1
.R. No. L-52688 October 17, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HONORATO AMBAL, accused-appellant.
AQUINO, J.:
Honorato Ambal appealed from the decision of the Court of First Instance of Camiguin convicting him of
parricide, sentencing him to reclusion perpetua and ordering him to pay an indemnity of twelve thousand
pesos to the heirs of his deceased wife, Felicula Vicente-Ambal (Criminal Case No. 155-C).
In the morning of January 20, 1977, the barangay captain found under some flowering plants near the house
of Honorato Ambal located in Barrio Balbagon, Mambajao, Camiguin, Felicula Vicente-Ambal, 48, mortally
wounded. She asked for drinking water and medical assistance.
She sustained seven incised wounds in different parts of her body. She was placed in an improvised
hammock and brought to the hospital where she died forty minutes after arrival thereat (Exh. B and G).
On that same morning, Honorato Ambal, husband of Felicula, after entrusting his child to a neighbor, went to
the house of the barangay captain and informed the latter's spouse that he (Honorato) had killed his wife
Feling. After making that oral confession, Ambal took a pedicab, went to the municipal hall and surrendered
to a policeman, also confessing to the latter that he had liquidated his wife.
The policeman confiscated Ambal's long bolo, the tip of which was broken (Exh. F). Ambal was bespattered
with blood. His shirt was torn. He appeared to be weak.
The killing was the climax of a fifteen-year-old marriage featured by quarrels and bickerings which were
exacerbated by the fact that the wife sometimes did not stay in the conjugal abode and chose to spend the
night in the poblacion of Mambajao. The couple had eight children.
The immediate provocation for the assault was a quarrel induced by Felicula's failure to buy medicine for
Ambal who was afflicted with influenza. The two engaged in a heated alteration. Felicula told her husband
that it would be better if he were dead ("Mas maayo ka pang mamatay"). That remark infuriated Ambal and
impelled him to attack his wife (Exh. 1).
On January 27, 1977, a police lieutenant charged Ambal with parricide in the municipal court. After a
preliminary examination, the case was elevated to the Court of First Instance where on March 4, 1977 the
fiscal filed against Ambal an information for parricide. At the arraignment, Ambal, assisted by counsel de
oficio, pleaded not guilty.
After the prosecution had presented its evidence, accused's counsel de oficio manifested that the defense of
Ambal was insanity.
The trial court in its order of September 15, 1977 directed the municipal health officer, Doctor Maximino R.
Balbas, Jr., a 1960 medical graduate who had undergone a six-month training in psychiatry in the National
Mental Hospital, to examine Ambal and to submit within one month a report on the latter's mental condition
(p. 65, Record).
Doctor Balbas in his report dated November 3, 1977 found that Ambal was a "passive-aggressive,
emotionally unstable, explosive or inadequate personality" (Exh. 1).
Doctor Balbas testified that during the period form February 1 (twelve days after the killing) to November 3,
1977, when he placed Ambal under observation, the latter did not show any mental defect and was normal
(44-46 tsn November 3,1977).
Asked directly whether Ambal suffered from a mental disease or defect, Doctor Balbas replied: "Before the
commission of the crime, he was normal. After the commission of the crime, normal, but during the
commission of the crime, that is what we call "Psychosis" due to short frustration tolerance" (45 tsn).
Doctor Cresogono Llacuna,a 1937 medical graduate who undertook a two-month observation of mental cases
and who in the course of his long practice had treated around one hundred cases of mental disorders, attended
to Ambal in 1975. He found that Ambal suffered from a psychoneurosis, a disturbance of the functional
nervous system which is not insanity (65 November 15, 1977). The doctor concluded that Ambal was not
insane. Ambal was normal but nervous (68 He had no mental disorder.
Ambal, 49, who reached Grade four, testified on November 16, 1977 or about ten months after the incident.
He said that at the time of the killing he did not know what he was doing because he was allegedly not in full
possession of his normal mental faculties. He pretended not to know that he was charged with the capital
offense of having killed his wife.
But he admitted that he knew that his wife was dead because he was informed of her death. During his
confinement in jail he mopped the floor and cooked food for his fellow prisoners. Sometimes, he worked in
the town plaza or was sent unescorted to buy food in the market.
He said that his wife quarrelled with him. She was irritable. he admitted that he rode on a tricycle when he
surrendered on the day of the killing. He remembered that a week before the incident he got wet while
plowing. He feel asleep without changing his clothes. At midnight, when he woke up, he had chills. That was
the commencement, his last illness.
The trial court concluded from Ambal's behavior immediately after the incident that he was not insane and
that he acted like a normal human being. We agree with the court's conclusion.
Courts should be careful to distinguish insanity in law from passion or eccentricity,
mental weakness or mere depression resulting from physical ailment. The State should
guard against sane murderers escaping punishment through a general plea of insanity.
(People vs. Bonoan, 64 Phil. 87, 94.)
Article 12 of the Revised Penal Code exempts from criminal liability an imbecile or an insane person unless
the latter has acted during a lucid interval. *
According to the dictionary imbecile is a person marked by mental deficiency while an insane person is one
who has an unsound mind or suffers from a mental disorder. "imbecil vale tanto como escaso de razon y es
loco el que ha perdido el juico." An insane person may have lucid intervals but "el embecil no puede tener,
no tiene estos intervalos de Corazon, pues en el no hay una alteracion, sino una carencia del juico mismo" (1
Viada, Codigo Penal, 4th Ed., p. 92.)
Insanity has been defined as "a manifestation in language or conduct of disease or defect of the brain, or a
more or less permanently diseased or disordered condition of the mentality, functional or organic, and
characterized by perversion, inhibition, or disordered function of the sensory or of the intellective faculties,
or by impaired or disordered volition" (Sec. 1039, Revised Administrative Code).
The law presumes that every person is of sound mind, in the absence of proof to the
contrary (Art. 800, Civil Code re Testamentary Succession; U.S. vs. Martinez, 34 Phil.
305, 308). The law always presumes all acts to be voluntary. It is improper to presume
that acts were executed unconsciously (People vs. Cruz, 109 Phil. 288, 292; People vs.
Tagasa, 68 Phil. 147, 153; U.S. vs. Guevara, 27 Phil. 547; People vs. Fausto, 113 Phil.
841).
When there is no proof that the defendant was not of sound mind at the time he
performed the criminal act charged to him, or that he performed it at the time of
madness or of mental derangement, or that he was generally considered to be insane —
his habitual condition being, on the contrary, healthy — the legal presumption is that
he acted in his ordinary state of mind and the burden is upon the defendant to
overcome this presumption (U.S. vs. Zamora, 32 Phil. 218.)
Without positive proof that the defendant had lost his reason or was demented, a few
moments prior to or during the perpetration of the crime, it will be presumed that he
was in a normal condition (U.S. vs. Hontiveros Carmona, 18 Phil. 62).
A defendant in a criminal case, who interposes the defense of mental incapacity, has the burden of
establishing that fact, meaning that he was insane at the very moment when the crime was committed (People
vs. Bascos, 44 Phil. 204.)
What should be the criterion for insanity or imbecility? We have adopted the rule, based on Spanish
jurisprudence, that in order that a person could be regarded as an imbecile within the meaning of article 12 of
the Revised Penal Code, he must be deprived completely of reason or discernment and freedom of the will at
the time of committing the crime (People vs. Formigonez, 87 Phil. 658, 660)
In order that insanity may be taken as an exempting circumstance, there must be complete deprivation of
intelligence in the commission of the act or that the accused acted without the least discernment. Mere
abnormality of his mental faculties does not exclude imputability. (People vs. Cruz, 109 Phil. 288,292;
People vs. Renegado, L-27031, May 31,1974,57 SCRA 275, 286.)
A man who could feel the pangs of jealousy and who tried to vindicate his honor by taking violent measures
to the extent of killing his wife (whom he suspected of infidelity) can hardly be regarded as an imbecile
(Formigones case).
Where the accused had a passionate nature, with a tendency to having violent fits when angry, his acts of
breaking glasses and smashing dishes are indications of an explosive temper and not insanity, especially
considering that he did not turn violent when a policeman intercepted him after he had killed his wife. (Cruz
case.)
There is a vast difference between an insane person and one who has worked himself
up into such a frenzy of anger that he fails to use reason or good judgment in what he
does. Persons who get into a quarrel or fight seldom, if ever, act naturally during the
fight. An extremely angry man, often, if not always, acts like a madman. The fact that
2
a person acts crazy is not conclusive that he is insane. The popular meaning of the
word I "crazy" is not synonymous with the legal terms "insane", "non compos mentis,"
"unsound mind","idiot", or "lunatic" (U.S. vs. Vaquilar, 27 Phil. 88, 91.)
The heat of passion and feeling produced by motives of anger, hatred, or revenge is not
insanity. (People vs. Foy, 138 N.Y. 664, cited in Vaquilar case, on p. 92.)
One who, in possession of a sound and, commits a criminal act under the impulse of
passion or revenge, which may temporarily dethrone reason and for the moment
control the will, cannot nevertheless be shielded from the consequences of the act by
the plea of insanity. Insanity will only excuse the commission of a criminal act, when
it is made affirmatively to appear that the person committing it was insane, and that the
offense was the direct consequence of his insanity (State vs. Strickly, 41 Iowa 232,
cited in Vaquilar case, on p. 94.)
The defense of insanity was rejected in a case where the accused killed by strangulation a sixteen-year-old
girl, who got leaves from his banana plants, and sliced the flesh of her legs, thighs and shoulders, cooked the
flesh and ate it like a cannibal. (People vs. Balondo, L-27401, October 31, 1969, 30 SCRA 155).
Being weak-minded does not necessarily mean that the accused is insane (People vs. Martin, 120 Phil. 14,
20-21).
Justice Cardozo in his article, "What Medicine Can Do For The Law", traces briefly the origin of the rule
regarding insanity as a defense. He says:
In the early stages of our law, way back in medieval times, insanity was never a
defense for crime. The insane killer, like the man who killed in self-defense, might
seek a pardon from the king, and would often get one. He had no defense at law.
Gradually insanity was allowed, but only within narrow limits This was what was
become known as the wild-beast stage of the defense. Then the limits of the defense
were expanded, but still slowly and narrowly. The killer was excused if the disease of
the mind was such that he was incapable of appreciating the difference between right
and wrong. At first this meant, not the right and wrong of particular case, but right and
wrong generally or in the abstract, the difference, as it was sometimes said, between
good and evil. Later, the rule was modified in favor of the prisoner so that capacity to
distinguish between right and wrong generally would not charge with responsibility if
there was no capacity to understand the difference in relation to the particular act, the
subject of the crime.
The rule governing the subject was crystallized in England in 1843 by the answer
made by the House of Lords to questions submitted by judges in the famous case of
McNaghten, who was tried for the murder of one Drummond, the secretary of Sir
Robert Peel.
In the M'Naghten case, 8 Eng. Rep. 718, Clark and Finelly 200, the following rule was laid down: "To
establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act,
the party accused was laboring under such a defect of reason from disease of the mind, as not, to know the
nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was
wrong."
In the M'Naghten case, it appears that Daniel M'Naghten shot Edward Drummond on January 20, 1843.
Drummond died as a consequence of the gunshot wound on April 25, 1843. Drummond was the private
secretary of Sir Robert Peel, prime minister M'Naghten shot Drummond, thinking he was Sir Robert.
M'Naghten labored under the the insane delusion that he was being hounded by his enemies and that the
prime minister was one of them. Medical evidence tended to prove that M'Naghten was affected by morbid
delusions which carried him beyond the power of his own control, leaving him unable to distinguish right
and wrong, and that he was incapable of controlling his conduct in connection with the delusion. The jury
found him not guilty by reason of insanity.
As stated in another case, the "test of the responsibility for criminal acts, when insanity is asserted, is the
capacity of the accused to distinguish between right and wrong at the time and with respect to the act which
is the subject of the inquiry. (Coleman's case,1 N.Y. Cr. Rep. 1.)
Another test is the so-called "irresistible impulse" test which means that "assuming defendant's knowledge of
the nature and quality of his act and his knowledge that the act is wrong, if, by reason of disease of the mind,
defendant has been deprived of or lost the power of his will which would enable him to prevent himself from
doing the act, then he cannot be found guilty." The commission of the crime is excused even if the accused
knew what he was doing was wrong provided that as a result of mental disease he lacked the power to resist
the impulse to commit the act. (State v. White, 270 Pac. 2d. 727, 730; Leslie Kast, 31 North Dakota Law
Review, pp. 170, 173.)
The latest rule on the point is that "the so-called right wrong test, supplemented by the irresistible impulse
test, does not alone supply adequate criteria for determining criminal responsibility of a person alleged
mental incapacity." "An accused is not criminally responsible if his unlawful act is the product of a mental
disease or a mental defect. A mental disease relieving an accused of criminal responsibility for his unlawful
act is a condition considered capable of improvement or deterioration; a mental defect having such effect on
criminal responsibility is a condition not considered capable of improvement or deterioration, and either
congenital, or the result of injury or of a physical or mental disease." (Syllabi, Durham v. U.S., 214 F. 2nd.
862, 874, 45 A.L.R. 2d. 1430 [1954].)
As stated in 22 C.J.S. 203, "the general test of criminal responsibility may be stated to be the capacity to
understand the nature and consequences of the act charged and the ability to distinguish between right and
wrong as to such act, and in a majority of jurisdictions this is the exclusive test."
And, as noted in 21 Am Jur 2d. 118, the rule in the M'Naghten case exists along with the "irresistible
impulse" test or some other formula permitting a defendant to be exculpated on the ground that, although he
knew the act was wrong, he was unable to refrain from committing it.
Since the broadest test suggested, which is the Durham or "Product" rule, also permits
inability to distinguish between right and wrong to be considered, even though it
refuses to limit the inquiry to that topic, it would appear that insanity which meets this
test is a defense in all Anglo-American jurisdictions and that the only controversy is
over whether there are some cases in which the right-and-wrong test is not met, but in
which a defense on grounds of insanity should nevertheless be recognized. (21 Am Jur
2d 118.)
In the instant case, the alleged insanity of Ambal was not substantiated by any sufficient evidence. The
presumption of sanity was not overthrown. He was not completely bereft of reason or discernment and
freedom of will when he mortally wounded his wife. He was not suffering from any mental disease or defect.
The fact that immediately after the incident he thought of surrendering to the law-enforcing authorities is
incontestable proof that he knew that what he had done was wrong and that he was going to be punished for
it.
Ambal is guilty of parricide with the mitigating circumstance of voluntary surrender to the authorities.
Article 246 of the Revised Penal Code punishes parricide with reclusion perpetua to death. The lesser
penalty should be imposed because of the presence of one mitigating circumstance and the absence of
aggravating circumstances (Art. 63[3], Revised Penal Code).
WHEREFORE, the trial court's decision is affirmed. Costs against the appellant.
NIEL F. LLAVE, G.R. No. 166040
Petitioner,
Present:
PANGANIBAN, C. J., Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ. *
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
April 26, 2006
CALLEJO, SR., J.:
Before the Court is a Petition for Review of the Decision [1] of the Court of Appeals (CA) in CA-G.R. CR No.
26962 affirming, with modification, the Decision[2] of the Regional Trial Court (RTC) of Pasay City, Branch
109, in Criminal Case No. 02-1779 convicting Petitioner Neil F. Llave of rape.
On September 27, 2002, an Information charging petitioner (then only 12 years old) with rape was
filed with the RTC of Pasay City. The inculpatory portion of the Information reads:
That on or about the 24th day of September 2002, in Pasay City, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
3
named accused, NEIL LLAVE Y FLORES, aka NIEL F. LLAVE, a minor over nine (9)
years of age and under fifteen (15) but acting with discernment, by means of force threat
and intimidation, did then and there willfully, unlawfully, feloniously have carnal
knowledge of the complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven
(7) years of age, against her will and consent.
Contrary to law.[3]
The Case for the Prosecution
The spouses Domingo and Marilou Santos were residents of Pasay City.[4] One of their children, Debbielyn,
was born on December 8, 1994.[5] In 2002, she was a Grade II student at the Villamor Air Base Elementary
School in Pasay City[6] and attended classes from 12:00 noon to 6:00 p.m.[7]
Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs at a nearby
church.[8] Adjacent to their house was that of Teofisto Bucud, a barbecue vendor who would usually start selling
at 6:30 p.m.[9] Next to Teofistos residence was a vacant house.[10]
Debbielyn testified that on September 24, 2002, she arrived home at past 6:00 p.m. She changed her clothes
and proceeded to her mothers store. Marilou asked her daughter to bring home the container with the unsold
quail eggs.[11] Debbielyn did as told and went on her way. As she neared the vacant house, she saw petitioner,
who suddenly pulled her behind a pile of hollow blocks which was in front of the vacant house. There was a
little light from the lamp post.[12] She resisted to no avail.[13] Petitioner ordered her to lie down on the
cement. Petrified, she complied. He removed her shorts and underwear then removed his own. He got on top
of her.[14] She felt his penis being inserted into her vagina. He kissed her.[15] She felt pain and cried.[16] She was
sure there were passersby on the street near the vacant house at the time.
It was then that Teofisto came out of their house and heard the girls cries. He rushed to the place and saw
petitioner on top of Debbielyn, naked from the waist down.Teofisto shouted at petitioner, and the latter fled
from the scene. Teofisto told Debbielyn to inform her parents about what happened.[17] She told her father about
the incident.[18] Her parents later reported what happened to the police authorities. [19] Debbielyn told the police
that petitioner was a bad boy because he was a rapist.[20]
Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out of their house to get his barbecue
grill. He heard someone moaning from within the adjacent vacant house. [21] He rushed to the place and saw
petitioner, naked from waist down, on top of Debbielyn, making pumping motions on her anus. [22] The girl was
crying. He shouted at petitioner, Hoy, bakit ginawa mo yan?[23] Petitioner hurriedly put his shorts on and
fled.[24] Neighbors who had heard Teofisto shouting arrived.[25] Later, Teofisto gave a written statement to the
police investigator regarding the incident.[26]
Domingo Santos testified that at about 6:30 p.m. that day, he was inside their house. His daughter, Kimberly
Rose, suddenly told him that Debbielyn had been raped near the vacant house by petitioner. [27] He rushed to
the place and found her daughter crying. When he asked her what happened, she replied that she had been
abused. He brought Debbielyn to their house and then left.[28] He then looked for petitioner and found him at
his grandmothers house. A barangay tanod brought petitioner to the barangay hall.[29] On September 25, 2002,
he brought her daughter to the Philippine General Hospital Child Protection Unit at Taft Avenue, Manilawhere
she was examined by Dr. Mariella S. Castillo.
Dr. Castillo declared on the witness stand that she was a physician at the Child Protection Unit of the Philippine
General Hospital. On September 25, 2002, she interviewed the victim who told her Masakit ang pepe ko, Ni-
rape ako.[30] Dr. Castillo also conducted a genital examination on the child, and found no injury on the hymen
and perineum, but found scanty yellowish discharge between the labia minora.[31] There was also a fresh
abrasion of the perineal skin at 1 oclock position near the anal opening.[32] She declared that the findings
support the theory that blunt force or penetrating trauma (such as an erect penis, finger, or any other foreign
body[33]) was applied to the perineal area[34] not more than six or seven days before.[35] The abrasion could have
been caused on September 24, 2002. She found no spermatozoa in the vaginal area or injury at the external
genitalia;[36] neither did she find any other injury or abrasion on the other parts of the victims body.[37] She
concluded that her findings were consistent with the victims claim that she was sexually abused by petitioner.
Barangay Tanod Jorge Dominguez, for his part, testified that on September 24, 2002, Marilou Santos arrived
at the barangay hall and reported that her daughter had been raped by petitioner who was then in his aunts
house at Cadena de Amor Street. Barangay Captain Greg Florante ordered him and Barangay Tanod Efren
Gonzales to proceed to Cadena de Amor Street and take the boy into custody, and they did as they were told.[38]
The Case for the Accused
Petitioner, through counsel, presented Dr. Castillo as witness. She declared that the abrasions in the
perineal area could have been caused while the offender was on top of the victim. [39] She explained that the
distance between the anus and the genital area is between 2.5 to 3 centimeters. [40] The abrasion was located at
of an inch from the anal orifice.
Petitioner testified and declared that he was a freshman at the Pasay City South High School.[41] He
had been one of the three outstanding students in grade school and received awards such as Best in
Mathematics.[42] He also finished a computer course and received a Certificate of Completion from the
Philippine Air Force Management Information Center.[43] He denied having raped the private complainant. He
declared that at 6:30 p.m. on September 24, 2002, he was outside of their house to buy rice in
the carinderia[44] and he saw her on his way back.[45] He also met his father, who asked him what he had done
to their neighbor. He was also told that the victims father was so angry that the latter wanted to kill him.[46] He
did not ask his father for the name of the angry neighbor. He was also told to pass by Cadena de Amor Street in
going to his aunts house. Petitioner also declared that his mother prodded him to go to his aunts house.[47] Later,
Domingo and Barangay Tanod Jorge Dominguez arrived at his aunts house and brought him to
the barangay hall. He did not know of any reason why Debbielyn and her parents would charge him with
rape.[48]
Petitioner also declared that he played cards with Debbielyn.[49] While confined at the Pasay City
Youth Home during trial, he had a crush on Issa, a young female inmate. Using a piece of broken glass (bubog)
about half-an-inch long, he inscribed her name on his right thigh, left leg and left arm. [50]
Nida Llave testified and identified her sons Certificate of Live Birth, in which it appears that he was
born on March 6, 1990.[51] She declared that at about 6:30 p.m. on September 24, 2000, Marilou Santos and
Marilyn Bucud arrived in their house looking for her son. According to Marilyn, her son had raped the private
complainant. She went to their house to look for her son and came across Domingo Santos who threatened to
kill her son. She and her husband proceeded to the house of his sister Josefina at Cadena de Amor Street where
petitioner had hidden for a while.[52]
At the conclusion of the trial, the court rendered judgment convicting Neil of the crime charged.
The decretal portion of the decision reads:
FROM ALL THE FOREGOING, the Court opines that the prosecution has
proven the guilt of the xxx Niel Llave y Flores beyond reasonable doubt when he
forcibly pulled the complainant towards the vacant lot, laid on top of her and had carnal
knowledge with the [complainant] against her will and consent who is only seven (7)
years old (sic). Moreover, he being a minor, he cannot be meted with the Death penalty.
WHEREFORE, the Court finds the CICL [Child in Conflict with the
Law] Niel Llave y Flores guilty beyond reasonable doubt, and crediting him with the
special mitigating circumstance of minority, this Court hereby sentences him to prision
mayor minimum, Six (6) years and One (1) day to Eight (8) years, and pay civil
indemnity of Fifty Thousand Pesos (Php50,000.00).[53]
The trial court declared that based on the evidence of the prosecution that petitioner pushed the
victim towards the vacant house and sexually abused her, petitioner acted with discernment. It also considered
petitioners declaration that he had been a consistent honor student.[54]
Petitioner appealed the decision to the CA, where he averred the following in his Brief as appellant
therein:
I
THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL
INCONSISTENCIES OF THE TESTIMONY OF COMPLAINING WITNESS WITH
THAT OF THE MEDICAL REPORT ON THE FACTUAL ALLEGATION OF
BLEEDING.
II
THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE
TESTIMONY OF THE PROSECUTION WITNESS TEOFISTO BUCUD WHO HAS
REASON TO FABRICATE A SCENARIO AGAINST ACCUSED-APPELLANT
4
BECAUSE HE HAS PERSONAL VENDETTA AGAINST THE LATTERS
FAMILY/RELATIVES.
III
THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE
PROSECUTION OF RAPE BY HAVING CARNAL KNOWLEDGE, BEING
CONTRARY TO THE PHYSICAL EVIDENCE.[55]
The CA rendered judgment affirming the decision with modification as to the penalty meted on
him.
WHEREFORE, the decision subject of the instant appeal is hereby
MODIFIED in that the accused-appellant is sentenced to an indeterminate penalty of
two (2) years and four (4) months of prision correccional medium as the minimum to
eight (8) years and one (1) day of prision mayor medium as the maximum. Additionally,
the accused-appellant is ordered to pay the complaining witness the amount of P50,000
by way of moral damages and P20,000 by way of exemplary damages.
SO ORDERED.[56]
Petitioner filed a Motion for the Reconsideration,[57]contending that the prosecution failed to adduce
proof that he acted with discernment; hence, he should be acquitted. The appellate court denied the motion in
a Resolution[58] dated November 12, 2004 on the following finding:
As regards the issue of whether the accused-appellant acted with
discernment, his conduct during and after the crime betrays the theory that as a minor,
the accused-appellant does not have the mental faculty to grasp the propriety and
consequences of the act he made. As correctly pointed out by the prosecution, the fact
that forthrightly upon discovery, the accused-appellant fled the scene and hid in his
grandmothers house intimates that he knew that he did something that merits
punishment.
Contrary to the urgings of the defense, the fact that the accused-appellant is
a recipient of several academic awards and is an honor student further reinforces the
finding that he [is] possessed [of] intelligence well beyond his years and is thus poised
to distinguish, better at least than other minors his age could, which conduct is right and
which is morally reprehensible.[59]
Petitioner now raises the following issues and arguments in the instant petition before this Court:
ISSUES
I Petitioner also claims that the victim was tutored or coached by her parents on her testimony before
WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER
BEYOND REASONABLE DOUBT.
II
WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS BUT
BELOW 15 YEARS OF AGE AT THE TIME OF THE CRIME, ACTED WITH
DISCERNMENT.
III
WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.
ARGUMENTS
I is consummated if there is some degree of penetration within the vaginal surface. Corroborative evidence is
THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF
COMPLAINING WITNESS WITH THE MEDICAL REPORT BELIE THE FINDING
OF RAPE.
II
PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.
III
PETITIONER ACTED WITHOUT DISCERNMENT.
IV
THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.
V
THE COMPLAINT IS FABRICATED.
VI
PETITIONER WAS DENIED DUE PROCESS OF LAW.[60]
The issues raised by the petitioner in this case may be summarized as follows: (1) whether he was
deprived of his right to a preliminary investigation; (2) whether he had carnal knowledge of the private
complainant, and if in the affirmative, whether he acted with discernment in perpetrating the crime; (3) whether
the penalty imposed by the appellate court is correct; and (4) whether he is liable to pay moral damages to the
private complainant.
On the first issue, petitioner avers that he was deprived of his right to a preliminary investigation
before the Information against him was filed.
On the second issue, petitioner claims that the prosecution failed to prove beyond reasonable doubt
that he had carnal knowledge of Debbielyn. He insists that her testimony is inconsistent on material points. He
points out that she claimed to have felt pain in her vagina when petitioner inserted his penis to the point that
she cried; this, however, is negated by Dr. Castillos report stating that there was no evidence of injury on the
victims external genitalia. Petitioner maintains that as against the victims testimony and that of Dr. Castillos
report, the latter should prevail.
According to petitioner, mere touching of the female organ will not suffice as factual basis of
conviction for consummated rape. Moreover, the victims testimony lacks credibility in view of her admission
that, while she was being allegedly ravished by him, there were passersby along the street. Besides, petitioner
avers, an abrasion may be caused by an invasion of the body through the protective covering of the
skin. Petitioner insists that the prosecution failed to prove the cause of the abrasion.
the trial court. Dr. Castillo testified that when she interviewed Debbielyn, the latter admitted to her that she did
not understand the meaning of the word rape and its Filipino translation, hinalay, and that the genital
examination of the girl was at the insistence of the latters parents.
Petitioner avers that Teofisto Bucuds testimony has no probative weight because and had an ill-
motive to testify against him. Petitioner stated, on cross-examination, that his uncle, Boy, had the house rented
by Teofisto demolished. Petitioner avers that the witness persuaded the victims parents to complain against
him, as gleaned from the testimony of Police Investigator Milagros Carroso.
For its part, the Office of the Solicitor General (OSG) avers that petitioner was subjected to an
inquest investigation under Section 7, Rule 112 of the Revised Rules of Criminal Procedure, as gleaned from
the Certification of the City Prosecutor incorporated in the Information. It avers that the absence of external
injuries does not negate rape; neither is it necessary that lacerations be found on the hymen of a victim. Rape
not necessary to prove rape. As long as the testimony of the victim is credible, such testimony will suffice for
conviction of consummated rape. When the victim testified that she was raped, she was, in effect, saying all
5
that is necessary to prove that rape was consummated. Petitioners evidence to prove ill-motive on the part of
Teofisto Bucud in testifying against him is at best flimsy. Moreover, it is incredible that the victim and her
parents would charge petitioner with rape solely on Teofistos proddings.
The OSG insists that the petitioner acted with discernment before, during, and after the rape based
on the undisputed facts. The submission of the OSG follows:
Petitioner argues that since he was only 12 years old at the time of the alleged
rape incident, he is presumed to have acted without discernment under paragraph 3 of
Article 12 of the Revised Penal Code. Under said provision, the prosecution has the
burden of proving that he acted with discernment. In the instant case, petitioner insists
that there was no evidence presented by the prosecution to show that he acted with
discernment. Hence, he should be exempt from criminal liability.
Petitioners arguments are bereft of merit.
Discernment, as used in Article 12(3) of the Revised Penal Code is defined as follows:
the discernment that constitutes an exception to the exemption from criminal liability of
a minor under fifteen (15) years of age but over nine (9), who commits an act prohibited
by law, is his mental capacity to understand the difference between right and wrong
(People v. Doquena, 68 Phil. 580 [1939]). For a minor above nine but below fifteen
years of age, he must discern the rightness or wrongness of the effects of his act
(Guevarra v. Almodova, G.R. No. 75256, January 26, 1989).
Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375, 1998 Ed.), writes
that discernment is more than the mere understanding between right and wrong. Rather,
itmeans the mental capacity of a minor between 9 and 15 years of age to fully appreciate
the consequences of his unlawful act (People v. Navarro, [CA] [51 O.G. 4062]). Hence,
in judging whether a minor accused acted with discernment, his mental capacity to
understand the difference between right and wrong, which may be known and should be
determined by considering all the circumstances disclosed by the record of the case, his
appearance, his attitude and his behavior and conduct, not only before and during the
commission of the act, but also after and even during the trial should be taken into
consideration (People v. Doquena, supra).
In the instant case, petitioners actuations during and after the rape incident, as well as
his behavior during the trial showed that he acted with discernment.
The fact appears undisputed that immediately after being discovered by the
prosecutions witness, Teofisto Bucud, petitioner immediately stood up and ran away.
Shortly thereafter, when his parents became aware of the charges against him and that
private complainants father was looking for him, petitioner went into hiding. It was not
until the Barangay Tanod came to arrest him in his grandmothers house that petitioner
came out in the open to face the charges against him. His flight as well as his act of
going into hiding clearly conveys the idea that he was fully aware of the moral depravity
of his act and that he knew he committed something wrong. Otherwise, if he was indeed
innocent or if he was not least aware of the moral consequences of his acts, he would
have immediately confronted private complainant and her parents and denied having
sexually abused their daughter.
During the trial, petitioner submitted documentary evidence to show that he
was a consistent honor student and has, in fact, garnered several academic awards. This
allegation further bolstered that he acted with discernment, with full knowledge and
intelligence. The fact that petitioner was a recipient of several academic awards and was
an honor student further reinforces the finding that he was possessed of intelligence well
beyond his years and thus was able to distinguish, better than other minors of his age
could, which conduct is right and which is morally reprehensible. Hence, although
appellant was still a minor of twelve years of age, he possessed intelligence far beyond
his age. It cannot then be denied that he had the mental capacity to understand the
difference between right and wrong. This is important in cases where the accused is
minor. It is worthy to note that the basic reason behind the enactment of the exempting
circumstances under Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent on the part of the accused. In expounding on
intelligence as the second element of dolus, the Supreme Court has stated: The second
element of dolus is intelligence; without this power, necessary to determine the morality
of human acts to distinguish a licit from an illicit act, no crime can exist, and because
the infant has no intelligence, the law exempts (him) from criminal liability (Guevarra
v. Aldomovar, 169 SCRA 476 [1989], at page 482).
The foregoing circumstances, from the time the incident up to the time the
petitioner was being held for trial, sufficiently satisfied the trial court that petitioner
acted with discernment before, during and after the rape incident. For a boy wanting in
discernment would simply be gripped with fear or keep mum. In this case, petitioner
was fully aware of the nature and illegality of his wrongful act. He should not, therefore,
be exempted from criminal liability. The prosecution has sufficiently proved that
petitioner acted with discernment.[61]
In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on the peri-anal skin and
not in the labia of the hymen. He further insists that there can be no consummated rape absent a slight
penetration on the female organ. It was incumbent on the prosecution to prove that the accused acted with
discernment but failed. The mere fact that he was an honor student is not enough evidence to prove that he
acted with discernment.
The petition is not meritorious.
On the first issue, petitioners contention that he was deprived of his right to a regular preliminary
investigation is barren of factual and legal basis. The record shows that petitioner was lawfully arrested without
a warrant. Section 7, Rule 112 of the Revised Rules of Criminal Procedure provides:
SEC. 7. When accused lawfully arrested without warrant. When a person is
lawfully arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without need
of such investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor, the complaint
may be filed by the offended party or a peace officer directly with the proper court on
the basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for
a preliminary investigation in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of
his counsel. Notwithstanding the waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its filing,
ask for a preliminary investigation with the same right to adduce evidence in his defense
as provided for in this Rule.
As gleaned from the Certification[62] of the City Prosecutor which was incorporated in the Information,
petitioner did not execute any waiver of the provisions of Article 125 of the Revised Penal Code before the
Information was filed. He was arraigned with the assistance of counsel on October 10, 2002, and thereafter
filed a petition for bail.[63] Petitioners failure to file a motion for a preliminary investigation within five days
6

from finding out that an Information had been filed against him effectively operates as a waiver of his right to
such preliminary investigation.[64] Q: And what happened to you in going to your house?
A: Totoy pulled me.
On the second issue, a careful review of the records shows that the prosecution adduced evidence to prove
beyond reasonable doubt that petitioner had carnal knowledge of the private complainant as charged in the Q: Pulled you where?
Information. In People v. Morata[65] the Court ruled that penetration, no matter how slight, or the mere A: Totoy pulled me towards an uninhabited house.
introduction of the male organ into the labia of the pudendum, constitutes carnal knowledge. Hence, even if
the penetration is only slight, the fact that the private complainant felt pains, points to the conclusion that the Q: What happened after Totoy pulled you in an uninhabited house?
rape was consummated.[66] A: He told me to lie down on the cement.

From the victims testimony, it can be logically concluded that petitioners penis touched the middle Q: What happened after he laid you down on the cement?
part of her vagina and penetrated the labia of the pudendum. She may not have had knowledge of the extent of A: He removed my shorts and panty. He also removed his shorts.
the penetration; however, her straightforward testimony shows that the rape passed the stage of
consummation.[67]She testified that petitioner dragged her behind a pile of hollow blocks near the vacant house Q: After Totoy removed your shorts and panty and he also removed his shorts, what
and ordered her to lie down. He then removed her shorts and panty and spread her legs. He then mounted her happened next?
and inserted his penis into her vagina: A: He inserted his penis inside my vagina.

Fiscal Barrera: Q: What did you feel when Totoy inserted his penis inside your vagina?
A: It was painful.
Q: From what time up to what time?
A: From 12:00 oclock noon up to 6:00 p.m. Q: Aside from inserting his penis inside your vagina, what else did you do to you?
A: He kissed me on my lips.
Q: September 24, 2002 and going over the calendar, it was Tuesday. Did you go to
school from 12:00 oclock noon up to 6:00 p.m.? Q: After Totoy inserted his penis inside your vagina and kissed you on your lips, what
A: Yes, Sir, on the same date I went to school. did you do?
A: I cried.
Q: At about 6:00 p.m., Sept. 24, 2002, where were you?
A: I went home. Q: What happened when you were crying when he inserted his penis inside your vagina
and kissed you on your lips. What happened next?
Q: And by whom you are referring to your house at 1-C Carnation St., R. Higgins, A: Somebody heard me crying.
Maricaban, Pasay City?
A: Yes, Sir. Q: Who heard you crying?
A: Kuya Teofe, Sir.
Q: And what did you do after you went home?
A: I changed my clothes and then I proceeded to the store of my mother.

Q: And where is that store of your mother where you went? Q: What happened after you cried and when somebody heard you crying?
A: It is near our house, walking distance. A: Totoy ran away.

Q: What is your mother selling in that store? Q: After Totoy ran away, what happened next?
A: She sells quail eggs. A: When Totoy ran away, I was left and Kuya Teofe told me to tell the matter to my
parents.
Q: And were you able to immediately go to the store of your mother where she was
selling quail eggs? Q: Did you tell your parents what Totoy did to you?
A: Yes, sir. A: Yes, Sir.[68]

Q: And that was past 6:00 p.m. already?

A: Yes, sir. On cross-examination, the victim was steadfast in her declarations:

Q: And what happened when you went to the store where your mother is selling quail
eggs past 6:00 p.m.? ATTY. BALIAD:
A: My mother asked me to bring home something.
Q: Again, in what particular position were you placed by Totoy when he inserted his
Q: What were these things you were asked by your mother to bring home? penis inside your vagina?
A: The things she used in selling. A: I was lying down.

Q: And did you obey what your mother told you to bring home something? Q: Aside from lying down, how was your body positioned at that time?
A: Yes, Sir. A: He placed on top of me.
7

Q: After he placed on top of you, what else did he do to you, if any? Q: Where is your pepe?
A: He started to kiss me and then he inserted his penis inside my vagina. A: (Witness pointing to her vagina.)

Q: Did you feel his penis coming in into your vagina? Q: Where is your anus?
A: Yes, Sir. A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in this case penetrated
Q: Are you sure that his penis was inserted inside your vagina? only in your vagina and not in your anus?
A: Yes, Sir.[69] A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis touched
When questioned on cross-examination whether she could distinguish a vagina from an anus, the victim any part of your anus?
declared that she could and proceeded to demonstrate. She reiterated that the penis of petitioner penetrated her A: He did not insert anything on my anus, Sir.
vagina, thus, consummating the crime charged: xxxx
Fiscal Barrera:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the accused, Neil Llave or Q: Based on your testimony doctor, and the medico genital examination propounded on
Totoy inserted his penis in your vagina, do you recall that? the report that the victim here, Debbielyn Santos is complaining that around
A: Yes, Sir. 6:00 in the evening of September 24, 2002, she was sexually abused and that
on the following day, September 25, you interviewed her and stated to you
Q: And likewise, you testified that you feel that the penis of Neil entered your vagina? that her genitalia was hurting and in binocular (sic) masakit ang pepe ko, ni-
A: Yes, Sir. rape ako, would your findings as contained in this Exh. B and C be
compatible with the allegation if the minor victim that she was sexually
Q: Could you distinguish vagina from your anus? abused on September 24. 2002 at around 6:00 p.m.?
A: Yes, Sir.
Atty. Baliad:
Q: Where is your pepe? Objection, Your Honor. The one who narrated the incident is the mother.
A: (Witness pointing to her vagina.)
Court:
Q: Where is your anus? What is your objection?
A: (Witness pointing at her back, at the anus.)
Atty. Baliad:
Q: In your statement, am I correct to say that Neil, the accused in this case penetrated The objection, Your Honor, is the question propounded is that it was the
only in your vagina and not in your anus? minor who made the complaint regarding the allegation.
A: Yes, Sir.
Fiscal Barrera:
Q: So that, your anus was not even touched by the accused neither by his penis touched The answer were provided..
any part of your anus?
A: He did not insert anything on my anus, Sir.[70] Court:
While it is true that Dr. Castillo did not find any abrasion or laceration in the private complainants genitalia, The doctor is being asked whether or not her findings is compatible with the
such fact does not negate the latters testimony the petitioner had carnal knowledge of her. The absence of complaint of the minor. Overruled. Answer.
abrasions and lacerations does not disprove sexual abuses, especially when the victim is a young girl as in this
case.[71] According to Dr. Castillo, the hymen is elastic and is capable of stretching and reverting to its original Witness:
form.[72] The doctor testified that her report is compatible with the victims testimony that she was sexually A It is compatible with the allegation of the minor.
assaulted by petitioner: Fiscal Barrera:
Confronting you again with your two (2) medico-genital documents, the
Provincial and Final Report mark[ed] in evidence as Exhs. B and C, at the
Atty. Baliad: lower portion of these two exhibits there appears to be a signature above the
typewritten word, Mariella Castillo, M.D., whose signature is that doctor?
Q: Do you recall having stated during the last hearing that the accused, Neil Llave or A Both are my signatures, Sir.[73]
Totoy inserted his penis in your vagina, do you recall that?
A: Yes, Sir.
Dr. Castillo even testified that the abrasion near the private complainants anal orifice could have been caused
Q: And likewise, you testified that you feel (sic) that the penis of Neil entered your by petitioner while consummating the crime charged:
vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus? Fiscal Barrera:
A: Yes, Sir.
8
Q: With your answer, would it be possible doctor that in the process of the male person
inserting his erect penis inside the vagina, in the process, would it be possible
that this abrasion could have been caused while in the process of inserting
the penis into the vagina touch the portion of the anus where you find the
abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of your examination, that the alleged perpetrator
is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.
Q: Do you still recall your answer that a 12-year-old boy could cause an erection of his
penis?
A: Yes, sir.
Q: To enlight[en] us doctor, we, not being a physician, at what age could a male person
can have erection?
A: Even infants have an erection.[74]
Petitioners contention that the private complainant was coached by her parents into testifying is
barren of merit. It bears stressing that the private complainant testified in a straightforward and spontaneous
manner and remained steadfast despite rigorous and intensive cross-examination by the indefatigable counsel
of the petitioner. She spontaneously pointed to and identified the petitioner as the perpetrator.
It is inconceivable that the private complainant, then only a seven- year old Grade II pupil, could
have woven an intricate story of defloration unless her plaint was true.[75] The Presiding Judge of the trial court
observed and monitored the private complainant at close range as she testified and found her testimony
credible. Case law is that the calibration by the trial court of the evidence on record and its assessment of the
credibility of witnesses, as well as its findings of facts and the conclusions anchored on said findings, are
accorded conclusive effect by this Court unless facts and circumstances of substance were overlooked,
misconstrued or misinterpreted, which, if considered would merit a nullification or reversal of the decision.
We have held that when the offended party is young and immature, from the age of thirteen to sixteen, courts
are inclined to give credence to their account of what transpired, considering not only their relative vulnerability
but also the shame and embarrassment to which they would be exposed if the matter to which they testified is
not true.[76]
Neither do we lend credence to petitioners claim that the charge against him is but a fabrication and
concoction of the private complainants parents. Indeed, petitioner admitted in no uncertain terms that the
spouses had no ill-motive against him. Thus, Neil testified as follows:
Fiscal Barrera:
Q: As you testified earlier that you have played post cards with Debbielyn Santos alias
Lyn-lyn and you have no quarrel or misunderstanding with Lyn-lyn. Do you
know of any reason why Lyn-lyn complaint (sic) against you for sexual
abuse?
A: I dont know of any reason, Sir.
Q: You also testified that you do not have any quarrel or misunderstanding with Lyn-
lyns parents, spouses Domingo Santos, Jr. and Marilou Santos, do you think
of any reason as to why they would file a complaint against you for molesting
their 7-year-old daughter?
A: I do not know of any reason why they filed a complaint against me, Sir.
Fiscal Barrera:
That would be all, Your Honor.[77]
There is no evidence that the parents of the offended party coached their daughter before she
testified. No mother or father would stoop so low as to subject their daughter to the tribulations and the
embarrassment of a public trial knowing that such a traumatic experience would damage their daughters psyche
and mar her life if the charge is not true.[78]
On the other hand, when the parents learned that their daughter had been assaulted by petitioner,
Domingo tried to locate the offender and when he failed, he and his wife reported the matter to
the barangay authorities. This manifested their ardent desire to have petitioner indicted and punished for his
delictual acts.
That petitioner ravished the victim not far from the street where residents passed by does not negate
the act of rape committed by petitioner. Rape is not a respecter of time and place. The crime may be committed
by the roadside and even in occupied premises.[79] The presence of people nearby does not deter rapists from
committing the odious act.[80] In this case, petitioner was so daring that he ravished the private complainant
near the house of Teofisto even as commuters passed by, impervious to the fact that a crime was being
committed in their midst.
Case law has it that in view of the intrinsic nature of rape, the only evidence that can be offered to prove the
guilt of the offender is the testimony of the offended party. Even absent a medical certificate, her testimony,
standing alone, can be made the basis of conviction if such testimony is credible. Corroborative testimony is
not essential to warrant a conviction of the perpetrator.[81] Thus, even without the testimony of Teofisto Bucud,
the testimonies of the offended party and Dr. Castillo constitute evidence beyond reasonable doubt warranting
the conviction of petitioner.
Teofistos testimony cannot be discredited by petitioner simply because his uncle caused the demolition of the
house where Teofisto and his family were residing. It bears stressing that Teofisto gave a sworn statement to
the police investigator on the very day that the petitioner raped Debbielyn and narrated how he witnessed the
crime being committed by the petitioner.[82] In the absence of proof of improper motive, the presumption is that
Teofisto had no ill-motive to so testify, hence, his testimony is entitled to full faith and credit.[83]
The trial court correctly ruled that the petitioner acted with discernment when he had carnal knowledge of the
offended party; hence, the CA cannot be faulted for affirming the trial courts ruling.
Article 12, paragraph 3 of the Revised Penal Code provides that a person over nine years of age and
under fifteen is exempt from criminal liability, unless he acted with discernment. The basic reason behind the
exempting circumstance is complete absence of intelligence, freedom of action of the offender which is an
essential element of a felony either by dolus or by culpa. Intelligence is the power necessary to determine the
morality of human acts to distinguish a licit from an illicit act.[84] On the other hand, discernment is the mental
capacity to understand the difference between right and wrong. The prosecution is burdened to prove that the
accused acted with discernment by evidence of physical appearance, attitude or deportment not only before
and during the commission of the act, but also after and during the trial.[85] The surrounding circumstances
must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes
the gruesome nature of the crime and the minors cunning and shrewdness.
In the present case, the petitioner, with methodical fashion, dragged the resisting victim behind the pile of
hollow blocks near the vacant house to insure that passersby would not be able to discover his dastardly
acts. When he was discovered by Teofisto Bucud who shouted at him, the petitioner hastily fled from the scene
to escape arrest. Upon the prodding of his father and her mother, he hid in his grandmothers house to avoid
being arrested by policemen and remained thereat until barangay tanods arrived and took him into custody.
The petitioner also testified that he had been an outstanding grade school student and even received
awards. While in Grade I, he was the best in his class in his academic subjects. He represented his class in a
quiz bee contest.[86] At his the age of 12, he finished a computer course.
In People v. Doquea,[87] the Court held that the accused-appellant therein acted with discernment in
raping the victim under the following facts:
9
Taking into account the fact that when the accused Valentin Doquea
committed the crime in question, he was a 7th grade pupil in the intermediate school of
the municipality of Sual, Pangasinan, and as such pupil, he was one of the brightest in
said school and was a captain of a company of the cadet corps thereof, and during the
time he was studying therein he always obtain excellent marks, this court is convinced
that the accused, in committing the crime, acted with discernment and was conscious of
the nature and consequences of his act, and so also has this court observed at the time
said accused was testifying in his behalf during the trial of this case. [88]
The CA ordered petitioner to pay P50,000.00 as moral damages and P20,000.00 as exemplary
damages. There is no factual basis for the award of exemplary damages. Under Article 2231, of the New Civil
Code, exemplary damages may be awarded if the crime was committed with one or more aggravating
circumstances. In this case, no aggravating circumstance was alleged in the Information and proved by the
People; hence, the award must be deleted.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The decision
of the Court of Appeals in CA-G.R. CR No. 26962 isAFFIRMED WITH MODIFICATION that the award
of exemplary damages is DELETED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MICHAEL NUNEZ y
SEVILLA, accused.
RODOLFO CAYETANO y PANGILINAN, accused-appellant.
DECISION
ROMERO, J.:
Stealing with intent to gain, from being a simple, uncomplicated act in times past, albeit unlawful, has
evolved into more elaborate schemes guaranteed to filch money from a person with the least risk of being
caught on the part of the felon.
Those with grandiose designs of victimizing the wealthy have, with alarming frequency, resorted to
kidnapping, snatching not only their intended victims, but the families of the latter, as well. Within the past
few years, so steep has been the incidence in the crime of kidnapping for ransom that on December 31, 1993,
Republic Act No. 7659 went into effect, categorizing the same as a heinous crime punishable by death.[1]
In the instant case which occurred before said law was passed, two high school lads were duped by the
accused into going with him. One was to be used for purposes of extricating ransom from his businessman
father. But the other, the son of impecunious parents, was subsequently bound hands and feet, gagged and
drowned in a river like a rat, with absolutely no chance of survival.
The facts of this shocking case are as follows:
Accused-appellant Rodolfo Cayetano, together with his co-accused Michael Nunez (Nunez) and Ismael
Santos alias "Ka Tony," were charged with the crimes of Kidnapping for Ransom (Criminal Case No. 12778-
MN)[2] and Kidnapping with Murder (Criminal Case No. 12779-MN).[3] Only accused-appellant and Nunez
were convicted and accordingly sentenced to reclusion perpetua and to pay damages. Accused Santos remains
at large.
The prosecution was able to establish that at around 1:15 in the afternoon of January 21, 1993 inside the
compound of Immaculate Concepcion Parochial School, accused Nunez persuaded the victim, fourteen-year
old high school student Joseph Rivera, to go with him on the pretext that he would turn over the proceeds of
the sale of a gun to the latter's father. He was likewise able to persuade Joseph Rivera to bring along the latter's
classmate, another fourteen year-old student Neil Patrick Quillosa on the pretext that Neil would be Joseph's
companion in going home later.
The two boys were brought to a nipa hut in the middle of a fishpond in Dampalit, Malabon to await a
certain "Ka Tony." As the two boys attempted to go home, they were told to go back as "Ka Tony" was
coming. When they were asked in jest about their preference if they were to be killed either with a knife or
with a gun, Neil answered that he would prefer a gun pointed at his head.
Thereafter, accused Nunez told them that "Ka Tony" would not enter the hut unless they were
blindfolded and tied. They protested but were assured by accused Nunez that they would not be harmed. Both
victims' hands and feet were tied with wire and rope.
Accused-appellant came and checked if the two victims were tied securely, after which, accused Nunez
played a tape demanding three million pesos in five hundred and one thousand peso bills from the parents of
Rivera in exchange for his release. Rivera was likewise made to record his own voice pleading to his parents
to pay the ransom demanded. Thereafter, accused Nunez, who was then in possession of a gun, fired the same
towards the window, hitting the casette recorder.
The victims were then brought to the river by accused and accused-appellant. Accused Nunez dragged
Neil by the neck towards the middle of the river and left him there to drown while accused-appellant stood
guard over Rivera. Quillosa's cries for help and Rivera's pleas for their captors to save Quillosa went unheeded.
In the nipa hut, Rivera was made to record his own voice saying, "Mommy, Daddy, para makilala ninyo
na sanay silang pumatay, pinatay na nila si Neil." Thereafter, he managed to untie his feet and asked accused-
appellant to remove the wire around his hands on the assurance that he would not escape. The following
morning, accused Nunez went to deliver the tape to Rivera's house.
While accused-appellant was busy cutting grass near the river, Rivera escaped and proceeded to the
house of accused Nunez where he called up his grandmother.Thereupon, he was fetched by his grandmother
and with his father, they proceeded to the Malabon Police Station and reported the kidnapping. The policemen
who responded recovered the casette recorder from the nipa hut but failed to find both accused and accused-
appellant.
Neil Patrick Quillosa's body was recovered on January 23, 1993 at Chungkang River, Malabon with
both hands and feet still bound with wires and his mouth gagged. Dr. Juanito Sacdalan testified that the cause
of death was asphyxia due to strangulation and that the wire tied around the hands of the victim was the same
wire tied around the neck.
Accused-appellant, however, denied the accusation against him claiming that on the day he arrived at
the nipa hut, accused Nunez poked a gun at him and threatened to kill him if he squeals. He also claimed that
accused Nunez recorded something on a casette and he saw two children with him whose hands and feet were
tied with wires.Thereafter, accused Nunez instructed one of the children, whom he came to know during the
trial of this case to be Joseph Rivera, to record something which he did not hear as accused Nunez ordered him
to keep his distance. He averred that when Nunez brought the children to the river, he was just watching and
following them; that from his position atop the paddy, he saw accused Nunez in the middle of the river release
one of the children, whom he came to know during the trial to be Neil Patrick Quillosa, as a result of which
the latter drowned.
The following morning, accused Nunez told him to guard Rivera after which the former left. However,
he claimed that he left Rivera inside the nipa hut to cut grass around the fishpond. When accused Nunez
returned and learned from him that Rivera had left, the former likewise disappeared. Moments later, accused
Nunez' father arrived and told him that he would get the casette. He was likewise told to leave as policemen
will be coming. As a result, he left and went to his grandmother's place, after which he was surrendered by his
uncle to Vice President Joseph Estrada. He likewise claims that he does not know how to read and that he can
write only his name and count up to fifty only.He claims to know Michael Nunez as he usually sees him when
he buys "kakanin" from the latter's family.
The lower court in a joint decision[4] convicted both accused and accused-appellant with Kidnapping for
Ransom and accordingly sentenced both to reclusion perpetua. Both were also found to have committed the
complex crime of Kidnapping with Murder and sentenced each of them to suffer the penalty
of reclusion perpetua. They were also ordered to indemnify the heirs of the victims in the amount
of P50,000.00, to pay actual damages in the amount of P41,700.00 and the sum of P50,000.00 as moral
damages, as well as the costs of the suit.
Hence, this appeal. Accused-appellant claims that the lower court erred:
1. In not finding that accused-appelants low level of intelligence/state of embecility exempts him from any
criminal liability.
2. In not finding that the records of the case are not sufficient to hold a finding of conspiracy against the
accused-appellant.
3. In not acquitting the accused by reason of an exempting circumstance of uncontrollable fear of an equal or
greater injury.
In the first submission of error, accused-appellant claims that he possesses a very low level of
intelligence as revealed in his direct testimony and cross-examination, indicating a mental age of between six
(6) to ten (10) years of age. To prove his imbecility, he cited his act of cutting grass when he should be guarding
his victim. As such, he should be exempted from criminal liability under the Revised Penal Code. Even
assuming that he is liable, the lower court should have proceeded against him pursuant to the Child and Youth
Welfare Code.
10
In his second submission, accused-appellant declares that he could not have conspired with accused
Nunez for the following reasons: (1) accused-appellant would rather cut grass than guard his victim, as
indicative of his low mental age; (2) the act of kidnapping itself was already executed and perfected by accused
Nunez when the accused-appellant arrived in the nipa hut several hours after the kidnapping; (3) the testimonies
of private complainant Joseph Rivera and the accused-appellant were consistent with the fact that accused-
appellant was nowhere near accused Nunez when he was recording the alleged demand for payment.
In his third submission, accused-appellant testified that accused Nunez poked a gun at him and
threatened him with death; so he had no alternative but to follow the orders of accused Nunez, specially
considering his mental capacity.
The Court is not persuaded by such remonstrations. The defense counsel's attribution of imbecility is
not supported by evidence. Imbecility, one of the exempting circumstances under Article 12 of the Revised
Penal Code, is defined as feeblemindedness or a mental condition approaching that of one who is insane. It is
analogous to childishness and dotage. An imbecile, within the meaning of Article 12, is one who must be
deprived completely of reason or discernment and freedom of will at the time of committing the crime. [5] He
is one who, while advanced in age, has a mental development comparable to that of children between two and
seven years of age.[6]
Accused-appellant's act of cutting grass rather than guarding his victim could hardly be indicative of
imbecility. Rather, it may be considered as negligence but definitely not childishness or even that of one
completely deprived of reason or discernment and freedom of the will. In fact, accused-appellant admitted on
cross-examination that he can tell what is right and what is wrong.[7] Assuming arguendo that accused-appellant
is an imbecile or a feebleminded person, in the case of People v. Formigones,[8] it was held that
feeblemindedness is not exempting, because the offender could distinguish right from wrong. An imbecile or
an insane cannot. In any case, Article 800 of the Civil Code provides that "the law presumes that every person
is of sound mind, in the absence of proof to the contrary." The allegation of insanity or imbecility must be
clearly proved.Moreover, the law presumes all acts to be voluntary. It is improper to presume that acts were
executed unconsciously."[9]
Neither will this Court subscribe to accused-appellant's third submission that he was prompted to act the
way he did due to uncontrollable fear of an equal or greater injury. Accused-appellant's claim that accused
Nunez poked a gun at him and threatened him with death is belied by testimonial evidence. Granting that
accused-appellant was forced to do what he did on account of fear, duress or intimidation such that he could
not possibly have any opportunity to defend himself in equal combat, testimonial evidence show that he had at
least four opportunities to escape. The first was when accused Nunez allegedly brought the two victims to the
river while he remained on the rice paddy.[10] The second was when accused Nunez and the victim Joseph
Rivera were sleeping in the nipa hut.[11] The third was when accused Nunez asked him to look for the necklace
of Neil Patrick Quillosa on the river bank while the former was in the nipa hut together with the victim Joseph
Rivera.[12] The fourth was when accused Nunez left him and the victim the following morning to deliver the
taped or recorded ransom demand to the victim's family. [13] Accused-appellant could have easily taken
advantage of any of these opportunities considering that only accused Nunez threatened him. By not availing
of these chances to escape, his allegation of fear or duress becomes incredible under the circumstances.
In People v. Villanueva,[14] this Court stated that:
"Duress, force, fear or intimidation to be available as a defense, must be present, imminent and
impending, and of such a nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act is not done. A threat of future injury is not enough. (16 C.J., 91).
To be available as a defense, the fear must be well-founded, an immediate and actual danger of
death or great bodily harm must be present and the compulsion must be of such a character as to
leave no opportunity to accused for escape or self-defense in equal combat. It would be a most
dangerous rule if a defendant could shield himself from prosecution for crime by merely setting
up a fear from or because of a threat of a third person. (Wharton's Criminal Law, Vol. 1, Sec.
384).
Fear as an excuse for crime has never been received by the law. No man, from fear or
circumstances to himself has the right to make himself a party to committing mischief upon
mankind. (Lord Denman in Reg. vs. Tyler, 8 Car. and P. [Eng.] 616, vs. Duddely, L.R. 14, Q.B.
Div. [Eng.] 273)."
Accused-appellant's knowledge of what is right or wrong, as well as his failure to escape bolsters the
prosecution's evidence that he conspired with accused Nunez to commit the crimes being charged against them,
contrary to the former's second submission. The records show the presence of conspiracy. First, when accused-
appellant arrived at the hut where the victims were being held, the first thing he did was to check if the victims
were securely tied.[15] Second, accused-appellant carried the victim Neil Patrick Quillosa to the river.[16] Third,
accused-appellant kicked the victim Joseph Rivera when the latter was ordered to go to the river.[17] It may be
deduced from those acts by accused-appellant that he conspired with accused Nunez to commit the
crimes. While it is true that a finding of criminal conspiracy must be supported by evidence constituting proof
beyond reasonable doubt, it is equally true that such evidence need not be direct evidence. It may be deduced
from the mode and manner in which the offense was perpetrated. The conditions attending its commission and
the acts executed may be indicative of the common design to accomplish a criminal purpose and objective. If
there is a chain of circumstances to that effect, then, conspiracy has been established. [18]
To exempt himself from criminal liability, the conspirator must have performed an overt act to dissociate
or detach himself from the unlawful plan to commit the felony. [19]Nowhere in the records does it show that
accused-appellant ever did anything to dissuade accused Nunez from killing Neil Patrick Quillosa or to escape
in order to report the crime despite at least four opportunities to do so.
This Court fully agrees with the lower court that Kidnapping for Ransom was committed against Joseph
Rivera, as the essential element that the victim must have been restrained or deprived of his liberty was present
when both victims were tied and when the gun was brandished and fired to intimidate them. [20] In addition,
accused Nunez and accused-appellant recorded a ransom demand with the intention of sending it to Rivera's
parents.[21] The records indicate that accused Nunez and accused-appellant intended to detain only Rivera and
hold him for ransom as he was the son of a gasoline owner having a net income of P24,000.00 a month and
owning several properties.[22]
The same, however, cannot be said of Neil Patrick Quillosa. The records show that the intent of accused
Nunez and that of accused-appellant was to kill Quillosa and not to detain him for ransom. Quillosa was a
stranger to them and they merely persuaded Rivera to take him along so he could have a companion in going
home.[23] In any case, they could not have possibly intended to detain Quillosa and hold him for ransom as he
was only a son of a jeepney driver.[24]
Thus, the crime committed by accused Nunez and accused-appellant with respect to the victim Quillosa
should be Homicide and not Kidnapping with Murder since they never intended to hold Quillosa for
ransom. Nunez' query as to Quillosa's preference on the manner of his death shows the formers' intention to
kill the latter. As treachery was not alleged in the information, then it could not have qualified the crime to
murder.
However, treachery should be appreciated as a generic aggravating circumstance. Article 14, Paragraph
16 of the Revised Penal Code states that there is treachery when the offender commits any of the crimes against
the person, employing means, methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the offended party might make. In
the instant case, treachery was evident when the accused Nunez led the victims to believe that it was necessary
for them to be blindfolded and tied first with wires and a rope before a certain Ka Tony would agree to meet
them. Having thus placed the victims, particularly Quillosa, in a helpless condition, accused Nunez and
accused-appellant were able to carry out with ease their common design to kill Quillosa without any risk to
themselves arising from any struggle the boy might make.
Craft should also be appreciated as aggravating the crime of homicide since it was shown that the
victims, particularly the unsuspecting Quillosa, were lured by the accused into coming with them on the pretext
that the former would only accompany Rivera to accept the proceeds of the sale of a gun.
With respect to accused-appellant, the mitigating circumstance of voluntary surrender should be
appreciated in his favor.
WHEREFORE, in Criminal Case No. 12778-MN, the decision of the trial court is AFFIRMED. In
Criminal Case No. 12779-MN, the decision of the trial court is MODIFIED in that accused-appellant Rodolfo
Cayetano y Pangilinan is CONVICTED of the crime of homicide and IMPOSING upon him the prison term
ranging from 10 years and 1 day to 12 years, prision mayor maximum, as minimum up to 18 years, 6 months
and 1 day of reclusion temporal maximum, as maximum.
JOEMAR ORTEGA, G.R. No. 151085
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CORONA,*
CHICO-NAZARIO, and
NACHURA, JJ.
 11
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent.
August 20, 2008
x--------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before this Court is a Petition[1] for Review on Certiorari under Rule 45 of the Rules of Civil Procedure seeking
the reversal of the Court of Appeals (CA) Decision[2] dated October 26, 2000 which affirmed in toto the
Decision[3] of the Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999, convicting
petitioner Joemar Ortega[4] (petitioner) of the crime of Rape.
The Facts
Petitioner, then about 14 years old,[5] was charged with the crime of Rape in two separate informations both
dated April 20, 1998, for allegedly raping AAA,[6] then about eight (8) years of age. The accusatory portions
thereof respectively state:
Criminal Case No. 98-19083
That sometime in August, 1996, in the Municipality of XXX, Province of YYY,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, violence and intimidation, did then and there, (sic) willfully,
unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with
the said AAA, a minor, then about 6 years old, against her will.
CONTRARY TO LAW.[7]
Criminal Case No. 98-19084
That on or about the 1st day of December, 1996, in the Municipality of XXX, Province
of YYY, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, by means of force, violence and intimidation, did then and there, (sic)
willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual
intercourse with the said AAA, a minor, then about 6 years old, against her will.
CONTRARY TO LAW.[8]
Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the offense charged.[9] Thus, trial on
the merits ensued. In the course of the trial, two varying versions arose.
Version of the Prosecution
On February 27, 1990, AAA was born to spouses FFF and MMM. [10] Among her siblings CCC, BBB, DDD,
EEE and GGG, AAA is the only girl in the family. Before these disturbing events, AAA's family members
were close friends of petitioner's family, aside from the fact that they were good neighbors. However, BBB
caught petitioner raping his younger sister AAA inside their own home. BBB then informed their mother
MMM who in turn asked AAA.[11] There, AAA confessed that petitioner raped her three (3) times on three (3)
different occasions.
The first occasion happened sometime in August 1996. MMM left her daughter AAA, then 6 years old and son
BBB, then 10 years old, in the care of Luzviminda Ortega[12] (Luzviminda), mother of petitioner, for two (2)
nights because MMM had to stay in a hospital to attend to her other son who was sick.[13] During the first night
at petitioner's residence, petitioner entered the room where AAA slept together with Luzviminda and her
daughter. Petitioner woke AAA up and led her to the sala. There petitioner raped AAA. The second occasion
occurred the following day, again at the petitioner's residence. Observing that nobody was around, petitioner
brought AAA to their comfort room and raped her there. AAA testified that petitioner inserted his penis into
her vagina and she felt pain. In all of these instances, petitioner warned AAA not to tell her parents, otherwise,
he would spank her.[14] AAA did not tell her parents about her ordeal.
The third and last occasion happened in the evening of December 1, 1996. Petitioner went to the house of AAA
and joined her and her siblings in watching a battery-powered television. At that time, Luzviminda was
conversing with MMM. While AAA's siblings were busy watching,
petitioner called AAA to come to the room of CCC and BBB. AAA obeyed. While inside the said room which
was lighted by a kerosene lamp, petitioner pulled AAA behind the door, removed his pants and brief, removed
AAA's shorts and panty, and in a standing position inserted his penis into the vagina of AAA. [15] AAA
described petitioner's penis as about five (5) inches long and the size of two (2) ballpens. She, likewise, narrated
that she saw pubic hair on the base of his penis.[16]
This last incident was corroborated by BBB in his testimony. When BBB was about to drink water in their
kitchen, as he was passing by his room, BBB was shocked to see petitioner and AAA both naked from their
waist down in the act of sexual intercourse. BBB saw petitioner holding AAA and making a pumping motion.
Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB reported the
incident to his mother, MMM.[17]
MMM testified that when she asked AAA about what BBB saw, AAA told her that petitioner inserted his
fingers and his penis into her vagina. MMM learned that this was not the only incident that petitioner molested
AAA as there were two previous occasions. MMM also learned that AAA did not report her ordeal to them out
of fear that petitioner would spank her. MMM testified that when BBB reported the matter to her, petitioner
and Luzviminda already left her house. After waiting for AAA's brothers to go to sleep, MMM, with a heavy
heart, examined AAA's vagina and she noticed that the same was reddish and a whitish fluid was coming out
from it. Spouses FFF and MMM were not able to sleep that night. The following morning, at about four o'clock,
MMM called Luzviminda and petitioner to come to their house. MMM confronted Luzviminda about what
petitioner did to her daughter, and consequently, she demanded that AAA should be brought to a doctor for
examination.[18]
MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas [19] (Dr. Katalbas), the Rural Health
Officer of the locality who examined AAA and found no indication that she was molested. [20] Refusing to
accept such findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical Officer
IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written report [21] showing that there
were abrasions on both right and left of the labia minora and a small laceration at the posterior fourchette.
She also found that the minor injuries she saw on AAA's genitals were relatively fresh; and that such abrasions
were superficial and could disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her
certification that her findings required the confirmation of the Municipal Health Officer of the locality.
Subsequently, an amicable settlement[22] was reached between the two families through the DAWN
Foundation, an organization that helps abused women and children. Part of the settlement required petitioner
to depart from their house to avoid contact with AAA.[23] As such, petitioner stayed with a certain priest in the
locality. However, a few months later, petitioner went home for brief visits and in order to bring his dirty
clothes for laundry. At the sight of petitioner, AAA's father FFF was infuriated and confrontations occurred.
At this instance, AAA's parents went to the National Bureau of Investigation (NBI) which assisted them in
filing the three (3) counts of rape. However, the prosecutor's office only filed the two (2) instant cases.
Version of the Defense
Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and Luzviminda Ortega.[24] He is the second
child of three siblings ― an elder
brother and a younger sister. Petitioner denied the accusations made against him. He testified that: his parents
and AAA's parents were good friends; when MMM left AAA and her brothers to the care of his mother,
petitioner slept in a separate room together with BBB and CCC while AAA slept together with Luzviminda
and his younger sister; he never touched or raped AAA or showed his private parts to her; petitioner did not
12
threaten AAA in any instance; he did not rape AAA in the former's comfort room, but he merely accompanied
and helped AAA clean up as she defecated and feared the toilet bowl; in the process of washing, he may have
accidentally touched AAA's anus; on December 1, 1996, petitioner together with his parents, went to AAA's
house;[25] they were dancing and playing together with all the other children at the time; while they were
dancing, petitioner hugged and lifted AAA up in a playful act, at the instance of which BBB ran and reported
the matter to MMM, who at the time was with Luzviminda, saying that petitioner and AAA were having sexual
intercourse;[26] petitioner explained to MMM that they were only playing, and that he could not have done to
AAA what he was accused of doing, as they were together with her brothers, and he treated AAA like a
younger sister;[27] BBB was lying; AAA's parents and his parents did not get angry at him nor did they quarrel
with each other; petitioner and his parents peacefully left AAA's house at about nine o'clock in the evening;
however, at about four o'clock in the morning, petitioner and his parents were summoned by MMM to go to
the latter's house; upon arriving there they saw BBB being maltreated by his father as AAA pointed to BBB
as the one who molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for examination .[28]
Luzviminda corroborated the testimony of her son. She testified that: her son was a minor at the time of the
incident; CCC and BBB were the children of MMM in herfirst marriage, while AAA and the rest of her
siblings were of the second marriage; CCC and BBB are half-brothers of AAA; when MMM entrusted AAA
and her brothers to her sometime in August of 1996, she slept with AAA and her youngest daughter in a
separate room from petitioner; on December 1, 1996, she was at AAA's house watching television and
conversing with MMM, while FFF and Loreto were having a drinking spree in the kitchen; from where they
were seated, she could clearly see all the children, including petitioner and AAA, playing and dancing in the
dining area; she did not hear any unusual cry or noise at the time; while they were conversing, BBB came to
MMM saying that petitioner and AAA were having sexual intercourse; upon hearing such statement,
Luzviminda and MMM immediately stood up and looked for them, but both mothers did not find anything
unusual as all the children were playing and dancing in the dining area; Luzviminda and MMM just laughed
at BBB's statement; the parents of AAA, at that time, did not examine her in order to verify BBB's statement
nor did they get angry at petitioner or at them; and they peacefully left AAA's house. However, the following
day, MMM woke Luzviminda up, saying that FFF was spanking BBB with a belt as AAA was pointing to
BBB nor to petitioner as the one who molested her. At this instance, Luzviminda intervened, telling FFF not
to spank BBB but instead, to bring AAA to a doctor for examination. Luzviminda accompanied MMM to Dr.
Katalbas who found no indication that AAA was molested. She also accompanied her to Dr. Jocson. After
getting the results of the examination conducted by Dr. Jocson, they went to the police and at this instance
only did Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner vehemently denied to
Luzviminda that he raped AAA. Thereafter, MMM and Luzviminda went to their employer who
recommended that they should seek advice from the Women's Center. At the said Center, both agreed on an
amicable settlement wherein petitioner would stay away from AAA. Thus, petitioner stayed with a certain
priest in the locality for almost two (2) years. But almost every Saturday, petitioner would come home to
visit his parents and to bring his dirty clothes forlaundry. Every time petitioner came home, FFF bad-mouthed
petitioner, calling him a rapist. Confrontations occurred until an altercation erupted wherein FFF allegedly
slapped Luzviminda. Subsequently, AAA's parents filed the instant cases. [29]
The RTC's Ruling
On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail over the positive
identification of petitioner as the perpetrator of the crime by AAA and BBB, who testified with honesty and
credibility. Moreover, the RTC opined that it could not perceive any motive for AAA's family to impute a
serious crime of Rape to petitioner, considering the close relations of both families. Thus, the RTC disposed
of this case in this wise:
FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y Felisario
GUILTY beyond reasonable doubt as Principal by Direct Participation of the crime of
RAPE as charged in Criminal Cases Nos. 98-19083 and 98-19084 and there being no
aggravating or mitigating circumstance, he is sentenced to suffer the penalty of Two
(2) Reclusion Temporal in its medium period. Applying the Indeterminate Sentence
Law, the accused shall be imprisoned for each case for a period of Six (6) years and
One (1) day of Prision Mayor, as minimum, to Fifteen (15) years of Reclusion
Temporal, as maximum. The accused is condemned to pay the offended party AAA,
the sum of P100,000.00 as indemnification for the two (2) rapes (sic).
Aggrieved, petitioner appealed the RTC Decision to the CA.[30]
Taking into consideration the age of petitioner and upon posting of the corresponding bail bond for his
provisional liberty in the amount of P40,000.00, the RTC ordered the petitioner's release pending appeal. [31]
The CA's Ruling
On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the petitioner's defense of
denial could not prevail over the positive identification of the petitioner by the victim AAA and her brother
BBB, which were categorical, consistent and without any showing of ill motive. The CA also held that the
respective medical examinations conducted by the two doctors were irrelevant, as it is established that the
slightest penetration of the lips of the female organ consummates rape; thus, hymenal laceration is not an
element of rape. Moreover, the CA opined that petitioner acted with discernment as shown by his covert acts.
Finally, the CA accorded great weight and respect to the factual findings of the RTC, particularly in the
evaluation of the testimonies of witnesses.
Petitioner filed his Motion for Reconsideration[32] of the assailed Decision which the CA denied in its
Resolution[33] dated November 7, 2001.
Hence, this Petition based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN
FACTS OF SUBSTANCE AND VALUE WHICH IF CONSIDERED MIGHT
AFFECT THE RESULT OF THE CASE.
II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN
IT FAILED TO APPRECIATE THE MEDICAL FINDINGS OF DR. LUCIFREE
KATALBAS.
III.
THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE
COURT, THAT PETITIONER-APPELLANT IN FACT COMMITTED AND IS
CAPABLE OF COMMITTING THE ALLEGED
RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE
ALLEGED VICTIM'S FAMILY MEMBERS AND THEIR RESPECTIVE
MOTHERS WERE PRESENT IS IMPROBABLE AND CONTRARY TO HUMAN
EXPERIENCE.
IV.
THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS
SET FORTH BY THE ALLEGED VICTIM REGARDING THE CIRCUMSTANCES
ATTENDING THE COMMISSION OF RAPE SOMETIME IN AUGUST 1996. [34]
Petitioner argues that, while it is true that the factual findings of the CA are conclusive on this Court, we are
not prevented from overturning such findings if the CA had manifestly overlooked certain facts of substance
and value which if considered might affect the result of the case. Petitioner stresses that from the testimonies
13
of AAA and BBB, it can be deduced that penetration was achieved; thus, AAA felt pain. Petitioner contends
that assuming the allegations of AAA are true that petitioner inserted his fingers and his penis into her vagina,
certainly such acts would leave certain abrasions, wounds and/or lacerations on the genitalia of AAA, taking
into consideration her age at the time and the alleged size of petitioner's penis. However, such allegation is
completely belied by the medical report of Dr. Katalbas who, one day after the alleged rape, conducted a
medical examination on AAA and found that there were no signs or indications that AAA was raped or
molested. Petitioner submits that the CA committed a grave error when it disregarded such medical report
since it disproves the allegation of the existence of rape and, consequently, the prosecution failed to prove its
case; thus, the presumption of innocence in favor of the petitioner subsists. Moreover, petitioner opines that
like AAA, petitioner is also a child of the barrio who is innocent, unsophisticated and lacks sexual experience.
As such, it is incredible and contrary to human reason that a 13- year-old boy would commit such act in the
very dwelling of AAA, whose reaction to pain, at the age of six, could not be controlled or subdued. Petitioner
claims that poverty was MMM's motive in filing the instant case,
as she wanted to extort money from the parents of the petitioner. Petitioner points out that the medical report
of Dr. Jocson indicated that the abrasions that were inflicted on the genitalia of AAA were relatively fresh and
the same could disappear within a period of 3 to 4 days. Considering that Dr. Jocson conducted the medical
examination on December 12, 1996, or after the lapse of eleven (11) days after the alleged incident of rape,
and that AAA's parents only filed the instant case after almost a year, in order to deter Luzviminda from filing
a case of slander by deed against FFF, it is not inconceivable that MMM inflicted said abrasions on AAA to
prove their case and to depart from the initial confession of AAA that it was actually BBB who raped her.
Finally, petitioner submits that AAA and BBB were merely coached by MMM to fabricate these stories. [35]
On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG)
contends that: the arguments raised by the petitioner are mere reiterations of his disquisitions before the CA;
the RTC, as affirmed by the CA, did not rely on the testimonies of both doctors since despite the absence of
abrasions, rape is consummated even with the slightest penetration of the lips of the female organ; what is
relevant in this case is the reliable testimony of AAA that petitioner raped her in August and December of
1996; even in the absence of force, rape was committed considering AAA's age at that time; as such, AAA did
not have any ill motive in accusing petitioner; and it is established that the crime of rape could be committed
even in the presence of other people nearby. Moreover, the OSG relies on the doctrine that the evaluation made
by a trial court is accorded the highest respect as it had the opportunity to observe directly the demeanor of a
witness and to determine whether said witness was telling the truth or not. Lastly, the OSG claims that
petitioner acted with discernment when he committed the said crime, as manifested in his covert acts. [36]
However, Republic Act (R.A.) No. 9344,[37] or the Juvenile Justice and Welfare Act of 2006, was enacted into
law on April 28, 2006 and it took effect on May 20, 2006.[38] The law establishes a comprehensive system to
manage children in conflict with the law[39] (CICL) and children at risk[40] with child-appropriate procedures
and comprehensive programs and services such as prevention, intervention, diversion, rehabilitation, re-
integration and after-care programs geared towards their development. In order to ensure its implementation,
the law, particularly Section 8[41] thereof, has created the Juvenile Justice and Welfare Council (JJWC) and
vested it with certain duties and functions[42] such as the formulation of policies and strategies to prevent
juvenile delinquency and to enhance the administration of juvenile justice as well as the treatment and
rehabilitation of the CICL. The law also
provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65, 66, 67 and 68 of R.A. No.
9344's Transitory Provisions.[43]
The said Transitory Provisions expressly provide:
Title VIII
Transitory Provisions
SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old and
Below. Upon effectivity of this Act, cases of children fifteen (15) years old and below
at the time of the commission of the crime shall immediately be dismissed and the child
shall be referred to the appropriate local social welfare and development officer. Such
officer, upon thorough assessment of the child, shall determine whether to release the
child to the custody of his/her parents, or refer the child to prevention programs, as
provided under this Act. Those with suspended sentences and undergoing
rehabilitation at the youth rehabilitation center shall likewise be released, unless it is
contrary to the best interest of the child.
SECTION 65. Children Detained Pending Trial. If the child is detained pending trial,
the Family Court shall also determine whether or not continued detention is necessary
and, if not, determine appropriate alternatives for detention. If detention is necessary
and he/she is detained with adults, the court shall immediately order the transfer of the
child to a youth detention home.
SECTION 66. Inventory of "Locked-up" and Detained Children in Conflict with the
Law. The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC,
within ninety (90) days from the effectivity of this Act, an inventory of all children in
conflict with the law under their custody.
SECTION 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion
and Court Proceedings. If a child reaches the age of eighteen (18) years pending
diversion and court proceedings, the appropriate diversion authority in consultation
with the local social welfare and development officer or the Family Court in
consultation with the Social Services and Counseling Division (SSCD) of the Supreme
Court, as the case may be, shall determine the appropriate disposition. In case the
appropriate court executes the judgment of conviction, and unless the child in conflict
with the law has already availed of probation under Presidential Decree No. 603 or
other similar laws, the child may apply for probation if qualified under the provisions
of the Probation Law.
SECTION 68. Children Who Have Been Convicted and are Serving
Sentences. Persons who have been convicted and are serving sentence at the time of
the effectivity of this Act, and who were below the age of eighteen (18) years at the
time of the commission of the offense for which they were convicted and are serving
sentence, shall likewise benefit from the retroactive application of this Act. They shall
be entitled to appropriate dispositions provided under this Act and their sentences shall
be adjusted accordingly. They shall be immediately released if they are so qualified
under this Act or other applicable laws.
Ostensibly, the only issue that requires resolution in this case is whether or not petitioner is guilty beyond
reasonable doubt of the crime of rape as found by both the RTC and the CA. However, with the advent of R.A.
No. 9344 while petitioner's case is pending before this Court, a new issue arises, namely, whether the pertinent
provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time he committed the alleged
rape, he was merely 13 years old.
In sum, we are convinced that petitioner committed the crime of rape against AAA. In a prosecution for rape,
the complainant's candor is the single most important factor. If the complainant's testimony meets the test of
credibility, the accused can be convicted solely on that basis. [44] The RTC, as affirmed by the CA, did not doubt
AAA's credibility, and found no ill motive for her to charge petitioner of the heinous crime of rape and to
positively identify him as the malefactor. Both courts also accorded respect to BBB's testimony that he saw
petitioner having sexual intercourse with his younger sister. While petitioner asserts that AAA's poverty is
enough motive for the imputation of the crime, we discard such assertion for no mother or father like MMM
and FFF would stoop so low as to subject their daughter to the tribulations and the embarrassment of a public
trial knowing that such a traumatic experience would damage their daughter's psyche and mar her life if the
charge is not true.[45] We find petitioner's claim that MMM inflicted the abrasions found by Dr. Jocson in the
genitalia of AAA, in order to extort money from petitioners parents, highly incredible. Lastly, it must be noted
that in most cases of rape committed against young girls like AAA who was
only 6 years old then, total penetration of the victim's organ is improbable due to the small vaginal
opening. Thus, it has been held that actual penetration of the victim's organ or rupture of the hymen is not
required.[46] Therefore, it is not necessary for conviction that the petitioner succeeded in having full penetration,
because the slightest touching of the lips of the female organ or of the labia of the pudendum constitutes rape.[47]
14
However, for one who acts by virtue of any of the exempting circumstances, although he commits a crime, by
the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal
liability arises.[48] Therefore, while there is a crime committed, no criminal liability attaches. Thus, in Guevarra
v. Almodovar,[49] we held:
[I]t is worthy to note the basic reason behind the enactment of the exempting
circumstances embodied in Article 12 of the RPC; the complete absence of
intelligence, freedom of action, or intent, or on the absence of negligence on the
part of the accused. In expounding on intelligence as the second element of dolus,
Albert has stated:
"The second element of dolus is intelligence; without this power,
necessary to determine the morality of human acts to distinguish
a licit from an illicit act, no crime can exist, and because . . . the
infant (has) no intelligence, the law exempts (him) from criminal
liability."
It is for this reason, therefore, why minors nine years of age and below are not capable
of performing a criminal act.
In its Comment[50] dated April 24, 2008, the OSG posited that petitioner is no longer covered by the provisions
of Section 64 of R.A. No. 9344 since as early as 1999, petitioner was convicted by the RTC and the conviction
was affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and with the petitioner now
approximately 25 years old, he no longer qualifies as a child as defined by R.A. No. 9344. Moreover, the OSG
claimed that the retroactive effect of Section 64 of R.A.No. 9344 is
applicable only if the child-accused is still below 18 years old as explained under Sections 67 and 68 thereof.
The OSG also asserted that petitioner may avail himself of the provisions of Section 38[51] of R.A. No. 9344
providing for automatic suspension of sentence if finally found guilty. Lastly, the OSG argued that while it is
a recognized principle that laws favorable to the accused may be given retroactive application, such principle
does not apply if the law itself provides for conditions for its application.
We are not persuaded.
Section 6 of R.A. No. 9344 clearly and explicitly provides:
SECTION 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of
age or under at the time of the commission of the offense shall be exempt from criminal
liability. However, the child shall be subjected to an intervention program pursuant to
Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be
exempt from criminal liability and be subjected to an intervention program, unless
he/she has acted with discernment, in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include exemption
from civil liability, which shall be enforced in accordance with existing laws.
Likewise, Section 64 of the law categorically provides that cases of children 15 years old and below, at the
time of the commission of the crime, shall immediately be dismissed and the child shall be referred to the
appropriate local social welfare and development officer (LSWDO). What is
controlling, therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL's age
at the time of the promulgation of judgment but the CICL's age at the time of the commission of the offense.
In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from 9 to 15 years
old.[52]
Given this precise statutory declaration, it is imperative that this Court accord retroactive application to the
aforequoted provisions of R.A. No. 9344 pursuant to the well-entrenched principle in criminal law - favorabilia
sunt amplianda adiosa restrigenda. Penal laws which are favorable to the accused are given retroactive
effect.[53] This principle is embodied in Article 22 of the Revised Penal Code, which provides:
Art. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect
insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as
this term is defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws, a final sentence has been pronounced and the convict is
serving the same.
We also have extant jurisprudence that the principle has been given expanded application in certain instances
involving special laws.[54] R.A. No. 9344 should be no exception.
In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the deliberations on the bill
in the Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages 34 to 35, may
I humbly propose that we should insert, after Sections 67 to 69, the following provision:
ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS
LAW PENDING THE CREATION OF THE OFFICE OF JUVENILE WELFARE
AND RESTORATION (OJWR) AND THE LOCAL COUNCIL FOR THE
PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR, SHALL BE
IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD
SHALL UNDERTAKE DIVERSION PROGRAMS FOR THEM, PRIORITIZING
THE YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE LIGHTER
OFFENSES.
The only question will be: Will the DSWD have enough facilities for these adult
offenders?
Senator Pangilinan, Mr. President, according to the CWC, the DSWD does not have
the capability at the moment. It will take time to develop the capacity.
Senator Santiago. Well, we can say that they shall be transferred whenever the facilities
are ready.
Senator Pangilinan. Yes. Mr. President, just a clarification. When we speak here of
children who do not have criminal liability under this law, we are referring here to those
who currently have criminal liability, but because of the retroactive effect of this
measure, will now be exempt. It is quite confusing.
Senator Santiago. That is correct.
Senator Pangilinan. In other words, they should be released either to their parents or
through a diversion program, Mr. President. That is my understanding.
Senator Santiago. Yes, that is correct. But there will have to be a process of sifting
before that. That is why I was proposing that they should be given to the DSWD, which
will conduct the sifting process, except that apparently, the DSWD does not have the
physical facilities.
Senator Pangilinan. Mr. President, conceptually, we have no argument. We will now
have to just craft it to ensure that the input raised earlier by the good Senator is included
15
and the capacity of the DSWD to be able to absorb these individuals. Likewise, the
issue should also be incorporated in the amendment.
The President. Just a question from the Chair. The moment this law becomes
effective, all those children in conflict with the law, who were convicted in the
present Penal Code, for example, who will now not be subject to incarceration
under this law, will be immediately released. Is that the understanding?
Senator Pangilinan. Yes, Mr. President.
Senator Santiago. They would immediately fall under . . . .
Senator Pangilinan. The diversion requirements, Mr. President.
Senator Santiago. Yes.
The President. But since the facilities are not yet available, what will happen to them?
Senator Santiago. Well, depending on their age, which has not yet been settled . . . . .
provides, for example, for conferencing family mediation, negotiation, apologies,
censure, et cetera. These methodologies will apply. They do not necessarily have to
remain in detention.
Senator Pangilinan. Yes, that is correct, Mr. President. But it will still require some sort
of infrastructure, meaning, manpower. The personnel from the DSWD will have to
address the counseling. So, there must be a transition in terms of building the capacity
and absorbing those who will benefit from this measure.
The President. Therefore, that should be specifically provided for as an amendment.
Senator Pangilinan. That is correct, Mr. President.
The President. All right. Is there any objection? [Silence] There being none,
the Santiago amendment is accepted.[55]
xxxx
PIMENTEL AMENDMENTS
xxxx
Senator Pimentel.
xxxx
Now, considering that laws are normally prospective, Mr. President, in their application,
I would like to suggest to the Sponsor if he could incorporate some kind of a
transitory provision that would make this law apply also to those who might
already have been convicted but are awaiting, let us say, execution of their penalties
as adults when, in fact, they are juveniles.
Senator Pangilinan. Yes, Mr. President. We do have a provision under the Transitory
Provisions wherein we address the issue raised by the good Senator, specifically,
Section 67. For example, Upon effectivity of this Act, cases of children fifteen (15)
years old and below at the time of the commission of the crime shall immediately
be dismissed and the child shall be referred to the appropriate local social welfare
and development officer. So that would be giving retroactive effect.
Senator Pimentel. Of cases that are still to be prosecuted.
Senator Pangilinan. Yes.
Senator Pimentel. What about those that have already been prosecuted? I was trying to
cite the instance of juvenile offenders erroneously convicted as adults awaiting
execution.
Senator Pangilinan. Mr. President, we are willing to include that as an additional
amendment, subject to style.
Senator Pimentel. I would certainly appreciate that because that is a reality that we have
to address, otherwise injustice will really be . . .
Senator Pangilinan. Yes, Mr. President, we would also include that as a separate
provision.
The President. In other words, even after final conviction if, in fact, the offender is able
to prove that at the time of the commission of the offense he is a minor under this law,
he should be given the benefit of the law.
Senator Pimentel. Yes, Mr. President. That is correct.
Senator Pangilinan. Yes, Mr. President. We accept that proposed amendment.[56]
The Court is bound to enforce this legislative intent, which is the dominant factor in interpreting a statute.
Significantly, this Court has declared in a number of cases, that intent is the soul of the law, viz.:
The intent of a statute is the law. If a statute is valid it is to have effect according to the
purpose and intent of the lawmaker. The intent is the vital part, the essence of the law,
and the primary rule of construction is to ascertain and give effect to the intent. The
intention of the legislature in enacting a law is the law itself, and must be enforced
when ascertained, although it may not be consistent with the strict letter of the statute.
Courts will not follow the letter of a statute when it leads away from the true intent and
purpose of the legislature and to conclusions inconsistent with the general purpose of
the act. Intent is the spirit which gives life to
a legislative enactment. In construing statutes the proper course is to start out and
follow the true intent of the legislature and to adopt that sense which harmonizes best
with the context and promotes in the fullest manner the apparent policy and objects of
the legislature.[57]
Moreover, penal laws are construed liberally in favor of the accused. [58] In this case, the plain meaning of R.A.
No. 9344's unambiguous language, coupled with clear lawmakers' intent, is most favorable to herein petitioner.
No other interpretation is justified, for the simple language of the new law itself demonstrates the legislative
intent to favor the CICL.
It bears stressing that the petitioner was only 13 years old at the time of the commission of the alleged rape.
This was duly proven by the certificate of live birth, by petitioner's own testimony, and by the testimony of his
mother. Furthermore, petitioners age was never assailed in any of the proceedings before the RTC and the CA.
Indubitably, petitioner, at the time of the commission of the crime, was below 15 years of age. Under R.A. No.
9344, he is exempted from criminal liability.
16
However, while the law exempts petitioner from criminal liability for the two (2) counts of rape committed
against AAA, Section 6 thereof expressly provides that there is no concomitant exemption from civil
liability. Accordingly, this Court sustains the ruling of the RTC, duly affirmed by the CA, that petitioner and/or
his parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the nature of actual or
compensatory damages, and is mandatory upon a conviction for rape.
The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity awarded
to the rape victim. AAA is entitled to moral damages in the amount of P50,000.00 for each count of rape,
pursuant to Article 2219 of the Civil Code, without the necessity of additional pleading or proof other than the
fact of rape. Moral damages are granted in recognition of the victim's injury necessarily resulting from the
odious crime of rape.[59]
A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our
children from the harshness of life and to alleviate, if not cure, the ills of the growing number of CICL and
children at risk in our country, has been enacted by Congress. However, it has not escaped us that major
concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale for the Proposed
Rule on Children Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, it was
found that:
The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006
raising the age of criminal irresponsibility from 9 years old to 15 years old has
compounded the problem of employment of children in the drug trade several times
over. Law enforcement authorities, Barangay Kagawads and the police, most
particularly, complain that drug syndicates have become more aggressive in using
children 15 years old or below as couriers or foot soldiers in the drug trade. They claim
that Republic Act No. 9344 has rendered them ineffective in the faithful discharge of
their duties in that they are proscribed from taking into custody children 15 years old or
below who openly flaunt possession, use and delivery or distribution of illicit drugs,
simply because their age exempts them from criminal liability under the new law. [60]
The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape, a
heinous crime committed against AAA who was only a child at the tender age of six (6) when she was raped
by the petitioner, and one who deserves the laws greater protection. However, this consequence is inevitable
because of the language of R.A. No. 9344, the wisdom of which is not subject to review by this Court. [61] Any
perception that the result reached herein appears unjust or unwise should be addressed to Congress. Indeed,
the Court has no discretion to give statutes a meaning detached from the manifest intendment and language of
the law. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts,
and we have done so in this case.[62]
WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-19084 filed against petitioner
Joemar F. Ortega are hereby DISMISSED. Petitioner is hereby referred to the local social welfare and
development officer of the locality for the appropriate intervention program. Nevertheless, the petitioner is
hereby ordered to pay private complainant AAA, civil indemnity in the amount of One Hundred Thousand
Pesos (P100,000.00) and moral damages in the amount of One Hundred Thousand Pesos (P100,000.00). No
costs.
Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile Justice and Welfare
Council (JJWC).
G.R. No. L-6897 February 15, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
POLICARPIO TAYONGTONG, defendant-appellant.
Jose M. Arroyo for appellant.
Acting Attorney-General Harvey for appellee.
MORELAND, J.:
The defendant in this case was convicted of the crime of homicide by negligence (homicidio por imprudencia
temeraria). He appealed, basing his whole case here upon the proposition that the evidence does not warrant
the conviction.
It appears that on the 19th day of January, 1911, one Severino Resume was engaged in painting telephones
poles located along the highway between Jaro and Iloilo. On that day he was killed by being run over by an
automobile driven by the defendant. The highway at the point where Severino met his death was straight, of
considerable width, and in good condition. The telephone pole upon which Severino was at work at the time
of the accident was outside of the beaten portion of the highway and located about 2 feet into the grass at the
side. Between it and the edge of the road was a pathway used by people traveling on foot. The machine
which caused the death of the deceased is a large passengers, and having upon each side and extending about
2 feet out beyond the wheels a rack or other contrivance for the carrying of parcels, baggage, and freight. It is
used solely for the purpose of carrying passengers back and forth between Iloilo and Jaro.
The accident happened at about 10 o' clock in the morning. The automobile was then engaged in making its
third trip from Iloilo at Jaro, and was loaded to its fullest capacity. There were several people who claim to
have witnessed the accident. One of them, the principal witness for the prosecution, and its only witness who
saw the occurrence, named Pablo Tayson, is alleged to have been standing within a few feet of the deceased,
talking with him, at the time he was run down. Another person, who was near by at the time of the accident,
was Basilio Severaldo, who was engaged in the same work as the deceased but, just prior to the passage of
the automobile, had gone away from the locality where the accident occurred and saw nothing of what
happened. Two other persons, who have been produced as witnesses for the defendant, allege that they were
present and saw the whole occurrence.
Pablo Tayson, who, as we have said, is the only witness for the prosecution testifying directly to the facts and
substantially the only witness upon whom the prosecution relies for a conviction, testified that at the time of
the accident he and the deceased were located on the left-hand side of the highway going from Iloilo at Jaro;
that he was standing a few feet from the deceased who was also on the same side of the highway; that the
deceased was standing up painting the side of the telephone pole toward Jaro; that the telephone pole was,
therefore, between the deceased and Iloilo, the direction from which the automobile was coming; that the
road on that day was very dusty and the automobile, as he saw it coming from Iloilo toward him and the
deceased, was raising a cloud of dust which he was drifting to the side of the road upon which he and the
deceased were located. This witness further asserted that he saw the automobile when it was within about
1,200 feet of the place where he stood; that it was coming at a rate of speed variously termed by him "very
fast" and "at full speed;" that, on observing the machine as it approached, he saw that the driver, the accused,
was turning the steering wheel first in one direction and then the other, as if uncertain what course he was
going to pursue; that the machine, as a consequence, was darting first to one side of the road and then to the
other, thus zigzagging back and forth across the traveled portion of the highway; that just before reaching the
place where deceased was painting the telephone pole it crossed to the side of the road opposite to him and
then suddenly started back across the road opposite to him and then suddenly started back across the road,
striking the deceased as he stood painting; that by the impact the deceased was thrown upon the ground
somewhat toward the front of the machine, which was going so fast that, although the accused was not within
the reach of its wheels, nevertheless, the "suction," as the witness called it, created by the swift passage of the
machine drew the deceased under its wheels where he was run over and crushed.
From the testimony of the witness it does not appear that the deceased moved or stirred in any way until he
was hit by the automobile.
The accused testified, and produced several witnesses to support his testimony, that at the time of the
accident he was driving the machine, which was loaded to its fullest capacity with passengers and baggage, at
about 10 to 15 miles an hour; that he was driving in or near the center of the road and pas to either side; that
the machine was under full control and was going steadily and smoothly without deviating to the right or to
the left; that on approaching the place where the witness Pablo Tayson stood he saw him turn his back toward
the road and place his cap over his face in such a way as to cover his nose, mouth and eyes, evidently to
protect them from the cloud of dust which was rolling from behind the machine over toward the side of the
road on which he was; that the deceased, as the machine approached, probably seeing the cloud of dust which
it was raising and which would inevitably drift in his direction, and observing his companion, Pablo Tayson,
under the necessity of protecting himself from the dust in the manner described, just before the machine
reached a point opposite him, started to cross the road to the other side, evidently to escape the dust; that he
misjudged the distance and started too late; that in attempting to cross he placed himself squarely in front of
the machine; that his movement was so sudden and unexpected and, when he reached the road, he was so
close to the machine that it was impossible to stop it in time to avert the catastrophe; that he did everything
17
that was possible to be done to avoid the accident; that he put on both brakes as hard as possible and turned
the machine as much as could be done under the circumstances; that in proof thereof he shows that only the
front wheel of the machine passed over the body of the deceased, it having been turned by him sufficiently so
that the mind wheel missed him, and that the machine was stopped a very few feet beyond the point where
the accident occurred. The accused testified, and his evidence in this regard is uncontradicted, that he was
thoroughly qualified as a driver, having served his apprenticeship on this very road and this very machine
before being employed.
The accused denies absolutely that portion of the story told by Pablo Tayson in which he alleges that the
accused was driving at a high rate of speed; that he was zigzagging from one side of the road to the other;
and that he struck the deceased while he stood painting the telephone pole.
We are satisfied that the evidence is not sufficient to convict. On the contrary, we believe that, under all of
the facts and circumstances of the case, the fair preponderance of the evidence indicates that the deceased
met his death in substantially the manner described by the accused. In the first place, the testimony of Pablo
Tayson is affected by an attack made upon his credibility during the progress of the trial. It was shown that,
on the preliminary investigation had by the justice of the peace, this witness testified, precisely as the accused
asserted in his evidence, that just as the machine was arriving at a point in the highway opposite him, he,
desiring to avoid the unpleasantness of the dust, turned his back toward the road and covered his face with
his cap, thereby excluding the dust from his mouth, eyes, and nostrils. That he so testified on the preliminary
investigation, according to the record thereof, is admitted. In his testimony on the trial of this case he stated,
at first, that he turned his right side to the road and placed his hand over the side of his face. leaving his eyes
uncovered, so that he was able to see and did see the deceased at the time he was run down. Upon cross-
examination he changed this testimony to the extent of saying that he covered the right side of his face with
his cap instead of his hand, maintaining, however, that he did not cover his eyes and that he was able to see
the deceased and all that transpired. When confronted with the evidence which he gave on the preliminary
examination, he sought to explain the difference between his two declarations by stating that the testimony
before the justice of the peace, which was reduced to writing and signed by him, was in a different language
from that which he was able to speak and to speak and that it was not translated so that he knew what he was
signing.
In the second place, the testimony of this witness is unreasonable. It is improbable that a machine as large as
the one in question, going at the rate of speed described by Pablo Tayson, could zigzag from one side of the
highway to the other in the manner described by the witness. It is still more improbable that this machine
could have dodged from the right-hand side of the road to the left and, in some unknown manner, picked the
deceased out from behind the telephone pole, dragged him into the highway and there run over him. It is not
clear how an automobile can run over a man when it is admitted that he is on the opposite side of a telephone
post from the machine which ruins him down, with only a portion of his body extending beyond it. Even if
the machine had started toward him in the manner described he would undoubtedly have seen it quickly
enough to have passed around the other side of the post and save himself from being touched. This is
especially evident when we observe that it is admitted that the deceased stood facing the automobile all the
time and could see it plainly and its every movement. It is difficult to believe that a machine of the size of the
one in question, driven at the high rate of speed alleged by the witness, could have turned suddenly, darted
toward the ditch, and struck the deceased while located partly on the opposite side of a post from the machine
without having collided with the post or gone into the ditch, it being remembered that the post was not more
than 6 feet from the ditch.
From the transcription given of the machine it appears, as we have already seen, that there were certain
portions of the body of the machine extending over and beyond the wheels, which were used as receptacles
for the baggage and bundles of passengers. This projection, under the theory of the prosecution, would
necessarily have been the portion of the machine to hit the deceased for the reason that no other part of the
machine could have come in contact with him without the projection referred to striking the telephone pole.
If this projection is that which struck the deceased first, then he would have been thrown into the ditch away
from the machine and not into the highway under the machine. This is what would necessarily have
happened when we remember that at the time the deceased was struck the machine was going at full speed
toward the ditch. It was apparently to avoid the contradiction of his previous testimony inherent in this
necessary result that the witness testified that the force which prevented the deceased from going into the
ditch and drew him under the machine was the "suction" created by its rapid passage along the highway.
It is undisputed evidence of the case that that portion of the machine which struck the deceased first was the
mudguard over the left wheel. This fact alone shows the impossibility of the machine having hit the deceased
while standing at the post, as it is admitted that no part of the automobile collided with the post. If the
deceased had been at the post, as described by Tayson, the guard could not possibly have struck him without
the extended portions described having struck the post itself.
On the otherhand, the story told by the accused and supported by some of the passengers who saw the
accident is entirely reasonable, accords with common sense and ordinary experience. It was clearly told, in a
manner frank and straightforward, was free from contradictions and needs no explanation or excuses.
We have read with detention the opinion upon which the judgment of conviction is based. In spite of careful
study, we are unable to discover anything therein that alters our views in relation to the merits. As between
the two theories, the one of the prosecution and the other of the defense, we cannot have, under the evidence
and record, any hesitation in choosing. The evidence presented by the prosecution itself, and it is upon that
evidence alone that the conviction must stand, every other fact in the record being conspicuously in
exculpation of the accused, shows the deceased standing upon the east side of a telephone pole facing an
automobile coming toward him from the west, about half of his body extending beyond the pole toward the
highway on his left. On his right was the highway drainage ditch. The pole was outside of the travelled
portion of the highway so far that a footpath lay between it and said traveled portion. The automobile was
coming toward him at a high rate of speed, to judge from the evidence of this witness, at least 40 miles an
hour, possibly more. The machine was not proceeding in a straight line but it was going from one side of the
road to the other. Just before arriving opposite the deceased it darted to the right-hand side of the road and
then, turning, it started toward the left-hand side directly at the deceased. All of these things the deceased
saw, yet he did not move or attempt to save himself in any way. On the contrary, he stood still and permitted
the machine to strike him upon his left side. Having collided with him, the machines turned back toward the
center of the highway, carrying the deceased with it, depositing him within the traveled portion of the
highway, where it ran over him. On the other hand, the evidence of the defendant shows that he was driving
the machine at a moderate rate of speed within the usually traveled portion of the highway, guiding it in a
substantially straight line and handling it in the usual and ordinary manner. The machine, one of
extraordinary size and capable of carrying 35 passengers with their baggage and effects, was incapable of
running at the rate of speed described by the prosecution. Arriving at a point in the highway just in front of
the deceased, the latter, to avoid the cloud of dust which was drifting to his side of the road, started to cross
the road to the other side. He miscalculated the time and distance and as a result was struck by the
automobile and run over. His action in starting across the road was so sudden and unexpected and, when he
reached the road, he was so close to the automobile, that it was impossible to stop the machine in time to save
him. The body was picked up within the traveled portion of the highway.
Which of these two stories is the most reasonable? We have no hesitation in answering. The story of the
prosecution presents so many things that are unreasonable and incredible and for which there exists in the
record no explanation whatever, and concerning which no reasonable explanation can give, that it must
necessarily be rejected. Even if, going at such a high rate of speed, the accused could have driven the
automobile from one side of the road to the other as alleged, what could possibly be his reason for so doing?
It was market day at Jaro; this was his third trip; the machine was loaded to its utmost capacity, both with
passengers and with baggage; he was doubtedly running according to a schedule and would have no time to
waste in going from one side of the road to the other; no reason is suggested and one can be supplied why a
driver should handle his machine in the manner described by the only witness for the prosecution who saw
the whole occurrence. Instead of Kepping to the travelled portion of the highway, which was admittedly in
fine condition, why should the accused go outside of it, across a foothpath used by pedestrians, and skin
alongside of the telephone poles located on that side? What object could he have had in thus exposing
himself, his passengers, and his machine to the risks and dangers of plunging into the drainage ditch or
driving against the telephone poles or meeting the other disasters and dangers which might be encountered
outside of the usually traveled portion of the highway? No explanation of such extraordinary conduct is given
in the record and none can be conceived. He was not engaged in taking a party of hilarious companions on a
"joy" ride, nor in giving an exhibition of his skill in handling an automobile of that size and class. It does not
appear that he was drunk or foolish. He was engaged in a business enterprise, employed by a businessman
purposes. What could possibly have been his purpose when, or arriving at a point in front of the deceased, he
turned his automobile across the road and started squarely toward the telephone pole and the deceased? That
he saw the deceased and that the deceased saw him is admitted. What spirit or purpose could have animated
him in driving his automobile outside of the highway directly toward not only a telephone post but the
drainage ditch itself in order to run down an unoffending person? What motive can be assigned by the
prosecution when it asserts that the accused did this unaccountable thing? What purpose does the prosecution
allege the accused sought to subserve when, by this conduct, he placed the safety of his passengers and of his
machine, as well as of himself, at stake in thus driving directly toward a place of great danger? Above all,
why did the deceased stand still, instead of stepping around behind the post, and permit himself to be crushed
18
to death by the machine which he clearly saw bearing down upon him? These unreasonable and accountable
things must be satisfactorily explained by the prosecution when it is confronted by the statement of the
accused, supported by a number of disinterested witnesses, that none of those things ever occurred. We have
already pointed out that, giving the story as told by the prosecution credence, it would have been little short
of an impossibility for the body of the deceased to have found itself in the travelled portion of the highway
after the accident. He would inevitably have been driven further away from the highway and toward the ditch
by the blow from the machine going in the direction in which it was alleged by the prosecution to have been
going.
Turning to the story of the event as given by the defendant and his witnesses, we meet nothing that requires
explanation. There can, therefore, be no hesitation on our part in accepting the truth of the story told by the
defendant.
Although we have held in a recent case (U. S. vs. Reyes, 10 Off. Gaz., 1045), a criminal action for homicide
by imprudencia temeraria, that contributory negligence on the part of the person killed is no defense,
provided the driver of automobile himself was negligent and that negligence was the proximate cause of the
death, nevertheless, that doctrine does not in any way inveigh against the proposition which we here assert
that, where death is due to the negligence of the decedent himself and not to the negligence of the driver of
the automobile, the latter cannot be held for homicide. In this case the death of the deceased was due entirely
to his own negligence. There is not sufficient reliable proof in the record to establish negligence on the part
of the accused. There being no negligence, he is not responsible, no matter what the result of the accident
may have been.
The judgment of conviction is reversed and the accused acquitted.
Torres, Johnson, Carson and Trent, JJ., concur.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ESMER MONTENEGRO; FREDDIE MACA
(At Large); KIKING SALAHAY (At Large); BADIL SALAHAY (At Large); MAMA
MONTENEGRO (At Large); and FLORIE MEDRANO (At Large), accused;
ESMER MONTENEGRO, accused-appellant.
DECISION
AZCUNA, J.:
Appellant Esmer Montenegro was charged together with Freddie Maca, Kiking Salahay, Badil Salahay,
Mama Montenegro and Florie Medrano before the Regional Trial Court of Tandag, Surigao del Sur, Branch
27, for Kidnapping and Serious Illegal Detention on October 22, 2001. Inasmuch as all the other accused were
at large, the trial proceeded only with respect to herein appellant Esmer Montenegro who had surrendered and
who has been detained by the authorities. After trial, he was found guilty by the lower court and sentenced to
death.
The case is before us on automatic review.
The Information
Appellant and his co-accused were charged under an information that reads, as follows:
The undersigned prosecutor hereby accuses KIKING SALAHAY, alias ENRIQUE MENDOZA, FREDDIE
MACA, BADIL SALAHAY, ESMER MONTENEGRO, MAMA MONTENEGRO, and FLORIE
MEDRANO, with the crime of KIDNAPPING AND SERIOUS ILLEGAL DETENTION, committed as
follows:
That on the 23rd day of August 2001, about 7:30 in the morning, more or less, at Umalag, San Miguel,
Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and
feloniously kidnap and forcibly bring one Gerardo Mag-isa, 42 years old, to an undisclosed place for the
purpose of extorting ransom, wherein the latter was detained and deprived of his liberty for a period of seven
(7) days, to the damage and prejudice of said victim.
CONTRARY TO LAW. (In violation of Article 267 as amended by R.A. 7659).[1]
Upon arraignment, appellant pleaded not guilty.[2]
Pre-Trial
On July 5, 2002 a pre-trial hearing was conducted and terminated on the same day, where the following
admissions were made by appellant and recorded in a Pre-Trial Order:[3]
1. His identity as Esmer Montenegro;
2. the date and place of the incident, namely, August 23, 2001 at about 7:30 in the morning at
Umalag, San Miguel, Surigao del Sur;
3. that with him were his co-accused Kiking Salahay, alias Enrique Mendoza, Freddie Maca, Badil
Salahay, Mama Montenegro and Florie Montenegro;
4. the existence of the four-page letter of the victim addressed to his wife Rose;
5. that the victim Gerry Mag-isa was kidnapped and detained for seven days; appellant however
alleged that he acted under the compulsion of an irresistible force;
6. the one-page letter also dated August 23, 2001 by the victim addressed to Rose.
Appellant, however, proposed for admission by the prosecution the defense of having acted under the
compulsion of an irresistible force. The prosecution rejected the proposal.
The Prosecutions Evidence
The prosecution offered the following as its exhibits:
Exhibit A - 4-page letter dated August 23, 2001
signed by Gerry Mag-isa and addressed
to his wife Rose;
Exhibit B - 1-page letter signed by Gerry and
addressed to his wife Rose.
The prosecution did not present any witness nor any other evidence and relied mainly on the admissions
made by appellant during the pre-trial hearing and on Exhibits A and B which it formally offered in evidence.
On July 5, 2002, the trial court issued the following Order:[4]
After the pre-trial and considering the admission of the defense in so far as the accused Esmer Montenegro is
concerned, Assistant Provincial Prosecutor Elpidio I. Digaum moved to be allowed to formally offer his
evidence and rest his case. Granted. Formally offered in evidence are the following exhibits namely: the 4-
page letter dated August 23, 2001 signed by Gerry the victim in this case addressed to his wife Rose marked
as Exhibit A and the 1-page letter also dated August 23, 2001 signed by the same victim Gerry addressed to
his wife Rose. The alleged purpose is to prove demand for money by the alleged kidnappers. The defense
admitted the existence of Exhibits A and B and denied the purposes for which the same are offered.
Considering the admission of the existence of Exhibits A and B, the same are ordered admitted. The purpose
of the offer and objection thereto will be evaluated in the appreciation of the evidence. The prosecution
having rested its case, the reception of defense is set for August 13, 2002 at 8:30 in the morning. x x x
Evidence For The Defense
Appellant, in his defense, testified that in the early morning of August 23, 2001, he was fetched from
his house located at Barangay Caromata, San Miguel, Surigao del Sur, by his uncle Freddie Maca, who asked
him to accompany him to collect money from a certain person and who told him that he will give him P500.
They proceeded to Barangay Umalag and when they reached the place, he was made to wait at the waiting
shed while his uncle went to the house of a certain councilor to fetch a relative by the name of Mama
Montenegro. When Freddie Maca came back, he was accompanied by Mama Montenegro and Kiking Salahay
and Badil Salahay whom he noticed to be all armed with .45 and .38 caliber guns. Then they all proceeded to
the mountain of Umalag.
They proceeded to the mountain of Umalag because the person who was indebted to Freddie Maca was
invited to that area. When they reached their destination, Kiking Salahay pointed his gun at a person who later
turned out to be Gerry Mag-isa.
Appellant asked Freddie Maca for permission to go home because he was afraid of what the group did.
Freddie Maca relayed his request to Kiking Salahay. Fearing that he would report the matter to the police,
Kiking Salahay said that it would be better for all of them if they just killed appellant. Appellant then begged
for his life and stayed with the group.
The group proceeded to Barangay Bitaugan and stayed there for one day and two nights. On the second
night, however, at about 11:00 oclock in the evening, they discovered that Gerry Mag-isa had escaped. Seizing
the opportunity to leave the group, he asked permission to go home to which the group agreed. [5]
Upon reaching Barangay Caromata, he immediately reported the incident to Barangay Captain Felicula
Gran who promised to assist him. She accompanied him in surrendering to Sgt. Nacional of the Philippine
Army who picked him up and brought him to the Municipal Hall of San Miguel where he was detained until
the case was filed.[6]
The Trial Courts Decision
After trial, the lower court, finding that the prosecution had established the crime charged, rendered its
decision on November 20, 2002 convicting appellant of the crime of Kidnapping with Serious Illegal Detention
and sentencing him to death.[7]
In its decision, the trial court presented the following facts:[8]
Evidence for the prosecution show[s] that on August 23, 2001, at about 7:30 in the morning, at Umalag, San
Miguel, Surigao del Sur, the victim Gerry Mag-isa was at the mining site together with Arsenio L. Darasan,
Ricardo P. Cabangbang, and Joseph C. Flores. At that moment, a man arrived who said that he was instructed
by the Barangay Captain of Umalag, San Miguel, Surigao del Sur, by the name of Kapitan Piling, to invite
Gerry Mag-isa and to bring him to her residence because it was the fiesta of her Barangay. Because they
19
were so busy at that time, Gerry Mag-isa refused to go with him and instead handed him an amount
of P200.00 when he left. Not long after fifteen minutes had passed, after said person left, three men arrived
with the same intention of inviting him to the house of Kapitan Piling. However, when the three men were at
the makeshift hut they suddenly pulled out their .45 and .38 caliber handguns and ordered Gerry Mag-isa,
Arsenio L. Darasan, Ricardo P. Cabangbang and Joseph C. Flores to drop to the ground. That while still lying
face on the ground, they saw Kiking Salahay, the leader of the group, hand over a piece of paper to Gerry
Mag-isa and [Kiking Salahay] ordered him to write a note to his wife, telling her to give the amount of Two
Million Pesos (P2,000,000.00) for the release of her husband. That soon after the note was written, they
instructed Arsenio Darasan, Joseph C. Flores and Ricardo P. Cabangbang to bring said note to the wife of the
victim. That after they left with Gerry Mag-isa, they immediately went to Tandag, Surigao del Sur (See Joint
Affidavit of Arsenio L. Darasan, et al. in page 24 of the record).
The allegation of the victim Gerry Mag-isa (See Affidavit on page 23 of the record) shows that he was
forcibly abducted and kidnapped about 7:00 in the morning of August 23, 2001, at Barangay Umalag, San
Miguel, Surigao del Sur. He stated, that he was treated well by the kidnappers, except that when he answered
to the call of nature, he was watched closely and they were asking money from his family. The kidnappers
also took from him the amount of P320.00 which was spent for their food in the mountains and his chainsaw
amounting to P18,000.00. After spending 7 days at the hands of the captors, specifically on August 30, 2001,
at about 1:00 oclock in the morning, while they were asleep, he was able to escape and reached Barangay
Bagyang, San Miguel. He was able to know the leader of the kidnappers by the name of Kiking Salahay,
alias Enrique Mendoza because they called him kumander. They were armed with a .45 caliber, two .38
caliber handguns and sharp bladed military knives.
Appellant in his brief assigns a single error, to wit;
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE
CRIME CHARGED.
In support of his sole assignment of error, appellant seeks exemption from criminal liability under
Article 12, Paragraph 5 of the Revised Penal Code which provides that any person who acts under the
compulsion of an irresistible force is exempt from criminal liability. He cites the following circumstances
which would place him under the umbrella of this exemption:
1. He was forced to join the kidnappers because he was threatened with bodily harm and death.
2. He did not attempt to escape because the leader Kiking Salahay and his companions carried with
them .45 and .38 caliber firearms.
3. He was not allowed to leave the group because Salahay feared that the accused would report the
matter to the police.[9]
The specific act which allegedly constitutes this irresistible force is the statement of Kiking Salahay that
it would be better for the group if they just killed appellant in response to his request to be allowed to go home.
Appellant thus begged for his life and was left with no choice but to stay with the group. [10]
As a result, appellant argues that he was reduced to a mere instrument. He did not act of his own volition
and the fear of being killed and the fact that his uncle Freddie Maca had moral ascendancy over him forced
him to stay with the group. These circumstances, therefore, he contends, exempt him from criminal liability.
In support, appellant cites the ruling in People v. Del Rosario.[11]
The Solicitor Generals Recommendation
The Solicitor General filed a Manifestation and Motion (In Lieu of Brief),[12] recommending the
acquittal of appellant on the ground that the exacting proof of guilt beyond reasonable doubt was not met, thus:
xxx
13. The appeal is meritorious
14. Under the criminal justice system, the burden of proof lies with the prosecution. (Rule 115, Section 1,
Revised Rules of Criminal Procedure). That burden must be discharged on the strength of the prosecutions
own evidence, without relying on the weakness of the defense. Proof beyond reasonable doubt, or that
quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of
those who are to act in judgment, is indispensable to overcome the constitutional presumption of
innocence (People v. Batocoy, G.R. Nos. 137458-59, prom. April 24, 2003).
15. Such proof is lacking in this case.
16. The prosecution merely offered in evidence the following documents:
1. A 4-page letter dated August 23, 2001 signed by Gerry Mag-isa, addressed to his wife. The
letter contained a demand of P150,000.00 ransom instead of P2M;
2. A 1-page letter dated August 23, 2001 signed by Gerry Mag-isa, This letter was addressed
to Rose informing her that he was a hostage and that the kidnappers were demanding a
P2M ransom.
17. Sadly, the prosecution did not present testimonial evidence to prove the guilt of appellant of the crime
charged. The evidence of the prosecution does not measure up to the requisite moral certainty,
notwithstanding the admission by the defense of the existence of the four-page letter of the victim Gerry
Mag-isa addressed to his wife (Exh. A). Furthermore, the admissions of appellant were not reduced into
writing and signed by him and his counsel in violation of Section 2, Rule 118 of the Revised Rules of
Criminal Procedure. This means that the admissions, assuming that these are incriminating, cannot be used
against appellant.
18. Even as appellant testified that he was with the other accused, there is no evidence that he conspired with
them to kidnap the victim, detain him for more than three (3) days, and demand for ransom in exchange for
his release.
19. In view of the abject failure of the prosecution to present witnesses to prove the guilt of appellant, his
testimony, therefore, remains undisturbed.
xxx
20. From [appellants] declaration, it appears that appellant had no idea of the kidnapping scheme because he
was just invited by his uncle to accompany him in collecting an obligation from a certain person. Likewise,
significant are the acts of appellant in reporting the incident to the authorities and turning himself in. These
were not disputed by the prosecution.
21. Absent any overt act of appellant which would be construed as necessary or essential to the perpetration
of the kidnapping for ransom and serious illegal detention, mere presence at the locus criminis cannot by
itself be a valid basis for conviction. Mere knowledge, acquiescence to or agreement to cooperate, is not
enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the
crime, with a view to the furtherance of the common design and purpose. Conspiracy transcends
companionship (People v. James Patano, et al., G.R. No. 129306, prom. March 14, 2003). Conspiracy
must be proved as convincingly as the criminal act itself, which may be deducted from the acts of appellant
pointing to a joint purpose, concerted action and community of interest (People v. Guittap, G.R. No.
144621, prom. May 9, 2003). It is hornbook doctrine that conspiracy must be proved by positive and
convincing evidence (People v. Patano, G.R. No. 129306, prom. March 14, 2003), the same quantum of
evidence as the crime itself, that is, by proof beyond reasonable doubt (People v. Caballero, G.R. Nos.
149028-30, prom. April 2, 2003; People v. Gregorio, G.R. No. 153781, prom. September 24, 2003).
22. To be sure, the trial court could not rely on the affidavits not affirmed by the affiants court testimony. The
admission of hearsay evidence would be a violation of the constitutional provision that the accused shall
enjoy the right to confront and cross-examine the witness testifying against him (People v. Feliciano Ulit,
G.R. Nos. 131799-801, prom. February 23, 2004).
23. Consequently, it was egregious error for the trial court to consider the joint affidavit of Arsenio Darasin,
Ricardo Cabanbang and Joseph Flores, as well as the affidavit of the victim. Affidavits of persons who are
not presented to testify on the truth of the contents thereof are hearsay evidence (Vallarta v. Court of
Appeals, 163 SCRA 587 [1989]).
x x x.[13]
The Courts Decision
We have reviewed the entire records of this case and we fully agree with the position taken by the
Solicitor General. As the Solicitor General recognizes, we operate under a system that unshakeably puts the
burden of proof on the prosecution.[14]
This burden has not been discharged, and was hardly even attempted to be discharged, by the prosecution
in this case. It was content to rely on the admissions made at the pre-trial hearing and the introduction and offer
in evidence of the two letters allegedly written by the victim to his wife.
The admissions at the pre-trial hearing, however, showed only that:
1. Gerry Mag-isa was kidnapped and detained for seven days;
2. appellant Esmer Montenegro was among the group at the mountains of Umalag where the victim
was brought, which consisted of Kiking Salahay, alias Enrique Mendoza, Freddie Maca, Badil
Salahay, Mama Montenegro and Florie Montenegro;
3. the letters informed the victims wife of his kidnapping and detention and the amount demanded for
his release;
The pre-trial admissions do not show that appellant participated in the kidnapping of Gerry Mag-isa.
The evidence on record of appellants participation is his own narration of how he found himself with
the group without knowing that a kidnapping had transpired and, in his defense, he insists that he stayed with
the group because of the compulsion of an irresistible force exerted on him when Kiking Salahay stated in
reply to his request to be allowed to go home, that it would be better for all of them if they just killed appellant.
20
If the prosecution had proved conspiracy as alleged in the information, these admissions would be
relevant and material in determining the guilt of appellant. However, no proof to this effect was presented.
Hence, it cannot be determined what the specific role of appellant was in the commission of the crime. No
conspiracy having been proved, appellant cannot be convicted for a crime where his participation is not
established. As noted by the Solicitor General in his brief, absent any overt act of appellant which would be
construed as necessary or essential to the perpetration of the kidnapping for ransom and serious illegal
detention, mere presence at the locus criminis cannot by itself be a valid basis for conviction. Mere knowledge,
acquiescence to or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent
any active participation in the commission of the crime.[15]
The trial court utilized the affidavit of the victim Gerry Mag-isa as well as the joint affidavit of Arsenio
L. Darasin, Ricardo P. Cabangbang, Joseph C. Flores and Roy I. Tante to support its findings of appellants
participation and culpability.
The record is bereft of any evidence to show that these affidavits were ever presented or offered as
evidence for the prosecution, nor were the persons who executed them ever presented to affirm what was in
the affidavits nor to offer oral testimony on the circumstances of the alleged kidnapping. Hence, they are of no
value in the determination of the guilt of appellant. As we said in Osias v. Court of Appeals,[16] allegations in
an affidavit not testified upon in the trial are mere hearsay evidence and have no substantial evidential value.
In People v. Santos,[17] we ruled:
Indeed it appears that the only source of the above findings of fact of the trial court is Exhibit C, the sworn
statement of Romeo Fernandez. Since the affiant himself never took the stand during the trial, his sworn
statement is absolutely inadmissible in evidence for being hearsay. The admission of such hearsay evidence
and the conviction of the accused on the basis thereof gravely violated their constitutional right to meet their
witnesses face to face and to subject them to the rigid test of cross-examination. As we said in an earlier case,
the constitutional right to confrontation precludes reliance on such affidavits. Such a constitutional safeguard
cannot be satisfied unless the opportunity is given the accused to test the credibility of any person, who, by
affidavit or deposition would impute the commission of an offense to him.
Furthermore, Section 34, Rule 132 of the Rules of Court specifically provides that the court shall
consider no evidence which has not been formally offered. The purpose for which the evidence is offered must
be specified.
Again, we find nothing in the record that would show that these affidavits were offered in evidence.
Lastly, without going into the validity of appellants defense of having acted under the compulsion of an
irresistible force, the fact established by his own testimony which was not rebutted by the prosecution, was that
he had no idea that a kidnapping had been committed as he was just invited by his uncle to go with him to
collect money from someone. When he tried to leave the group, he was threatened with death. Nowhere in all
the evidence of the prosecution does it show that appellant performed any overt act that would implicate him
as an accomplice or participant in the crime.
The trial court brushed away this defense as not sufficiently proved. It also refused to believe the
testimonies of appellant and of the Barangay Captain of Caromate, Felicula Gran, that he reported the incident
after he was released, as mere afterthought. Yet what the trial court failed to perceive was that the evidence for
the prosecution was weak, if not nil. Consequently, the trial court, in an untenable lapse of judgment, decided
to consider only the alleged weaknesses of the defense to arrive at the conclusion that appellant is guilty and
not the strength or weaknesses of the prosecutions case. From our review of the records, we find that the
prosecution in this case has utterly failed in its duty to overcome by proof beyond reasonable doubt the
presumption of innocence of appellant.
WHEREFORE, the decision of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, dated
November 20, 2002, in Criminal Case No. 4306, is REVERSED and SET ASIDE and appellant Esmer
Montenegro is hereby ACQUITTED.
The National Bureau of Investigation is DIRECTED to assist in the arrest of the other accused in this
case who are at large, for them to undergo arraignment and trial. Let a copy of this Decision be furnished its
Director.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
Sandoval-Gutierrez, J., on leave.
[G.R. No. 125299. January 22, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and
VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @
"Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of
1972.[1] The information reads:
"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually
helping and aiding one another and without having been authorized by law, did, then and there willfully,
unlawfully and feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of
suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows: In November 1995, members of the
North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received
information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in
Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged
by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E.
Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha
composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four
(4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer and SPO1
Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of
the North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From
this sum, PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills[3]--
as money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. PO3
Manlangit marked the bills with his initials and listed their serial numbers in the police blotter.[4]The team rode
in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in
buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun"
instructed PO3 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got the
marijuana from his associate.[5] An hour later, "Jun" appeared at the agreed place where PO3 Manlangit, the
CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it
to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They
frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at
the house of his associate named "Neneth."[6] "Jun" led the police team to "Neneth's" house nearby at Daang
Bakal.
The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as
his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's"
house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of
the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its
contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3
Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it
contained ten (10) bricks of what appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth."[8] The
policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked
bills and turned them over to the investigator at headquarters. It was only then that the police learned that "Jun"
is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana
leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at the
PNP Crime Laboratory.[9]The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of
various weights totalling 7,641.08 grams.[10]
The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio
Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate
of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There
were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied
knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in
their community. When accused-appellant denied the charge, the men led him to their car outside and ordered
21
him to point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he
gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as
PO3 Manlangit, pushed open the door and he and his companions entered and looked around the house for
about three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the
house and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but
she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When
Violeta entered her house, three men were already inside. Accused-appellant Doria, then still at the door,
overheard one of the men say that they found a carton box. Turning towards them, Doria saw a box on top of
the table. The box was open and had something inside. PO3 Manlangit ordered him and Violeta to go outside
the house and board the car. They were brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his
acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood
store. This closeness, however, did not extend to Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she
was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children,
namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day,
accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her
husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed
them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson,
and accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she
and Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they
headed for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a
man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her
and took her to her house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on
top of the table. This was the first time she saw the box. The box was closed and tied with a piece of green
straw. The men opened the box and showed her its contents. She said she did not know anything about the box
and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her
husband, and that her husband never returned to their house after he left for Pangasinan.She denied the charge
against her and Doria and the allegation that marked bills were found in her person.[12]
After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial
court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to
death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA
GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both
CONVICTED of the present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec.
4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the
penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic
Act No. 7659 which explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating, confederating or
mutually helping one another for purposes of gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the
costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI
for destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the
New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional
Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE
WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH
DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA
ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-
BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA
FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE." [14]
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY
OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE
INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO
DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS
OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS
RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF
RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH
LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF
ACCUSED-APPELLANT."[15]
The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the
apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant
Gaddao, the search of her person and house, and the admissibility of the pieces of evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form
of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the
commission of an offense.[16] Entrapment has received judicial sanction when undertaken with due regard to
constitutional and legal safeguards.[17]
Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine
that evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly
liquor and narcotics offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public interest in
the formulation and application of decent standards in the enforcement of criminal law. [19] It also took off from
a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons
into lapses that they might otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is
understood as the inducement of one to commit a crime not contemplated by him, for the mere purpose of
instituting a criminal prosecution against him.[21] The classic definition of entrapment is that articulated by
Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge the concept:
"Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission
by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer." [23] It
consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement officers
or the agents to induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of
the government officials rather than that of the innocent defendant, such that the crime is the product of the
creative activity of the law enforcement officer.[24]
It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the
persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law
forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a
criminal career.[25] Where the criminal intent originates in the mind of the entrapping person and the accused
is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no
conviction may be had.[26] Where, however, the criminal intent originates in the mind of the accused and the
criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished
22
the accused an opportunity for commission of the offense, or that the accused is aided in the commission of
the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused
must be convicted.[27] The law tolerates the use of decoys and other artifices to catch a criminal.
Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the
nature of a confession and avoidance.[29] It is a positive defense. Initially, an accused has the burden of
providing sufficient evidence that the government induced him to commit the offense. Once established, the
burden shifts to the government to show otherwise. [30] When entrapment is raised as a defense, American
federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells
v. United States[31] to determine whether entrapment actually occurred. The focus of the inquiry is on the
accused's predisposition to commit the offense charged, his state of mind and inclination before his initial
exposure to government agents.[32] All relevant facts such as the accused's mental and character traits, his past
offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state
of mind before the crime.[33] The predisposition test emphasizes the accused's propensity to commit the offense
rather than the officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal."[35] If the accused was found to have been ready and willing to
commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used
an unduly persuasive inducement.[36] Some states, however, have adopted the "objective" test.[37] This test was
first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme Court of
Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here,
the court considers the nature of the police activity involved and the propriety of police conduct.[39] The inquiry
is focused on the inducements used by government agents, on police conduct, not on the accused and his
predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct. [40] The test
of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding
person, other than one who is ready and willing, to commit the offense; [41] for purposes of this test, it is
presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented
by the simple opportunity to act unlawfully.[42] Official conduct that merely offers such an opportunity is
permissible, but overbearing conduct, such as badgering, cajoling or importuning,[43] or appeals to sentiments
such as pity, sympathy, friendship or pleas of desperate illness, are not. [44] Proponents of this test believe that
courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but
rather because, even if his guilt has been established, the methods employed on behalf of the government to
bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should
not become tainted by condoning law enforcement improprieties.[45] Hence, the transactions leading up to the
offense, the interaction between the accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would be on a normal person. [46]
Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that
the "subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was
predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory practices will
be deemed impermissible.[47] Delving into the accused's character and predisposition obscures the more
important task of judging police behavior and prejudices the accused more generally. It ignores the possibility
that no matter what his past crimes and general disposition were, the accused might not have committed the
particular crime unless confronted with inordinate inducements.[48] On the other extreme, the purely "objective"
test eliminates entirely the need for considering a particular accused's predisposition. His predisposition, at
least if known by the police, may have an important bearing upon the question of whether the conduct of the
police and their agents was proper.[49] The undisputed fact that the accused was a dangerous and chronic
offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated
to irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United
States now combine both the "subjective" and "objective" tests.[51] In Cruz v. State,[52]the Florida Supreme
Court declared that the permissibility of police conduct must first be determined. If this objective test is
satisfied, then the analysis turns to whether the accused was predisposed to commit the crime. [53] In Baca v.
State,[54] the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal
defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit
the crime for which he is charged, or, that the police exceeded the standards of proper investigation. [55] The
hybrid approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused
caught in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking
opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime
in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard
Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We
accorded significance to the fact that it was Smith who went to the accused three times to convince him to look
for an opium den where both of them could smoke this drug.[57] The conduct of the BIR agent was condemned
as "most reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling explosives
after examining the testimony of the apprehending police officer who pretended to be a merchant. The police
officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found
that there was inducement, "direct, persistent and effective" by the police officer and that outside of his
testimony, there was no evidence sufficient to convict the accused.[60] In People v. Lua Chu and Uy Se
Tieng,[61] we convicted the accused after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of
opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug. We
ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by
pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers. [62]
It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction
between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64]we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into
crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the
act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime
that facilities for its commission were purposely placed in his way, or that the criminal act was done at the
'decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act
were present and apparently assisting in its commission. Especially is this true in that class of cases where the
offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of
conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free
from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed
confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was
formed independently of such agent; and where a person approached by the thief as his confederate notifies
the owner or the public authorities, and, being authorised by them to do so, assists the thief in carrying out
the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for
an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are
cases holding the contrary."[65]
The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v.
Galicia,[66] the appellate court declared that "there is a wide difference between entrapment and instigation."
The instigator practically induces the would-be accused into the commission of the offense and himself
becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of
trapping and capturing the lawbreaker in the execution of his criminal plan. [67] In People v. Tan Tiong,[68] the
Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the
lawbreaker."[69]
The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People
v. Tiu Ua.[70] Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed
contrary to public policy and illegal.[71]
It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation
or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the
accused. It is instigation that is a defense and is considered an absolutory cause.[72] To determine whether there
is entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not
the predisposition of the accused to commit the crime. The "objective" test first applied in United States v.
Phelps has been followed in a series of similar cases.[73] Nevertheless, adopting the "objective" approach has
not precluded us from likewise applying the "subjective" test. In People v. Boholst,[74] we applied both tests by
examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's
membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous
convictions of other crimes[75] and held that his opprobrious past and membership with the dreaded gang
strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke
marijuana and did not have any criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining
his defense that led to his acquittal.
The distinction between entrapment and instigation has proven to be very material in anti-narcotics
operations. In recent years, it has become common practice for law enforcement officers and agents to engage
23
in buy-bust operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws,
like anti-gambling laws are regulatory statutes.[77] They are rules of convenience designed to secure a more
orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are
not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with
crimes mala in se or those inherently wrongful and immoral.[79] Laws defining crimes mala prohibita condemn
behavior directed, not against particular individuals, but against public order. [80] Violation is deemed a wrong
against society as a whole and is generally unattended with any particular harm to a definite person. [81] These
offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It
is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing
to assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing
violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of
its own officials. This means that the police must be present at the time the offenses are committed either in an
undercover capacity or through informants, spies or stool pigeons.[82]
Though considered essential by the police in enforcing vice legislation, the confidential informant
system breeds abominable abuse. Frequently, a person who accepts payment from the police in the
apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the
police. The informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For whatever
noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses
underworld characters to help maintain law and order is not an inspiring one. [83] Equally odious is the bitter
reality of dealing with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous
law enforcers' motivations are legion-- harassment, extortion, vengeance, blackmail, or a desire to report an
accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of
cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and
hapless persons, particularly unsuspecting provincial hicks.[85] The use of shady underworld characters as
informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and
ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to
be extra-vigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy, although
necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced
confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false
arrest, illegal detention and the third degree, it is a type of lawless enforcement. They all spring from
common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the
sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the
employment of illegal means."[88]
It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law
enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should
not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the
individual.[89] It is the duty of courts to preserve the purity of their own temple from the prostitution of the
criminal law through lawless enforcement.[90] Courts should not allow themselves to be used as an instrument
of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug
offenses.[91]
We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from the initial contact between
the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject of the sale.[92] The manner by which the
initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of
the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer,
must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to
commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the
conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this
must also be considered. Courts should look at all factors to determine the predisposition of an accused to
commit an offense in so far as they are relevant to determine the validity of the defense of inducement.
In the case at bar, the evidence shows that it was the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who
posed as the buyer of marijuana. PO3 Manlangit handed the marked money to accused-appellant Doria as
advance payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later
returned and handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his
credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony
was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the
confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of
the need to hide their identity and preserve their invaluable service to the police. [93] It is well-settled that except
when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the
testimonies of the arresting officers,[94] or there are reasons to believe that the arresting officers had motives to
testify falsely against the appellant,[95] or that only the informant was the poseur-buyer who actually witnessed
the entire transaction,[96] the testimony of the informant may be dispensed with as it will merely be
corroborative of the apprehending officers' eyewitness testimonies.[97] There is no need to present the informant
in court where the sale was actually witnessed and adequately proved by prosecution witnesses. [98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source
of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution
proved that money was paid to accused-appellant Doria in consideration of which he sold and delivered the
marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit
was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the
Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box
lumping it together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of
marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each of
the ten (10) bricks, however, were identified and marked in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that
box?
A This is the box that I brought to the crime laboratory which contained the eleven pieces of
marijuana brick we confiscated from the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
Your Honor, I must protest the line of questioning considering the fact that we are now dealing with
eleven items when the question posed to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box
showed to him and brought in front of him.
COURT Noted.
Q Now tell the court, how did you know that those are the eleven bricks?
x x x.
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what
was handed to him by the accused Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite
reconsideration.
COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one that was handed to me by the suspect Jun, sir.
COURT Why do you know that that is the thing? Are you sure that is not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought
it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one alias Jun, sir.
Q What makes you so sure?
24
A Because I marked it with my own initials before giving it to the investigator and before we brought
it to the PCCL, your Honor.
x x x.
PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked
as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time and this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir.
PROSECUTOR May we place on record that the one that was enclosed...
ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95,
also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that
there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with
a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our
Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and the contents was given to you by
whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
x x x.
A These other marijuana bricks, because during our follow-up, because according to Jun the money
which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.
x x x."[99]
The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the
corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were
marked as Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams. [100]
We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost
one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains
credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar
did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-
bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between
the poseur-buyer and the pusher.[101]Again, the decisive fact is that the poseur-buyer received the marijuana
from the accused-appellant.[102]
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests
are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure,
to wit:
"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
x x x."[103]
Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is
actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of
committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation,
the police are not only authorized but duty-bound to arrest him even without a warrant.[104]
The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of
the box of marijuana and marked bills are different matters.
Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained
without such warrant is inadmissible for any purpose in any proceeding. [105] The rule is, however, not absolute.
Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in
the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search of a moving motor
vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the
accused himself waives his right against unreasonable searches and seizures. [111]
The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search
and seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is
claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the
search was an incident to her lawful arrest.
To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances
enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct
testimony of PO3 Manlangit, the arresting officer, however shows otherwise:
"ATTY VALDEZ, Counsel for appellant Gaddao:
We submit at this juncture, your Honor, that there will be no basis for that question.
Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto Street, sir.
Q How about the other items that you were able to recover?
ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that question.
COURT There is. Answer.
A These other marijuana bricks, because during our follow-up, because according to Jun the money
which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.
Q Whereat?
A At Daang Bakal near the crime scene at Shaw Boulevard, sir.
Q And what happened upon arrival thereat?
A We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir.
Q You mentioned "him?"
A Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir.
Q And what happened?
A At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.
x x x."[112]
SPO1 Badua testified on cross-examination that:
Q What was your intention in going to the house of Aling Neneth?
A To arrest her, sir.
Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was
there?
A Yes, sir.
Q As far as you can see, she was just inside her house?
A I saw her outside, sir.
Q She was fetching water as a matter of fact?
A She was `sa bandang poso.'
Q Carrying a baby?
A No, sir.
Q At that particular time when you reached the house of Aling Neneth and saw her outside the
house, she was not committing any crime, she was just outside the house?
A No, sir.
Q She was not about to commit any crime because she was just outside the house doing her daily
chores. Am I correct?
A I just saw her outside, sir.
Q And at that point in time you already wanted to arrest her. That is correct, is it not?
A Yes, sir.
Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her?
25
A PO3 Manlangit, sir.
Q You did not approach her because PO3 Manlangit approached her?
A Yes, sir.
Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you
were just in the side lines?
A I was just watching, sir.
Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your
role in this buy-bust operation was as a back-up?
A Yes, sir.
Q Who got the alleged marijuana from inside the house of Mrs. Neneth?
A PO3 Manlangit, sir.
Q Manlangit got the marijuana?
A Yes, sir.
Q And the money from Aling Neneth?
A I don't know, sir.
Q You did not even know who got the money from Aling Neneth?
PROSECUTOR:
There is no basis for this question, your Honor. Money, there's no testimony on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount
of P1,600.00 was recovered from the person of Aling Neneth. That's right?
A Yes, sir, the buy-bust money.
Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved
the money from Aling Neneth, it was Manlangit maybe?
A I saw it, sir.
Q It was Manlangit who got the money from Aling Neneth?
A The buy-bust money was recovered from the house of Aling Neneth, sir.
Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are
trying to tell the Court?
A No, sir.
ATTY. VALDEZ: I am through with this witness, your Honor."[113]
Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for
her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the
trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in
"hot pursuit."[114] In fact, she was going about her daily chores when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be justified under the second instance of Rule
113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based
upon "probable cause" which means an "actual belief or reasonable grounds of suspicion."[115] The grounds of
suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be
arrested.[116] A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest.[117]
Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-
accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-
accused in response to his (PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria
did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the
marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired
with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, [119] with or
without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom
agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that
the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person
arrested to the perpetration of a criminal offense, the arrest is legally objectionable. [120]
Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her
person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an
incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of
marijuana was in plain view, making its warrantless seizurevalid.
Objects falling in plain view of an officer who has a right to be in the position to have that view are
subject to seizure even without a search warrant and may be introduced in evidence. [121]The "plain view"
doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence
has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item
he observes may be evidence of a crime, contraband or otherwise subject to seizure.[122] The law enforcement
officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view
the area.[123] In the course of such lawful intrusion, he came inadvertently across a piece of evidence
incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery inadvertent.[126]
It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed container. Where the object seized was inside a closed package, the
object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package
proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious
to an observer, then the contents are in plain view and may be seized.[127] In other words, if the package is such
that an experienced observer could infer from its appearance that it contains the prohibited article, then the
article is deemed in plain view.[128] It must be immediately apparent to the police that the items that they observe
may be evidence of a crime, contraband or otherwise subject to seizure. [129]
PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:
"ATTY. VALDEZ:
So here we are. When you and Badua arrived, Aling Neneth was inside the house?
A Yes, sir.
Q Badua demanded from Aling Neneth the buy-bust money?
A Yes, sir.
Q At that particular instance, you saw the carton?
A Yes, sir.
Q This carton, according to you was under a table?
A Yes, sir, dining table.
Q I noticed that this carton has a cover?
A Yes, sir.
Q I ask you were the flaps of the cover raised or closed?
A It was open, sir. Not like that.
COURT
Go down there. Show to the court.
INTERPRETER
Witness went down the witness stand and approached a carton box.
A Like this, sir.
PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other flap is standing and with the contents visible.
COURT
Noted.
Q At this juncture, you went inside the house?
A Yes, sir.
Q And got hold of this carton?
A Yes, sir.
Q Did you mention anything to Aling Neneth?
A I asked her, what's this...
Q No, no. no. did you mention anything to Aling Neneth before getting the carton?
A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo
galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir.
Q Making reference to the marijuana that was given by alias Jun?
26

A Yes, sir. A Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]? Q Canned goods?
A I just don't know if she was frisked already by Badua, sir. A Yes, sir.
Q Who got hold of this? Q It could be ice cream because it says Snow Pop, Ice Pop?
A I was the one, sir. A I presumed it was also marijuana because it may ...
Q You were the one who got this? Q I am not asking you what your presumptions are. I'm asking you what it could possibly be.
A Yes, sir. A It's the same plastic, sir.
Q At that particular point in time, you did not know if the alleged buy-bust money was already retrieved ATTY. VALDEZ
by Badua? I'm not even asking you that question so why are you voluntarily saying the information. Let the
A Yes, sir. prosecutor do that for you.
Q You went inside the house? COURT
A Yes, sir. Continue. Next question.
Q You did not have any search warrant? x x x."[130]
A Yes, sir. PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant
Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria
possession of the buy-bust money because according to you, you did not know whether Badua named her and led them to her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a
already retrieved the buy-bust money from her? view of the interior of said house. Two and a half meters away was the dining table and underneath it was a
A Yes, sir. carton box. The box was partially open and revealed something wrapped in plastic.
Q How far was this from the door? In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were
A Two and a half meters from the door, sir. It was in plain view. marijuana because he himself checked and marked the said contents.[132] On cross-examination, however,
Q Under the table according to you? he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping
A Yes, sir, dining table. as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless
Q Somewhere here? and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in
A It's far, sir. the box was individually wrapped in old newspaper and placed inside plastic bags-- white, pink or blue
PROSECUTOR in color.[133] PO3 Manlangit himself admitted on cross-examination that the contents of the box could be
May we request the witness to place it, where he saw it? items other than marijuana. He did not know exactly what the box contained that he had to ask appellant
A Here, sir. Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit that the content of the
Q What you see is a carton? box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant
A Yes, sir, with plastic. was in violation of the law and the Constitution. [135] It was fruit of the poisonous tree and should have been
Q Marked "Snow Time Ice Pop?" excluded and never considered by the trial court.[136]
A Yes, sir. The fact that the box containing about six (6) kilos of marijuana[137] was found in the house of accused-
Q With a piece of plastic visible on top of the carton? appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.[138] Apropos is our
A Yes, sir. ruling in People v. Aminnudin,[139] viz:
Q That is all that you saw? "The Court strongly supports the campaign of the government against drug addiction and commends the
A Yes, sir. efforts of our law enforcement officers against those who would inflict this malediction upon our people,
PROSECUTOR especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the
For the record, your Honor... compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including
Q You were only able to verify according to you... the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty
PROSECUTOR alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.
Panero, wait. Because I am objecting to the words a piece of plastic. By reading it... Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the
ATTY. VALDEZ name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less
That's a piece of plastic. evil that some criminals should escape than that the government should play an ignoble part.' It is simply not
PROSECUTOR allowed in the free society to violate a law to enforce another, especially if the law violated is the
By reading it, it will connote... this is not a piece of plastic. Constitution itself."[140]
ATTY. VALDEZ Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of
What is that? What can you say, Fiscal? I'm asking you? Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a
PROSECUTOR prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10
With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be million, to wit:
big or a small one, for record purposes. "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.-- The penalty
COURT of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall
Leave that to the court. be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to
PROSECUTOR another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such
Leave that to the court. transactions.
Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw x x x."
that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the
Court, it could be "tikoy," is it not [sic]? sale took place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus
A Yes, sir. delicti, as evidence in court.[141] The prosecution has clearly established the fact that in consideration
Q Siopao? of P1,600.00 which he received, accused-appellant Doria sold and delivered nine hundred seventy (970) grams
27
of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-
appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no mitigating
or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a
Special Court in Criminal Case No. 3307-D is reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion
perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.
[G.R. No. 125299. January 22, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and
VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @
"Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of
1972.[1] The information reads:
"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually
helping and aiding one another and without having been authorized by law, did, then and there willfully,
unlawfully and feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of
suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows: In November 1995, members of the
North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received
information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in
Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged
by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E.
Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha
composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four
(4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer and SPO1
Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of
the North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From
this sum, PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills[3]--
as money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. PO3
Manlangit marked the bills with his initials and listed their serial numbers in the police blotter. [4]The team rode
in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in
buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun"
instructed PO3 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got the
marijuana from his associate.[5] An hour later, "Jun" appeared at the agreed place where PO3 Manlangit, the
CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it
to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They
frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at
the house of his associate named "Neneth."[6] "Jun" led the police team to "Neneth's" house nearby at Daang
Bakal.
The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as
his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's"
house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of
the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its
contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3
Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it
contained ten (10) bricks of what appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." [8] The
policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked
bills and turned them over to the investigator at headquarters. It was only then that the police learned that "Jun"
is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana
leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at the
PNP Crime Laboratory.[9]The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of
various weights totalling 7,641.08 grams.[10]
The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio
Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate
of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There
were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied
knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in
their community. When accused-appellant denied the charge, the men led him to their car outside and ordered
him to point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he
gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as
PO3 Manlangit, pushed open the door and he and his companions entered and looked around the house for
about three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the
house and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but
she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When
Violeta entered her house, three men were already inside. Accused-appellant Doria, then still at the door,
overheard one of the men say that they found a carton box. Turning towards them, Doria saw a box on top of
the table. The box was open and had something inside. PO3 Manlangit ordered him and Violeta to go outside
the house and board the car. They were brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his
acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood
store. This closeness, however, did not extend to Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she
was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children,
namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day,
accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her
husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed
them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson,
and accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she
and Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they
headed for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a
man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her
and took her to her house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on
top of the table. This was the first time she saw the box. The box was closed and tied with a piece of green
straw. The men opened the box and showed her its contents. She said she did not know anything about the box
and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her
husband, and that her husband never returned to their house after he left for Pangasinan.She denied the charge
against her and Doria and the allegation that marked bills were found in her person.[12]
After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial
court found the existence of an "organized/syndicated crime group" and sentenced both accused-appellants to
death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA
GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both
CONVICTED of the present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec.
4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the
penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic
Act No. 7659 which explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating, confederating or
mutually helping one another for purposes of gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
28
Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the
costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI
for destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the
New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional
Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE
WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH
DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA
ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-
BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA
FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE." [14]
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY
OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE
INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO
DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS
OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS
RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF
RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH
LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF
ACCUSED-APPELLANT."[15]
The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the
apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant
Gaddao, the search of her person and house, and the admissibility of the pieces of evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form
of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the
commission of an offense.[16] Entrapment has received judicial sanction when undertaken with due regard to
constitutional and legal safeguards.[17]
Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine
that evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly
liquor and narcotics offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public interest in
the formulation and application of decent standards in the enforcement of criminal law. [19] It also took off from
a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons
into lapses that they might otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is
understood as the inducement of one to commit a crime not contemplated by him, for the mere purpose of
instituting a criminal prosecution against him.[21] The classic definition of entrapment is that articulated by
Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge the concept:
"Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission
by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer." [23] It
consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement officers
or the agents to induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of
the government officials rather than that of the innocent defendant, such that the crime is the product of the
creative activity of the law enforcement officer.[24]
It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the
persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law
forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a
criminal career.[25] Where the criminal intent originates in the mind of the entrapping person and the accused
is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no
conviction may be had.[26] Where, however, the criminal intent originates in the mind of the accused and the
criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished
the accused an opportunity for commission of the offense, or that the accused is aided in the commission of
the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused
must be convicted.[27] The law tolerates the use of decoys and other artifices to catch a criminal.
Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the
nature of a confession and avoidance.[29] It is a positive defense. Initially, an accused has the burden of
providing sufficient evidence that the government induced him to commit the offense. Once established, the
burden shifts to the government to show otherwise.[30] When entrapment is raised as a defense, American
federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells
v. United States[31] to determine whether entrapment actually occurred. The focus of the inquiry is on the
accused's predisposition to commit the offense charged, his state of mind and inclination before his initial
exposure to government agents.[32] All relevant facts such as the accused's mental and character traits, his past
offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state
of mind before the crime.[33] The predisposition test emphasizes the accused's propensity to commit the offense
rather than the officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal."[35] If the accused was found to have been ready and willing to
commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used
an unduly persuasive inducement.[36] Some states, however, have adopted the "objective" test.[37] This test was
first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme Court of
Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here,
the court considers the nature of the police activity involved and the propriety of police conduct.[39] The inquiry
is focused on the inducements used by government agents, on police conduct, not on the accused and his
predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct. [40] The test
of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding
person, other than one who is ready and willing, to commit the offense; [41] for purposes of this test, it is
presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented
by the simple opportunity to act unlawfully.[42] Official conduct that merely offers such an opportunity is
permissible, but overbearing conduct, such as badgering, cajoling or importuning,[43] or appeals to sentiments
such as pity, sympathy, friendship or pleas of desperate illness, are not. [44] Proponents of this test believe that
courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but
rather because, even if his guilt has been established, the methods employed on behalf of the government to
bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should
not become tainted by condoning law enforcement improprieties. [45] Hence, the transactions leading up to the
offense, the interaction between the accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would be on a normal person.[46]
Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that
the "subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was
predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory practices will
be deemed impermissible.[47] Delving into the accused's character and predisposition obscures the more
important task of judging police behavior and prejudices the accused more generally. It ignores the possibility
that no matter what his past crimes and general disposition were, the accused might not have committed the
particular crime unless confronted with inordinate inducements. [48] On the other extreme, the purely "objective"
test eliminates entirely the need for considering a particular accused's predisposition. His predisposition, at
least if known by the police, may have an important bearing upon the question of whether the conduct of the
police and their agents was proper.[49] The undisputed fact that the accused was a dangerous and chronic
offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated
to irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United
States now combine both the "subjective" and "objective" tests. [51] In Cruz v. State,[52]the Florida Supreme
29
Court declared that the permissibility of police conduct must first be determined. If this objective test is
satisfied, then the analysis turns to whether the accused was predisposed to commit the crime.[53] In Baca v.
State,[54] the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal
defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit
the crime for which he is charged, or, that the police exceeded the standards of proper investigation.[55] The
hybrid approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused
caught in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking
opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime
in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard
Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We
accorded significance to the fact that it was Smith who went to the accused three times to convince him to look
for an opium den where both of them could smoke this drug.[57] The conduct of the BIR agent was condemned
as "most reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling explosives
after examining the testimony of the apprehending police officer who pretended to be a merchant. The police
officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found
that there was inducement, "direct, persistent and effective" by the police officer and that outside of his
testimony, there was no evidence sufficient to convict the accused. [60] In People v. Lua Chu and Uy Se
Tieng,[61] we convicted the accused after finding that there was no inducement on the part of the law
enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of
opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug. We
ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by
pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.[62]
It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction
between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64]we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into
crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the
act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime
that facilities for its commission were purposely placed in his way, or that the criminal act was done at the
'decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act
were present and apparently assisting in its commission. Especially is this true in that class of cases where the
offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of
conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free
from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed
confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was
formed independently of such agent; and where a person approached by the thief as his confederate notifies
the owner or the public authorities, and, being authorised by them to do so, assists the thief in carrying out
the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for
an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are
cases holding the contrary."[65]
The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v.
Galicia,[66] the appellate court declared that "there is a wide difference between entrapment and instigation."
The instigator practically induces the would-be accused into the commission of the offense and himself
becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of
trapping and capturing the lawbreaker in the execution of his criminal plan. [67] In People v. Tan Tiong,[68] the
Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the
lawbreaker."[69]
The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People
v. Tiu Ua.[70] Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed
contrary to public policy and illegal.[71]
It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation
or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the
accused. It is instigation that is a defense and is considered an absolutory cause. [72] To determine whether there
is entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not
the predisposition of the accused to commit the crime. The "objective" test first applied in United States v.
Phelps has been followed in a series of similar cases.[73] Nevertheless, adopting the "objective" approach has
not precluded us from likewise applying the "subjective" test. In People v. Boholst,[74] we applied both tests by
examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's
membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous
convictions of other crimes[75] and held that his opprobrious past and membership with the dreaded gang
strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke
marijuana and did not have any criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining
his defense that led to his acquittal.
The distinction between entrapment and instigation has proven to be very material in anti-narcotics
operations. In recent years, it has become common practice for law enforcement officers and agents to engage
in buy-bust operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws,
like anti-gambling laws are regulatory statutes.[77] They are rules of convenience designed to secure a more
orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are
not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with
crimes mala in se or those inherently wrongful and immoral.[79] Laws defining crimes mala prohibita condemn
behavior directed, not against particular individuals, but against public order. [80] Violation is deemed a wrong
against society as a whole and is generally unattended with any particular harm to a definite person. [81] These
offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It
is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing
to assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing
violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of
its own officials. This means that the police must be present at the time the offenses are committed either in an
undercover capacity or through informants, spies or stool pigeons.[82]
Though considered essential by the police in enforcing vice legislation, the confidential informant
system breeds abominable abuse. Frequently, a person who accepts payment from the police in the
apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the
police. The informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For whatever
noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses
underworld characters to help maintain law and order is not an inspiring one. [83] Equally odious is the bitter
reality of dealing with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous
law enforcers' motivations are legion-- harassment, extortion, vengeance, blackmail, or a desire to report an
accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of
cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and
hapless persons, particularly unsuspecting provincial hicks.[85] The use of shady underworld characters as
informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and
ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to
be extra-vigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy, although
necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced
confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false
arrest, illegal detention and the third degree, it is a type of lawless enforcement. They all spring from
common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the
sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the
employment of illegal means."[88]
It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law
enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should
not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the
individual.[89] It is the duty of courts to preserve the purity of their own temple from the prostitution of the
criminal law through lawless enforcement.[90] Courts should not allow themselves to be used as an instrument
of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug
offenses.[91]
We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from the initial contact between
the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject of the sale. [92] The manner by which the
initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of
the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer,
must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to
commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the
30
conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this
must also be considered. Courts should look at all factors to determine the predisposition of an accused to
commit an offense in so far as they are relevant to determine the validity of the defense of inducement.
In the case at bar, the evidence shows that it was the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who
posed as the buyer of marijuana. PO3 Manlangit handed the marked money to accused-appellant Doria as
advance payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later
returned and handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his
credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony
was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the
confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of
the need to hide their identity and preserve their invaluable service to the police. [93] It is well-settled that except
when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the
testimonies of the arresting officers,[94] or there are reasons to believe that the arresting officers had motives to
testify falsely against the appellant,[95] or that only the informant was the poseur-buyer who actually witnessed
the entire transaction,[96] the testimony of the informant may be dispensed with as it will merely be
corroborative of the apprehending officers' eyewitness testimonies.[97] There is no need to present the informant
in court where the sale was actually witnessed and adequately proved by prosecution witnesses.[98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source
of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution
proved that money was paid to accused-appellant Doria in consideration of which he sold and delivered the
marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit
was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the
Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box
lumping it together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of
marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each of
the ten (10) bricks, however, were identified and marked in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that
box?
A This is the box that I brought to the crime laboratory which contained the eleven pieces of
marijuana brick we confiscated from the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
Your Honor, I must protest the line of questioning considering the fact that we are now dealing with
eleven items when the question posed to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box
showed to him and brought in front of him.
COURT Noted.
Q Now tell the court, how did you know that those are the eleven bricks?
x x x.
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what
was handed to him by the accused Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite
reconsideration.
COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one that was handed to me by the suspect Jun, sir.
COURT Why do you know that that is the thing? Are you sure that is not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought
it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one alias Jun, sir.
Q What makes you so sure?
A Because I marked it with my own initials before giving it to the investigator and before we brought
it to the PCCL, your Honor.
x x x.
PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked
as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time and this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir.
PROSECUTOR May we place on record that the one that was enclosed...
ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95,
also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that
there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with
a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our
Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and the contents was given to you by
whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
x x x.
A These other marijuana bricks, because during our follow-up, because according to Jun the money
which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.
x x x."[99]
The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the
corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were
marked as Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams.[100]
We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost
one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains
credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar
did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-
bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between
the poseur-buyer and the pusher.[101]Again, the decisive fact is that the poseur-buyer received the marijuana
from the accused-appellant.[102]
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests
are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure,
to wit:
"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;
31

(b) When an offense has in fact just been committed, and he has personal knowledge of facts Q At that particular time when you reached the house of Aling Neneth and saw her outside the
indicating that the person to be arrested has committed it; and house, she was not committing any crime, she was just outside the house?
(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place A No, sir.
where he is serving final judgment or temporarily confined while his case is pending, or has escaped Q She was not about to commit any crime because she was just outside the house doing her daily
while being transferred from one confinement to another. chores. Am I correct?
x x x."[103] A I just saw her outside, sir.
Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is Q And at that point in time you already wanted to arrest her. That is correct, is it not?
actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of A Yes, sir.
committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her?
the police are not only authorized but duty-bound to arrest him even without a warrant.[104] A PO3 Manlangit, sir.
The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of Q You did not approach her because PO3 Manlangit approached her?
the box of marijuana and marked bills are different matters. A Yes, sir.
Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you
without such warrant is inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. were just in the side lines?
Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in A I was just watching, sir.
the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search of a moving motor Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your
vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the role in this buy-bust operation was as a back-up?
accused himself waives his right against unreasonable searches and seizures.[111] A Yes, sir.
The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search Q Who got the alleged marijuana from inside the house of Mrs. Neneth?
and seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is A PO3 Manlangit, sir.
claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the Q Manlangit got the marijuana?
search was an incident to her lawful arrest. A Yes, sir.
To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances Q And the money from Aling Neneth?
enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct A I don't know, sir.
testimony of PO3 Manlangit, the arresting officer, however shows otherwise: Q You did not even know who got the money from Aling Neneth?
"ATTY VALDEZ, Counsel for appellant Gaddao: PROSECUTOR:
We submit at this juncture, your Honor, that there will be no basis for that question. There is no basis for this question, your Honor. Money, there's no testimony on that.
Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom? ATTY. VALDEZ:
A It was given to me by suspect Jun, sir. I was asking him precisely.
Q Whereat? PROSECUTOR:
A At the corner of Boulevard and Jacinto Street, sir. No basis.
Q How about the other items that you were able to recover? COURT:
ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that question. Sustained.
COURT There is. Answer. Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount
A These other marijuana bricks, because during our follow-up, because according to Jun the money of P1,600.00 was recovered from the person of Aling Neneth. That's right?
which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. A Yes, sir, the buy-bust money.
Q Whereat? Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved
A At Daang Bakal near the crime scene at Shaw Boulevard, sir. the money from Aling Neneth, it was Manlangit maybe?
Q And what happened upon arrival thereat? A I saw it, sir.
A We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir. Q It was Manlangit who got the money from Aling Neneth?
Q You mentioned "him?" A The buy-bust money was recovered from the house of Aling Neneth, sir.
A Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir. Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are
Q And what happened? trying to tell the Court?
A At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir. A No, sir.
x x x."[112] ATTY. VALDEZ: I am through with this witness, your Honor."[113]
SPO1 Badua testified on cross-examination that: Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for
Q What was your intention in going to the house of Aling Neneth? her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the
A To arrest her, sir. trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in
Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was "hot pursuit."[114] In fact, she was going about her daily chores when the policemen pounced on her.
there? Neither could the arrest of appellant Gaddao be justified under the second instance of Rule
A Yes, sir. 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based
Q As far as you can see, she was just inside her house? upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." [115] The grounds of
A I saw her outside, sir. suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the
Q She was fetching water as a matter of fact? person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by
A She was `sa bandang poso.' circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be
Q Carrying a baby? arrested.[116] A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on
A No, sir. the part of the peace officers making the arrest.[117]
32

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co- Q At this juncture, you went inside the house?
accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co- A Yes, sir.
accused in response to his (PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria Q And got hold of this carton?
did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the A Yes, sir.
marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired Q Did you mention anything to Aling Neneth?
with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, [119] with or A I asked her, what's this...
without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom Q No, no. no. did you mention anything to Aling Neneth before getting the carton?
agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo
the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir.
arrested to the perpetration of a criminal offense, the arrest is legally objectionable. [120] Q Making reference to the marijuana that was given by alias Jun?
Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her A Yes, sir.
person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]?
incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of A I just don't know if she was frisked already by Badua, sir.
marijuana was in plain view, making its warrantless seizurevalid. Q Who got hold of this?
Objects falling in plain view of an officer who has a right to be in the position to have that view are A I was the one, sir.
subject to seizure even without a search warrant and may be introduced in evidence. [121]The "plain view" Q You were the one who got this?
doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence A Yes, sir.
has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the Q At that particular point in time, you did not know if the alleged buy-bust money was already retrieved
discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item by Badua?
he observes may be evidence of a crime, contraband or otherwise subject to seizure. [122] The law enforcement A Yes, sir.
officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view Q You went inside the house?
the area.[123] In the course of such lawful intrusion, he came inadvertently across a piece of evidence A Yes, sir.
incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery inadvertent.[126] Q You did not have any search warrant?
It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty A Yes, sir.
arises when the object is inside a closed container. Where the object seized was inside a closed package, the Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in
object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package possession of the buy-bust money because according to you, you did not know whether Badua
proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious already retrieved the buy-bust money from her?
to an observer, then the contents are in plain view and may be seized.[127] In other words, if the package is such A Yes, sir.
that an experienced observer could infer from its appearance that it contains the prohibited article, then the Q How far was this from the door?
article is deemed in plain view.[128] It must be immediately apparent to the police that the items that they observe A Two and a half meters from the door, sir. It was in plain view.
may be evidence of a crime, contraband or otherwise subject to seizure. [129] Q Under the table according to you?
PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows: A Yes, sir, dining table.
"ATTY. VALDEZ: Q Somewhere here?
So here we are. When you and Badua arrived, Aling Neneth was inside the house? A It's far, sir.
A Yes, sir. PROSECUTOR
Q Badua demanded from Aling Neneth the buy-bust money? May we request the witness to place it, where he saw it?
A Yes, sir. A Here, sir.
Q At that particular instance, you saw the carton? Q What you see is a carton?
A Yes, sir. A Yes, sir, with plastic.
Q This carton, according to you was under a table? Q Marked "Snow Time Ice Pop?"
A Yes, sir, dining table. A Yes, sir.
Q I noticed that this carton has a cover? Q With a piece of plastic visible on top of the carton?
A Yes, sir. A Yes, sir.
Q I ask you were the flaps of the cover raised or closed? Q That is all that you saw?
A It was open, sir. Not like that. A Yes, sir.
COURT PROSECUTOR
Go down there. Show to the court. For the record, your Honor...
INTERPRETER Q You were only able to verify according to you...
Witness went down the witness stand and approached a carton box. PROSECUTOR
A Like this, sir. Panero, wait. Because I am objecting to the words a piece of plastic. By reading it...
PROSECUTOR ATTY. VALDEZ
Can we describe it? That's a piece of plastic.
ATTY. VALDEZ PROSECUTOR
Yes. By reading it, it will connote... this is not a piece of plastic.
PROSECUTOR ATTY. VALDEZ
One flap is inside and the other flap is standing and with the contents visible. What is that? What can you say, Fiscal? I'm asking you?
COURT PROSECUTOR
Noted.
33

With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10
big or a small one, for record purposes. million, to wit:
COURT "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.-- The penalty
Leave that to the court. of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall
PROSECUTOR be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to
Leave that to the court. another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such
Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw transactions.
that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the x x x."
Court, it could be "tikoy," is it not [sic]? In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the
A Yes, sir. sale took place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus
Q Siopao? delicti, as evidence in court.[141] The prosecution has clearly established the fact that in consideration
A Yes, sir. of P1,600.00 which he received, accused-appellant Doria sold and delivered nine hundred seventy (970) grams
Q Canned goods? of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-
A Yes, sir. appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no mitigating
Q It could be ice cream because it says Snow Pop, Ice Pop? or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed.[142]
A I presumed it was also marijuana because it may ... IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a
Q I am not asking you what your presumptions are. I'm asking you what it could possibly be. Special Court in Criminal Case No. 3307-D is reversed and modified as follows:
A It's the same plastic, sir. 1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion
ATTY. VALDEZ perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).
I'm not even asking you that question so why are you voluntarily saying the information. Let the 2. Accused-appellant Violeta Gaddao y Catama is acquitted.
prosecutor do that for you.
COURT
Continue. Next question.
x x x."[130]
PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant
Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria
named her and led them to her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a
view of the interior of said house. Two and a half meters away was the dining table and underneath it was a
carton box. The box was partially open and revealed something wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were
marijuana because he himself checked and marked the said contents.[132] On cross-examination, however,
he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping
as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless
and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in
the box was individually wrapped in old newspaper and placed inside plastic bags-- white, pink or blue
in color.[133] PO3 Manlangit himself admitted on cross-examination that the contents of the box could be
items other than marijuana. He did not know exactly what the box contained that he had to ask appellant
Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit that the content of the
box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant
was in violation of the law and the Constitution.[135] It was fruit of the poisonous tree and should have been
excluded and never considered by the trial court.[136]
The fact that the box containing about six (6) kilos of marijuana[137] was found in the house of accused-
appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.[138] Apropos is our
ruling in People v. Aminnudin,[139] viz:
"The Court strongly supports the campaign of the government against drug addiction and commends the
efforts of our law enforcement officers against those who would inflict this malediction upon our people,
especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the
compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including
the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty
alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the
name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less
evil that some criminals should escape than that the government should play an ignoble part.' It is simply not
allowed in the free society to violate a law to enforce another, especially if the law violated is the
Constitution itself."[140]
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of
Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a