekillingofRamonGabitan,definedand
penalizedunderArticle248oftheRevisedPenalCodewiththeaggravatingcircumstanceof
evidentpremeditationonthepartofaccusedEleuterioTanonlywithoutanymitigating
circumstancetooffsetthesame,sentencesaccusedEleuterioTantoReclusionPerpetua.

Theaggravatingcircumstanceofevidentpremeditationnotbeingapplicableonthepartofthe
threeotheraccused,theCourtherebysentencesaccusedLeoniloMaranga,PaulodelaPeaand
AlexanderPaciolestoanIndeterminatePenaltyoffromTen(10)YearsandOne(1)Day
ofPrisionMayorasminimumtoSeventeen(17)YearsandFour(4)MonthsofReclusion
Temporalasmaximum.AccusedEleuterioTan,LeoniloMaranga,PaulodelaPeaand
AlexanderPaciolesareherebycondemnedtojointlyindemnifytheheirsofRamonGabitanthe
sumofTwoHundredThousand(P200,000.00)Pesoswithoutsubsidiaryimprisonmentincase
ofinsolvency.

ThebondputupbyaccusedEleuterioTanforhistemporarylibertyisherebycancelled,andhe
shouldbeincarceratedimmediately.

FindingaccusedEleuterioTan,LeoniloMaranga,PaulodelaPeaandAlexanderPaciolesguilty
beyondreasonabledoubtasprincipalsinCriminalCaseNo.9209477forAttemptedMurder,
definedandpenalizedunderArticle248inrelationtoArticle51oftheRevisedPenalCode
withtheaggravatingcircumstanceofevidentpremeditationonthepartofaccusedEleuterio
Tanonlywithoutanymitigatingcircumstancetooffsetthesame,andapplyingIndeterminate
SentenceLaw,sentencesaccusedEleuterioTantoanimprisonmentoffromTwo(2)Years,Ten
(10)MonthsandTwentyone(21)DaysofPrisionCorreccionalasminimumtoEight(8)
Years,andTwentyone(21)DaysofPrisionMayorasmaximum.

Theaggravatingcircumstanceofevidentpremeditationbeingnotapplicabletotheotherthree
accused,theCourtherebysentencesaccusedLeoniloMaranga,PaulodelaPeaandAlexander
PaciolestoanIndeterminatePenaltyoffromOne(1)Year,Seven(7)MonthsandEleven(11)
DaysofArrestoMayorasminimumtoSix(6)Years,One(1)MonthandEleven(11)Days
ofPrisionCorreccionalasmaximum.

AccusedEleuterioTan,LeoniloMaranga,PaulodelaPeaandAlexanderPaciolesarehereby
condemnedtojointlyindemnifytheoffendedpartyJuvithCerellesthesumofTwenty
Thousand(P20,000.00)Pesos,withoutsubsidiaryimprisonmentincaseofinsolvency.

FindingaccusedEleuterioTan,LeoniloMaranga,PaulodelaPeaandAlexanderPaciolesguilty
beyondreasonabledoubtasprincipalinCriminalCaseNo.9209478forAttemptedMurder,
definedandpenalizedunderArticle248inrelationtoArticle51oftheRevisedPenalCode
withtheaggravatingcircumstanceofevidentpremeditationonthepartofaccusedEleuterio
Tanonlywithoutanymitigatingcircumstancetooffsetthesame,andapplyingIndeterminate
SentenceLaw,sentencesaccusedEleuterioTantoaimprisonmentoffromTwo(2)Years,Ten
(10)MonthsandTwentyone(21)DaysofPrisionCorreccionalasminimumtoEight(8)
Years,andTwentyone(21)DaysofPrisionMayorasmaximum.

Theaggravatingcircumstanceofevidentpremeditationbeingnotapplicabletotheotherthree
accused,theCourtherebysentencesaccusedLeoniloMaranga,PaulodelaPeaandAlexander
PaciolestoanIndeterminatePenaltyoffromOne(1)Year,Seven(7)MonthsandEleven(11)
DaysofPrisionCorreccionalasmaximum.

AccusedEleuterioTan,LeoniloMaranga,PaulodelaPeaandAlexanderPaciolesarehereby
condemnedtojointlyindemnifytheoffendedpartyEduardVillaflorthesumofTwenty
Thousand(P20,000.00)Pesos,withoutsubsidiaryimprisonmentincaseofinsolvency.
SOORDERED.[7]

Dissatisfied with the trial courts decision, accused-appellants interposed an appeal to this
Court, basically imputing errors in the trial courts factual findings. After a careful review of the
evidence on record, the Court finds that the appeal deserves no merit.
The prosecution maintained that accused-appellants suddenly fired upon the victims without
warning. On the other hand, the defense argues that Gabitans group was the first to fire shots
against them after accused-appellants responded to a report of an alleged bicycle theft. The
appeal raises the primary issue of credibility of witness upon which the resolution of all the
other issues raised depends.
Andres Lapot, owner of the pumpboat, was an eyewitness to the events as they
transpired, viz.:
Q. Immediately upon arrival of the fire truck of Naval, Leyte, what happened?
A. We were immediately strapped.
Q. What do you mean by immediately strapped?
A. When the fire truck arrived they immediately opened fire at us.
Q. Who were the persons who were opened fire by the accused?
A. All of us.
Q. Where?
A. Naval pier.
xxxxxxxxx
Q. Who were the four accused?
A. Pat. Eleuterio Tan, Leonilio Maranga, Alexander Pacioles and Paulo de la Pea.
Q. Pat. Eleuterio Tan in relation to that fire truck of Naval, Leyte, where was he situated when he opened
fire?
A. On top of the fire truck.
Q. On what particular place on top of the fire truck?
A. On top of the water tank.
Q. What was his position when you were fired?
A. He was in a prone position.
Q. And what firearm did Eleuterio Tan use?
A. M-16 armalite rifle.
Q. What about Pat Leonilo Maranga, in relation to the fire truck where was he?
A. Infront of the fire truck.
Q. What particular place in front of the fire truck?
A. End of the front of the fire truck.
Q. When the accused fired where was this Leonilo Maranga?
A. Already on the ground but in front the fire truck.
Q. What was his distance to the front of the fire truck when he opened fire?
A. Very close.
Q. What was the position of Leonilo Maranga when he opened fire?
A. He was standing.
Q. Will you please demonstrate how he opened fire?
A. This way.
(Witness stands up as if pointing the firearm at the banca.)
Q. What was the weapon used if you know?
A. M-16 rifle.
Q. Where was Alexander Pacioles in relation to the fire truck?
A. He was at the drivers seat.
Q. What about SPO1 Paulo de la Pea, in relation to the fire truck, where was he?
A. At the rear of the fire truck.
Q. At the time when he opened fire, what was his position?
A. He was at the rear of the fire truck pointing his firearm at us.
Q. What firearm?
A. M-16 rifle.
Q. From what place where Eleuterio Tan opened fire, to the pumpboat, what was the distance?
A. 10 to 15 meters.[8]
With the sudden burst of gunfire, Gabitan was hit with a bullet which produced two
wounds, the entrance and the exit wounds. These were fatal wounds, having hit his lungs, a vital
organ.[9]The wounds caused severe hemorrhage that led to his death.
The testimony of Andres Lapot was corroborated by one of the other victims, Juvith
Cerilles, who was also on board the pumpboat:
Q. What was that incident about?
A. The firetruck suddenly arrived and while the firetruck was still running, I looked at the firetruck.
Q. How far was the firetruck ran, if you can estimate?
A. It was running fast.
Q. Where did it stop?
A. It stopped at the pier.
Q. How did it stop?
xxxxxxxxx
A. It stopped and only two jumped.
PROS. TUGONON:
Q. You said there were two jumped?
A. Yes, sir.
Q. How were you able to recognize them when that was in the evening of May 12, 1991?
A. There was an electric light.
Q. How far did the firetruck stop in relation to the electric light?
A. Very near.
Q. From what part of the firetruck did these two jump?
A. One jumped from the rear, the other one from the front.
Q. Those who jumped from the rear, if you will see them again, were you able to recognize?
ATTY. AVILA:
Only one.
WITNESS:
A. Yes, sir.
PROS. TUGONON:
Q. Will you please look around from the gallery if the one jumped from the rear is present? We request you
to go down from the witness stand and tap the shoulder of the witness.
A. Witness goes down from the witness stand and goes to the place where the accused are seated and taps the
person who, when asked about his name, he answered that he is Paulo dela Pea.
Q. The other one who jumped from the front of the firetruck, were you able to recognize him?
A. Yes, sir.
Q. Will you please look around and please go down from the witness stand and tap his shoulder?
A. Witness goes down from the witness stand and taps the shoulder of Leonilo Maranga.
Q. Do you know who was the driver of the firetruck?
A. I can recognize his face.
Q. If he is here, please tap his shoulder.
A. Witness goes down from the witness stand and taps the shoulder of PO3 Alexander Pacioles who is
present in Court.
xxxxxxxxx
Q. Do you know where Eleuterio Tan was at the time when the firetruck arrived?
A. Yes, sir.
Q. Where was Eleuterio Tan?
A. He was on top of the firetruck.
Q. What was his position on top of the firetruck?
A. He was in a prone position.
Q. When the two persons whom you just tapped on the shoulder, one from the rear and one from the front,
what happened immediately after that?
A. They shot at us with the use of the firearms.
Q. What about Eleuterio Tan, what did he do when you said he was on top of the firetruck?
A. He also fired.
Q. And when you said he fired, towards what direction or towards who did they fire?
A. At us on the pumpboat.
Q. What about the one who was at the drivers wheel, what did he do?
A. He also fired shots. Witness extends her right hand forward.
Q. Towards you and your companions at the pumpboat?
ATTY. AVILA:
Leading.
PROS. TUGONON:
Q. Towards what direction was that fire?
A. At us and seamen.[10]
With nowhere to escape and no place to hide, Cerilles and Villaflor were also hit by bullets
fired by accused-appellants. Cerilles sustained five wounds which, as per medical examination,
were described as gunshot wounds because of the presence of splinters, i.e., metal objects or
pieces of wood embedded in the skin. [11] Her wounds were however, non-fatal. Moreover, it was
found that the victim was situated at a lower level than the assailants because of the direction of
the wounds,[12] which confirms the theory that accused-appellants were on a higher elevation
than the victims. With respect to Villaflor, the examining physician found that he sustained
abrasions on the right leg which were likewise caused by bullets. His wounds are merely
considered superficial since they hit only the epidermis of his skin.[13]
The defense invokes the justifying circumstance of lawful performance of duty. [14] For this
circumstance to be rightfully appreciated, two requisites must concur:
(1) that the accused acted in the performance of a duty or in the lawful exercise of a right or office;
(2) that the injury caused or the offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or office.[15]
Accused-appellants contend that they were only responding to a citizens complaint for theft
of bicycle. It was alleged that those who took the complainants bicycle were with the group of
Gabitan. When accused-appellant Tan allegedly called for help from his fellow police officers,
his co-appellants boarded the fire truck and directly went to the pier which was about 3-5
minutes walking distance away. At the pier, they saw a pumpboat which was about to leave the
shore. According to the defense, someone on board the pumpboat fired a shot at them which
impelled them to return fire.
This version is improbable in the light of the evidence on record and is contrary to the
defense of lawful performance of duty. First, contrary to his assertion, accused-appellant Tan
was positively identified by prosecution witnesses drinking beer inside the disco house prior to
the incident.[16] At least three witnesses testified that he was not wearing a uniform, but maong
pants,[17]white T-shirt and slippers.[18] If it were true that he was on patrol, he should not be inside
the disco house drinking and he should be in the prescribed police uniform. The duty to patrol
means that the officer is not on undercover police work, wherein he may not wear the proper
police uniform because of the nature of the police operation. To conduct patrol work
necessitates the physical presence of the officer in the street or in public places where he will be
immediately recognized through his uniform as a police officer. Hence, accused-appellant could
not have been on patrol duty, especially since he was seen drinking beer inside an entertainment
house.
Second, it is strange that a fire truck was used by accused-appellants in the pursuit of the
alleged thieves. Assuming for the sake of argument that accused-appellants were responding to
a call, they would not position themselves on top of the water tank of the truck where they
would be prone to any attack from the suspects. Assuming further that there was a complaint for
theft, the usual procedure should have been to search for the suspects, and if they are located, to
apprehend them employing the least force as may be necessary to effect a lawful arrest without
warrant. Under Rule 113 of the Rules of Court then in force:

Sec.2.xxx.Noviolenceorunnecessaryforceshallbeusedinmakinganarrest,andtheperson
arrestedshallnotbesubjecttoanygreaterrestraintthanisnecessaryforhisdetention.

Although the employment of high powered firearms, which in this case were M-16 rifles, does
not necessarily connote unnecessary force, the police had no reason to fire their weapons
indiscriminately at a group of persons on board a moving boat. The Rules of Court mandates
that the police officer or any person conducting arrest must identify himself as such and state
his intention to arrest when there is no danger to himself or it would not prejudice the arrest.
[19]
Further, the rules of engagement, of which every police officer must be thoroughly
knowledgeable and for which he must always exercise the highest caution, does not require that
he should immediately draw or fire his weapon if the person asked or to be accosted does not
heed his call. Pursuit without danger should be his next move and not vengeance for personal
feelings or a damaged pride. Police work requires nothing more than the lawful apprehension of
suspects since the completion of the process pertains to other government officers or
agencies. The victims in this case and all those on the pumpboat were not under any obligation
to surrender since they were not prisoners who had escaped from detention, nor were they
identified suspects. Not even the presumption of regularity in the performance of duty [20] can be
resorted to by appellants, nor does it find application in this case because they were no longer
performing a duty when they immediately fired their weapons.
Third, the evidence does not support the contention that it was Gabitan who was the first to
shoot. There were no powder burns on Gabitans hands to indicate that he fired a gun. Rather,
when his dead body was recovered and brought to the Naval Police Station, his .38 caliber gun
was still tucked in his waist.[21]
Fourth, when Acorda asked for accused-appellant Tans badge, the latter instead drew his
gun. Whenever a police officer introduces himself as such, he must show his police
identification card or badge. Persons who deal with the police need not even ask for the officers
identification papers because the officer should have taken the initiative outright. His service
firearm is not an identification card. The best and immediate evidence of police identity is the
badge, the ID and the proper uniform. It is a basic norm of police work, particularly when
approaching a stranger with whom he has no prior contact, not just to introduce himself
properly but also to present his police badge and ID.
Finally, the party who invokes a justifying circumstance has the burden of proof. Failure on
their part to discharge that burden justifies their conviction because of their admission of having
authored the criminal act. This is the essence of a justifying circumstance which applies not
only to self-defense cases but equally to the defense of performance of duty. For this reason, the
Rules of Court allows the reversal of proceedings by requiring the party who invokes a lawful
defense to present evidence ahead of the prosecution.[22]
Accused-appellants defense cannot be given credence because the uncovered vessel was
riddled with no less than 33 bullets holes, [23] in addition to those which hit the three victims. This
could not have been self-defense, but plain and simple revenge for the trivial reason that
accused-appellant Tans girlfriend danced with and allowed her thigh to be touched by another
man.Moreover, the defense of performance of duty, as an affirmative allegation, should be
demonstrated with convincing credibility.[24] Accused-appellants version is lacking in truth, aside
from being a mere afterthought and contrary to human nature. The physical evidence in this
case runs counter to the testimonial evidence, in which case the former prevails. [25] Physical
evidence is a mute but eloquent manifestation of truth, and it ranks high in the hierarchy of our
trustworthy evidence.[26] 26 Being situated on a higher level than the pumpboat, the life of
accused-appellants cannot be said to have been in immediate peril. As such, their judgment of
firing at an escaping pumpboat was highly unjustifiable. The mere fact that their verbal warning
or warning shots were not heeded was no justification to spray bullets on those persons on
board. Accused-appellants should have known, as they ought to have known, that there were
unarmed waitresses on board the pumpboat.
As mentioned earlier, the ultimate question, where the factual version of the prosecution and
the defense contradict each other as in this case, is one of credibility of witness. Such issue is
best left to the trial court because of its unique opportunity of having observed that elusive and
incommunicable evidence of the witness deportment on the stand while testifying, an
opportunity denied to the appellate courts,[27] which usually relies on the cold pages of the silent
records. In this case, it was not convincingly shown that the court a quo had overlooked or
disregarded significant facts and circumstances which when considered would have affected the
outcome of the case[28]or would justify a departure from the assessments and findings of the
court below. The foregoing disquisition clearly demonstrates that the trial courts findings of
facts are binding on this Court although not necessarily with respect to its conclusion drawn
from such facts.
Assuming that accused-appellants first fired warning shots into the air to stop the pumpboat
or that those on board suddenly fired at them, neither of these justified accused-appellants to
spray the moving pumpboat with live bullets hitting it at least 33 times. There is nothing in the
records which shows that accused-appellant were positive that those on board the pumpboat
were the alleged thieves. The mere fact that a pumpboat is moving cannot justify their acts of
firing upon the vessel even if they may have presumed that the persons on board were fleeing
from the police.The pumpboat was found moving away from the shore because its passengers
were bound for the foreign vessel docked kilometers away from the shore.
There is treachery if the attack was so sudden and unexpected that the deceased had no time
to prepare for his defense.[29] When Lapot, Gabitan, Villaflor, Cerilles, the two other waitresses
and the rest of the group were already in the pumpboat, they were suddenly fired upon by
accused-appellants. Placed in that dangerous situation, their only means of escape was to be far
from the reach of the bullets. The remaining immediate option was to move the pumpboat as
fast as they can towards the sea. Those on board had no time to prepare for any defense or even
to seek cover.Under these circumstances, the suddenness and severity of the attack constituted
treachery.[30] It could not be reasonably said that the victims should have expected accused-
appellant Tan to chase them after the latter left them outside the disco house. Moreover, from
the point of view of accused-appellants one of whom was standing on top of the firetruck while
another was at the rear of the truck they were in a more advantageous position considering that
the fire truck was on a higher level than the pumpboat. The pumpboat had no hard covering
from which Gabitans group could hide and protect themselves from the burst of gunfire. Not
even the sea would be a good shelter for the bullets can easily penetrate the water.
For evident premeditation to be appreciated, the following elements must be proved as
conclusively as the crime itself, i.e., by proof beyond reasonable doubt:[31]
(1) The time when the accused decided to commit crime;
(2) An overt act manifestly indicating that he has clung to his determination;
(3) Sufficient lapse of time between decision and execution to allow the accused to reflect upon the
consequences of his act.[32]
The essence of premeditation is that the execution of the act was preceded by cool thought
and reflection upon the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment.[33] To be considered, 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. Premeditation must be based on external acts which must be notorious, manifest, and
evident[34] not merely suspecting indicating deliberate planning. In this case, there was no proof,
direct or circumstantial, offered by the prosecution to show when accused-appellant Tan and his
co-accused meditated and reflected upon their decision to kill the victim and the intervening
time that elapsed before his plan was carried out. Between the time when accused-appellant Tan
confronted Acorda and the time of the shooting of the pumpboat, there was only one continuing
act during which there was no possible time of reflection. There was a lapse of at most only
twenty minutes from the time of the confrontation outside the disco house up to the ambush at
the pier, a period not enough for cool mind to set in. Evident premeditation cannot be presumed
from the external acts alone. Mere suppositions or presumptions, no matter how truthful, cannot
produce the effect of aggravating the liability of the accused.[35]
Though no evident premeditation was proven, conspiracy can be clearly inferred from the
acts of accused-appellants. There is conspiracy when two or more persons come to an
agreement concerning the commission of a felony and the execution of the felony is decided
upon.[36] It is not necessary that there be direct proof that the co-conspirators had any prior
agreement and decision to commit the crime, it being sufficient that the malefactors shall have
acted in concert pursuant to the same objective.[37] Conspiracy arises on the very instant the
plotters agree, expressly or impliedly, to commit the felony and forthwith decide to pursue it. So
that whenever conspiracy is proven the act of one is the act of all. [38] When the fire truck arrived
at the pier and stopped near the lamp post, accused-appellants immediately proceeded to their
respective positions at different locations of the truck with their firearms pointed towards the
pumpboat. When their alleged call to stop the pumpboat went unheeded, they just suddenly
fired at the persons on the moving pumpboat. Firing simultaneously their high-powered
weapons and directing it towards the vessel indicate nothing more but a clear case of concerted
action designed to accomplish the same purpose.
Murder is committed when a person kills another and the killing is attended by any
modifying circumstance such as evident premeditation and treachery. [39] The circumstance of
treachery alleged in the Information qualified the killing of Gabitan to murder.
However, the Informations in the two attempted murder cases failed to allege the essential
elements necessary to convict accused-appellants of the said crimes. In particular, there was
nothing in the latter two Informations from which it may be concluded that accused-appellants
commenced the commission of the felony directly or by overt acts and did not perform all the
acts of execution which should have produced the felony by reason of some cause or accident
other than their own spontaneous desistance.[40] Without these allegations, the elements
necessary to constitute the felony of attempted murder cannot be said to have been properly
alleged, and accused-appellants cannot be convicted of a crime with which they were not
charged. Otherwise, to convict them of attempted murder, when the same is not the crime
charged in the Information, would be to violate their constitutional and statutory right [41] to
criminal due process, and in particular, their right to be informed of the nature and cause of the
accusation against them.[42] It must be remembered that it is not the designation of the offense in
the Information described by the prosecution that governs, rather it is the allegations in the
Information that must be considered in determining what crime is charged. [43] All that the
Informations alleged was that accused-appellants fired and discharged their M-16 rifles against
the moving pumpboat, hitting and wounding the injured complainants, who required medical
attention. Clearly, these bare allegations are not enough to sustain a charge for attempted
murder. At most, based on the allegations in the Information in Criminal Case Nos. 92-09-477
(1531) and 92-09-478 (1532), accused-appellants can be convicted only of physical injuries -- a
lesser felony absorbed in the crime of attempted murder. At any rate, the Rules sanction a
conviction for a crime which is necessarily included in the crime charged, so long as the former
is proven.[44]
Cerilles and Villaflor suffered superficial wounds, but despite accused-appellants manifest
intent to kill, it cannot bring forth a conviction for attempted murder because of the insufficient
allegation in the information to warrant conviction for such crime. The next issue to determine
is the character of the physical injuries they sustained. According to the physician who
examined the victims, the five wounds sustained by Cerilles on the different parts of her body
were non-fatal.[45] Her wounds, barring any complications, may heal in seven to eight days. With
respect to Villaflor, the abrasions he sustained may heal in 2 to 3 weeks time. In fact, Villaflor
did not even return to the doctor for further medical attention, first aid treatment being enough.
[46]
Injuries which require medical attention for a period of at least 10 but not more than 30 days
is classified as less serious, falling under Article 265 of the Revised Penal Code.
On the assumption that a doubt exists as to the legal propriety of the allegations in said two
Informations whether it is attempted murder or physical injuries such doubt should be resolved
by convicting the accused only of physical injuries instead of attempted or frustrated murder or
homicide,[47] if the evidence warrants such conviction.
No aggravating circumstance can be considered against accused-appellants for the death of
Gabitan. Although treachery is also a generic aggravating circumstance, it can no longer be
considered again since it already qualified the killing to murder. The Information in Criminal
Case No. 92-09-477, which involved the wounding of Cerilles, contained no allegation of
treachery. It cannot therefore be considered even if it was proven during trial. On the other
hand, the proof of treachery and its allegation in the Information in Criminal Case No. 92-09-
478 may be appreciated against accused-appellants. As for the aggravating circumstance of
evident premeditation, though it was alleged in the Information, the prosecution failed to
establish it with the required quantum of proof as discussed above; hence the same cannot be
appreciated.
At the time of the commission of the crime in 1991, the penalty imposed for murder
was reclusion temporal maximum to death. The higher penalty of reclusion perpetua to death,
prescribed by R.A. 7659 which took effect after the commission of the crime in this case,
cannot be given retroactive effect because it is unfavorable to accused-appellants. [48] Under
Article 64 of the Revised Penal Code, when the penalty prescribed is composed of three periods
and there is neither mitigating nor aggravating circumstance, the penalty shall be imposed in its
medium period,[49]which is reclusion perpetua.[50] No indeterminate sentence can be imposed on
accused-appellants because of the proscription of its applicability in cases where the penalty
imposed is reclusion perpetua.[51]
As for the other two cases, the crimes committed are less serious physical injuries and slight
physical injury. The penalties for these are prescribed in Article 265 and 266 of the Revised
Penal Code, the relevant portions of which read:

Art.265.Lessseriousphysicalinjuries.Anypersonwhoshallinflictuponanotherphysical
injuriesnotdescribedintheprecedingarticles,butwhichshallincapacitatetheoffendedparty
forlaborfortendaysormore,orshallrequiremedicalassistanceforthesameperiod,shallbe
guiltyoflessseriousphysicalinjuriesandshallsufferthepenaltyofarrestomayor.

Wheneverlessseriousphysicalinjuriesshallhavebeeninflictedwiththemanifestintentto
killoroffendtheinjuredperson,orundercircumstancesaddingignominytotheoffensein
additiontothepenaltyofarrestomayor,afinenotexceeding500pesosshallbeimposed.

Art.266.Slightphysicalinjuriesandmaltreatment.Thecrimeofslightphysicalinjuriesshall
bepunished:

1.Byarrestomenorwhentheoffenderhasinflictedphysicalinjurieswhichshallincapacitate
theoffendedpartyforlaborfromonetoninedays,orshallrequiremedicalattendanceduring
thesameperiod.(emphasissupplied).

The injuries sustained by Villaflor will heal in 2 to 3 weeks. However, considering that the
intent to kill was manifest because of the sporadic burst of high-powered firearms, the crime of
less serious physical injury is qualified, in which case the imposition of the additional penalty of
fine as provided in the second paragraph of Article 265 is warranted.
On the other hand, the crime of slight physical injuries, committed against Cerilles, is
penalized by arresto menor.
The Indeterminate Sentence Law likewise does not apply in these two cases since said law
excludes from its coverage cases where the penalty imposed does not exceed one year.[52]
The trial court held accused-appellants solidarily liable to the heirs of Gabitan for
P200,000.00, and another P20,000.00 each to Juvith Cerilles and Edward Villaflor as
indemnity. In murder, the civil indemnity has been fixed by jurisprudence at P50,000.00. [53] The
grant of civil indemnity in murder requires no proof other than the fact of death as a result of
the crime and proof of appellants responsibility therefor. [54] On the other hand, the separate
award of moral damages is justified because of the physical suffering and mental anguish
brought about by the felonious acts, and is thus recoverable in criminal offenses resulting in
physical injuries or death.[55] The amount of moral damages is also fixed at P50,000.00 for
murder.[56] For the less serious physical injuries, moral damages of P10,000.00 shall be
sufficient. Exemplary damages can be granted only in cases where there is an aggravating
circumstance.[57]
WHEREFORE, the decision of the trial court is AFFIRMED subject to the
following MODIFICATIONS:

(1)AccusedappellantsarefoundguiltyofMURDERinCriminalCaseNo.9209343andeach
issentencedtosufferthepenaltyofreclusionperpetua.

(2)AccusedappellantsarefoundguiltyofLESSSERIOUSPHYSICALINJURIESinCriminal
CaseNo.9209478andeachissentencedtosufferimprisonmentofsix(6)monthsofarresto
mayormaximum,ANDpayafineofP500.00each.

(3)AccusedappellantsarefoundguiltyofSLIGHTPHYSICALINJURIESinCriminalCase
No.9209477andeachissentencedtosufferimprisonmentofthirty(30)daysofarresto
menor.

(4)Allpenaltiesshallbeservedsuccessively.

(5)Accusedappellantsareorderedtosolidarilypay:

a.TotheheirsofGabitan,thereducedamountofP50,000.00ascivilindemnityandP50,000.00
asmoraldamages;

b.ToVillaflor,moraldamagesofP10,000.00inadditiontothecivilindemnityofP20,000.00
awardedbythetrialcourt;and

c.ToCeriles,moraldamagesofP10,000.00inadditiontothecivilindemnityofP20,000.00
awardedbythetrialcourt;and

d.ExemplarydamagesintheamountofP10,000.00eachtoVillaflorandCerilles.

Nosubsidiaryimprisonmentshallbeimposedincaseofinsolvency.

(6)Costsdeoficio.

SO ORDERED.
Davide, Jr., C.J. (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

SEC. 11. RIGHT OF OFFICER TO BREAK INTO BLDG OR


ENCLOSURE

THIRD DIVISION

G.R. No. 87783 August 6, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ADELINA CASTILLER y CASTRO, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for defendant-appellant.


CORTES, J.:

Appellant Adelina Castiller y Castro was charged with and convicted of violation of Section 4, Art. II of
Rep. Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act, under an information
which read:

That on or about the 17th day of April, 1988, in the Municipality of Taguig, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the said accused, without
having been authorized by law, did then and there wilfully, unlawfully and feloniously
sell, deliver and give away to another two (2) foils of dried marijuana fruiting tops and
was found to be in possession of the following: one (1) Ajinomoto Plastic bag containing
545 grams of dried marijuana fruiting tops, ten (10) sticks of marijuana cigarette
wrapped with white paper and five (5) newspaper wrappers each with dried marijuana
fruiting tops having a total weight of 20.77 grams, which is a prohibited drug.

Contrary to law [Rollo, p. 4].

Upon arraignment, appellant, assisted by counsel, entered a plea of "not guilty" to the offense
charged. Trial ensued with the prosecution and the defense presenting their own witnesses and
evidence to support their respective versions of the events leading to the arrest of the accused-
appellant.

According to the prosecution witnesses, composed mainly of police officers, at around nine o'clock in
the morning of April 18, 1988, the anti-narcotics intelligence division of the Taguig Police Station
received information from an undisclosed caller that marijuana was being sold by an old woman in a
small store in North Daang Hari Street, Taguig [TSN, June 29, 1988, p. 4; TSN, October 7, 1988, p.
2]. Immediately, Capt. Ferdinand Santos organized a team composed of police officers Felixberto
Maog (team leader), Jesus Chan, Joselito Lintad, Jessie Pasion, Ruel Viring, and Carlos Mendibel in
order to conduct a buy-bust operation [TSN, June 29, 1988, p. 4]. Pat. Mendibel, assigned to act as
poseur-buyer, was briefed by Capt. Santos separately from the other members of the team who were
to serve as backup [TSN, August 2, 1988, pp. 3-4], and was later handed a twenty-peso bill to be
used to purchase marijuana in the buybust operation [TSN, June 29, 1988, p. 3; TSN, August 10,
1988, p. 14].

Around noontime, the plain clothes team arrived at North Daang Hari. Indeed, they found an old
woman in a small store in No. 303 North Daang Hari, which Pat. Jessie Pasion pointed out to
Mendibel as the subject of the operation. The other members of the team in the meantime positioned
themselves some fifteen (15) meters away from the store [TSN, October 7, 1988, p. 2]. Pat. Mendibel
went to the store, and said to the appellant: "La paiskor ng dalawang foil" [TSN, July 15, 1988, p. 3].
Appellant went inside the store and came back with two (2) foils of marijuana which she gave to Pat.
Mendibel. Taking the marijuana foils, Pat. Mendibel introduced himself as a police officer [TSN, July
15, 1988, pp. 3-4]. Appellant, upon learning that her "customer" was in fact a police officer,
scampered into the back of her store and locked herself inside even before Pat. Mendibel could hand
over the twenty-peso bill in payment of the foils of marijuana [TSN, August 10, 1988, p. 15]. Pat.
Mendibel immediately gave the pre-arranged signal to inform his teammates that the operation had
indeed yielded marijuana, and to get their assistance in arresting the appellant [TSN, October 7,
1988, p. 3]. The police officers knocked at the door but appellant refused to open the door. Later,
however, she voluntarily opened the door when the police officers, still knocking, asked permission to
be allowed inside her store [TSN, August 10, 1988, pp. 16-17].

When the police officers went inside, appellant pointed to a large gray container placed beside some
cases of softdrink [TSN, August 10, 1988, p. 4]. They found a hole at the bottom of the large gray
plastic container, and stored inside were a plastic "Ajinomoto" bag containing substances which
appeared to be marijuana leaves, ten (10) sticks of what appeared to be marijuana cigarettes, five (5)
foils of what appeared to be marijuana leaves wrapped in newspaper, six (6) packs of "Capitol" brand
rolling paper and a red leatherette bag [Exhibits "G", "C", "D", "E", "H"-1" to "H-6" and "H"
respectively].

Appellant and the confiscated evidence were brought to the police station. Pat. Santiago Villa, the
officer assigned to conduct the investigation, informed appellant of her constitutional rights. Stating
only her name and her desire to consult her lawyer [TSN, August 25, 1988, p. 5], appellant opted to
remain silent.
The seized specimen, along with a letter-request dated April 18, 1988 signed by Capt. Ferdinand
Santos, were then brought to the PC Crime Laboratory at Camp Crame so that tests could be
conducted on the substances which appeared to be marijuana.

The laboratory analysis conducted by P/Capt. Lina C. Sarmiento found the specimens to be "positive
for marijuana, a prohibited drug" [Chemistry Report No. D-348-88, Exhibit "A"; and Certificate of
Laboratory Result, Exhibit "J"] i.e., a plastic bag containing 545 grams dried marijuana fruiting tops,
ten (10) sticks of marijuana cigarettes wrapped with white paper, and the five (5) newspaper wrappers
each with dried marijuana fruiting tops having a total weight of 20.77 grams.

On the other hand, the defense presented a different version of the events that transpired.

According to appellant, she lived in a squatter area where the only source of water was an artesian
well located one house away from her store [TSN, February 14, 1989, p. 41. People usually had to
queue up in order to get water from said well. Those living nearby habitually left their water containers
at appellant's store which they later claimed when the need arose [TSN, February 14, 1989, p. 4].
Appellant testified that on the night before the alleged buy-bust operation took place, one "Magda"
was the last person to leave her water container at the store [TSN, January 10, 1989, p. 2]. The next
day, at around 11:30 in the morning, a group of men, strangers to appellant, approached her in her
store. One of them suddenly held her at her right side and informed her that she would be brought to
the police precinct. Appellant protested and asked if he had a warrant, but the man did not answer her
[TSN, January 10, 1989, p. 3]. The others went inside her store and began searching the place.
Appellant was brought to the police precinct while the others continued searching her store [TSN,
January 10, 1989, pp. 3-4]. Appellant denied knowledge of the articles inside the gray container which
was seized from her store but she admitted that she recognized the gray container to be Magda's
[TSN, January 10, 1989, p. 4].

Two other witnesses were presented for the defense. Carmelita Ramos testified that, like some five
other neighbors of appellant, she usually left her water container at the latter's store, and claimed it
when she needed to fetch water from the well again [TSN, February 14, 1989, pp. 3-4]. On the other
hand, Rebecca De los Santos testified that in the evening of April 17, 1988, she saw a certain woman
leave her water container at appellant's store, and heard the name "Magda" mentioned [TSN,
February 14, 1989, p. 2].

The trial court, giving credence to the evidence of the prosecution, found that appellant was caught
in flagrante delicto delivering marijuana. Furthermore, the trial court held that appellant's possession
of considerable quantities of marijuana indicates the intention to sell, distribute or deliver the same,
and that she was "really engaged in the illicit trade of marijuana." The dispositive portion of the
judgment of conviction reads:

WHEREFORE, the Court hereby sentences the accused, ADELINA CASTILLER Y


CASTRO to suffer the penalty of reclusion perpetua with all its accessory penalties, to
pay a fine of P20,000 and to pay the costs.

In the service of her sentence, the accused shall be credited in full with the period of her
preventive imprisonment.

Pursuant to Section 20, Article II of Republic Act No. 6425, as amended, let the 545
grams of dried marijuana fruiting tops, ten (10) sticks of marijuana cigarette and another
20.77 grams of dried marijuana fruiting tops in five (5) newspaper wrappers subject
matter of this case be turned over to the Dangerous Drugs Board Custodian, NBI, to be
disposed of according to law.

Pursuant to Article 45 of the Revised Penal Code, the gray plastic container (Exhibit
"G"), the red leatherette bag (Exhibit "H") and six (6) packs of rolling paper (Exhibits "H-
1" to "H-6") are hereby ordered confiscated and forfeited in favor of the Government.

SO ORDERED.

Appellant assails the decision of the trial court in this appeal, assigning the following errors:

I
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESSES AND IN TOTALLY DISREGARDING THE VERSION OF
THE DEFENSE.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED DESPITE HER


UNLAWFUL ARREST AND ILLEGAL SEARCH AND SEIZURE UPON HER PREMISES.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY


BEYOND REASONABLE DOUBT OF THE CRIME OF VIOLATION OF SECTION 4,
ARTICLE II OF R.A. 6425, AS AMENDED. [Appellants Brief, p. 1.]

Ultimately, this case presents only one issue: whether or not appellant was proven guilty of the crime
charged beyond reasonable doubt.

After a thorough perusal of the evidence of both parties, we find that indeed, as sufficiently
established by the prosecution, appellant is guilty of the crime charged.

The testimonies of the prosecution witnesses substantially covered the circumstances of each and
every stage of the crime, and the resulting arrest, search and seizure. The buy-bust operation team
leader (Pfc Felixberto Maog) testified as to the circumstances leading to and the formation of the
entrapment scheme. The poseur- buyer (Pat. Mendibel) positively identified appellant as the woman
who delivered two (2) foils of marijuana to him, and along with a member of the "back-up" (Pat. Jesus
Chan), testified as to the incidental search conducted on the store, and the prohibited drugs thereon.
The case investigator (Pat. Santiago Villa) testified on the investigation made on appellant and the
examination of the seized articles after the arrest, search and seizure, and the forensic chemist
(P/Capt. Lina Sarmiento) found the seized articles submitted for examination to be positive for
marijuana.

We find their testimonies to be clear, lucid, straightforward and uncontradicted on all material points.

There is nothing in the record to suggest that the police officers were compelled by any motive other
than to accomplish their mission to capture appellant in the execution of the crime. The presumption
being that police officers perform their duties regularly in the absence of any evidence to the contrary
[Rule 13], Section 5 (m), Rules of Court; People v. Natipravat, G.R. No. 69876, November 13, 1986,
145 SCRA 483; People v. De Jesus, G.R. Nos. 71942-3, November 13, 1986, 145 SCRA 521; People
v. Claudia G.R. No. 72564, April 15, 1988, 160 SCRA 6461, their testimonies are entitled to full faith
and credence [People v. Patog, G.R. No. 69620, September 24, 1986, 144 SCRA 429].

On the other hand, the defense did not put a substantial defense other than the denial of the accused.
It is well-settled that mere denials cannot prevail against positive identification of appellant as the
seller of the prohibited substances [People v. Khan, G.R. No. 71863, May 23, 1988, 161 SCRA 406;
People v. Paco, G.R. No. 76893, February 27, 1989, 170 SCRA 681].

Furthermore, the testimonies of defense witnesses Rebecca de los Santos and Carmelita Ramos do
not buttress appellant's case. At best, they present minor details which neither substantiate
appellant's denial of the charges nor strengthen the claim of an arrest and search totally wanting in
legal basis.

Curiously, appellant never made any effort to locate "Magda", the alleged owner of the container filled
with the prohibited substances, in order to have her arrested. Certainly in a case where her own life
and liberty were at stake, the victim of a wrongful accusation would have earnestly, nay even
desperately, sought ways to vindicate herself by at least assisting the police in order to have the true
offender apprehended. Appellant's inaction becomes all the more baffling considering that, by her
own admission, she had known "Magda" for about a year, they lived on the same street (North Daang
Hari), "Magda" fetched water at the artesian well just one house away from appellant's store
everyday, and even bought things from the store [TSN, January 10, 1989, pp. 2, 6].
Collaterally, appellant would now attack the decision by putting at issue the validity of the buy-bust
operation, the failure of prosecution to produce the "buy-bust money", and the legality of the arrest
and the incidental search and seizure.

Appellant underscores in its arguments the admission by the police officers that at the time they set
out to conduct the operation, they did not know who their exact "target" was, having acted solely on a
tip given by a caller who merely described the marijuana seller to be an old woman in a store on
North Daang Hari, but gave no specific name. From this allegation, the defense concluded that no
buy-bust operation had in fact taken place, and that the prosecution merely concocted the story in
order to justify an unlawful arrest resulting from an "intense enthusiasm to respond to the unidentified
caller" [Appellant's Brief, pp. 7-8].

This contention is devoid of merit.

The buy-bust operation is a recognized means of entrapment for the apprehension of drug pushers
[People v. Gatong-o G.R. No. 78698, December 29, 1988, 168 SCRA 716]. This is so because the
very characteristic of prohibited drugs i.e. their being easily concealed and transferred without threat
of detection in small and handy quantities, allows its sale, use and delivery with relative facility.
Contrary to appellant's contention, no surveillance of the area or the subject of the entrapment is
necessary where the police officers had, as in this case, reasonable ground to believe that the
informer and the information given were reliable, and that a crime is indeed being perpetrated. The
buy-bust operation was formed by the police officers precisely to test the veracity of the tip and in
order to apprehend the perpetrator, if he in fact commits the offense, before he further endangers
society. Besides, the tip given describing an old woman keeping a store at North Daang Hari as a
drug pusher sufficiently and accurately points to the appellant. There was no arbitrariness on the part
of the poseur-buyer in approaching appellant, who exactly fit every detail of the description given.

The defense further belabors its theory that no entrapment was effected by pointing to the fact that
the twenty-peso bill allegedly used in the buy-bust operation and later submitted in evidence was not
even marked, thereby rendering the alleged buy-bust operation all the more dubious [Appellant's
Brief, p. 8].

Again, we find no merit in this argument.

Although the alleged buy-bust money was indeed unmarked, nevertheless, this fact alone will not
suffice to weaken the prosecution's case. Pat. Mendibel testified that he was informed by his
immediate superior who handed him the money that it was marked [TSN, June 29, 1988, p. 5; TSN,
August 10, 1988, p. 14]. Apparently however, Mendibel, who joined the police service barely four
months earlier [TSN, June 29, 1988], failed to personally check whether it was marked. As correctly
noted by the Solicitor General, Mendibel was still a "tyro" in such operations, this being his first drugs
case [Appellee's Brief, p. 14; Rollo, p. 84], and he was obviously unfamiliar with the manner in which
buy-bust operations are conducted.

Be that as it may, the failure to mark the bill is not fatal to the case because the Dangerous Drugs Act
punishes "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
such transactions. ... [Emphasis supplied]." In this case, the police officer sought to buy two sticks of
marijuana and his offer was accepted by appellant who produced and delivered the same. The crime
was consummated by the mere delivery of the prohibited goods even without money changing hands.

As to the issue of the legality of appellant's warrantless arrest and the warrantless search, we find
that both arrest and incidental search were made well within the bounds of the law.

The 1985 Rules on Criminal Procedure provide that:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:

a) When, in his presence the person to be arrested has committed, is actually


committing, or is attempting to commit an offense;
b) When an offense has in fact just been committed and he has personal knowledge of
facts indicating that the person to be arrested has committed it;

xxx xxx xxx

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. [Rule 113, Section 5; 1985
Rules on Criminal Procedure.]

Both of the above-cited instances of a lawful warrantless arrest are attendant in this case. Appellant
was caught in flagrante delicto delivering to the poseur-buyer two (2) sticks of marijuana. The offense
was committed in the presence of the police officer, and therefore the latter had personal knowledge
of the commission of the offense. Under the circumstances, appellant's arrest was lawfully effected
without need of a warrant.

Furthermore, where, as in this case, the person to be arrested attempts to evade the same, the Rules
on Criminal Procedure allow a peace officer, in order to make a lawful warrantless arrest, to "... break
into any building or enclosure in which the person to be arrested is or is reasonably believed to be, if
he is refused admittance thereto, after he has announced his authority and purpose" [Section 11,
Rule 113, 1985 Rules on Criminal Procedure]. In the case at bar, the police officers did not have to
break into the premises since appellant voluntarily allowed the law officer inside the store. Therefore,
the entry by the law enforcers into the store in order to effect appellant's arrest was perfectly lawful.

As to the validity of the search conducted upon the premises of appellant's store and the consequent
seizure of incriminating evidence found therein, this Court finds that both search and seizure were
valid.

That searches and seizures must be supported by a valid warrant is not an absolute rule [Manipon Jr.
v. Sandiganbayan, G.R. No. 58889, July 31, 1986, 143 SCRA 267]. Among the exceptions granted by
law is a search incidental to a lawful arrest under Section 12, Rule 126 of the Rules on Criminal
Procedure, which provides that "[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."
In such an instance, a contemporaneous search may be conducted upon the person of the arrestee
and the immediate vicinity where the arrest was made [Nolasco v. Pao, G.R. No. 69803, January 30,
1987, 147 SCRA 5091, as was done in this case. The inclusion of the seized items in the evidence for
the prosecution cannot be challenged as they were seized in conformity with the provision on lawful
searches.

All told, this Court is convinced that appellant Adelina Castiller had indeed committed the offense as
charged. The assailed decision must be upheld. The trial court aptly quoted the dictum of this Court in
the case of People v. Abedes [G.R. No. 73399, November 28, 1986, 146 SCRA 132]: "A drug pusher
is a killer without mercy. He poisons the mind and deadens the body. He deserves no mercy." Our
society has very right to be protected from the potential and actual harm wrought by prohibited drugs.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., and Feliciano, JJ., concur.

Bidin, J., is on leave.

You might also like