Cases; Criminal Procedures

1 “1. CRIM. CASE NO. 0532-97 – to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit;

[G.R. Nos. 136733-35. December 13, 2001]

PEOPLE

OF THE PHILIPPINES, appellee, VIERNES y ILDEFONSO, appellant.

vs. ELADIO

“2. CRIM. CASE NO. 0533-97 – to suffer an indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of this suit; and

DECISION PANGANIBAN, J.: Under the Rules of Court, a judgment of conviction in a criminal prosecution may be modified only upon motion of the accused. As a rule, the prosecution is prohibited from seeking, and the trial court from granting, a more severe penalty than that imposed in the original decision. This is especially true in a case in which the new and amended penalty imposed is death.

The Case [1]

Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 [2] Order of the Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97 and 0534-97. The assailed Decision convicted appellant of two counts of rape and one count of attempted rape. It disposed as follows: “WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and sentences him, as follows:

“3. CRIM. CASE NO. 0534-97 – to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and [3] the costs of this suit.” On the other hand, the assailed Order increased the penalties as follows: “WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659, and in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and sentences him, as follows: “1.

CRIM. CASE NO. 0532-97 – to suffer the penalty of DEATH, to indemnify CATHERINE LINATOC in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit;

“2.

CRIM. CASE NO. 0533-97 – to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00 and to pay the costs of this suit; and

2 “3.

CRIM. CASE NO. 0534[-97] – to suffer the penalty of DEATH, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral damages pursuant to Article 2219 (3) of the Civil Code, the amount of P5,000.00, as exemplary damages, pursuant to Article 2229 of the same Code and the costs of this [4] suit.”

Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc (assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor Danilo S. Sandoval. The Complaint in Criminal Case No. 0532-97 charged appellant with rape committed as follows: th

commission of the felony of rape directly by overt acts against the undersigned complainant who is a minor below 12 years old, by then and there undressing her and going on top of her with his exposed private organ but did not perform all the acts of execution which should have produced the said felony because the [7] undersigned offended party resisted.” Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the [8] same court. Later, all the cases were consolidated in Branch 12. [9]

On arraignment, appellant pleaded not guilty. After trial in due course, the lower court rendered the assailed Decision.

“That on or about the 29 day of September, 1996 at about 10:00 o’clock in the morning at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, did then and there willfully, unlawfully and feloniously, by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor below 12 years old, against her will and consent to her damage and prejudice in such amount as may be awarded to her under the [5] provision of the Civil Code.”

In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the imposed penalties be increased pursuant to Republic Act (RA) No. 7659. The RTC granted the Motion via the assailed Order.

The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape:

In its Brief, narration of facts:

“That on or about the 18th day of August 1997 at about 12:00 o’clock noon, at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, did then and there wilfully, unlawfully and feloniously, by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor of 12 years old against her will and consent to her damage and prejudice in such amount as may be awarded to her under provisions [6] of the Civil Code.”

“Catherine Linatoc stood quietly by the door of the toilet of appellant’s – her mother’s common-law husband – house. Her skirt’s hemlines were slowly falling to her knees vainly covering the panty that were pulled down mid-way her lower legs. This was the third of a series of dismaying sex that she and appellant had been through. Like the others before this one, there was by appellant much pulling, shoving and forcible grasping of her hands, thus rendering her immobile for three minutes or so.

Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape: “That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the common law husband of the mother of the victim, by means of force and intimidation and with lewd design pursuant to his carnal desire, did then and there willfully, unlawfully and feloniously commence the

The Facts Version of the Prosecution [10]

the Office of the Solicitor General presents the following

“The third rape happened in appellant’s house in Tibig, Lipa City, around noontime of August 18, 1997. Appellant then bidded [sic] the two brothers and a stepbrother of Catherine Linatoc to clean the his tricycle, which was parked on the side of the street across his house. They followed his order. Appellant also instructed Catherine Linatoc to fetch water for the house toilet. She obliged, returning with two pails of it. She deposited them by the door of the toilet. Turning about, Catherine Linatoc was surprised to find appellant behind her. In quick succession, appellant pushed her to the wall, pulled her skirts up, drag her panty mid-way her lower leg, and rushed his own pants down. Grasping her hands tightly with one

3 hand, appellant began inserting his penis into her vagina. She resisted to no avail. His penis established a comfortable slide into and out of her [organ], as the pace quickened for about three minutes. The gyration was furious. After appellant spurted out, he backed off and left saying nothing. “Frightened and crying, Catherine Linatoc went to her great-grandmother’s abode in San Guillermo, Lipa City. She reported the incident to this elder, and recounted some more. Catherine Linatoc told her great-grandmother of two other acts of sexual abuse by appellant. The first one, she narrated, happened on September 29, 1996, about ten in the morning[;] and the second, on March 1997 around noontime. “The first rape happened on September 29, 1996 in appellant’s house. Catherine Linatoc was on the ground floor of the house when so suddenly appellant sprung from wherever he was, grabbed and carried her to the second floor. The second floor was just three steps from the ground floor. He then undressed her, taking off her sando, skirt and panty. He undressed himself too, and then floored both their bodies, [his] on top of her. He caressed her breasts and started inserting his penis into her vagina. Appellant held her hands tightly and fought off her struggle. There was push and pull for about three minutes, then appellant came through. Appellant dressed up, and before walking away, apologized to her. It would be the first and last rape, he said. “There was soon the second sexual abuse. In March 1997, about noontime, using the same strategy as he did in the [first] rape, appellant unburdened himself on Catherine Linatoc. From nowhere, appellant appeared. He dragged her to the second floor where he undressed her and himself. He mightily threw her to the floor, his sweaty body covering her’s. Appellant engaged in the now familiar gyration once again. This time, however his penis landed on the thighs of the victim as insertion, because of her struggle and vagina’s virginal qualities, became frustratingly difficult. Between her thighs appellant thrusted his penis. He satisfied himself just the same.

“The medico-legal examination was performed by Dr. Helen S. Dy. The present [11] criminal complaints against appellant were thereafter filed.”

Version of the Defense Appellant denies the charges against him. Claiming to have been elsewhere at the time of the commission of the alleged crimes, he submits the following counterstatement of the facts: “1) ELADIO, at the lower court, stated that he is the common law husband of Lina de la Cruz-Linatoc (mother of the alleged victim … Catherine Linatoc). He is a security guard and at the same time, a tricycle driver. On September 29, 1996 he was living with Lina, together with Catherine, his two sons and other relatives. On September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of her great grandmother and stayed therein even beyond September 29, 1996. Therefore, it is impossible for him (ELADIO) to have attacked Catherine sexually on September 29, 1996. It is not true that he attempted to rape Catherine in March of 1997 because he was on duty at that time. Their company logbook will bear witness thereto. (Exhibit ‘2’, Original Records) On August 18, 1997 it is not true that he raped Catherine since he was plying his tricyle then. (TSN, pp. 2-13, December 11, 1997; and pp. 2-22, January 8, 1998) “2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of ELADIO that Catherine was no longer in their house on September 29, 1996 and that ELADIO could not have abused Catherine sexually. Catherine’s charge for March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998). xxx

xxx

xxx

“D. Sur-Rebuttal Evidence. “The great-grandmother was helpless to remedy the abuse done to Catherine Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also arrived. Catherine Linatoc had her medico-legal examination with these results.: ‘x x x lacerated hymen on the 3:00 and 9:00 o’clock positions with small amounts of whitish discharge.’

“ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the [12] case.”

Ruling of the Trial Court

4 The court a quo held that the testimony of Catherine Linatoc -- both on direct and on cross-examination -- was clear, positive and steadfast. Corroborated by the medicolegal examination conducted on her, it was replete with details that jibed on material points. The prosecution successfully proved that she was the daughter of appellant’s common-law wife and that, at the time of the crime, she was 12 years old. The declarations of complainant were accorded full faith and credence on the theory that she would not publicly acknowledge the defilement of her virtue or subject herself to public humiliation, if her purpose was not to obtain justice for the wrong committed. There is no evidence that she was a woman of loose morals or that she had any ill motive to falsely accuse appellant. On the other hand, appellant’s denial and alibi were unsubstantiated and selfserving; hence, they deserve no weight in law. They cannot stand against Catherine’s positive testimony. In the assailed Order, the trial court noted that the prosecution’s Motion was unopposed. It ruled that the increase in the penalty did not place appellant in double jeopardy. Hence, this appeal.

[13]

The Issues In his Brief,

[14]

appellant raises this sole alleged error:

“The lower court has committed an error in convicting the accused-appellant of the crimes charged and on meting out on him the supreme penalty of death, more particularly in Criminal Cases Nos. 0532-97 and 0534-97.” An appeal from a criminal conviction, especially one involving the death penalty, throws the whole case open for review. Thus, it becomes the duty of the reviewing court to correct any error in the appealed judgment, whether or not it is [15] made the subject of an assignment of error. In this light, the Court believes that a second issue needs to be taken up, namely: “Whether the trial court erred in increasing the penalties via the assailed Order.”

This Court’s Ruling The trial court was correct in convicting appellant in accordance with the challenged Decision, but was wrong in imposing the new penalties through the assailed Order.

First Issue: Appellant’s Culpability After a thorough review of the pleadings, the transcripts of stenographic notes and other records of the case, we are convinced that the court a quo did not err in giving credence to the testimonies of the victim and the other prosecution witnesses. The testimony of private complainant, detailing how she was abused by appellant on two separate occasions and how he tried to rape her once more, was clear and convincing. We quote at length: “Q While you were in your house on that date, September 29, 1996, 10:00 o’clock in the morning, do you remember of any unusual incident that transpired if any? A

Yes, sir.

Q

What was that unusual incident that transpired?

A

After my mother left, I was pulled sir.

Q

By whom, who pulled you?

A

My step father, sir.

Q

Where were you brought, towards what direction?

A

Towards the second floor of our house and to the place where we sleep, sir.

Q

By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29, 1996, what kind of house is that?

A

It is made of Sawali, sir.

Q

How about the flooring, how many floors does it have?

A

Three (3) steps sir.

Q

What do you mean by three (3) steps?

5 A

Our stairs is made of three (3) steps, sir.

Q

You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was already naked, what did he do with hi[s] pants before he went on top of you?

A

He mashed [m]y breast sir.

Q

What else did he do [to] you aside from mashing your breast?

A

He inserted his penis into my vagina.

Q

By the way, while he was mashing your breast, what were you doing if you did anything?

A

I was fighting him back sir.

Q

What did Eladio Viernes do when you fought him back while he was mashing your breast?

A

He was slapping me sir.

Q

When he inserted his penis into your vagina, what did you feel?

A

Painful, sir.

Q

Was Eladio Viernes able to actually insert his penis[?]

Court: From the ground floor? A

Yes, sir.

Q

What is located after going this stairs composed of three (3) steps?

A

That is the place where we sleep sir.

Q

After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio Viernes do to you after reaching that upper portion of your house, if he did anything?

Atty. Dimaandal Leading your Honor. Court Answer. A

He undressed me sir.

Q

What were you wearing that Eladio Viernes took of[f] from your body?

A

I was wearing a skirt which was my uniform sir.

Q

What else I[f] any were taken of[f] from your body by Eladio Viernes?

A

My blouse, sando and my skirt and my panty sir.

Q

After Eladio Viernes took of[f] your clothing, after removing your clothing what did Eladio Viernes do on your body?

A

He placed himself on top of me.

Q

When Eladio Viernes placed himself on top of you, what was he wearing if any?

A

None sir.

Q

By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at that time?

A

He was wearing pants, sir.

Atty. Dimaandal Leading your honor. Q

After Eladio Viernes inserted his private organ into your private organ, what else did he do if anything more?

A

He did pumping motion, sir.

Q

For how long did he do this pumping motion, while his penis was inside your vagina?

A

About three (3) minutes sir.

Q

After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside your vagina, what else did he do if he did anything more?

A

He removed his private organ sir.”

[16]

We also quote the testimony of the victim regarding appellant’s attempt to rape her: “Q When was the second time, after September 26, 1996?

6 A

In May 1997 but I do not remember the exact date sir.

Q

Are you sure about the date?

Atty. Dimaandal That is the answer of the witness. Prosecutor That’s why I am asking, are you sure about the date? A

May 19, 1997 sir.

Q

By the way, in [the] second incident [where] Eladio Viernes according to you raped you again, where did this happen?

A

At Barangay Tibig, Lipa City.

Q

In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes?

A

In the upper portion of our house at the place where we are sleeping sir.

Q

The same place where the second rape was committed?

A

Yes, sir.

Q

Around what time did this happen, this second rape happened?

Atty. Dimaandal We make it of record that the witness cannot answer. Prosecutor The witness is thinking . . .

A

The upper portion of our house and at the place where we were sleeping sir.

Q

After you were pulled by Eladio Viernes, what did Eladio Viernes do to you?

A

He undressed me sir.

Q

What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that same occasion?

A

I was wearing a skirt sir.

Q

After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything?

A

He again placed himself on top of me sir.

Q

What was he wearing he placed himself on top of you if he was wearing anything?

A

He was wearing pants sir.

Q

When he placed himself on top of you, where was his pants?

A

He removed pants sir.

Q

When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second time around?

A

He again mashed my breast sir.

Q

What did you do when Eladio Viernes again mashed your breast?

A

I was fighting him back sir.

Q

What else did he do aside from mashing your breast, what did Eladio Viernes do to you?

A

He was inserting his penis into my vagina sir.

Q

When Eladio Viernes was inserting his penis into your vagina, what did you do?

A

Noontime sir.

Q

How did this happen?

A

He again pulled me sir.

Q

By the way on that second occasion, where was your mother?

A

I was struggling sir.

A

She was working sir.

Q

Q

You said that you were again pulled, where were you brought by Eladio Viernes at the same time around?

When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your vagina?

A

It was not inserted sir.

7 Q

What did Eladio Viernes do when he failed to insert his penis into your vagina?

A

He just placed it between my thighs sir.

Q

After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?

Atty. Dimaandal May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there was no vagina [sic]. Q

You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs?

Atty. Dimaandal

Q

You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa City on August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody there?

A

My step father sir.

Q

Meaning Eladio Viernes?

A

Yes sir.

Q

Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if he did anything upon seeing him or meeting you?

A

He instructed our companions in the house to clean the motor tricycle sir.

Q

After instructing your companions in your house to clean the motor tricycle, what else did Eladio Viernes do, if he did anything more?

A

He asked me to fetch two (2) containers of water sir.

Q

By the way, these your companions of your house, [sic] who where given the instruction by Eladio Viernes to clean the motor tricycle, who are these companions [sic] of your house?

A

My two brothers and one step brother, sir.

Leading Court Answer. Interpreter Witness pointing to the inner portion of her two thighs Q

What did Viernes do after he put his penis between the inner portion of your two thighs?

Q

How old were these two brothers of yours and your one step brother who were given the instruction by Eladio Viernes to clean the motor tricycle?

A

[H]e placed his penis between my thighs and he again did the pumping [17] motion sir.”

A

My step brother was 12 years old; my two brothers were six and 5 years old sir.

Pertinent portions of the testimony of complainant regarding her second defilement in the hands of appellant read as follows:

Q

How far was this tricycle from your house?

A

Near the street sir.

“Q Miss Witness, on August 18, 1997 around 12:00 noon where were you?

Q

Around how many meters if you can calculate was this tricycle from your house or can you point distance from the place where you are sitting now to any place inside the court room?

A

I was at home sir.

Q

What were you doing?

A

I just arrived from school sir.

Q

You said that you were in your house, where was this house located on that date, August 18, 1997?

A

At Barangay Tibig sir.

Interpreter Witness pointing to the railings inside the Court room as their house and the witness pointed to the western wall of the court room as the place where the tricycle was to be around 7 meters sir.

8 Q

What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving the instruction from your step father Eladio Viernes to clean the motor tricycle?

Q

What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the comfort room?

A

I could not go out [o]f the comfort room because I was held by my step father sir.

A

They followed the instruction of my step father to clean the tricycle sir.

Q

How about you when you were instructed by your step father to fetch two (2) containers of water, what did you do?

Q

After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more?

A

I brought the water near the comfort room sir.

A

He pulled down my panty sir.

Q

After you brought the two (2) containers of water to the place were you said a while ago, what did Eladio Viernes do to you if he did anything?

Q

Up to what portion was that panty of yours pulled down?

A

He followed me sir.

Q

After Eladio Viernes followed you, what did he do [to] you if he did anything?

A

I was frightened sir.

Q

Why?

Interpreter Witness pointing to her ankle Q

After Eladio Viernes pulled down your panty up to your ankle, what did he do to you?

A

He was inserting his penis into my vagina, sir.

Q

What was your position in relation to Eladio Viernes when he was inserting his penis into your vagina?

A

I was standing sir.

Q

How about Eladio Viernes, where was he in relation to you while he was inserting his penis into your vagina?

A

He was at my back sir.

Q

What happened to this effort of Eladio Viernes in trying to insert his private organ into your private organ?

A

It was inserted sir.

Q

You said that you were standing, what was the form or what was the position of your body aside from the fact that you were standing when Eladio Viernes was able to insert his penis into your vagina while he was at your back?

A

I was standing and I was struggling sir.

Q

When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of your body aside from the fact that you were standing?

A

I was standing with my knees bent sir.

Atty. Dimaandal Not responsive your honor. I move to strike out the answer of the witness.’ Court Continue. Q

Why did you get frightened?

A

Because I felt that he will repeat the same thing sir.

Q

What do you mean repeat the same thing?

A

He will again repeat raping me sir.

Q

When you got frightened, what did you do?

A

I tried to struggle sir.

Q

Why did you struggle, what was Eladio Viernes doing [to] you?

A

He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me from going out sir.

9 Q

After Eladio Viernes was able to insert his penis into your vagina while you are in a standing position, how long was his penis inside your vagina?

A

About three (3) minutes sir.”

[18]

Catherine impressed the trial court as “a decent woman *who has+ not been shown to be of loose morals or one who goes out with different men any time of [19] the day or night.” A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner -- and remains consistent -- is a credible [20] witness. It is well-entrenched that the trial court is in the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude on the [21] stand. In the absence of any showing that its assessment is flawed, an appellate tribunal is bound by it.

[26]

credible witnesses. Negative testimony cannot prevail over the offended party’s [27] positive identification of the accused as her rapist. Finally, for alibi to prosper, it must be shown that the accused was in another place at the time the crime was committed, and that it would have been physically impossible for him to be at the scene of the crime at the time it was [28] committed. Such physical impossibility was not proven in the present case. The Smart Tower where appellant worked as a security guard was located also in Barangay Tibig, Lipa City, and was only a thirty-minute walk from his house. The tricycle station, on the other hand, was only 1000 meters away. Note that he had a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence.

Despite the tender age of complainant, her accounts on direct and cross[22] examination were replete with details that jibed on material points. Considering her young age, it would have been highly improbable for her to fabricate a charge so humiliating to her and her family, had she not been truly subjected to the painful [23] experience of sexual abuse.

Attempt to Settle the Case

The moral ascendancy of appellant as the common-law husband of complainant’s mother takes the place of force and intimidation as an element of [24] rape, although the presence of such element is apparent from Catherine’s testimony.

We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated November 25, 1997 -- addressed to Orlando and Catherine Linatoc, signed by appellant and delivered by Lina Linatoc -- was admissible evidence against appellant. Perusal of the letter reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a promise of an additional P100,000 in [29] exchange for dropping the charges against him. Under Section 27, Rule 130 of the Rules of Court, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

Alibi and Corroboration Appellant denies having raped Catherine on September 29, 1996, claiming she was at her grandmother’s house in San Guillermo, while he was outside his house digging a toilet pit. Allegedly, in March 1997, he was on duty as a security guard at the Smart Tower; and on August 18, 1997, he was busy the whole day plying his tricycle route. The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence that deserve no weight in law. They cannot be given greater evidentiary [25] value over a credible witness’ testimony on affirmative matters. Except for Lina Linatoc’s corroboration, the only evidence supporting the alibi and denial of appellant is his own say-so. And Lina happens to be his common-law wife; thus, her testimony is necessarily suspect and cannot prevail over the testimonies of more

Appellant strongly denies the prosecution’s assertion that he attempted to settle the case with complainant’s family.

Voluntary Surrender Appellant pleads for leniency on account of his alleged voluntary surrender. We disagree. The act of surrender must be spontaneous, accompanied by an acknowledgment of guilt, or an intention to save the authorities the trouble and the [30] expense that search and capture would require. Going to the police station “to clear his name” does not show any intent of appellant to surrender unconditionally [31] to the authorities.

10 Medicolegal Officer’s Testimony Appellant avers that the medicolegal officer who examined complainant admitted being unsure of her findings. We disagree with the assessment by appellant of the testimony of the medicolegal officer. However, even if we discount the testimony of the latter, complainant’s testimony by itself can sustain the former’s conviction. Medical examination is not an indispensable requirement, and its absence does not affect the verdict of conviction, if sufficient evidence is presented to prove the crime [32] charged. When a rape complainant, especially one of tender age like Catherine, says that she has been raped, she in effect says all that is necessary to show that she has indeed been raped.

Civil Indemnity and Moral Damages The Solicitor General takes issue with the damages awarded by the RTC. In the assailed Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in moral damages and P5,000 in exemplary damages for every count of consummated rape; and P25,000 in civil indemnity for the attempted rape. Recent jurisprudence has increased the indemnification for the victim in a case of consummated rape to P75,000 if the crime was committed with, or effectively qualified by, any of the circumstances under which the death penalty is authorized [33] by the applicable amendatory laws. Moral damages are pegged at P50,000 without further need of pleading or proof. Exemplary damages, on the other hand, are granted when an aggravating circumstance, which is not offset by a mitigating circumstance, attended the commission of the crime. In several cases, the relationship between the appellant [34] and the rape victim justifies the award of exemplary damages, as in this case.

Second Issue: Modification of Penalties One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion for Reconsideration seeking the imposition of the death penalty on appellant for the two cases of consummated rape andreclusion temporal for the attempted rape, in accordance with Section 11 of RA 7659. The prosecution argued

that the Motion would not place appellant in double jeopardy, because “what is [35] sought is just the imposition of the proper penalty as provided by law.” The trial court concurred with the prosecution and granted the Motion in the assailed Order, saying that the Motion was unopposed and that there was no violation of [36] appellant’s right against double jeopardy. We disagree. Conflicting decisions rendered over the years – both allowing the prosecution to seek the reconsideration of a conviction and prohibiting it therefrom – necessitate a review of the rule on the modification of judgments of [37] conviction. Early on, in People v. Ang Cho Kio, the Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the prosecution cannot move to increase the penalty imposed in a promulgated judgment. Reopening the case for the purpose of increasing the penalty as sought by the government would place the accused in double jeopardy. This ruling was followed in People v. [38] [39] Pomeroy andPeople v. Ruiz. The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification or the setting aside of the judgment before it became final or an [40] appeal was perfected. Under this amendment, a judgment acquired finality and the trial court lost jurisdiction only in the following cases: (1) after the 15-day [41] period to appeal lapsed, (2) when the defendant voluntarily submitted to the [42] execution of judgment, (3) when the defendant perfected the appeal, (4) when the accused withdrew the appeal, (5) when the accused expressly waived in writing [43] the right to appeal, and (6) when the accused filed a petition for [44] probation. Under this amendment, the trial court had plenary power to alter or revise its judgment in accordance with the requirements of law and justice. In 1985, Section 7 of Rule 120 was amended to include the phrase “upon motion of the accused” – effectively resurrecting the Ang Cho Kio ruling prohibiting [45] the prosecution from seeking a modification of a judgment of conviction. As amended, the provision was worded as follows: “SEC. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the accused has expressly waived in writing his right to appeal, or the accused has applied for probation.” Under this Rule, a judgment of conviction, before it became final, could be [46] modified or set aside upon motion of the accused. It obviously aims to protect

11 the accused from being put anew to defend himself from more serious offenses or penalties which the prosecution or the court may have overlooked in the original trial. It does not however bar him from seeking or receiving more favorable modifications. Significantly, the present Rules, as amended last year, retained the phrase “upon motion of the accused,” as follows:

[G.R. No. 147231. February 18, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. RONNIE ABOLIDOR, CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused. CLAUDIO BARCIMO, JR., appellant.

“SEC. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.” Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the penalties without the consent of the accused. We close this Decision with an exhortation to the defense counsel to be more circumspect in defending appellant and others similarly situated. Counsel should have immediately objected to the Motion for Reconsideration in the trial court. Because of this failure to take exception, the RTC judge meekly granted the relief prayed for and condemned the accused, inter alia, to two death sentences. Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of the assailed Order. We cannot disregard such serious lapse. We urge counsel, as well as all the members of the bench and the bar, to be more vigilant in protecting the rights of the accused -- especially those in jeopardy of the death penalty -- and to keep abreast of legal developments. Indeed, the learning [47] process in law never ceases. Utmost dedication to duty and excellence is expected of every lawyer. WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order is ANNULLED and SET ASIDE, while the assailed Decision is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral damages are increased to P50,000 and those for exemplary damages to P25,000 for [48] each consummated rape, pursuant to current jurisprudence. SO ORDERED.

DECISION YNARES-SANTIAGO, J.: [1]

This is an appeal from the decision dated January 31, 2000 of the Regional Trial Court of Iloilo City, Branch 31, in Criminal Case No. 40948, convicting Claudio Barcimo, Jr. @ “Noc-noc”, Ronnie Abolidor and Francisco Comoda of the crime of murder, sentencing them to suffer the penalty of reclusion perpetua and ordering them to pay P100,000.00 as civil indemnity, P16,000.00 as actual damages and P30,000.00 as moral and exemplary damages. Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted for Murder in an Information alleging: th

That on or about the 14 day of June 1993, in the Municpality of New Lucena, Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another together with another unidentified person, armed with firearms of unknown caliber, with deliberate intent and decided purpose to kill, with treachery, superior strength and evident premeditation, did then and there, willfully, unlawfully and feloniously attack and shoot Thelma Subosa with said firearms hitting the latter on the head, chest and other parts of her body which caused the death of said Thelma Subosa immediately thereafter. CONTRARY TO LAW.

[2]

[3]

Upon arraignment, the three accused pleaded not guilty. Trial on the merits ensued. The victim, Thelma Subosa, was the mother of 14 children with her deceased husband, Primo Subosa. Subsequently, she cohabited with her common-law husband Warlito Huesca and lived together with some of her children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito Huesca also died.

12 In the early morning of June 14, 1993, a day after Warlito was buried, the victim, her children namely, Ellyn, Roselyn, Evelyn, Manilyn, Leopoldo and Lilibeth, and Milagros Huesca, the younger sister of Warlito Huesca, were awakened by the forcible opening of the door of their house. Four men entered the house and declared a “hold up”. The victim pleaded not to be harmed. Instead, accused Ronnie Abolidor tied her mouth with a handkerchief to silence her. Then appellant Claudio Barcimo, Jr. shot the victim several times causing her instantaneous [4] death. Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr. and Ronnie Abolidor since they slept on the same mat with the victim and a kerosene [5] lamp was near the victim’s head. Both testified that they knew Ronnie Abolidor because he was their neighbor for several years, and Claudio Barcimo, Jr. because he was a friend of their deceased stepfather. Francisco Comoda was later identified [6] by the witnesses at the police station. Roselyn also testified that on June 12, 1993, at the burial of their stepfather, the victim told her that it was Claudio Barcimo, Jr. @ “Noc-Noc” who killed Warlito [7] Huesca. For his part, appellant denied any participation in the killing of Thelma Subosa and claimed that he could not have done it because he was a good friend of Warlito Huesca; that on June 13, 1993, at around 4:00 p.m., he was with Brgy. Capt. Buñol in a celebration at the house of Brgy. Capt. Gerardo Paniza at Brgy. Dawis. He had dinner and watched game of mahjong; that at around 10:00 p.m., he went to sleep on the sofa near the mahjong table; that the mahjong game lasted until 4:00 a.m. the following day; that he and Capt. Buñol went back to New Lucena at about 6:00 a.m. of June 14, 1993; and on the next day, he left for Manila for treatment of [8] tuberculosis. After trial, the trial court convicted the three accused on January 31, 2000 in a decision, the dispositive portion of which reads: WHEREFORE, the prosecution having sufficiently established the guilt of all the three accused, namely, Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor alias Ronnie and Francisco Comoda, beyond reasonable doubt (Rule 133, Sec. 2, Revised Rules of Court) of the offense of Murder under Art. 248, R.P.C. as alleged in the Information, this Court hereby renders judgment sentencing all the said accused to suffer the penalty of imprisonment consisting of Reclusion Perpetua, with all the attendant accessory penalties, to pay P100,000.00 as indemnity for death to the heirs of the late Thelma Sobusa, to pay the sum of P16,000.00 as actual damages, and P30,000.00 by way of moral and exemplary damages and to pay the costs.

SO ORDERED.

[9]

Only Claudio Barcimo, Jr. appealed the decision raising the following assignment of errors: A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF PROSECUTION WITNESSES ELLEN SOBUSA AND ROSELYN SOBUSA AND IN NOT APPRECIATING THE TESTIMONY OF THE AUNT OF SAID WINTNESSES AS CORROBORATED BY THE BARANGAY CAPTAIN OF THE PLACE WHERE THE INCIDENT HAPPENED THAT THE SAID PROSECUTION WITNESSES HAVE NOT IDENTIFIED THE KILLERS. B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN THE COMMISSION OF THE CRIME. C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN THE COMMISSION OF THE CRIME. D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY [10] SURRENDER OF THE ACCUSED. Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and Roselyn as one of the assailants is doubtful because when asked whether they know the assailants, they replied in the negative. The contention is without merit. By challenging his identification by the witnesses of the prosecution, as one of the assailants of the victim, the appellant attacks the credibility of said witnesses and the probative weight of their testimonies. However, when the issue of credibility of witnesses is in question, the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate court high respect if not conclusive effect, precisely because of the unique advantage of the trial court in observing and monitoring at close range the demeanor, deportment and conduct of the witnesses as they testify, unless the trial court has overlooked, misconstrued or misinterpreted cogent facts of substance [11] which if considered might affect the result of the case. In the case at bar, there is no showing that the trial court overlooked, misunderstood, misapplied or misconstrued any fact of substance that might materially affect the outcome of the case. The trial court found the collective testimonies of the prosecution witnesses Ellyn and Roselyn to be:

13 …generally impressionable but their natural naiveté and inexperience make them reliable witnesses. Their statements are generally free from any bias or prejudice as to be slanted or malicious. It is observed that the testimonies of Ellyn and Roselyn Sobusa are direct, straightforward and delivered without any hesitancy [12] whatsoever. The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively identified appellant as the one who shot the victim. Although the incident occurred during nighttime, the house of the victim was sufficiently illuminated by the kerosene lamp placed near the head of the victim, which provided enough light for purposes of identifying the killers.

xxx

xxx

xxx

Q. Miss witness, this incident happened at around 2:00 o’clock in the morning, why are you sure that Ronnie Abolidor was one of the four persons who entered your house? A. Because we have a kerosene lamp placed very near the head of my mother. Q. How far is that kerosene lamp from your mother? A. Witness demonstrates about 5 to 6 inches more or less.

On direct testimony, Ellyn Sobusa narrated the incident as follows:

Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene lamp?

Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident that happened?

A. Nocnoc was situated on the feet of my mother.

A. Yes, sir. Q. What is that incident about? A. At around that time I was awakened by the sound of the opening of the door. I saw four (4) persons entered our house and one them said, “This is a hold up.” My mother then pleaded, “Do not kill me. Have mercy.” Q. What happened after your mother pleaded have mercy? A. There was a shot and I ducked. Then another shot was fired which I do not know anymore because I lied with my face down. Q. Do you know the person who said this is a hold up? A. Yes, sir. Q. Who is he? A. Nocnoc. Q. How far is this Nocnoc when you said he shot your mother? A. Very near. Q. What was the position of your mother by the time she was shot by Nocnoc? A. She was lying down.

Q. What was the position of Nocnoc when he shot your mother? A. He was standing.

[13]

Considering the illumination from the kerosene lamp, and Ellyn’s proximity to her mother and to the appellant, she could have clearly seen and recognized the appellant when he shot the victim. [14]

In People v. Prieto, we ruled that the illumination provided by kerosene lamp or wicklamps, and flashlights, moonlight or starlight may, in proper situations, be considered as sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. Moreover, Roselyn testified that she was familiar with the voice of the appellant as he was a friend of his stepfather and she visited appellant’s house [15] several times. The voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years. Once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable [16] distance. We also note that appellant did not deny that Warlito Huesca was his [17] good friend and that he visited their house many times. The credibility of the prosecution witnesses Ellyn and Roselyn is not adversely affected by their failure to immediately report the identities of the perpetrators to the responding authorities immediately after the incident. Indubitably, fear stifled the witnesses from voicing their knowledge of the identities of the perpetrators. There is no rule that a witness should immediately name the suspect [18] in a crime. Nevertheless, the delay was not that long as when the police

14 authorities investigated the witnesses in the afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara, Iloilo, they named appellant and accused Ronnie Abolidor [19] as two of the perpetrators. To escape criminal liability, appellant invokes the defense of alibi and denial. He asserts that he could not have done it considering that Warlito Huesca, the common-law husband of the victim, was his good friend and at the time of the incident he was at Brgy. Dawis together with Brgy. Capt. Buñol in the house of Brgy. Capt. Gerardo Pineza watching the game of majhong. We are not convinced. It is well settled that positive identification, where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving [20] weight in law. Hence, the defense of denial and alibi cannot prosper in the light of the positive identification by eyewitnesses Ellyn Sobusa and Roselyn Sobusa that appellant was the one who shot their mother. We agree with the trial court’s appreciation of the presence of qualifying circumstance of treachery. There is treachery when the offender commits any of the crimes against persons, 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. It is settled that there is treachery if the victim, when killed, was sleeping or had just awakened, because in such cases the victim was in no position to put up any form of [21] defense. In the case at bar, the victim had just awakened from sleep because of the forcible opening of their door. When she was shot by appellant, she was lying down on the mat with a handkerchief tied around her mouth. Obviously, in this position she can not defend herself from the aggression of the perpetrators. The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To benefit an accused, the following requisites must be proven, namely: (1) the offender has not actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. Voluntary surrender presupposes [22] [23] repentance. In People v. Viernes, we held that going to the police station to

clear one’s name does not show any intent to surrender unconditionally to the authorities. In the case at bar, appellant surrendered to the authorities after more than one year had lapsed since the incident and in order to disclaim responsibility for the killing of the victim. This neither shows repentance or acknowledgment of the crime nor intention to save the government the trouble and expense necessarily incurred in his search and capture. Besides, at the time of his surrender, there was [24] a pending warrant of arrest against him. Hence, he should not be credited with the mitigating circumstance of voluntary surrender. Appellant is guilty of Murder, qualified by treachery, for the killing of Thelma Sobusa. Article 248 of the Revised Penal Code, as amended, imposes the penalty of reclusion perpetua to death for Murder. The trial court was correct in imposing the penalty of reclusion perpetua, there being no aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal Code. The trial court awarded the amount of P100,000.00 as civil indemnity to the heirs of the victim. Said amount must be reduced to P50,000.00, in line with [25] prevailing jurisprudence. The award of actual damages must also be modified. While appellant [26] admitted the amount of P19,000.00 as actual damages, the trial court only [27] awarded the amount of P16,000.00. Ordinarily, receipts should support claims of actual damages, but where the amount claimed was admitted, it should be [28] granted. Consequently, the heirs of the victim is entitled to be awarded the amount of P19,0000.00 as actual damages. The trial court likewise erred when it awarded the amount of P30,000.00 as moral and exemplary damages without indicating what amount constitutes moral damages and exemplary damages. In murder and homicide cases, the award of [29] moral damages should be substantiated by evidence. In the case at bar, the prosecution failed to present proof of moral damages. Therefore, the same should be deleted. On the other hand, exemplary damages must be awarded in view of the attendance of treachery which qualified the killing to Murder. Under Article 2230 of the Civil Code, exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. The term aggravating circumstances as used therein is to be understood in its broad or generic sense since the law did not specify otherwise. The ordinary qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil liability of the offender. Thus,

15 the heirs of the victim are entitled to exemplary damages in the amount of [30] P25,000.00. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Iloilo City, Branch 31, in Criminal Case No. 40948, insofar as it finds Claudio Barcimo, Jr. @ “Noc-noc” guilty beyond reasonable doubt of the crime of murder and sentences him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that appellant is ORDERED to pay the heirs of Thelma Sobusa the amounts of P50,000.00 as civil indemnity, P19,000.00 as actual damages and P25,000.00 as exemplary damages. The award of moral damages is DELETED. Costs de oficio. SO ORDERED.

G.R. No. 130650

September 10, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO VERCELES, FELIX CORPUZ, MAMERTO SORIANO (At large), PABLO RAMOS (At large), and JERRY SORIANO (State Witness), accused, MARIO VERCELES and FELIX CORPUZ, accused-appellants. YNARES-SANTIAGO, J.: Accused Mario Verceles alias "Baldog", Felix Corpuz, Mamerto Soriano alias "Merto", Pablo Ramos and Jerry Soriano were charged with the crime of Robbery with Rape committed as follows:

same occasion, the said accused, conspiring, confederating and helping one another, did then and there, willfully, unlawfully and feloniously have sexual intercourse with Maribeth Bolito against her will to the damage and prejudice of the aforenamed victims. CONTRARY to Art. 299, par. A(2) in relation to Art. 335 of the Revised Penal 1 Code. Of the five accused, Mamerto Soriano and Pablo Ramos remain at large. Only Mario Verceles, Felix Corpuz and Jerry Soriano were brought to the jurisdiction of the court. During arraignment, the three accused, duly assisted by counsel, pleaded not guilty to the crime charged. Thereafter, the prosecution filed a motion to discharge accused Jerry Soriano as a State Witness. The court proceeded with the trial of the case pending the resolution of the said motion to discharge.1âwphi1.nêt The trial court subsequently discharged accused Jerry Soriano and received his testimony as state witness. According to Soriano, on October 18, 1996, the five accused boarded a tricycle owned by Mario Verceles to visit his cousin in barangay Goliso, located at the boundary of Urbiztondo. At 8:00 in the evening, they proceeded to barangay Malibong to visit Pepe, a compadre of Mamerto Soriano. Before reaching Pepe’s place, they stopped at the house of Jerry’s grandmother, Rosita Quilates. Jerry sensed that his companions had an evil plan, so he and Pablo Ramos tried to leave. However, Mamerto Soriano poked a gun at Jerry and told them not to leave. Then, they tied Jerry and Pablo under a mango tree. The three proceeded to the house of Rosita Quilates. While waiting for the three, Jerry and Pablo fell asleep. When they woke up at 2:00 a.m., they saw the three accused carrying a TV set, VHS and other things. They helped the three load the items in the tricycle. Then they went home to San Jacinto, Pangasinan. Several days later, they 2 sold the items and Jerry was given three hundred pesos.

th

That on or about the 19 day of October, 1996, in the morning, in barangay Malibong, municipality of Urbiztondo, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and helping one another, with intent of gain and by means of force upon things, entered the house of one Mrs. Rosita Quilates by forcibly destroying the grills of the window which they used as an ingress and once inside, did, then and there, willfully, unlawfully and feloniously take and cart away the following personal properties: one (1) colored T.V., one (1) VHS, assorted jewelries, one (1) alarm clock and one (1) radio cassette, all valued at SIXTY THOUSAND PESOS (P60,000.00) owned by the said Rosita Quilates, and that on the

The prosecution witness Maribeth Bolito testified that on October 19, 1996 at around 2:00 in the morning, she was awakened by a man fondling her breast and other private parts. She tried to resist and fight back but her strength proved too weak against her aggressor. Furthermore, the man had a gun pointed at her head. She later identified her aggressor as Mamerto Soriano. While she was being ravished, she saw two men standing at the door, whom she identified as accused Mario Verceles and Felix Corpuz. Soriano undressed her then kissed her on the body and fondled her breasts for five minutes. She pretended to be thirsty, so Soriano, holding her tightly, brought her to the kitchen. There he removed his pants and laid her on the floor and tried to insert his penis inside her vagina. Maribeth lost

16 consciousness and when she came to, her private part was very painful and the 3 three accused were gone. Dra. Revelina Millan, who examined Maribeth on October 20, 1996, made the 4 following findings: - GO IMP

:

nd

September 2 week/96 3 days

- SKIN

:

No hematoma No Abrasion

- IE

:

with healed laceration at 9 o’clock position

- For vaginal smear for presence of spermatozoa - Result

:

Negative for sperm

SPO2 Eduardo Fernandez, who investigated the robbery, testified that the malefactors entered through the window of one of the bedrooms of the house; that they took personal properties valued at P60,000.00; that Maribeth Bolito was 5 sexually abused; and that a necklace was recovered from Felix Corpuz. Mrs. Rosita Quilates testified that she learned from her granddaughter, Maribeth Bolito, that her house was robbed and her personal belongings were missing; and that she was able to recover the properties from a certain Andres Tirano, who bought them from accused Mamerto Soriano. In their defense, Felix Corpuz testified that on October 19, 1996, he was in Manila working as a carpenter in a construction firm. He stayed in Manila from October 5, 1996, and did not visit his hometown until the completion of the job contract on October 27, 1996. He first learned that he was a suspect in a crime on November 3, 6 1996. Ernesto Lambino, Jr. corroborated the testimony of Felix Corpuz. He testified that he was the one who recruited Felix to work in Tambo, Rizal, Parañaque as a mason carpenter. They arrived in Manila on October 5, 1996 and Felix started his work on 7 October 6, 1996 until October 26, 1996.

Accused Mario Verceles, for his part, testified that in the evening of October 18, 1996, he attended the wake of Crispulo de Guzman at Barangay San Vicente, San Jacinto, Pangasinan. There he played cards up to 4:00 a.m. of October 19, 1996. He left the place at 5:00 a.m. He only learned that the police were looking for him when his wife fetched him in Mapandan, Pangasinan. He went to the barangay captain of his place and arranged for his surrender to the authorities. Police Inspector Rodolfo Tadeo corroborated his testimony that he voluntarily 8 surrendered to the police on November 5, 1996. After trial, the lower court rendered a decision, the dispositive portion of which 9 reads: WHEREFORE, in view of the foregoing, the Court hereby finds accused Felix Corpuz and Mario Verceles guilty beyond reasonable doubt of the crime of Robbery with Rape defined and penalized under Article 294, 1, as amended, of the Revised Penal Code, and there being neither mitigating nor aggravating circumstance, the Court hereby sentences each to suffer the penalty of Reclusion Perpetua. Both Felix Corpuz and Mario Verceles are likewise ordered to pay jointly and solidarily the victim Maribeth Bolito the sum of Two Hundred Thousand Pesos (P200,000.00) for moral damages, One Hundred Thousand Pesos (P100,000.00) for exemplary damages and to pay Rosita Quilates the sum of Twenty One Thousand Pesos (P21,000.00) on the value of the properties which were not recovered and further orders that the recovered TV, VHS appliances and necklace be returned to its lawful owner. SO ORDERED. Accused Felix Corpuz and Mario Verceles interposed the instant appeal. They alleged that the trial court erred in discharging Jerry Soriano as a state witness, in appreciating conspiracy among the accused, in not considering as mitigating circumstance the voluntary surrender of Mario Verceles, and in awarding damages to the private complainants. The appeal lacks merit. Accused-appellants contend that the discharge of Jerry Soriano did not comply with the requirements of the Rules of Court. They contend that Soriano’s testimony does not constitute direct evidence; at most, it was circumstantial in nature and of 10 minuscule importance. Moreover, Jerry Soriano was the most guilty for he

17 13

admitted his guilt with regard to the commission of the crime together with 11 Mamerto Soriano.

interfered with by appellate court except in case of grave abuse of discretion. We find no good reason to disturb the trial court’s findings of facts.

The requirements for the discharge and utilization of an accused as a state witness 12 are enumerated in Rule 119, Section 17 of the Revised Rules of Criminal Procedure, viz:

Granting ex gratia argumenti that not all the requisites of a valid discharge are present, the improper discharge of an accused will not render inadmissible his testimony nor detract from his competency as a witness. Any witting or unwitting error of the prosecution in asking for the discharge, and of the court in granting the petition, no question of jurisdiction being involved, cannot deprive the discharged accused of the acquittal provided by the Rules, and of the constitutional guarantee 14 against double jeopardy.

a) There is absolute necessity for the testimony of the accused whose discharge is requested; b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the accused; c) The testimony of said accused can be substantially corroborated in its material points; d) Said accused does not appear to be the most guilty; and e) Said accused has not at any time been convicted of any offense involving moral turpitude. The trial court did not err in discharging Jerry Soriano to be utilized as a state witness. First, the testimony of Jerry Soriano was absolutely necessary as the prosecution has no direct evidence to prove the identity of the malefactors Mamerto Soriano, Felix Corpuz, Mario Verceles and Pablo Ramos. The record reveals that the five accused were together on the night the robbery and rape took place. He may not have witnessed the actual robbery and rape, but he has personal knowledge of the robbery when he saw the three accused return to the place where he and Pablo Ramos were allegedly tied, carrying with them the properties said to have been stolen.Second, Jerry Soriano’s testimony was corroborated in its material points by other prosecution witnesses and physical evidence. These are: (a) the testimony of Maribeth Bolito that there were three malefactors, one of whom sexually abused her and two of whom just stood at the door; (b) the testimony of Rosita Quilates that her properties were stolen; and (c) the testimony of SPO2 Renato Solomon that they were able to recover the stolen properties from a certain Andres Tirano who bought them from accused Mamerto Soriano. Lastly, Jerry Soriano does not appear to be the most guilty for he was not a co-conspirator in the robbery with rape. He merely accompanied the accused and received three hundred pesos as his share in the proceeds of the sale of the stolen properties. Besides, the question of whether Jerry Soriano appears to be the most guilty is a factual issue. The discretionary judgment of the trial court on this matter is seldom

On the matter of whether rape was committed, we agree with the trial court’s ruling that neither the healed lacerations on the vagina of the victim nor the absence of spermatozoa negates rape. When an alleged victim of rape says she was violated, she says in effect all that is necessary to show that rape had been inflicted on her, and so long as her testimony meets the test of credibility, the accused may 15 be convicted on the basis thereof. In the case at bar, the victim’s declaration of her sexual ordeal, which was given in a straightforward, convincing, credible and satisfactory manner, shows no other intention than to obtain justice for the wrong committed by accused-appellant Mamerto Soriano against her. The Court finds no reason to depart from the rule that the trial court’s evaluation of the credibility of the testimonies of the witnesses is accorded great weight because it has the unique opportunity of hearing the 16 witnesses testify and observing their deportment and manner of testifying. We agree with the trial court that conspiracy has been sufficiently proved by the prosecution. Accused-appellants were one in design with accused Mamerto Soriano in taking personal properties belonging to others without the latter’s consent by breaking one of the windows to be used as their ingress. In the course of the robbery, one of them, particularly Mamerto Soriano, succumbed to lustful desires and raped Maribeth Bolito while accused-appellants just stood outside the door and did nothing to prevent Mamerto Soriano. We have previously ruled that once conspiracy is established between two accused in the commission of the crime of robbery, they would be both equally culpable for the rape committed by one of them on the occasion of the robbery, unless any of them proves that he 17 endeavored to prevent the other from committing the rape. The rule in this jurisdiction is that whenever a rape is committed as a consequence, or on the occasion of a robbery, all those who took part therein are liable as principals of the 18 crime of robbery with rape, although not all of them took part in the rape.

18 In trying to mitigate his criminal liability, accused-appellant Mario Verceles argued that the trial court erred in not considering the circumstance of voluntary surrender in his favor. Upon learning that police authorities were searching for him in connection with the alleged crime, he immediately proceeded to the barangay captain of his place and voluntarily surrendered himself. However, the Solicitor General argues that the surrender of accused-appellant Mario Verceles was not voluntary and spontaneous for it took him 16 days to show up from the commission 19 of the crime on October 19, 1996 to November 4, 1996. For the mitigating circumstance of voluntary surrender to be appreciated, the accused must satisfactorily comply with three requisites: (1) he has not been actually arrested; (2) he surrendered himself to a person in authority or the latter's agent; and (3) the surrender is voluntary. There must be a showing of spontaneity and an intent to surrender unconditionally to the authorities, either because the accused acknowledges his guilt or he wishes to spare them the trouble and expense 20 concomitant to his capture. Voluntary surrender is not a mitigating circumstance where it appears that the purpose of the accused in going to the authorities is for an entirely different matter as to inquire merely about a warrant of arrest in 21 connection with a pending case against the accused for rape. Evidence shows that Mario Verceles’ surrender to the authorities was not spontaneous and unconditional. He submitted himself to the police only to clear the 22 matter and to know the reason why the police were looking for him and when asked what his involvement was to the alleged robbery and rape, he answered that 23 24 he does not know anything about the crime. In People v. Abella, we held that when the accused goes to a police station merely to clear his name and not to give himself up, voluntary surrender may not be appreciated. On the basis of the foregoing, accused-appellant Mario Verceles is not entitled to the benefit of the mitigating circumstance of voluntary surrender.1âwphi1.nêt We thus hold that accused-appellant’s defense of alibi and denial cannot overcome Maribeth Bolito’s positive testimony that she was raped and that her grandmother’s house was robbed, especially since this was substantially corroborated by the other prosecution witnesses. Time-honored is the rule that the positive and categorical assertions of witnesses generally prevail over bare 25 denials. 26

In line with established jurisprudence, we are constrained to modify the award of moral damages from P200,000.00 to P50,000.00, as this award is not intended to enrich the victim but to compensate for her suffering. Moreover, the trial court committed a reversible error when it awarded exemplary damages in the amount of

27

P100,000.00 despite the absence of one or more aggravating circumstances. As regards the value of the properties belonging to Rosita Quilates that were not recovered, the records are bereft of any evidence to support such claim. Lastly, Maribeth Bolito should have been awarded the sum of P50,000.00 for civil indemnity, as it is mandatory upon a conviction of rape. Such indemnity is distinct 28 from moral damages and based on different jural foundations. WHEREFORE, the assailed decision finding accused-appellants Mario Verceles and Felix Corpuz guilty beyond reasonable doubt of the crime of Robbery with Rape punished under Article 294 (1) of the Revised Penal Code and sentencing them to suffer the penalty of Reclusion Perpetua, is AFFIRMED with the MODIFICATION that the award of moral damages is reduced from P200,000.00 to P50,000.00; the award of exemplary damages isDELETED for lack of basis and the sum of P50,000.00 is awarded for civil indemnity. SO ORDERED.

[G.R. No. 127444. September 13, 2000]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TIRSO D. C. VELASCO in his capacity as the Presiding Judge, RTC-Br. 88, Quezon City, and HONORATO GALVEZ, respondents. DECISION BELLOSILLO, J.: This case nudges the Court to revisit the doctrine on double jeopardy, a revered constitutional safeguard against exposing the accused to the risk of answering twice for the same offense. In this case, after trial on the merits, the accused was acquitted for insufficiency of the evidence against him in the cases for murder and frustrated murder (although his co-accused was convicted), and finding in the illegal carrying of firearm that the act charged did not constitute a violation of law. But the State through this petition for certiorari would want his acquittal reversed.

19 We narrate a brief factual backdrop. The idyllic morning calm in San Ildefonso, Bulacan, a small town north of Manila, was shattered by gunshots fired in rapid succession. The shooting claimed the life of young Alex Vinculado and seriously maimed his twin brother Levi who permanently lost his left vision. Their uncle, Miguel Vinculado, Jr. was also shot. A slug tunneled through his right arm, pierced the right side of his body and burrowed in his stomach where it remained until extracted by surgical procedure. As a consequence, three (3) criminal Informations - one (1) for homicide and two (2) for frustrated homicide - were originally filed before the Regional Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San Ildefonso, and Godofredo Diego, a municipal employee and alleged bodyguard of the mayor. On 14 December 1993, however, the charges were withdrawn and a new set filed against the same accused upgrading the crimes to murder (Crim. Case No. 4004-M93) and frustrated murder (Crim. Cases Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was charged, in addition, with violation of PD 1866 (Crim. Case No. 4007-M94) for unauthorized carrying of firearm outside his residence; hence, a fourth Information had to be filed. After a series of legal maneuvers by the parties, venue of the cases was transferred to the Regional Trial Court of Quezon City, Metro Manila. There the cases were stamped with new docket numbers (Nos. Q-94-55484, Q-94-55485, Q94-55486 and Q-94-55487, respectively), and raffled to Branch 103 presided over by Judge Jaime Salazar, Jr. In the course of the proceedings, the judge inhibited himself and the cases were re-raffled to respondent Judge Tirso D.C. Velasco of Branch 89. On 8 October 1996 a consolidated decision on the four (4) cases was promulgated. The trial court found the accused Godofredo Diego guilty beyond reasonable doubt of the crimes of murder and double frustrated murder. However, it acquitted Mayor Honorato Galvez of the same charges due to insufficiency of evidence. It also absolved him from the charge of illegal carrying of firearm upon its finding that the act was not a violation of law. The acquittal of accused Honorato Galvez is now vigorously challenged by the Government before this Court in a Petition for Certiorari under Rule 65 of the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the submission of petitioner that the exculpation of the accused Galvez from all criminal responsibility by respondent Judge Tirso Velasco constitutes grave abuse of discretion amounting to lack of jurisdiction. Allegedly, in holding in favor of Galvez, the judge deliberately and wrongfully disregarded certain facts and evidence on record which, if judiciously considered, would have led to a finding of guilt of the accused beyond reasonable doubt. Petitioner proposes that this patently gross judicial indiscretion and arbitrariness should be rectified by a re-examination of the evidence by the

Court upon a determination that a review of the case will not transgress the constitutional guarantee against double jeopardy. It is urged that this is necessary because the judgment of acquittal should be nullified and substituted with a verdict of guilt. The main hypothesis of the Government is that elevating the issue of criminal culpability of private respondent Galvez before this Tribunal despite acquittal by the trial court should not be considered violative of the constitutional right of the accused against double jeopardy, for it is now settled constitutional doctrine in the United States that the Double Jeopardy Clause permits a review of acquittals decreed by US trial magistrates where, as in this case, no retrial is required should [1] judgment be overturned. Since Philippine concepts on double jeopardy have been sourced from American constitutional principles, statutes and jurisprudence, [2] particularly the case of Kepner v. United States, and because similarly in this jurisdiction a retrial does not follow in the event an acquittal on appeal is reversed, double jeopardy should also be allowed to take the same directional course. Petitioner in this regard urges the Court to take a second look at Kepner, it being the "cornerstone of the battlement of the Double Jeopardy Clause" in the [3] Philippines and seriously examine whether the precedents it established almost a century ago are still germane and useful today in view of certain modifications wrought on the doctrine by the succeeding American cases of United States v. [4] [5] Wilson and United States v. Scott. Two (2) threshold issues therefore, interlocked as they are, beg to be addressed. One is the propriety of certiorari as an extraordinary mode of review under Rule 65 of the Rules of Court where the result actually intended is the reversal of the acquittal of private respondent Galvez. The other is the permissibility of a review by the Court of a judgment of acquittal in light of the constitutional interdict against double jeopardy. The recent untimely demise of respondent Galvez at the hands of alleged assassins (not discounting too the earlier dismissal of respondent judge from the service) may arguably have rendered these matters moot and academic, thus calling for a dismissal of the petition on this basis alone. The Court however is not insensitive to nor oblivious of the paramount nature and object of the pleas forcefully presented by the Government considering especially the alleged new directions in American jurisprudence taken by the doctrine of double jeopardy. We are thus impelled to respond to the issues advanced by petitioner for these bear unquestionably far-reaching contextual significance and implications in Philippine juristic philosophy and experience, demanding no less, explicit and definitive rulings.

20 For it may be argued from a historico-analytical perspective that perhaps none of the constitutionally ensconced rights of men has followed a more circuitous and tortuous route in the vast sea of jurisprudence than the right of a person not to be [6] tried or prosecuted a second time for the same offense. This prohibition does not consist merely of one rule but several, each rule applying to a different situation, [7] each rule marooned in a sea of exceptions. It must have been this unique transpiration that prompted even the redoubtable Mr. Justice Rehnquist of the [8] U.S. Supreme Court to remark in Albernaz v. United States that "the decisional law (in the area of double jeopardy) is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." It is therefore necessary that, in forming a correct perspective and full understanding of the doctrine on double jeopardy and the rules so far established relative to the effect thereon of appeals of judgments of acquittal, a compendious review of its historical growth and development be undertaken. This approach is particularly helpful in properly situating and analyzing landmark interpretive applications of the doctrine in light of the varying legal and factual milieu under which it evolved. [9]

Jeopardy, itself "a fine poetic word," derives from the Latin "jocus" meaning [10] joke, jest or game, and also from the French term "jeu perdre" which denotes a game that one might lose.Similarly, the Middle English word "iuparti" or "jupartie" [11] means an uncertain game. The genesis of the concept itself however rests deep in the ancient Grecian view of tragedy and suffering and in the old Roman legal concepts of punishment. Greek law bound prosecutor and judge to the original verdict as can be seen in the remark of Demosthenes in 355 B. C. that "the laws [12] forbid the same man to be tried twice on the same issue." The Justinian [13] Digest providing that "(a) governor should not permit the same person to be [14] again accused of crime of which he has been acquitted," suggests certain philosophical underpinnings believed to have been influenced by works of the great Greek tragedians of the 5th century B.C. reflecting man’s "tragic vision" or the tragic view of life. For the ancient Greeks believed that man was continuously pitted against a superior force that dictated his own destiny. But this prevailing view was not to be taken in the sense of man passing from one misfortune to another without relief, as this idea was repugnant to Greek sensibilities. Rather, it expressed a universal concept of catharsis or vindication that meant misfortune resolving itself into a final triumph, and persecution, into freedom and liberation. To suffer twice for the same misfortune was anathema to ancient thought. The 18th century B. C. Babylonian king and lawgiver Hammurabi recognized that humans could err in prosecuting and rendering judgment, thus limits were needed on prosecutors and judges.A gruesome but effective way of preventing a second trial by the same prosecutor after an acquittal can be found in the first law of the Hammurabic Code: "If a man has accused a man and has charged him with

manslaughter and then has not proved [it against him], his accuser shall be put to [15] death." The repugnance to double trials strongly expressed by the Catholic Church is consistent with the interpretation by St. Jerome in 391 A. D. of the promise by God to his people through the prophet Nahum that "(a)ffliction shall not rise up the [16] second time" and "(t)hough I have afflicted thee, I will afflict thee no [17] more." Taken to mean that God does not punish twice for the same act, the maxim insinuated itself into canon law as early as 847 A. D., succintly phrased as [18] "(n)ot even God judges twice for the same act." The most famous cause célèbre on double jeopardy in the Middle Ages was the dispute between the English King Henry II and his good friend, Thomas á Becket, Archbishop of Canterbury.Henry wished to continue the observance of certain customs initiated by his predecessors called "avitae consuetudines," one of the known purposes of which was that clerics convicted of crimes before Church courts be delivered to lay tribunals for punishment. He asserted in the Constitutions of Clarendon that the clergy were also subject to the king’s punishment. This was met with stinging criticism and stiff opposition by the Archbishop who believed that allowing this practice would expose the clergy to double jeopardy. The issue between the two erstwhile friends was never resolved and remained openended, for Thomas was later on mercilessly murdered in his cathedral, allegedly at [19] the instance of his king. It was in England though, a century ago, that double jeopardy was formally [20] institutionalized "as a maxim of common law" based on the universal principles of reason, justice and conscience, about which the Roman Cicero commented: "Nor is it one thing at Rome and another at Athens, one now and another in the future, [21] but among all nations, it is the same." But even as early as the 15th century, the English courts already began to use the term "jeopardy" in connection with the [22] doctrine against multiple trials. Thereafter, the principle appeared in the writings [23] of Hale (17th c.), Lord Coke (17th c.) and Blackstone (18th c.). Lord Coke for instance described the protection afforded by the rule as a function of three (3) related common law pleas:autrefois acquit, autrefois convict and [24] [25] pardon. In Vaux’s Case, it was accepted as established that "the life of a man shall not be twice put in jeopardy for one and the same offense, and that is the reason and cause that autrefois acquitted or convicted of the same offense is a good plea x x x x" Blackstone likewise observed that the plea of autrefois acquit or a formal acquittal is grounded on the universal maxim of the common law of England that "(n)o man is to be brought into jeopardy of his life more than once for the same offense. And hence, it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment, or other prosecution before any court

21 having competent jurisdiction of the offense, he may plead such acquittal in bar of [26] any subsequent accusation for the same crime.” The English dogma on double jeopardy, recognized as an “indispensable requirement of a civilized criminal procedure,” became an integral part of the legal system of the English colonies in America. The Massachusetts Body of Liberties of 1641, an early compilation of principles drawn from the statutes and common law of England, grandly proclaimed that "(n)o man shall be twise sentenced by Civill Justice for one and the same crime, offence or Trespasse" and that "(e)verie Action betweene partie and partie, and proceedings against delinquents in Criminall causes shall be briefly and destinctly entered on the Rolles of every Court by the Recorder [27] thereof." Ineluctably, this pronouncement became the springboard for the proposal of the First Congressof the United States that double jeopardy be included in the Bill of Rights. It acknowledged that the tradition against placing an individual twice in danger of a second prosecution for the same offense followed ancient precedents in English law and legislation derived from colonial experiences and necessities. Providing abundant grist for impassioned debate in the US Congress, the proposal was subsequently ratified as part of the Fifth Amendment to the Constitution. In 1817 the Supreme Court of Tennessee dismissed an appeal by the State after an acquittal from perjury, declaring that: “A writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of common law that no one shall be brought twice into jeopardy for one and the same offense. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule, a new trial cannot be granted in a criminal case where the defendant is acquitted. A writ of error will lie for the defendant, but not against [28] him.” Verily, these concepts were founded upon that great fundamental rule of common law, "Nemo debet bis vexari pro una et eadem causa," in substance expressed in the Constitution of the United States as: "Nor shall any person be subject for the same offense, to be twice put into jeopardy of life or limb." It is in the spirit of this benign rule of the common law, embodied in the Federal Constitution a spirit of liberty and justice, tempered with mercy - that, in several states of the [29] Union, in criminal cases, a writ of error has been denied to the State. The relationship between the prohibition against second jeopardy and the power to order a new trial following conviction or dismissal stirred a no small [30] amount of controversy in United States v. Gibert. There, Mr. Justice Story, on circuit, declared that "the court had no power to grant a new trial when the first trial had been duly had on a valid indictment before a court of competent jurisdiction." The opinion formulated was that the prohibition against double jeopardy applied equally whether the defendant had been acquitted or convicted.

But it must be noted that even in those times, the power to grant a new trial in the most serious cases was already being exercised by many American courts, the practice having beenobserved from an early date, in spite of provisions of law [31] against double jeopardy. For this reason, the rule in Gibert was stoutly [32] [33] resisted. As if to taunt Gibert, the 1839 case of United States v. Keen declared that the constitutional provision did not prohibit a new trial on defendant’s motion [34] after a conviction. In Hopt v. Utah, the defendant was retried three (3) times following reversals of his convictions. [35]

Then in 1896 the U.S. Supreme Court in United States v. Ball affirmed that the double jeopardy rule did not prevent a second trial when, on appeal, a conviction had been set aside. It declared that a defendant who procured on appeal a reversal of a judgment against him could be tried anew upon the same indictment or upon another indictment for the same offense of which he had been convicted. This principle of autrefois convict was expanded nine (9) years later [36] in Trono v. United States where the Court affirmed the judgment of the Supreme Court of the Philippines by holding that "since the plaintiffs in error had appealed their convictions of the lower offense in order to secure a reversal, there was no bar to convicting them of the higher offense in proceedings in the appellate court that were tantamount to a new trial." Mr. Justice Peckham, holding for the Court, concluded that "the better doctrine is that which does not limit the court or the jury upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy and acts upon the original [37] judgment as if it had never been." It was ratiocinated that the result was justified not only on the theory that the accused had waived their right not to be retried but also on the ground that "the constitutional provision was really never intended to x x x cover the case of a judgment x x x which has been annulled at the request of the accused x x x x" It must be stressed though that Ball also principally ruled that it had long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and, even when “not followed by any judgment, is a bar to a subsequent prosecution for the same offense. It is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal, even though an acquittal may appear to be erroneous.” In 1891 the United States Judiciary Act was passed providing that appeals or writs of error may be taken from the district court or from the existing circuit courts direct to the Supreme Court in any case that involved the construction of the [38] Constitution. The following year an issue was raised in United States v. Sanges on whether this Act conferred upon the government the right to sue out a writ of error in any criminal case. In that case, existing rules on double jeopardy took a

22 significant turn when the United States Supreme Court observed that while English law was vague on the matter, it had been settled by overwhelming American authority that the State had no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law. The Court noted that in a few states, decisions denying a writ of error to the State after a judgment for the defendant on a verdict of acquittal proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of the constitutional [39] provision. Sanges therefore fixed the rule that absent explicit legislative authority, the United States Government had no right of appeal in criminal cases in case of an acquittal as it would expose the defendant twice to jeopardy.

under the Fifth Amendment of the US Constitution. This was pursuant to the 7 April 1900 Instructions of President McKinley issued to the Philippine Commission headed by William Howard Taft. The Instructions read in part: “x x x the Commission should bear in mind, and the people of the Islands should be made to understand, that there are certain great principles of government which have been made the basis of our governmental system, which we deemessential to the rule of law x x x and maintained in their islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar x x x x Upon every division and branch of the Government of the Philippines therefore must be imposed these inviolable rules: x x x that x x x no person shall be put twice in jeopardy for the same offense x x x [43] x"

Notably, however, in 1892 the Attorneys General of the United States began to recommend the passage of legislation allowing the Government to appeal in criminal cases. Their primary objective was to resist the power of a single district judge (under the law then obtaining) by dismissing an indictment to defeat any criminal prosecution instituted by the Government. No action was taken on the proposal until 1906 when President Theodore Roosevelt in his annual message to the US Congress demanded the enactment of legislation on the matter. Consequently, on 2 March 1907 such legislative authority was provided [40]40 when the Criminal Appeals Act became a law Ch. 2564, 34 Stat. 1246.40 permitting the United States to seek a writ of error from the Supreme Court from any decision dismissing all indictment on the basis of the "invalidity or [41] construction of the statute upon which the indictments is founded." The law narrowed the right to appeal by the Government to cases in which the ground of the District Court’s decision was invalidity or construction of the statute upon which the charge was founded, and that a verdict in favor of the defendant based on evidence could not be set aside on appeal no matter how erroneous the legal theory upon which it may be based. For these purposes, it made no difference whether the verdict be the result of the jury’s decision or that of the judge. In other words, Government could appeal from a decision dismissing an indictment or arresting judgment on the basis of the statutory invalidity or misconstruction of the pertinent criminal statute and from a decision sustaining a special plea in bar, so [42] long as the defendant would not be put in jeopardy.

General Order No. 58 was amended by Act No. 194 which permitted an appeal by the government after acquittal. The Philippine Civil Government Act of 1 July 1902 of the U.S. Congress repealed the Act, adopted and restored the same principle in Gen. Order No. 58 as enunciated in the Fifth Amendment and in McKinley’s Instructions by providing immunity from second jeopardy for the same criminal offense. It did not take long however for the meaning and significance of the doctrine held forth in McKinley’s Instructions to be placed under severe test and scrutiny.

On 10 December 1898 the Philippine Islands was ceded by Spain to the United States by virtue of the Treaty of Paris of 1898 which was ratified by the State Parties on 11 April 1899. The Islands was placed under military rule until the establishment of the Philippine Commission in 1902. On 23 April 1900 the military government issued General Order No. 58 which amended the Code of Criminal Procedure then in force by, among others, extending to the Islands the double jeopardy provision

In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila, Philippines, was charged with embezzlement of funds (estafa). He was tried by a court of first instance, minus a jury, and was acquitted of the crime. The U.S. Government appealed to the Supreme Court of the Philippine Islands and judgment was reversed. Kepner was sentenced with imprisonment and suspended frompublic office or place of trust. Questioning his conviction before the US Supreme Court, Kepner argued that the appeal by the US government to the Philippine Supreme Court of his judgment of acquittal constituted double jeopardy construed in light of existing US jurisprudence. On the other hand, the Attorney General for the Philippines and the Solicitor General of the United States jointly contended that the Philippine Bill of 1 July 1902 which included the prohibition against double jeopardy should be construed from the perspective of the system of laws prevailing in the Philippines prior to its cession to the United States. Under this system, the Audiencia (Supreme Court) could entertain an appeal of a judgment of acquittal since the proceedings before it were regarded not as a new trial but an extension of preliminary proceedings in the court of first instance. The entire proceedings constituted one continuous trial and the jeopardy that attached in the court of first instance did not terminate until final judgment had been rendered by the Audiencia. Double [44] jeopardy was described not only in the Spanish law Fuero Real as: “After a man

23 accused of any crime has been acquitted by the court, no one can afterwards accuse him of the same offense (except in certain specified cases), but also in [45] the Siete Partidas which provided that: “If a man is acquitted by a valid judgment of any offense of which he has been accused, no other person can afterwards accuse him of the offense x x x x” Under this system of law, a person was not regarded as jeopardized in the legal sense until there had been a final judgment in the court of last resort. The lower courts then were deemed examining courts, exercising preliminary jurisdiction only, and the accused was not finally convicted or acquitted until the case had been passed upon in the Audiencia or Supreme Court, whose judgment was subject to review by the Supreme Court in Madrid (Spain) for errors of law, with power to grant a new trial. The U.S. Supreme Court however threw out the Government’s argument and held that the proceedings after acquittal had placed the accused Kepner twice in jeopardy. It declared in no uncertain terms that the appeal of the judgment of conviction was in essence a trial de novo and that, whatever the Spanish tradition was, the purpose of Congress was to carry some at least of the essential principles of American constitutional jurisprudence to the Islands and to engraft them upon the law of these people newly subject to its jurisdiction. There was little question therefore that Kepner soldered into American jurisprudence the precedent that as to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. “x x x (I)t is then the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not x x x against the peril of second punishment, but against being tried again for the same [46] offense." [47]

This doctrine was echoed in United States v. Wills where the Court further clarified that “jeopardy implies an exposure to a lawful conviction for an offense of which a person has already been acquitted x x x x” It was reiterated in 1957 [48] in Green v. United States in which Mr. Justice Black, writing for the Court, professed that the constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Thus, under the Fifth Amendment, a verdict of acquittal was considered final, ending the accused’s jeopardy and that once a person has been acquitted of an offense, he cannot be prosecuted again on the same charge. American jurisprudence on the effect of appealed acquittals on double jeopardy since then sailed on, following the main sea lanes charted by Kepner, but not without encountering perturbance along the way. For it may be mentioned, [49] albeit en passant, that the case of Bartkus v. Illinois did cause some amount of

judicial soul-shaking in 1959 when it burst into the scene.Alfonse Bartkus was tried before a federal district court in Illinois and was later acquitted by the jury. Less than a year later, Bartkus was indicted this time by an Illinois grand jury on facts substantially identical to those of the federal charge and was subsequently convicted. His conviction was affirmed by the Illinois Supreme Court. On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4, affirmed the conviction. The Court, speaking through Mr. Justice Frankfurter, declared that the Fifth Amendment’s double jeopardy provision was inapplicable to states so that an acquittal of a federal indictment was no bar to a prosecution by a state based on the same charge. Since there was no proof offered to show that the participation of the federal authorities in the Illinois state prosecution was of such nature as to render the state proceedings a mere cover for a federal prosecution to render the state indictment essentially a constitutionally prohibited second prosecution, no double jeopardy attached. Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren and Mr. Justice Douglas, with Mr. Justice Brennan writing a separate dissenting opinion. Black rued that the Court’s ruling by a majority of one only resulted in "further limiting the already weakened constitutional guarantees against double [50] prosecution," citing the earlier case of United States v. Lanza, where the Court allowed the federal conviction and punishment of a man previously convicted and punished for identical acts by a state court. The dissent called attention to the fact that in Bartkus, for the first time in its history, the Court allowed the state conviction of a defendant already acquitted of the same offense in the federal court. This, Mr. Justice Black asserted, was unacceptable, for as the Court previously [51] found in Palko v. Connecticut, "double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment since some of the privileges and immunities of the Bill of Rights . . . have been taken over and brought within the Fourteenth Amendment by process of absorption x x x xOne may infer, from the fewness of the cases, that retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction." Whether such forceful pronouncements steered back into course meandering views on double jeopardy is open to question. Nonetheless, the case of Fong Foo v. [52] United States, decidedper curiam, reaffirmed the pronouncements in Ball and Kepner that "the verdict of acquittal was final, and could not be reviewed x x x without putting (the petitioners) twice in jeopardy, and thereby violating the Constitution." In the meantime, from 1907 up to 1970 the Criminal Appeals Act underwent significant alterations. The 1942 amendment of its Section 682 permitted for the

24 first time appeals to the circuit appeals court from orders sustaining demurrer to [53] indictment in cases not directly appealable to the Supreme Court. However, due to the many modifications the law was subjected to, construction and interpretation became more laborious, effectively transforming appeals into highly technical procedures. As such, the Criminal Appeals Act developed into a judicial “bete noire,” for even the U.S. Supreme Court itself had "to struggle in a number of [54] occasions with the vagaries of the said Act." In one of those unhappy efforts, it concluded that the Act was "a failure x x x a most unruly child that has not [55] improved with age." The U.S. Congress finally got rid of the dismal statute in 1970 and replaced it with a new Criminal Appeals Act intended to broaden the right of Government to appeal whenever the Constitution would permit. It was apparent that the legislative body left to the courts the prerogative to draw the constitutional limits of double jeopardy rather than define them itself. Since then, pronouncements by the courts on the jouble jeopardy guarantee of the Fifth Amendment focused on three (3) related protections: against a second prosecution for the same offense after acquittal; against a second prosecution for the same offense after conviction; and, [56] against multiple punishments for the same offense. [57]

In Wilson, the Court expressed that the interests underlying these three (3) protections are quite similar. Thus, when a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he be not subjected to the possibility of further punishment by being tried or sentenced [58] for the same offense. And when a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found [59] guilty." It can thus be inferred from these cases that the policy of avoiding multiple trials has been considered paramount so that exceptions to the rule have been permitted only in few instances and under rigid conditions. [60]

Accordingly, in United States v. Scott the US Supreme Court synthesized two (2) venerable principles of double jeopardy jurisprudence: first, the successful appeal of a judgment of conviction on any ground other than the insufficiency of the evidence to support the verdict poses no bar to further prosecution on the same charge; and second, a judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be [61] necessitated by a reversal. It would seem that the conditionality of “when a second trial would be necessitated by a reversal” was attached thereto because ordinarily, the procedure obtaining was that if on appeal a judgment of acquittal

is reversed, i. e., a finding is had against the defendant, a remand of the case for another trial may be allowed if needed. At this juncture, it must be explained that under existing American law and jurisprudence, appeals may be had not only from criminal convictions but also, in some limited instances, fromdismissals of criminal charges, sometimes loosely termed "acquittals." But this is so as long as the judgments of dismissals do not involve determination of evidence, such as when the judge:(a) issues a post-verdict acquittal, i.e., acquits the defendant on a matter of law after a verdict of guilty has been entered by a trier of facts (a jury); (b) orders the dismissal on grounds other than insufficiency of evidence, as when the statute upon which the indictment was based is defective; (c) conducts a judicial process that is defective or flawed in some fundamental respect, such asincorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct; (d) issues an order arresting judgment, i.e., an act of a trial judge refusing to enter judgment on the verdict because of an [62] error appearing on the face of the record that rendered the judgment; or, (e) pronounces judgment on a special plea in bar (a non obstante plea) - one that does not relate to the guilt or innocence of the defendant, but which is set up as a special defense relating to an outside matter but which may have been connected with the [63] case. Interestingly, the common feature of these instances of dismissal is that they all bear on questions of law or matters unrelated to a factual resolution of the case which consequently, on appeal, will not involve a review of evidence. Its logical effect in American law is to render appeals therefrom non-repugnant to the Double Jeopardy Clause. This contextual situation in which appeals from dismissals of criminal cases are allowed under American rules of procedure does not obtain in the Philippines. To be sure, United States v. Scott positively spelled out that if an acquittal was based on an appreciation of the evidence adduced, no appeal would lie. Mr. Justice Rehnquist explained that what may seem superficially to be a "disparity in the rules governing a defendant’s liability to be tried again" refers to the underlying purposes of the Double Jeopardy Clause. He elaborated that "(a)s Kepner and Fong Fooillustrate, the law attaches particular significance to an acquittal. To permit a second trial after an acquittal however mistaken x x x would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that even though innocent he may be found guilty. x x x x On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked the statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the x x x Clause was intended to protect." In proposing a re-evaluation of Philippine jurisprudence on double jeopardy, petitioner insists that Wilson and Scott have unquestionably altered the seascape of

25 double jeopardy previously navigated by Kepner and Ball. Using as its flagship the pronouncement in Wilson that appeals of acquittal are possible provided the accused will not be subjected to a second trial, it argues thatthis should apply to the case at bar because, anyway, a review of the acquittal of private respondent Honorato Galvez will not result in another trial inasmuch as the Court will only have to examine the evidence adduced below to pass final judgment on the culpability of the accused. Petitioner’s own hermeneutic sense of the phrase "another trial" is that which solely adverts to a proceeding before a competent trial court that rehears the case and receives evidence anew to establish the facts after the case has been finally disposed of by the Supreme Court. Obviously, it adheres to the Holmesian hypothesis in Kepner and, for that matter, the concept under Spanish law then applicable in the Philippines before the American colonization, that a trial consists of one whole continuing process from reception of evidence by a trier of facts up to its final disposition by the Supreme Court. But petitioner conveniently forgets that this theory has been consistently spurned by both American and Philippine jurisprudence that has faithfully adhered to the doctrine that an appeal of a judgment after the defendant had been acquitted by the court in a bench trial is, quintessentially, a new trial. In Kepner, the Court regarded the two (2) events, i. e., trial by the lower court and the appellate proceedings, as equivalent to two (2) separate trials, and the evil that the Court saw in the procedure was plainly that of [64] multiple prosecutions. AlthoughKepner technically involved only one proceeding, the Court deemed the second factfinding, that is, the review by the appellate court, as the equivalent of a second trial. Accordingly, in subsequent cases, the Court has [65] treated the Kepner principle as being addressed to the evil of successive trials. [66]

No less than the case of Wilson, petitioner’s main anchor for its propositions, affirms this rule. There, the Court emphasized that it has, up to the present, rejected the theory espoused by the dissenting Mr. Justice Holmes in Kepner that " a man cannot be said to be more than once in jeopardy in the same cause however often he may be tried. The jeopardy is one continuingjeopardy, from its beginning to the end of the cause." It declared unequivocally that "we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal." Wilson therefore pronounced that if acquittal is declared on the basis of evidence adduced, double jeopardy attaches for that particular cause. To explain further, Wilson involved an appeal by Government of a post-verdict ruling of law issued by the trial judge resulting in the acquittal of the defendant due to pre-indictment delay (a delay between the offense and the indictment prejudiced the defendant) after a verdict of guilty had been entered by the jury. But it was not an acquittal that involved “factual resolution.” It was one anchored on an

extraneous cause. Factual resolution is defined in United States v. [67] Sorenson following the rulings in Ball, Fong Foo and Sisson as “the finding that government failed to prove all the elements of the offense.” It is clear therefore that the acquittal of Wilson, not being based on evidence, could be appealed. The rule therefore fixed in Wilson is that where a judge holds for the defendant on a ruling of law, and not on the basis of evidence, after a jury entered a verdict of guilty, the prosecution may appeal the acquittal without violating double jeopardy, as this is [68] allowed under the pertinent law. This is so since no second trial will ensue, as a [69] reversal on appeal would merely reinstate the jury’s verdict. And if the prosecution is upheld, the case simply goes back to the trial court for disposition of the remaining matters. It bears emphasis that in Wilson, no double jeopardy problem was presented because the appellate court, upon reviewing the asserted legal errors of the trial judge, could simply order the jury’s guilty verdict reinstated, no new factfinding would be necessary, and the defendant would not be put twice [70] in jeopardy. The case of Scott, also considerably relied upon by petitioner, involved an accused who, having been indicted for several offenses, himself moved for the dismissal of two (2) counts of the charges on the ground that his defense was prejudiced by pre-indictment delay. The trial judge granted the motion. Government appealed the dismissals but the appellate court rejected the appeal on the basis of double jeopardy. This time the US Supreme Court reversed, holding that "(w)here a defendant himself seeks to avoid his trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not offended by a second prosecution. Such a motion by the defendant is deemed to be a deliberate election on his part to forego his valued right to have his guilt or innocence determined by the first trier of facts." The inapplicability of this ruling to the case at bar is at once discernible. The dismissal of the charges against private respondent Galvez was not upon his own instance; neither did he seek to avoid trial, as it was in Scott, to be considered as having waived his right to be adjudged guilty or innocent. Here, trial on the merits was held during which both government and accused had theirrespective day in court. We are therefore insufficiently persuaded to adopt petitioner’s concept of "another trial" because, as discussed above, it disregards the contextual interpretation of the term in light of the legal and factual morphology of the double jeopardy principle obtaining in Wilson and Scott. To sum up, in the cause before us, the records show that respondent trial judge based his finding of acquittal, no matter how erroneous it might seem to petitioner, upon the evidence presented by both parties. The judgment here was no less than a factual resolution of the case. Thus, to the extent that the post-verdict acquittal in Wilson was based on a

26 ruling of law and not on a resolution of facts, Wilson is not, to reiterate, pertinent to nor persuasive in the case at bar. The same observation holds true for Scott. That it was the defendant who secured the dismissal of the charges against him without any submission to either judge or jury as to his guilt or innocence, but on a ground totally outside evidentiary considerations, i.e., pre-indictment delay, definitely forecloses the applicability, if not relevance, of Scott to the instant case. Wilson, Scott and all other pertinent American case law considered, it still behooves us to examine if at this time there is need to rethink our juristic philosophy on double jeopardy vis-à-visacquittals. In this respect, it would be instructive to see how Philippine law and jurisprudence have behaved since Kepner. Has the principle since then beneficially evolved, or has it remained an "unruly child that has not improved with age?" The moorings of double jeopardy in the Philippines, as Mr. Justice Manuel [71] Moran observed in People v. Tarok, are not indigenous but are a matter of constitutional or statutory history.Enunciated in the Constitution of the United States, from there it found its way into this country, first, in the Philippine Bill of 1902, then in the Jones Law of 1916, and finally, in the 1935 Philippine Constitution. Being thus a mere recognition of the maxim of the common law, and adopted from the Constitution of the United States, the principle of double jeopardy followed in this jurisdiction the same line of development - no narrower nor wider - as in the Anglo-Saxon jurisprudence. While some reservations may be had about the contemporary validity of this observation considering the variety of offsprings begotten, at least in the United States, by the mother rule since then, perhaps it is safer to say that not much deviation has occurred from the general rule laid out in Kepner. For Kepner may be said to have been the lighthouse for the floundering issues on the effect of acquittals on jeopardy as they sail safely home. The cases of People v. [72] [73] [74] Bringas, People v. Hernandez, People v. Montemayor, City Fiscal of Cebu v. [75] [76] [77] Kintanar, Republic v. Court of Appeals, and Heirs of Tito Rillorta v. Firme, to name a few, are illustrative. Certainly, the reason behind this has not been due to a stubborn refusal or reluctance to “keep up with the Joneses,” in a manner of speaking, but to maintain fidelity to the principle carefully nurtured by our [78] Constitution, statutes and jurisprudence. As early as Julia v. Sotto the Court warned that without this safeguard against double jeopardy secured in favor of the accused, his fortune, safety and peace of mind would be entirely at the mercy of the complaining witness who might repeat his accusation as often as dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his own will and pleasure.

The 1935 Philippine Constitution provided in its Sec. 20, Art. III, that "(n)o person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." The discussions by the members of the Constitutional Convention of 1934 on the effect on double jeopardy of an appeal from a judgment of acquittal are enlightening. Foreclosing appeal on a judgment of acquittal was recognized by the Convention and the proposal to make an appeal from acquittal permissible even only "on questions of law provided that a verdict in favor of the defendant shall not be set aside by reason thereof" was strongly voted down. Thus MR. GULLAS: Dear Colleagues x x x x I wish to summarize our points. The amendment is commendable, but we submit that the reason against far outweighs the reason in favor of it. In the first place, it would tend to multiplicity of suits and thus increase the burden of the Supreme Court. Second, suits will be expensive if we meet fiscals who have an exaggerated opinion of themselves, who have more ego than gray matter or more amor propio. In the third place, as has been stated by a certain Gentleman, the provision would convert the Supreme Court into a sort of academy of consulting body. In the fourth place, as pointed out by Mr. Sevilla, fights in the Supreme Court would be one-sided. In the fifth place, as demonstrated by Delegate Labrador, the matter should be procedural rather than constitutional. And lastly, as explained by Delegate Singson Encarnacion, should the Supreme Court reverse the judgment of the lower court, the defendant would suffer morally for the rest of his life. He would walk around under a veil of humiliation, carrying with him a stigma. For all these reasons, Mr. President, we oppose the amendment. PRESIDENT: We can vote on the amendment. (Various delegates: YES). Those who are in favor of the amendment please say YES. (A minority: YES). Those against the amendment say NO. (A majority: NO). The amendment is rejected x x x x (1934 Constitutional Convention Record, Journal No. 95, November 24, 1934, p. 361) [79]

The case of People v. Bringas was the first case to be decided under this Constitution pertinent to the matter at hand. There the Supreme Court, guided [80] by Kepner, cited its finding inUnited States v. Tam Yung Way against the right of appeal by the government from a judgment discharging the defendant in a criminal case after he has been brought to trial, whether defendant was acquitted on the

27 merits or whether his discharge was based upon the trial court’s conclusion of law that the trial had failed for some reason to establish his guilt as charged. The Bill of Rights of the 1973 Constitution, specifically Sec. 22, Art. IV thereof, reproduced verbatim the same double jeopardy provision of the 1935 Constitution. So did the 1987 Freedom Constitution drafted by the 1986 Constitutional Commission. Noteworthy is that during the deliberations by the 1986 Constitutional Commission attempts were made to introduce into the Fundamental Law the right of government to appeal verdicts of acquittal promulgated by trial courts. The proposed text for Sec. 14, Art. VIII, on the Judicial Department read as follows Sec. 12. - x x x x An appeal by the State and/or offended party from a judgment of acquittal may be allowed in the discretion of the Supreme Court by a petition for review on certiorari on the ground that it is manifestly against the evidence with [81] grave abuse of discretion amounting to lack of jurisdiction. This proposal was strongly opposed, the controlling consideration as expressed by Commissioner Rustico de los Reyes being the "inequality of the parties in power, situation and advantage in criminal cases where the government, with its unlimited resources, trained detectives, willing officers and counsel learned in the law, stands arrayed against a defendant unfamiliar with the practice of the courts, unacquainted with their officers or attorneys, often without means and frequently too terrified to make a defense, if he had one, while his character and his life, [82] liberty or property rested upon the result of the trial." Commissioner Joaquin Bernas likewise articulated his fear that “we could be subjecting an accused individual to a very serious danger of harassment from a prosecutor x x x x The harm, however, which will follow from waving this flag of possibility of appeal x x x could be much more than letting a guilty person [83] [84] go." Put to a vote, the proposal was defeated. Then again, during the debates on double jeopardy under Sec. 23, Art. III, on the Bill of Rights of the Constitution, Commissioner Ambrosio B. Padilla reopened the matter already settled at the deliberations on the article on the Judiciary. The following exchanges ensued: MR. PADILLA. x x x On Section 23, on double jeopardy, there was Davide resolution which allowed an appeal in a judgment of acquittal in a criminal case that states: An acquittal by a trial court is, however, appealable provided that in such event, the accused shall not be detained or put up bail. This has been deleted by the Commission x x x x

FR. BERNAS. Yes. MR. PADILLA. I recall that when this same idea, but in different phraseology, was presented and approved by the Committee on the Judiciary, the great objection was that it would violate the immunity against double jeopardy. But I recall, the sponsor admitted, after I had explained the day before, that it did not violate double jeopardy but it was unnecessary and harmful. What is the real position, Mr. Presiding Officer? Is it in violation of double jeopardy or is it just because it need not be stated in the Bill of Rights nor in the Article on the Judiciary? FR. BERNAS: I explained my position on that, Mr. Presiding Officer, when we considered the matter in the Article on the Judiciary. The position I took was that it was not a departure from existing jurisprudence. In fact, it was more strict than existing jurisprudence in that it required not just abuse of discretion but it also required that the judgment be clearly against the evidence. MR. PADILLA. That is correct, Mr. Presiding Officer, because we want to make the exercise of that right by the state or offended party restrictive not only through a petition for review on certiorari in the discretion of the Supreme Court which may dismiss it outright, but also on certain grounds that are really covered by "in excess or lack of jurisdiction." But my common impression, Mr. Presiding Officer, is that most lawyers are of the opinion that when a judgment of acquittal is rendered by a trial court, that is final, executory and not appealable. Does not the sponsor think, Mr. Presiding Officer, an appeal from an arbitrary judgment of acquittal rendered by a few corrupt judges of the offended party or the state will improve the administration of justice? FR. BERNAS. Mr. Presiding Officer, I have expressed my position on this when we voted on Third Reading on the Article on the Judiciary. But if the Commissioner wants to raise the matter for reconsideration, he can present a motion on the floor. Padilla did not ask for a reconsideration.

[85]

The Rules of Court on Criminal Procedure relative to double jeopardy and the effect thereon of acquittals adhere strictly to constitutional provisions. The pertinent portions of Sec. 7 of Rule 117 thereof provide Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated

28 without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information x x x x From this procedural prescription alone, there can be no mistaking the requisites for invoking double jeopardy: (a) a valid complaint or information; (b) before a competent court before which the same is filed; (c) the defendant had pleaded to the charge; and, (d) the defendant was acquitted, or convicted, or the case against him dismissed or otherwise terminated without his express [86] consent. It bears repeating that where acquittal is concerned, the rules do not distinguish whether it occurs at the level of the trial court or on appeal from a judgment of conviction. This firmly establishes the finality-of-acquittal rule in our jurisdiction. Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court level or before the Court of Appeals. In general, the rule is that a remand to a trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a [87] finding of mistrial, as in Galman v. Sandiganbayan. Condemning the trial before the Sandiganbayan of the murder of former Senator Benigno "Ninoy" Aquino, which resulted in the acquittal of all the accused, as a sham, this Court minced no words in declaring that "[i]t is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial court's judgment of acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process x x x x [T]he sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial, and closely monitored the entire proceedings to assure the predetermined final outcome of acquittal and absolution as innocent of all the respondent-accused x x x x Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian president to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal, such as that in the case at bar, is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is ‘a lawless thing which can be treated as an outlaw.’ It is a terrible and unspeakable affront to the society and the people. 'To paraphrase Brandeis: If the authoritarian head of government becomes the lawbreaker, he breeds contempt for the law; he invites every man to become a law unto himself; he invites anarchy.’ The contention of

respondent-accused that the Sandiganbayan judgment of acquittal ended the case and could not be appealed or reopened without being put in double jeopardy was [88] forcefully disposed of by the Court in People v. Court of Appeals: x x x x That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Court's Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void x x x x Private respondents invoke 'justice for the innocent.' For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society which they have wronged, must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. Thus, the doctrine that "double jeopardy may not be invoked after trial" may apply only when the Court finds that the “criminal trial was a sham” because the prosecution representing the sovereign people in the criminal case was denied [89] [90] due process. The Court in People v. Bocar rationalized that the "remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a [91] second jeopardy." The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into "the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State x x x [92] x" Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though [93] innocent, he may be found guilty." It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to

29 [94]

the protection of the innocent against wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one's [95] liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a [96] jury’s leniency, will not be found guilty in a subsequent proceeding. Related to his right of repose is the defendant’s interest in his right to have his [97] trial completed by a particular tribunal. This interest encompasses his right to have his guilt or innocencedetermined in a single proceeding by the initial jury empanelled to try him, for society’s awareness of the heavy personal strain which the criminal trial represents for the individual defendant is manifested in the willingness to limit Government to a single criminal proceeding to vindicate its very [98] vital interest in enforcement of criminal laws. The ultimate goal is prevention of government oppression; the goal finds its voice in the finality of the initial [99] [100] proceeding. As observed in Lockhart v. Nelson, "(t)he fundamental tenet animating the Double Jeopardy Clause is that the State should not be able to oppress individuals through the abuse of the criminal process.” Because the innocence of the accused has been confirmed by a final judgment, the Constitution [101] conclusively presumes that a second trial would be unfair. Petitioner resists the applicability of the finality-of-acquittal doctrine to the Philippine adjudicative process on the ground that the principle is endemic to the American justice system as it has specific application only to jury verdicts of acquittal, and thus finds no valid use in our jurisdiction since the “underlying rationale of jury acquittals, a special feature of American constitutional law, has no parallel nor analogy in the Philippine legal system.” This is a rather strained if not facile approach to the issue at hand, for it attempts to introduce the theory that insofar as the objective of factfinding is concerned, factfinding forming the core of the philosophy behind double jeopardy, there exists a difference between a jury acquittal and a “judge acquittal, Philippine version.” To support its contention, petitioner sedulously explains that in the United States there is an “emerging consensus to differentiate the constitutional impact of jury verdicts of acquittal visà-visjudgments of acquittal rendered by the bench.” While this consensus may have emerged in the United States, it is not difficult to surmise that it must have been so because of countless instances of conflict between jury verdicts and judgments of trial judges in the same case. Resultantly, procedural statutes and jurisprudence have been wont to draw lines of distinction between the two, hopefully to keep each other at bay. Since this phenomenon does not occur in our jurisdiction, as we have no juries to speak of, petitioner’s hypothesis is inappropriate. Be that as it may, the invalidity of petitioner’s argument lies in its focus on the instrumentality empowered to rule against the evidence, i.e., the American jury

versus the Philippine judge, no matter how emphatic it qualifies its proposition with the phrase "underlying rationale of jury acquittals," rather than on the essential function of factfinding itself which consists of reception, sifting and evaluation of evidence. Where the main task of factfinding is concerned, there exists no difference between the American jury and the Philippine trial judge. Both are triers of facts. This much petitioner has to concede. The attempt therefore to close the door on the applicability of the finality rule to our legal system abjectly fails when one considers that, universally, the principal object of double jeopardy is the protection from being tried for the second time, whether by jury or judge. Thus, "emerging American consensus on jury acquittals" notwithstanding, on solid constitutional bedrock is well engraved our own doctrine that acquittals by judges on evidentiary considerations cannot be appealed by government. The jurisprudential metes and bounds of double jeopardy having been clearly defined by both constitution and statute, the issue of the effect of an appeal of a verdict of acquittal upon a determination of the evidence on the constitutionally guaranteed right of an accused against being twice placed in jeopardy should now be finally put to rest. Petitioner assails the decision rendered by the court a quo as blatantly inconsistent with the material facts and evidence on record, reason enough to charge respondent judge with grave abuse of discretion amounting to lack of [102] jurisdiction resulting in a denial of due process. Citing People v. Pablo, it alleges that "respondent aggravated his indiscretion by not x x x reviewing the evidence already presented for a proper assessment x x x x It is in completely ignoring the evidence already presented x x x that the respondent judge committed a grave abuse of discretion." It adds that "discretion must be exercised regularly, legally and within the confines of procedural due process, i.e., after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright [103] arbitrariness." Private respondent remonstrates against the propriety of petitioner’s certiorari as a mode of impugning the judgment of acquittal not only as a strategy to camouflage the issue of double jeopardy but also for the fact that, contrary to petitioner’s assertions, evidence in the case at bar was subjected to scrutiny, review, assessment and evaluation by respondent trial judge. By reason thereof, there cannot be perceived grave abuse of discretion on the part of the judge to warrant issuance of the great writ of certiorari. We agree. The office of the common law writ of certiorari is to bring before the court for inspection the record of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to

30 the essential requirements of the law. However, the original function and purpose of the writ have been so modified by statutes and judicial decisions. It is particularly so in the field of criminal law when the state is applying for the writ and problems arise concerning the right of the state to appeal in a criminal case. As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case in the absence of a statute clearly conferring that right. The problem comes into sharper focus when the defendant contends, in effect, that the prosecution is attempting to accomplish by the writ what it could not do by appeal, and that his constitutional rights are being thus encroached [104] upon. Generally, under modern constitutions and statutes, provisions are available as guides to the court in determining the standing of the prosecution to secure by certiorari a review of a lower court decision in a criminal case which has favored the defendant. In most instances, provisions setting forth the scope and function of certiorari are found together with those relating to the right of the state to appeal or bring error in criminal matters. There is some indication that courts view the writ of certiorari as an appeal in itself where the applicant shows that there is [105] no other adequate remedy available, and it is not uncommon to find language in cases to the effect that the state should not be permitted to accomplish [106] by certiorari what it cannot do by appeal. Thus, if a judgment sought to be reviewed was one entered after an acquittal by a jury or the discharge of the accused on the merits by the trial court, the standing of the prosecution to review it by certiorari is far more likely to be denied than if it were such an order as one sustaining a demurrer to, or quashing the indictment, or granting a motion for [107] arrest of judgment after a verdict of guilty. Philippine jurisprudence has been consistent in its application of the Double Jeopardy Clause such that it has viewed with suspicion, and not without good reason, applications for the extraordinary writ questioning decisions acquitting an accused on ground of grave abuse of discretion. The petition at hand which seeks to nullify the decision of respondent judge acquitting the accused Honorato Galvez goes deeply into the trial court's appreciation and evaluation in esse of the evidence adduced by the parties. A reading of the questioned decision shows that respondent judge considered the evidence received at trial. These consisted among others of the testimoniesrelative to the positions of the victims vis-à-vis the accused and the trajectory, location and nature of the gunshot wounds, and the opinion of the expert witness for the prosecution. While the appreciation thereof may have resulted in possible lapses in evidence evaluation, it nevertheless does not detract from the fact that the evidence was considered and passed upon. This consequently exempts the act from the writ’s limiting requirement of excess or lack of jurisdiction. As such, it becomes

an improper object of and therefore non-reviewable by certiorari. To reiterate, errors of judgment are not to be confused with errors in the exercise of jurisdiction. WHEREFORE, the instant petition for certiorari is DISMISSED. SO ORDERED.

[G.R. No. 132081. November 26, 2002]

JOEL M. SANVICENTE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: Petitioner was charged with homicide for the killing of one Dennis Wong y Chua. On June 11, 1995, at around 5:30 p.m., petitioner fatally shot the victim outside the Far East Bank along Katipunan Avenue, Loyola Heights, Quezon City after the latter allegedly attempted to rob him of a large amount of cash which he [1] had just withdrawn from the automatic teller machine. Responding policemen found the lifeless body of the victim at the parking space in front of the Far East Bank and Trust Company Branch along Katipunan Road, Loyola Heights, Quezon City. Recovered at the scene were five empty caliber .45 shells, two live caliber .45 bullets and an ATM card in the name of Violeta [2] Sanvicente. On June 13, 1995, police authorities located petitioner’s car in Barrio Malapit, San Isidro, Nueva Ecija and took custody thereof. Petitioner’s counsel, Atty. Leonardo A. Valmonte, turned over to Police Station 9 petitioner’s .45 caliber Mark IV pistol bearing Serial No. 5504095. He also wrote a letter addressed to P/Major Antonio Diaz, Station Commander of PNP Station 9, CPDC, Anonas Road, Quezon City which reads as follows: This is in connection with the alleged death of one Dennis Wong that occurred in Katipunan Ave., Q.C., in the afternoon of June 11, 1995.

31 According to my client, Joel Sanvicente, on said date, place and hour above he just withdrew from the Far East Bank and Trust Co., Katipunan branch a large amount of cash. On his way out of the bank, said victim immediately attacked him to grab the money he has just withdrew (sic). My said client pulled out his gun (duly licensed with Permit to Carry) and fired a warning shot upwards. Still the deceased continued his attack and grabbed his gun. After a brief struggle, my client was forced to shoot the deceased in the defense of his person and money. My client will submit a formal statement during the proper preliminary investigation, if needed. On June 13, 1995, my client’s car (Mercedes Benz with plate no. TFU 736) was taken by your operatives led by Capt. Alejandro Casanova and [is] now in your custody. In view of the untoward incident, my client suffered serious anxiety and depression and was advised to undergo medical treatment and confinement at the Delos Santos Hospital in Rodriguez Ave., Q. C. My client would have no objection if you assigned police escort/guard under your supervision pending his confinement. For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, [3] without admission of guilt on the part of my client. At his arraignment, petitioner pleaded not guilty.

[4]

During the trial, the prosecution presented Ballistics Report No. B-046-95, stating that slugs recovered from the crime scene, on the one hand, and cartridge cases fired from petitioner’s caliber .45 Mark IV pistol, on the other hand, were [5] fired from the same firearm. The Medico-Legal Officer who conducted the autopsy on the deceased failed to appear at the trial. In order to dispense with her testimony, petitioner admitted the due execution and genuineness of the medico[6] legal report. After trial, the prosecution filed its Formal Offer of Exhibits, which included the above-quoted letter of petitioner’s counsel to P/Maj. Antonio Diaz, marked as Exhibit LL. The trial court admitted all the prosecution’s exhibits in its [7] Order dated August 27, 1996. Meanwhile, petitioner begged leave to file a demurrer to evidence, which was [8] granted by the trial court. Hence, on August 29, 1996, petitioner filed a Motion [9] To Dismiss (On Demurrer to Evidence), based on the following grounds: (1) the lack of positive identification of the accused is a fatal omission warranting dismissal; (2) prosecution’s evidence are totally hearsay/incompetent, hence, inadmissible and the guilt of the accused was not proven by positive evidence beyond reasonable doubt.

On October 7, 1996, the trial court issued an Order dismissing the case [10] together with the civil aspect thereof for insufficiency of evidence. [11]

The prosecution filed a motion for reconsideration, which was denied on the ground, among others, that with the dismissal of the case double jeopardy had [12] set in. The prosecution filed a petition for certiorari with the Court of Appeals, [13] docketed as CA-G.R. SP No. 43697. In a Decision dated July 25, 1997, the appellate court nullified the October 7, 1996 Order of the trial court. Petitioner’s [14] motion for reconsideration was likewise denied in a Resolution dated January 2, [15] 1998. Hence, the instant petition. In reversing the trial court’s Order dismissing the criminal case against petitioner, the Court of Appeals found that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of Exhibit LL which, it claimed, “positively identified petitioner as the [16] perpetrator of the crime charged.” Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accused’s demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the [17] indictment or support a verdict of guilt. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a [18] grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would [19] violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double [20] [21] jeopardy. The finality-of-acquittal rule was stressed thus in People v. Velasco: The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the “humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State [22] xxx.” Thus Green expressed the concern that “(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to

32 embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though [23] innocent, he may be found guilty.” It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is “part of the paramount importance criminal justice system attaches [24] to the protection of the innocent against wrongful conviction.” The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for “repose”, a desire to know the exact extent of one’s [25] liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a [26] jury’s leniency, will not be found guilty in a subsequent proceeding. Given the far-reaching scope of an accused’s right against double jeopardy, [27] even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as [28] where the prosecution was denied the opportunity to present its case, or where [29] the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as [30] to deprive it of its very power to dispense justice. In the instant case, petitioner filed a demurrer to evidence after the prosecution adduced its evidence and rested its case. The trial court subsequently dismissed the case after finding that the evidence presented by the prosecution was insufficient to support the charge against petitioner. The prosecution, which relied primarily on Exhibit LL as the basis for the indictment against petitioner, however, contested the dismissal of the case allegedly because the trial court prevented it from further identifying the genuineness and due execution of said [31] document “in the manner that it wanted.” The crux of the problem lies in the confusion between the due execution of a piece of documentary evidence vis-à-vis the truth of its contents. Likewise at the core of the dilemma is the fundamental distinction between an admission and a confession. The prosecution maintains that the letter, Exhibit LL, constituted a confession and argues thus: “What better evidence is there to positively identify the perpetrator of the crime than the confession of the petitioner himself, freely and [32] voluntarily given, assisted by counsel?” According to the prosecution, this [33] “extrajudicial confession constitutes the strongest evidence of guilt.”

An admission is defined under Rule 130, Section 26 of the Rules of Court as the act, declaration or omission of a party as to a relevant fact. A confession, on the other hand, under Rule 130, Section 33 is the declaration of an accused acknowledging his guilt of the offense charged or any offense necessarily included therein. More particularly, a confession “is a declaration made at any time by a person, voluntarily and without compulsion or inducement stating or acknowledging that he had committed or participated in the commission of a crime. The term admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of the guilt of [34] the accused or of criminal intent to commit the offense with which he is charged.” In short, in a confession, an accused acknowledges his guilt; while there is no [35] such acknowledgment of guilt in an admission. Only recently in People v. [36] Licayan, the Court distinguished “confession” and “admission” in this wise: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends [37] only to establish the ultimate fact of guilt. (Emphasis ours) There is no question that the letter dated June 14, 1995 is an admission, not a confession, because of the unmistakable qualification in its last paragraph that – For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client. . . (Emphasis and italics supplied). With the foregoing distinctions in mind, the trial court correctly rejected the prosecution’s motion to have Exhibit LL further identified “in the manner that it [38] wanted,” i.e., through the proposed testimony of petitioner’s counsel, Atty. Valmonte, who incidentally refused to testify. Aside from covering a subject which squarely falls within the scope of “privileged communication”, it would, more importantly, be tantamount to converting the admission into a confession. It can not be denied that the contents of Exhibit LL, particularly with regard to the details of the shooting communicated by petitioner to Atty. Valmonte, is privileged because it is connected with the business for which petitioner retained

33 [39]

the services of the latter. More specifically, said communication was relayed by petitioner to Atty. Valmonte in order to seek his professional advice or assistance in relation to the subject matter of the employment, or to explain something in connection with it, so as to enable him to better advice his client or manage the [40] litigation. Pertinent to this is Section 24 (b) of Rule 130 of the Rules of Court, to wit: SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases: xxx

xxx

xxx

(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; x x x. It is worthy to note that the prosecution did not summon petitioner himself to testify although he too was a signatory of Exhibit LL. Apparently, it was aware that petitioner could well invoke his right against self-incrimination and refuse to answer its questions. The prosecution then attempted to draw out what it could not constitutionally extract from his lawyer. Yet, and as stated previously, said Exhibit LL had earlier been admitted in evidence by the trial court in its Order dated August 27, 1996. What was objectionable was the prosecution’s sole reliance on the document without proof of other facts to establish its case against petitioner because of its mistaken assumption that the same was a confession. Significantly, the prosecution was neither barred nor prevented by the trial court from establishing the genuineness and due execution of the document through other means. Rule 132, Section 20of the Rules of Court provides the following means of authenticating the document: SEC. 20. Proof of private document. – Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a)

By anyone who saw the document executed or written; or

(b)

By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be. Thus, the due execution of a document can be proved through the testimony of: (1) the person/s who executed it; (2) the person before whom its execution was acknowledged; or (3) any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures therein or by a person to whom the parties to the instrument previously [41] confirmed the execution thereof. Thus, respondent could have called to the witness stand P/Maj. Antonio Diaz, the addressee of Exhibit LL, to identify the said document since it was supposedly delivered to him personally. Samples of the signatures appearing on the document which can be readily obtained or witnesses who are familiar with them could have also been presented. The prosecution did not. Neither did it subpoena P/Senior Inspector Alejandro M. Casanova, who prepared the detailed Police Report of the incident used as the basis of the inquest proceedings, nor were any eyewitnesses presented, notwithstanding that there appeared to be at least two eyewitnesses to the incident. It must be borne in mind that in a criminal trial, it is the prosecution that determines the charges to be filed and how the legal and factual elements in the [42] case shall be utilized as components of the information. Stated differently, the determination of what evidence to adduce to bolster a successful prosecution of a criminal offense is the exclusive domain of prosecutorial discretion. Indeed, courts generally can not interfere with the prosecutor’s discretion as to control over [43] criminal prosecutions. However, it is the court which ultimately determines whether such evidence is sufficient to sustain an indictment, thus, the care with which the prosecution must build up its case against the accused can not be gainsaid because, as has been stated time and again, in any criminal prosecution, the State must rely on the strength of its own evidence and not on the weakness of [44] the evidence of the defense. Viewed vis-a-vis the foregoing lapses detailed above, the prosecution’s insistence to have Exhibit LL admitted “in the manner it wanted” shows only too clearly a subtle but shrewd scheme to cover up for the foregoing procedural missteps and to cut evidentiary corners to build its case at the expense of the defense. This cannot be countenanced. An accused should not be prejudiced for the failure of the prosecution to discharge its burden of overcoming the constitutional presumption of innocence and to establish the guilt of the accused

34 [45]

beyond reasonable doubt. Indeed, if the prosecution fails to discharge the burden, then it is not only the accused’s right to be freed, it is even more the court’s [46] constitutional duty to acquit him. If at all, the foregoing acts of the prosecution underscores just how careless and haphazard it had been in building up a case against the petitioner. For such, it has nothing but itself to blame if the trial court in assaying the proof it adduced found the same wanting. It will neither be allowed to sweep its procedural miscues under the rug, so to speak, on the pretext that it was denied due process when the trial court supposedly prevented it from presenting Exhibit LL. To be more precise, the trial court had admitted Exhibit LL in evidence but rejected the further admission of the document “in the manner that it wanted.” Verily, the prosecution can not have its cake and eat it too. Moreover, we agree with the trial court that the letter marked as Exhibit LL is hearsay inasmuch as its probative force depends in whole or in part on the competency and credibility of some person other than the witness by whom it is [47] sought to produce it. The term as used in the law of evidence “signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him. Its value, if any, is measured by the credit to be given to some third persons not sworn [48] as witnesses to that fact and consequently not subject to cross-examination.” In short, it is “the evidence not of what the witness knows himself but of what he [49] has heard from others.” Thus, in one case we stated that “*w+hen evidence is based on what was supposedly told the witness, the same is without any [50] evidentiary weight being patently hearsay.” In the case at bar, it is noteworthy that the statements in the letter were made by petitioner’s counsel, who even [51] began his narration of the events with the phrase: “According to my client.” In holding that petitioner was identified as the person who committed the offense, the appellate court relied on the following circumstances: (1) he admitted responsibility therefor through Exhibit LL, which was signed by him and his counsel; (2) he surrendered even before the issuance of the warrant of arrest; (3) his gun was also surrendered to the police authorities by his counsel; (4) empty shells recovered at the scene of the crime matched his gun; and (5) the letter-referral of P/Senior Inspector Alejandro Casanova to Quezon City Prosecutor indicated that petitioner was under the custody of the policeman on detail supposedly to guard [52] him at the hospital. With regard to the first circumstance, suffice it to state that, as has lengthily been discussed earlier, Exhibit LL is merely an admission and not a confession. In fact, petitioner specifically denied criminal intent therein. By and of itself it is

insufficient to support a conviction unless it is considered in connection with other proof to establish the ultimate fact of guilt. The second and third incidents actually support petitioner’s innocence because were he indeed guilty of the felony, he would not likely have surrendered even before the warrant was issued for his arrest. Courts go by the biblical truism that the “the wicked flee when no man pursueth but the righteous are as bold as a [53] lion.” The fourth event merely proves the fact that the empty shells recovered from the crime scene were fired from the surrendered gun. It, however, does not answer the penultimate question ofwho actually pulled the trigger of the firearm. [54]

Lastly, the appellate court’s reading of the letter-referral, mentioning that petitioner had been placed under the custody of a policeman, was inaccurate. As explained by Atty. Valmonte in Exhibit LL, the policeman was actually requested for petitioner’s personal safety owing to the untoward incident which caused petitioner serious anxiety and depression, and for which he had to undergo treatment and [55] confinement. All told, we find no grave abuse on the part of the trial court in dismissing the charges against petitioner. WHEREFORE, in view of all the foregoing, the petition is GRANTED. The decision of the Court of Appeals dated July 25, 1997 and the Resolution dated January 2, 1998 in CA-G.R. SP No. 43697 are REVERSED and SET ASIDE. SO ORDERED.

G.R. No. 136292

January 15, 2002

RUDY CABALLES y TAIÑO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. PUNO, J.: 1

This is an appeal by certiorari from the decision of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taiño, 2 guilty beyond reasonable doubt of the crime of theft, and the resolution dated November 9, 1998 which denied petitioner's motion for reconsideration.

35 3

In an Information dated October 16, 1989, petitioner was charged with the crime of theft committed as follows: "That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging to and to the damage and prejudice of said owner National Power Corp., in the aforesaid amount.

In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan.

CONTRARY TO LAW." During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued. The facts are summarized by the appellate court as follows: "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not answer; he appeared pale and nervous. With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail.

After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a 4 week." 5

On April 27, 1993, the court a quo rendered judgment the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worthP55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55, 244.45, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit: "WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond

36 reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of 6 prision mayor, as maximum term. No civil indemnity and no costs." Petitioner comes before us and raises the following issues: "(a) Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction; (b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and (c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence." The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. In holding that the warrantless search and seizure is valid, the trial court ruled that: "As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge - a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that 'automobiles

because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. x x x To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to 7 arrest the accused even without a warrant." Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and 8 9 by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of

37 10

11

moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop 12 13 and frisk situations (Terry search); and (7) exigent and emergency circumstances.

all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case.

In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and 14 the character of the articles procured.

Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be 19 searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of 20 each case.

It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt.1âwphi1.nêt

One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal 21 22 per se, for as long as it is warranted by the exigencies of public order and 23 conducted in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it may involve an extensive search.

I. Search of moving vehicle Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant 15 committed a criminal activity. Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge — a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the 16 locality or jurisdiction in which the warrant must be sought. Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 17 'constructive borders' like checkpoints near the boundary lines of the State. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made 18 within the interior of the territory and in the absence of probable cause. Still and

Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the 24 curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply 25 looks into a vehicle; (3) flashes a light therein without opening the car's 26 doors; (4) where the occupants are not subjected to a physical or body 27 search; (5) where the inspection of the vehicles is limited to a visual search or 28 29 visual inspection; and (6) where the routine check is conducted in a fixed area. None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. 30

In the case of United States vs. Pierre, the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle. . . [W]e are aware of no

38 case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle. . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the 31 instrumentality or evidence pertaining to a crime in the vehicle to be searched. This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting 32 marijuana; (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy - one who participated in the drug smuggling activities of the syndicate to which the accused belonged - that said 33 accused were bringing prohibited drugs into the country. In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon.

Pat. Alex de Castro recounted the incident as follows: "ATTY. SANTOS Q Now on said date and time do you remember of any unusual incident while you were performing your duty? A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires. Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious? A

Because the cargo was covered with leaves and branches, sir.

Q When you became suspicious upon seeing those leaves on top of the load what did you do next, if any? A

We stopped the jeepney and searched the contents thereof, sir."

34

The testimony of Victorino Noceja did not fare any better: "ATTY SANTOS Q

When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be 35 covered by those and I flagged him, sir." We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. 36

In People vs. Chua Ho San, we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused

39 when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus: "In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause - persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws. This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist - accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. x x x." (emphasis supplied) In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable 37 cause to effect a warrantless search and seizure. Unfortunately, none exists in this case. II. Plain view doctrine It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. 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. 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. It must be immediately apparent to the police that the items that they observe may be 38 evidence of a crime, contraband or otherwise subject to seizure. It is clear from the records of this case that the cable wires were not exposed to 39 sight because they were placed in sacks and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified 40 mere seizure of the articles without further search. III. Consented search Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or 41 coercion. Hence, consent to a search is not to be lightly inferred, but must be 42 shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality 43 of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded 44 location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be 45 found; (7) the nature of the police questioning; (8) the environment in which the

40 questioning took place; and (9) the possibly vulnerable subjective state of the 46 person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely 47 and voluntarily given. In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise: "WITNESS Q

On June 28, 1989, where were you?

A

We were conducting patrol at the poblacion and some barangays, sir. xxx

xxx

Yes, sir.

Q

What is that incident?

xxx

A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir. xxx Q

xxx

xxx

When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir. Q

Before you saw the aluminum wires, did you talk to the accused?

A

Yes, sir, I asked him what his load was.

Q

What was the answer of Caballes?

A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the contents of his vehicle and he answered in the positive. Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?

Q After conducting the patrol operation, do you remember of any unusual incident on said date and time? A

Q

Did the vehicle stop?

A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires.

A I asked him where those wires came from and he answered those 48 came from the Cavinti area, sir." This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he 49 also understood the nature and consequences of such request. 50

In Asuncion vs. Court of Appeals, the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner 51 therein himself freely gave his consent to said search. In People vs. Lacerna, the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People 52 vs. Cuizon, the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to 53 determine if they were carrying shabu. In People vs. Montilla, it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be 54 construed as a clear waiver of his right. In People vs. Omaweng, the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search.1âwphi1.nêt

41 In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual 55 intention to relinquish the right. In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for 56 permission to conduct the search.

simply because he failed to object, citing the ruling in the case of People vs. 58 Burgos, to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioner's conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is herebyACQUITTED of the crime charged. Cost de oficio. SO ORDERED.

G.R. No. 76005. April 23, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused, RESTITUTO B. BOCALAN, accused-appellant. The Solicitor General for plaintiff-appellee. Amador E. Mostajo and Presbiterio Velasco, Jr. for accused -appellant.

Neither can petitioner's passive submission be construed as an implied 57 acquiescence to the warrantless search. InPeople vs. Barros, appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted

SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; "STOP-AND-SEARCH" AT A MILITARY OR POLICE CHECKPOINT, THE CONSTITUTIONALITY OF WHICH HAS BEEN UPHELD, IS ONE OF THE INSTANCES WHERE SEARCH AND SEIZURE CAN BE EFFECTED WITHOUT PRIOR ARREST OR WARRANT. — There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. An

42 illustration would be the "stop-and-search" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except by virtue of a search warrant or on the occasion of a lawful arrest. The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint. 2. ID.; ID.; THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE MAY BE WAIVED, AS IN THIS CASE. — Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubt on their professed innocence but also confirms their acquiescence to the search. Clearly then, there was waiver of the right against unreasonable search and seizure. In one case We held — ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly." 3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST MADE UPON DISCOVERY OF ACT OF DISPATCHING IN TRANSIT OR TRANSPORTING MARIJUANA IN VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED, IS LAWFUL AND REQUIRES NO WARRANT; AN INSTANCE OF WARRANTLESS ARREST UNDER SEC. 5, PAR. (A), RULE 113, 1985 RULES ON CRIMINAL PROCEDURE, AS AMENDED. — The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended. 4. ID.; ID.; WEIGHT OF FACTUAL CONCLUSIONS BY TRIAL COURT RELATIVE TO CREDIBILITY OF WITNESSES; CASE AT BAR. — Factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally

sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. There is none in this case on appeal. 5. ID.; EVIDENCE; OBJECTION ON THE LEGALITY OF SEARCH AND ADMISSIBILITY OF EVIDENCE OBTAINED IN THE COURSE OF SEARCH IS WAIVED WHEN NOT RAISED BEFORE THE TRIAL COURT, AND THE COURT IS BOUND TO ADMIT THE EVIDENCE. — We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. In view of such waiver, the court is bound to admit evidence. 6. CRIMINAL LAW; MATERIALITY OF OWNERSHIP OF PROHIBITED DRUG IN A PROSECUTION FOR VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED. — Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. CRUZ, J., dissenting: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE AT AN ORDINARY CHECKPOINT IS ILLEGAL FOR LACK OF PROBABLE CAUSE AS ENVISIONED IN THE BILL OF RIGHTS. — I do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time by the authorities and searched without warrant on the chance that it may be carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights. In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The search is made as a matter of course, either of all vehicles or at random. There is no showing that a crime is about to be committed, is actually being committed, or has just been committed and the searching officer has personal knowledge that the person being searched or arrested is the culprit . . . I realize that this view would result in the inadmissibility of the seized marijuana as evidence against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot retroactively validate an illegal search on the justification that, after all, the articles seized are illegal.

43 DECISION BELLOSILLO, J p: The admissibility of the evidence seized from the accused at a checkpoint after being stopped for routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of Cavite City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt of violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act of 1972." On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went near the jeep and asked the occupants if there were firearms inside. They answered in the negative. Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused, Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety. Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as "marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless in their seats and appeared petrified with fear. They were brought to the police station that same night for further investigation. 2 After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp otherwise known as marijuana. 3 Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended. After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not. Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his conviction; hence, We deal only with him in this appeal.

Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted the offer and requested Bocalan to make a detour to Salitran, Dasmariñas, Cavite, where he was to pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until their apprehension at the checkpoint. 6 Bocalan further contends that the trial court erred in admitting the bag as evidence against him since it was obtained through a warrantless search. 7 The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2 November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20) kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the marijuana is hardly credible. On the other hand, Exala declared that it was he who did not know the contents of the bag as it was already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to P10,000.00, to take the blame alone, but he refused. 10 Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. The law simply provides thus — "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the unlawful dispatch in transit or transport of marijuana. The evidence

44 of the prosecution, particularly the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one after the other to accompany him to the place where the bag of marijuana was taken and to help him bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and Exala, Bocalan is correctly punished for his direct involvement in the crime. Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal. We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention deserves scant consideration. There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. 16 An illustration would be the "stop-andsearch" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. 17 Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except of virtue of a search warrant or on the occasion

of a lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint. The checkpoint in the instant case was established in line with "Operational Bakal" the main object of which was to search for unlicensed firearms and other prohibited items in the possession of unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through the checkpoint, it was flagged down and the occupants were asked routine questions. In the course thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the contents of the bag were. None of the accused answered. At that moment, the demeanor of the accused changed; they became suspiciously quiet and nervous as if they were concealing something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered. Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear normal, provided the probable cause justifying a more extensive search that led to the opening of the bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or objection to the search. The accused remained silent even after their arrest. Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubts on their professed innocence 21 but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right against unreasonable search and seizure. 23 In one case 24 We held — ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly" (emphasis supplied). The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended. The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was explained in their separate testimonies and, in any event, has been

45 resolved by the trial court as a factual issue. We find no reason to reverse its findings. Anent the argument that the three (3) accused should not have been assigned different levels of liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would have been meted out the same penalty imposed by the trial court. WHEREFORE, there being no reversible error in the decision appealed from finding accused-appellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same is AFFIRMED, with costs against him. SO ORDERED.

Valmonte v. De Villa, 170 SCRA 256 (1989) F: On 1/20/87, the NCRDC was activated w/ the mission of conducting security operations w/in its area or responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political dev''t of the NCR. As part of its duty to maitain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela and MM. Petitioners aver that, bec. of the institution of said checkpoints, the Valenzuela residents are worried of being harassed and of their sarety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, w/o a SW and/ or court order. Their alleged fear for their safety increased when Benjamin Parpon, was gaunned down allegedly in cold blood by members of the NCRDC for ignoring and/ or continuing to speed off inspite of warning shots fired in the air. HELD: Petitioner''s concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints per se, illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military, indeed, committed specific violations of petitioners'' rights against unlawful search and seizure of other rights. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, or threatened to be infringed.

Case Digest on People v. Escaño Moving Vehicle 323 SCRA 754 November 10, 2010 FACTS: During a checkpoint, a police saw a firearm on the lap of the accused. As a result, other passengers were searched and all firearms were seized. Are checkpoints illegal? HELD: As long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection is limited to a visual search, such routine checks cannot be regarded as violative of the right against unreasonable search.

[G.R No. 134056. July 6, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT FIGUEROA and BEATRICE VALERIO, accused. ROBERT FIGUEROA, accused-appellant. DECISION DAVIDE, JR., C.J.: Accused-appellant ROBERT FIGUEROA (hereafter OBET) appeals [1] from the 18 May 1998 Decision of the Regional Trial Court of Parañaque City, Branch 259, in Criminal Case No. 97-306, convicting him [2] of violation of Section 14-A , Article III of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA. No. 7659. His co-accused Beatrice Valerio (hereafter Betty) was acquitted. OBET and Betty were indicted under an information, dated 2 April 1997, whose accusatory portion reads as follows: That on 16 February 1997 and for sometime prior thereto in Parañaque City and within the jurisdiction of this Honorable Court, the above-named accused without

46 authority of law, conspiring, confederating and helping one another, did then and there, wilfully, unlawfully and feloniously manufacture, produce, prepare or process methamphetamine hydrochloride or shabu, a regulated drug amounting to a 2.4 liters, directly by means of chemical synthesis. CONTRARY TO LAW.

[3]

When arraigned OBET and Betty each entered a plea of not [4] guilty. Trial on the merits then ensued. The witnesses presented by the prosecution were NBI Forensic Chemist Mary Ann T. Aranas, NBI Special Investigator III Pio M. Palencia (hereafter PALENCIA), and NBI Intelligence Agent II Martin Soriano (hereafter SORIANO). PALENCIA testified that on 15 February 1997, he was in the office of SORIANO at Project 6, Quezon City, when they received a call from their informant, a woman, who reported that a certain OBET was allegedly engaged in large-scale drug trafficking in Makati City. PALENCIA and SORIANO forthwith instructed their informant to establish contact with OBET for a buy-bust operation. After several hours, the informant reported that OBET was already waiting for her at No. 1485 Soliman Street, Makati City, with instructions for her to come alone as soon as she was ready with P150,000. PALENCIA then caused the dusting of fluorescent powder over ten pieces of authentic P100 bills as buy-bust [5] money and gave them to the informant. On board a taxi, PALENCIA, SORIANO and their informant proceeded to the rendezvous area. They arrived at half past twelve o'clock in the early morning of 16 February 1997. As the gate was already open, the informant entered the premises, while PALENCIA and SORIANO discreetly crawled and positioned themselves near the gate of the house. Strategically positioned, PALENCIA overheard OBET ask the informant whether she had the money. PALENCIA then saw the informant hand over the money to OBET. While counting the money, OBET sensed the presence of other people in the area. OBET, who was in possession of a .45 caliber pistol, fired it twice toward the direction of PALENCIA, while hurrying towards the house. OBET then held hostage his mistress, Estrella Brilliantes, and her two children for the next three hours until the arrival of one Major Roberto Reyes to whom OBET surrendered. PALENCIA and SORIANO brought OBET, his firearm and the

recovered buy-bust money to the WPD Headquarters for recording [6] purposes and, thereafter, to the NBI Headquarters. At the NBI Headquarters, PALENCIA and SORIANO methodically interrogated OBET about the source of his shabu. OBET eventually volunteered that his source was a certain Betty of 263 El Grande Street, B.F. Homes, Parañaque City. PALENCIA and SORIANO took OBET to Betty's house as a follow-up operation. They arrived at around 6:00 a.m. of the same day, 16 February 1997. As OBET called Betty earlier to tell her that he was arriving, Betty already had the gate opened for them. After parking, PALENCIA saw Betty waiting for them. Upon seeing OBET in handcuffs, Betty asked what happened. OBET replied that he was just caught in a buy-bust operation. PALENCIA and SORIANO then tried to convince Betty to surrender the shabu that OBET insisted was hidden inside the house. As Betty persistently denied the existence of the shabu, PALENCIA told OBET to confer with Betty. After a while, OBET proceeded to the kitchen of the guesthouse located outside the main house, followed by Betty. OBET then promptly pointed to what he termed as liquid shabu inside a white pail along with other drug paraphernalia, such [7] as a beaker spray. PALENCIA and SORIANO seized the items. Thereafter, PALENCIA requested a laboratory examination of all the seized items and an ultraviolet light examination over the persons of [8] OBET, Betty and a certain Eva Baluyot. PALENCIA claimed that based on the certification issued by the Forensic Chemistry Division of the NBI, all the items seized from Betty's residence were positive for methamphetamine hydrochloride except specimen no.7; while from among the persons subjected to ultraviolet light examination, only OBET [9] was found positive for fluorescent powder. On cross-examination, PALENCIA admitted that he and SORIANO conducted the search without a search warrant, but with the consent of [10] Betty. He also admitted that he did not actually see OBET or Betty in [11] the act of manufacturing shabu. NBI Intelligence Agent II SORIANO corroborated PALENCIA's testimony. He likewise admitted that the custodial investigation of OBET, during which he divulged Betty as the source of shabu, was conducted in the absence of any counsel. SORIANO also confirmed PALENCIA's testimony that they were not armed with a search warrant, but that they conducted the follow-up operation at Betty's house under the hot [12] pursuit theory. He further maintained that OBET, after conferring with Betty, uttered, “Ako na nga, ako na nga"(I will do it, I will do it). OBET

47 then proceeded to the dirty kitchen, pointed to the refrigerator and had it moved. Thereafter, SORIANO saw a plastic pail containing liquid with floating brown substances. SORIANO admitted that he and PALENCIA neither witnessed OBET and Betty manufacture shabu in the manner described in Section 2(j) of [13] the Dangerous Drugs Act ; nor did they possess evidence, independent of the items they had seized, that OBET and Betty were engaged in the [14] labeling or manufacturing of shabu. Forensic Chemist Mary Ann T. Aranas testified that on 16 February 1997, she conducted a laboratory examination for the presence of any prohibited or regulated drug on eleven different specimens (Exhibits "B"[15] "L"). The result of the examination disclosed that all the specimens except specimen no. 7 (Exhibit "H") were positive for methamphetamine [16] hydrochloride. She further observed that specimen no. 8 (Exhibit I- I2), the brown liquid with floating solid flakes contained in a plastic pail, [17] was positive for epedrine, a substance used in the manufacture of methamphetamine hydrochloride. She opined that this crude form of shabu would have to undergo chemical processes, like extraction, crystallization, distillation, before it could be finally converted into shabu's crystalline form. She also conducted a fluorescent powder examination over the persons of OBET and Betty. Only OBET gave a [18] positive result. On the other hand, OBET testified that while he was watching television on the night of 15 February 1997, he heard the doorbell rang. Upon seeing Eva Baluyot, his childhood friend, he opened the door for her. Inside the house, Eva handed him a bundle of money and stated that she was buying shabu from him. OBET emphatically told Eva that he was not engaged in such illegal trade and returned the money. OBET then accompanied Eva out of the house. At the garage, OBET noticed someone peeping from the dark; so he told Eva to go back inside the house with him. Eva ignored the request. OBET thus left Eva at the garage and got his .45 caliber gun from his house. While he was locking the door, his handgun accidentally fired off, as he forgot that it had already been cocked. This blast was followed by shouts of people outside claiming that they were NBI men. Uncertain, OBET did not go out of the house but instead told the alleged NBI men to call the Makati Police, specifically Major Reyes. The NBI agents, however, persisted in convincing OBET to go out of the house. He did get out of his house after three hours when he heard the voice of Major Reyes. OBET gave to Major Reyes his gun. The Makati Police and the NBI men thereafter

conducted a joint search inside OBET's house which, however, yielded nothing. OBET was then brought to the Makati Police Headquarters where the incident was recorded. Thereafter, PALENCIA, SORIANO andanother NBI man brought OBET to the house of Betty, his former livein partner, at El Grande Street, B.F. Homes, Parañaque City, upon the [19] insistence and information of Eva Baluyot. Upon entering B.F. Homes, SORIANO instructed OBET to call and tell Betty that he was already near. The gate was already opened when they arrived, and the NBI men freely parked their car at the garage. Then, PALENCIA and SORIANO alighted from the car and entered Betty's house. OBET was left in the car under the charge of the third NBI man; hence, he [20] knew nothing of what happened inside Betty's house. For her part, Betty admitted that she was romantically involved with OBET and had a child by him. She recalled that on 16 February 1997, OBET called at around 6:00 a.m. and requested her to open the gate for him, as he was already near. She ran down to the garage and opened the gate. Since her car was parked halfway through the garage, she went to the main house to get her car keys to make way for OBET's car. But as she came out of the main house, OBET's car was already parked inside the garage. She noticed that OBET had two companions with long firearms. The two, whom Betty later found out as NBI men PALENCIA and SORIANO, informed her that they had just come from a buy-bust operation and that OBET had led them to her house, as there were illegal chemicals kept in the premises. Shocked andamazed, she then asked for [21] a search warrant, but the NBI men could not produce any. Betty further recalled that the NBI men claimed that they found contraband items near the dirty kitchen at a small space behind the refrigerator where cases of softdrinks were stored. Betty denied any knowledge that there were illegal chemicals inside her house and that these were manufactured into shabu. She also denied knowing Eva [22] Baluyot. On cross-examination, Betty disclaimed her alleged consent to the search of her house, for she specifically asked the NBI men for a search warrant. She asserted that she did not see the NBI men find the shabu paraphernalia because she went up to the second floor of her house. She only saw that the NBI men were bringing several items out of her [23] house. The trial court agreed with the prosecution's theory that the warrantless arrests of OBET and Betty were conducted within the

48 [24]

purview of valid warrantless arrests enumerated in Section 5, Rule 113 of the Rules of Court. It then ruled as valid the consented warrantless search conducted at the house of Betty. Consequently, it found that the very items seized by the NBI agents at the kitchen of Betty's guesthouse were admissible as the corpus delicti of the violation of Section 14-A of the Dangerous Drugs Act. Thus, the trial court "believed" that the paraphernalia seized were indispensable to the processing or manufacturing of shabu into crystallized form. Although it conceded that the prosecution witnesses did not actually see the crystallization processes, the trial court observed that the Dangerous Drug Act does not require that there be actual manufacturing activities at the time of the seizure. The trial court, however, acquitted Betty for failure of the prosecution to adduce evidence that she, in conspiracy with OBET, manufactured shabu without the requisite authority. It did not arrive at a similar conclusion as far as OBET was concerned, but declared that based on the evidence on record, OBET's guilt of the crime charged was proved beyond reasonable doubt. Thus, in the decision of 18 May 1998 the trial court decreed as follows: WHEREFORE, finding the evidence insufficient to warrant the conviction of accused Beatrice Valerio y del Rosario for Violation of Sec. 14-a of Article III of R.A. 6425 as amended by R.A. 7659, this court pronounces her NOT GUILTY and considering that she is detained at the NBI the NBI is directed to immediately release her from custody unless there be some reasons for her detention. Finding, however, accused Robert Figueroa GUILTY as charged [of] the same offense in the absence of any mitigating or aggravating circumstances, this Court hereby sentences him to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 and to suffer the accessory penalties provided by law, specifically Art. VI [sic] of the Revised Penal Code. The Clerk of Court is directed to prepare the Mittimus for the immediate transfer of Robert Figueroa to the Bureau of Corrections in Muntinlupa City. SO ORDERED. Unsatisfied with the verdict, OBET appealed the decision to us. He principally premises his prayer for acquittal on the failure of the State to show by convincing evidence that shortly prior to or during custodial investigation, he was apprised of his constitutional rights to remain

silent, to have a competent and independent counsel preferably of his own choice, and to be informed of such rights. He asserts that he did not waive those rights. Thus, whatever admissions were allegedly extracted from him are inadmissible in evidence. Even assuming that his extrajudicial statements were admissible, Betty's acquittal would work in his favor because the indictment is based on conspiracy. In a conspiracy, the act of one is the act of all. Therefore, the acts imputed to him were also the acts of Betty, and vice versa. Since the trial court considered insufficient for conviction the acts of Betty, then he, too, should be acquitted. In the Appellee's Brief, the Office of the Solicitor General (OSG) maintains that not all warrantless searches and seizures are illegal. For one, a warrantless search and seizure is not unreasonable and offensive to the Constitution if consent is shown. In this case, the prosecution convincingly proved that Betty consented to the search of her house. With her consent, Betty validly waived her constitutional right against unreasonable searches and seizure. Consequently, the items seized in her house by virtue of the consented search are admissible in evidence against her and OBET. The OSG also contends that the acquittal of Betty does not per se work to absolve OBET of the crime charged. Betty's believable disavowal of the location of the paraphernalia and other circumstances on record reasonably indicative of her innocence cannot redound in favor of OBET. The latter apparently knew the exact location of the hidden paraphernalia. By such disclosure, it is not far-fetched to conclude that OBET had been actually engaged in the manufacture of shabu. We first resolve the question of whether Betty's acquittal would benefit OBET. We disagree with the theory of OBET that in an indictment based on conspiracy, the acquittal of a conspirator likewise absolves a coconspirator from criminal liability. Indeed, the rule is well-settled that once a conspiracy is established, the act of one is the act of all, and each of the conspirators is liable for the crimes committed by the other [25] conspirators. It follows then that if the prosecution fails to prove conspiracy, the alleged conspirators should be held individually responsible for their own respective acts. Accordingly, OBET's criminal liability in this case must be judged on the basis of his own acts as established by the quantum of proof required in criminal cases.

49 We should then determine whether the prosecution was able to establish beyond reasonable doubt OBET's guilt for unauthorized manufacture of shabu, a regulated drug. After a meticulous review of the records and of the evidence adduced by the parties in this case, we find that what PALENCIA and SORIANO did left much to be desired, thereby resulting in a bungled prosecution of the case. The evidence for the prosecution miserably failed to prove OBET's guilt of the offense charged. The buy-bust operation was a failure because no shabu or other regulated or prohibited drug was found in OBET's person and residence. No evidence was adduced to show that OBET handed shabu over to the informant. Yet, he was placed in custody. For what offense he was held in custody does not, initially, appear very clear on the record. It was established that OBET fired two shots toward the direction of PALENCIA and SORIANO and held hostage his mistress and her two children. Yet he was not placed under custodial investigation for such crimes as grave threats, coercion, illegal possession of firearms, or crimes other than that with which he was charged. On the contrary, OBET was held in custody and investigated or interrogated about the source of the shabu, none of which was found during the buy-bust operation. In short he was held in custody as a consequence of the failed buy-bust operation and as a follow-up to link him to the source and establish a conspiracy in the illegal trade of shabu. Allegedly, he admitted that the source was Betty. On the basis of that admission, PALENCIA and SORIANO, together with OBET, proceeded to the residence of Betty. Needless to state, OBET cannot be investigated for anything in relation to shabu while under custody without informing him of his rights to remain silent and to have a competent and independent counsel preferably of his own choice. Any waiver of such rights should be in writing and made in the presence of a counsel [26] pursuant to Section 12 (1) , Article III of the Constitution. It has been held that these rights attach from the moment the investigation starts, i.e. when the investigating officers begin to ask questions to elicit [27] information and confessions or admissions from the suspect. It is always incumbent upon the prosecution to prove at the trial that prior to in-custody questioning, the confessant was informed of his constitutional rights. The presumption of regularity of official acts does [28] not prevail over the constitutional presumption of innocence. Hence, in the absence of proof that the arresting officers complied with these

constitutional safeguards, extrajudicial statements, whether inculpatory or exculpatory, made during custodial investigation are inadmissible and [29] cannot be considered in the adjudication of a case. In other words, confessions and admissions in violation of Section 12 (1), Article III of the Constitution are inadmissible in evidence against the declarant and [30] more so against third persons. This is so even if such statements are [31] gospel truth and voluntarily given. Such statements are useless except as evidence against the very police authorities who violated the suspect's [32] rights. SORIANO admitted that the custodial investigation of OBET was conducted without the presence of a lawyer, and there is no proof that OBET waived said right and the right to remain silent. No waiver in writing and in the presence of a counsel was presented. Thus, pursuant to paragraph 3 of Section 12 of Article III of the Constitution any admission obtained from OBET in the course of his custodial investigation was inadmissible against him and cannot be used as a justification for the search without a warrant. The search conducted on Betty's house was allegedly consented to by Betty. Indeed, a consented search is one of the exceptions to the requirement of a search warrant. In People v. Chua Ho San @ Tsay Ho [33] San, we pointed out that: This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5) stop and frisk situations (Terry search), and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1) arrest flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of escaped prisoners. In case of consented searches or waiver of the constitutional guarantee, against obtrusive searches, it is fundamental that to constitute, a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to [34] relinquish the right. The third condition does not exist in the instant case. The fact is, Betty asked for a search warrant, thus:

50 Q And of course, these NBI Special Investigators informed you of their purpose is that correct? A

Yes sir. [G.R. No. 123872. January 30, 1998]

Q And of course believing that there was nothing in your house you acceded? A

No sir, I was asking for a search warrant. PEOPLE

Q And what was their reply? A

They did not have any but that Figueroa had led them to the property.

Neither can the search be appreciated as a search incidental to a valid warrantless arrest of either Betty or OBET as intimated by the trial court. First, Betty's arrest did not precede the search. Second, per the prosecution's evidence OBET was not arrested for possession or sale of regulated or prohibited drugs as a consequence of the buy-bust operation. He surrendered after taking hostage Estrella and her two children, although he was thereafter held in custody for further questioning on illegal drugs. There is no showing that the house occupied by Betty and the articles confiscated therefrom belong to OBET. That OBET pointed to PALENCIA and SORIANO the places where the articles were found provides no sufficient basis for a conclusion that they belonged to him. Even if the articles thus seized actually belonged to him, they cannot be constitutionally and legally used against him to establish his criminal liability therefor, since the seizure was the fruit of an invalid custodial investigation. WHEREFORE, in view of all the foregoing, the 18 May 1998 Decision of the Regional Trial Court, Branch 259, Parañaque City, convicting herein accused-appellant Robert Figueroa of violation of Section 14-A, Article III of the Dangerous Drugs Act, as amended, is hereby REVERSED and SET ASIDE. He is hereby ACQUITTED of the crime charged, and ORDEREDimmediately released from confinement or detention unless his continued detention is warranted by virtue of a valid legal cause. The Director of the Bureau of Corrections is directed to submit within five (5) days from receipt of a copy of this decision a report on the release of accused-appellant. Costs de oficio. SO ORDERED.

[35]

OF THE PHILIPPINES, plaintiff-appellee, GATDULA, accused-appellant.

vs. RUBEN

MONTILLA

y

DECISION REGALADO, J.: Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of 1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the Regional Trial Court, Branch 90, of Dasmariñas, Cavite in an information which alleges: That on or about the 20th day of June 1994, at Barangay Salitran, Municipality of Dasmariñas, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously, administer, transport, and deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing damage and [1] prejudice to the public interest. The consequent arraignment conducted on September 14, 1994 elicited a plea [2] of not guilty from appellant who was assisted therein by his counsel de parte. Trial was held on scheduled dates thereafter, which culminated in a verdict of guilty in a decision of the trial court dated June 8, 1995 and which imposed the extreme penalty of death on appellant. He was further ordered to pay a fine in the amount [3] of P500,000.00 and to pay the costs of the proceedings. It appears from the evidence of the prosecution that appellant was apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay Salitran, Dasmariñas, Cavite by SPO1 Concordio Talingting and SPO1 Armando Clarin, both members of the Cavite Philippine National Police Command based in Dasmariñas. Appellant, according to the two officers, was caught

51 transporting 28 marijuana bricks contained in a traveling bag and a carton box, which marijuana bricks had a total weight of 28 kilos. These two officers later asserted in court that they were aided by an informer in the arrest of appellant. That informer, according to Talingting and Clarin, had informed them the day before, or on June 19, 1994 at about 2:00 P.M., that a drug courier, whom said informer could recognize, would be arriving somewhere in Barangay Salitran, Dasmariñas from Baguio City with an undetermined amount of marijuana. It was the same informer who pinpointed to the arresting officers the appellant when the latter alighted from a passenger jeepney on the aforestated [4] day, hour, and place. Upon the other hand, appellant disavowed ownership of the prohibited drugs. He claimed during the trial that while he indeed came all the way from Baguio City, he traveled to Dasmariñas, Cavite with only some pocket money and without any luggage. His sole purpose in going there was to look up his cousin who had earlier offered a prospective job at a garment factory in said locality, after which he would return to Baguio City. He never got around to doing so as he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran. He further averred that when he was interrogated at a house in Dasmariñas, Cavite, he was never informed of his constitutional rights and was in fact even robbed of the P500.00 which he had with him. Melita Adaci, the cousin, corroborated appellant's testimony about the job offer in the garment factory [5] where she reportedly worked as a supervisor, although, as the trial court observed, she never presented any document to prove her alleged employment. In the present appellate review, appellant disputes the trial court's finding that he was legally caught in flagrante transporting the prohibited drugs. This Court, after an objective and exhaustive review of the evidence on record, discerns no reversible error in the factual findings of the trial court. It finds unassailable the reliance of the lower court on the positive testimonies of the police officers to whom no ill motives can be attributed, and its rejection of appellant's fragile defense of denial which is evidently self-serving in nature. 1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on the basis of insufficient evidence as no proof was proffered showing that he wilfully, unlawfully, and feloniously administered, transported, and delivered 28 kilos of dried marijuana leaves, since the police officers "testified only on the alleged transporting of Marijuana from Baguio City to Cavite." Further, the failure of the prosecution to present in court the civilian informant is supposedly corrosive of the People's cause since, aside from impinging upon appellant's fundamental right to confront the witnesses against him, that

informant was a vital personality in the operation who would have contradicted the hearsay and conflicting testimonies of the arresting officers on how appellant was collared by them. The pertinent provision of the penal law here involved, in Section 4 of Article II thereof, as amended, is as follows: SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed. Now, the offense ascribed to appellant is a violation of the Dangerous Drugs [6] Act, some of the various modes of commission being the sale, administration, delivery, distribution, and transportation of prohibited drugs as set forth in the epigraph of Section 4, Article II of said law. The text of Section 4 expands and extends its punitive scope to other acts besides those mentioned in its headnote by including these who shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." Section 4 could thus be violated by the commission of any of the acts specified therein, or a combination thereof, such as selling, administering, delivering, giving away, distributing, dispatching in transit or transporting, and the like. As already stated, appellant was charged with a violation of Section 4, the transgressive acts alleged therein and attributed to appellant being that he administered, delivered, and transported marijuana. The governing rule with respect to an offense which may be committed in any of the different modes provided by law is that an indictment would suffice if the offense is alleged to have been committed in one, two or more modes specified therein. This is so as allegations in the information of the various ways of committing the offense should be considered as a description of only one offense and the information cannot be [7] dismissed on the ground of multifariousness. In appellant's case, the prosecution adduced evidence clearly establishing that he transported marijuana from Baguio City to Cavite. By that act alone of transporting the illicit drugs, appellant had

52 already run afoul of that particular section of the statute, hence, appellant's asseverations must fail. The Court also disagrees with the contention of appellant that the civilian informer should have been produced in court considering that his testimony was "vital" and his presence in court was essential in order to give effect to or recognition of appellant's constitutional right to confront the witnesses arrayed by the State against him. These assertions are, however, much too strained. Far from compromising the primacy of appellant's right to confrontation, the nonpresentation of the informer in this instance was justified and cannot be faulted as error. For one, the testimony of said informer would have been, at best, merely corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the trial court, which testimonies are not hearsay as both testified upon matters in which they had personally taken part. As such, the testimony of the informer could be [8] dispensed with by the prosecution, more so where what he would have corroborated are the narrations of law enforcers on whose performance of duties regularity is the prevailing legal presumption. Besides, informants are generally not presented in court because of the need to hide their identities and preserve their [9] invaluable services to the police. Moreover, it is up to the prosecution whom to present in court as its witnesses, and not for the defense to dictate that [10] course. Finally, appellant could very well have resorted to the coercive process of [11] subpoena to compel that eyewitness to appear before the court below, but which remedy was not availed of by him. 2. Appellant contends that the marijuana bricks were confiscated in the course of an unlawful warrantless search and seizure. He calls the attention of the Court to the fact that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police authorities had already been apprised by their so-called informer of appellant's impending arrival from Baguio City, hence those law enforcers had the opportunity to procure the requisite warrant. Their misfeasance should therefore invalidate the search for and seizure of the marijuana, as well as the arrest of appellant on the following dawn. Once again, the Court is not persuaded. Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable" within the [12] meaning of said constitutional provision. Evidence secured on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1)

[13]

[14]

customs searches; (2) searches of moving vehicles, (3) seizure of evidence in [15] [16] plain view; (4) consented searches; (5) searches incidental to a lawful [17] [18] arrest; and (6) "stop and frisk" measures have been invariably recognized as the traditional exceptions. In appellant's case, it should be noted that the information relayed by the civilian informant to the law enforcers was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio City in the "early morning" of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name. While it is not required that the authorities should know the exact name of the subject of the warrant applied for, there is the additional problem that the informant did not know to whom the drugs would be delivered and at which particular part of the barangay there would be such delivery. Neither did this asset know the precise time of the suspect's arrival, or his means of transportation, the container or contrivance wherein the drugs were concealed and whether the same were arriving together with, or were being brought by someone separately from, the courier. On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. In fact, the police had to form a surveillance team and to lay down a dragnet at the possible entry points to Barangay Salitran at midnight of that day notwithstanding the tip regarding the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter inside and around the barangay as backup, unsure as they were of the time when and the place in Barangay Salitran, where their suspect would show up, and how he would do so. On the other hand, that they nonetheless believed the informant is not surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a reliable source in past operations. Moreover, experience shows that although information gathered and passed on by these assets to law enforcers are vague and piecemeal, and not as neatly and completely packaged as one would expect from a professional spymaster, such tip-offs are sometimes successful as it proved to be in the apprehension of appellant. If the courts of justice are to be of understanding

53 assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical environment of judicial chambers. 3. On the defense argument that the warrantless search conducted on appellant invalidates the evidence obtained from him, still the search on his belongings and the consequent confiscation of the illegal drugs as a result thereof was justified as a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court. Under that provision, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission [19] of an offense. On the other hand, the apprehending officer must have been spurred by probable cause in effecting an arrest which could be classified as one in cadence with the instances of permissible arrests set out in [20] Section 5(a). These instances have been applied to arrests carried out on persons caught in flagrante delicto. The conventional view is that probable cause, while largely a relative term the determination of which must be resolved according to the facts of each case, is understood as having reference to such facts and circumstances which could lead a reasonable, discreet, and prudent man to believe and conclude as to the commission of an offense, and that the objects sought in [21] connection with the offense are in the place sought to be searched. Parenthetically, if we may digress, it is time to observe that the evidentiary measure for the propriety of filing criminal charges and, correlatively, for effecting a warrantless arrest, has been reduced and liberalized. In the past, our statutory rules and jurisprudence required prima facie evidence, which was of a higher [22] degree or quantum, and was even used with dubiety as equivalent to "probable cause." Yet, even in the American jurisdiction from which we derived the term and its concept, probable cause is understood to merely mean a reasonable ground for [23] belief in the existence of facts warranting the proceedings complained of, or an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had [24] committed the crime. Felicitously, those problems and confusing concepts were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable

[25]

guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds cause to hold the [26] respondent for trial," or where "a probable cause exists." It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized. In the case at bar, as soon as appellant had alighted from the passenger jeepney the informer at once indicated to the officers that their suspect was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the informer told them that the marijuana was likely hidden inside the traveling bag and carton box which appellant was carrying at the time. The officers thus realized that he was their man even if he was simply carrying a seemingly innocent looking pair of luggage for personal effects. Accordingly, they approached appellant, introduced themselves as policemen, and requested him to open and show them the contents of the traveling bag, which appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag yielded the prohibited drugs, so, without bothering to further search the box, they brought appellant and his luggage to their headquarters for questioning. Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But, precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellant's luggage. It would obviously have been irresponsible, if not downright absurd under the circumstances, to require the constable to adopt a "wait and see" attitude at the risk of eventually losing the quarry. Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a wellgrounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drugs. With these attendant facts, it is ineluctable that appellant was caught in flagrante delicto,hence his arrest and the search of his belongings without the requisite warrant were both justified. Furthermore, that appellant also consented to the search is borne out by the evidence. To repeat, when the officers approached appellant and introduced themselves as policemen, they asked him about the contents of his luggage, and after he replied that they contained personal effects, the officers asked him to open

54 the traveling bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that the law had caught up with his criminal activities. When an individual voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof. After all, the right to be secure from unreasonable search may, like other [27] rights, be waived either expressly or impliedly. Thus, while it has been held that the silence of the accused during a warrantless search should not be taken to mean consent to the search but as a demonstration of that person's regard for the [28] supremacy of the law, the case of herein appellant is evidently different for, here, he spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be [29] construed as a clear waiver of his right. 4. Appellant likewise harps on the alleged failure of the prosecution to "legally, properly and adequately establish that the 28 bricks of marijuana allegedly confiscated from (him) were the same marijuana examined by the forensic chemist and presented in court." Indeed, the arresting officers did not identify in court the marijuana bricks seized from appellant since, in fact they did not have to do so. It should be noted that the prosecution presented in the court below and formally offered in evidence those 28 bricks of marijuana together with the traveling bag and the carton box in which the same were contained. The articles were properly marked as confiscated evidence and proper safeguards were taken to ensure that the marijuana turned over to the chemist for examination, and which subsequently proved positive as such, were the same drugs taken from appellant. The trial court, therefore, correctly admitted them in evidence, satisfied that the articles were indubitably no other than those taken from appellant. Complementarily, the corpus delicti was firmly established by SPO1 Clarin and SPO1 Talingting who categorically related that when they had ascertained that the contents of the traveling bag of appellant appeared to be marijuana, they forthwith asked him where he had come from, and the latter readily answered "Baguio City," thus confirming the veracity of the report of the informer. No other conclusion can therefore be derived than that appellant had transported the illicit drugs all the way to Cavite from Baguio City. Coupled with the presentation in court of the subject matter of the crime, the marijuana bricks which had tested positive as being indian hemp, the guilt of appellant for transporting the prohibited drugs in violation of the law is beyond doubt. Appellant questions the interrogation conducted by the police authorities, claiming that he was not allowed to communicate with anybody, and that he was not duly informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. Indeed, appellant has a

point. The police authorities here could possibly have violated the provision of [30] Republic Act No. 7438 which defines certain rights of persons arrested, detained, or under custodial investigation, as well as the duties of the arresting, detaining, and investigating officers, and providing corresponding penalties for violations thereof. Assuming the existence of such irregularities, however, the proceedings in the lower court will not necessarily be struck down. Firstly, appellant never admitted or confessed anything during his custodial investigation. Thus, no incriminatory evidence in the nature of a compelled or involuntary confession or admission was elicited from him which would otherwise have been inadmissible in evidence. Secondly and more importantly, the guilt of appellant was clearly established by other evidence adduced by the prosecution, particularly the testimonies of the arresting officers together with the documentary and object evidence which were formally offered and admitted in evidence in the court below. 5. The reversible error of the trial court lies in its imposition of the penalty of death on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of Article II shall be applied if the dangerous drugs involved is, in the case of indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs carries with it the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law prescribes a penalty composed of two indivisible penalties, reclusion perpetua and death. In the present case, Article 63 of the Revised Penal Code consequently provides the rules to be observed in the application of said penalties. As found by the trial court, there were neither mitigating nor aggravating circumstances attending appellant's violation of the law, hence the second paragraph of Article 63 must necessarily apply, in which case the lesser penalty of reclusion perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a quo, it was never intended by the legislature that where the quantity of the dangerous drugs involved exceeds those stated in Section 20, the maximum penalty of death shall be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be gleaned or deduced. On the contrary, this Court has already concluded that Republic Act No. [31] 7659 did not amend Article 63 of the Revised Penal Code, the rules wherein were observed although the cocaine subject of that case was also in excess of the quantity provided in Section 20. It is worth mentioning at this juncture that the law itself provides a specific penalty where the violation thereof is in its aggravated form as laid down in the second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if the

55 victim is a minor, or should a prohibited drug involved in any offense in said section be the proximate cause of the death of a victim thereof, the maximum penalty shall [32] be imposed. While the minority or the death of the victim will increase the liability of the offender, these two facts do not constitute generic aggravating circumstances, as the law simply provides for the imposition of the single indivisible penalty of death if the offense is attended by either of such factual features. In that situation, obviously the rules on the graduation of penalties in Article 63 cannot apply. In herein appellant's case, there was neither a minor victim nor a consequent death of any victim. Hence, the basic rules in Article 63 of the Code govern. WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of Dasmariñas, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the sense that accused-appellant Ruben Montilla y Gatdula shall suffer the penalty of reclusion perpetua. In all other respects, the judgment of the trial court is hereby AFFIRMED, with costs against accused-appellant.

From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the 3 government agents, fled. Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade firearm locally known as "latong." When he asked accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the custody of the policeman of Caibiran who subsequently investigated him and charged him 4 with illegal possession of firearm.

SO ORDERED.

[ G.R. No. 119220. September 20, 1996 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, NILO SOLAYAO AccusedAppellant. DECISION ROMERO, J.: Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and 1 ammunition defined and penalized under Presidential Decree No. 1866. The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of 2 Caibiran.

Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used 5 up. Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a 6 shotgun wrapped in coconut leaves. On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accusedappellant to suffer the prison term of reclusion perpetua with the accessory 7 penalties provided by law. It found that accused-appellant did not contest the fact that SPO3 Nino confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier 8 claimed that he did not know his companions.

56 Accused-appellant comes to this Court on appeal and assigns the following errors: "I. The trial court erred in admitting in evidence the homemade firearm. "II. The trial court erred in appreciating the aggravating circumstance of nighttime 9 in the imposition of the maximum penalty against the accused-appellant." 10

This Court, in the case of People v. Lualhati ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia: "A peace officer or a private person may, without a warrant, arrest a person when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." Hence, the search being unlawful, the homemade firearm confiscated from him is 11 inadmissible in evidence for being "the fruit of the poisonous tree." As such, the prosecution's case must necessarily fail and the accused-appellant acquitted. Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et 12 al. where this Court declared: " emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law." Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as the fact that he himself was

13

attired in a camouflage uniform or a jungle suit and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons 14 were roaming around the barangays of Caibiran. The circumstances in this case are similar to those obtaining in Posadas v. Court of 15 Appeals where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspected that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant." This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was a probable cause to conduct a search even before an arrest could be made. In the present case, after SPO3 Nino told accused-appellant not to run away, the 16 former identified himself as a government agent. The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming around in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accusedappellant was carrying hid a firearm. As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed

57 out that the prosecution failed to prove that accused-appellant lacked the 17 necessary permit or license to possess the subject firearm. Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the 18 prosecution by proof beyond reasonable doubt. In People v. Tiozon,

19

this Court said:

"It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if 'it is an essential ingredient of the offense charged,' the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in commtting the offense charged was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no 'license or permit to possess' the .45 caliber pistol mentioned therein. Thus is seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with 'having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment alike, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of

proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this view as follows: 'The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him.' (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)." Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine 20 in People v. Macagaling: "We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegation must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged." In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm 21 when he was asked if he had one. In other words, the prosecution relied on accused-appellant's admission to prove the second element.

58 Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accused-appellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged. This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of 22 itself to establish his guilt." In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize 23 conviction." From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt thecommission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: "An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof." Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing 24 evidence, like a certification from the government agency concerned." Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the

fact are equally within the control of each party, then the burden of proof is upon 25 the party averring the negative." In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. In view of the foregoing, this Court sees no need to discuss the second assigned error. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with costs de oficio. SO ORDERED.

G. R. Nos. 102009-10 July 6, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-appellant. The Solicitor General for plaintiff-appellee. Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.: The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the Government. At that time, various government establishments and military camps in Metro Manila were being bombarded by the rightist group with their "tora-

59 tora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping Center in San 1 Juan, Metro Manila. Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City, Branch 103. In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows: That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, and without authority of law, did then and there willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the following to wit: Five (5) bundles of C-4 or dynamites Six (6) cartoons of M-16 ammunition at 20 each One hundred (100) bottles of MOLOTOV bombs without first securing the necessary license and/or permit to possess the same from the proper authorities, and armed with said dynamites, ammunition and explosives and pursuant to their conspiracy heretofore agreed upon by them and prompted by common designs, come to an agreement and decision to commit the crime of rebellion, by then and there participating therein and publicly taking arms against the duly constituted authorities, for the purpose of overthrowing the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and

removing from its allegiance the territory of the Philippines or 2 parts thereof. In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City upon the person of Crispin Sagario who was shot and hit on the right thigh. Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted homicide. During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not authorized to possess any firearms, ammunition and/or 3 explosive. The parties likewise stipulated that there was a rebellion during the 4 period from November 30 up to December 9, 1989. The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division, National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report received by the division that said establishment was being occupied by elements of the RAM-SFP as a communication command post. Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked towards the car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-fire.

60 As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team because, according to them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy" therein. Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the building. He denies, however, that he was inside the room of Col. Matillano when the raiding team barged in and that he had explosives in his possession. He testified that when the military raided the office, he was ordered to get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who were janitors of the building. He avers that he does not know anything about the explosives and insists that when they were asked to stand up, the explosives were already there. Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the 1987coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he could stay in the PC-INP stockade and do the

marketing for them. From that time until his arrest at the Eurocar office, appellant worked for Matillano. De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin." 5

On February 22, 1991, the trial court rendered judgment acquitting appellant Rolando de Gracia of attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that Rolando de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior. That judgment of conviction is now challenged before us in this appeal. Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he did not have either physical or constructive possession thereof considering that he had no intent to possess the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at bar. Presidential Decree No. 1866 provides as follows: Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearms, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

61 If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed. Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of the country. The series of coup d' etats unleashed in the country during the first few years of the transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public peace and order. I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess firearms and ammunition. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the 6 subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law 7 the proprietary concept of the possession can have no bearing whatsoever.

the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough 10 that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there 11 was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of 12 this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special 8 law, in which case good faith and absence of criminal intent are not valid 9 defenses.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the room and holding the several explosives marked in 13 evidence as Exhibits D to D-4. At first, appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on his part to possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot inspire credence.

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is often

62 disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the service for going on absence without leave 14 (AWOL). We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and ammunition. On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually intended to possess the articles confiscated from his person. II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team, considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed. It is admitted that the military operatives who raided the Eurocar Sales Office were 15 not armed with a search warrant at that time. The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the 16 RAM. Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof refused to open the door despite requests for them to do so, thereby 17 compelling the former to break into the office. The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby

18

Camp Aguinaldo which was under attack by rebel forces. The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted. Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was 19 conducted, his court was closed. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. The view that we here take is in consonance with our doctrinal ruling which was 20 amply explained in People vs. Malmstedt and bears reiteration: While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. Probable cause has been defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case. Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received

63 information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City. When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-thespot information, the police officers had to act quickly and there was no time to secure a search warrant. It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so? The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the

NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. In addition, we find the principle enunciated in Umil, et al., vs. Ramos, 21 et al., applicable, by analogy, to the present case: The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo,

64 our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion. The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower court. The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of firearms committed 22 in the course or as part of a rebellion. As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two different statutes with different penalties, even if considered highly advantageous 23 to the prosecution and onerous to the accused. It follows that, subject to the presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal 24 Code, with variant elements.

It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon should be insulated against any tenuous importunity. Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the words of the court a quo: 2. the nature and quantity of the items — 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and 100 bottles of molotov bombs indicate that the reports received by the military that the Eurocar Sales Building was being used by the rebels was not without basis. Those items are clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay guard there. His manifestation of innocence of those items and what he has been guarding in that office is not credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were present which self-evidently discloses that De Gracia, in the company of his boss, was still very much at home and constantly in touch with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that he is the only person tasked with caretaking (sic) there in the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some men who fired 25 upon a car of the AFP intelligence agents. Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance of that law, the imposition of the death penalty was proscribed by the Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty

65 of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith. WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-appellant.

On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, unlawfully, and without any prior authority, license or permit to possess or carry the firearm hereunder described, have in his possession and control the following firearm classified as high powered, with its corresponding ammunitions and accessory, viz: - one (1) cal. 45 pistol (NORINCO) bearing SN 906347;

SO ORDERED.

- one (1) magazine for pistol cal. 45 G.R. No. 156320

- seven (7) rounds live ammunitions for cal. 45,

February 14, 2007

RODOLFO ABENES y GACUTAN, Petitioner, vs. HE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION AUSTRIA-MARTINEZ, J.: 1

For review before the Court is the Decision dated November 29, 2002 of the Court of Appeals (CA) which affirmed the Joint Decision of the Regional Trial Court (RTC) of Pagadian City, Branch 19, dated June 5, 2000, finding Rodolfo Abenes y Gacutan (petitioner) guilty beyond reasonable doubt of Illegal Possession of High Powered Firearm and Ammunition under Presidential Decree No. 1866 (P.D. No. 1866) in Criminal Case No. 4559-98, and of violating Section 261(q) of Batas Pambansa Blg. 881 (B.P. Blg. 881), otherwise known as the Omnibus Election Code, vis-à-vis COMELEC Resolution No. 2958 (Gun Ban) in Criminal Case No. 4563-98. Petitioner was charged under the following Informations: In Criminal Case No. 4559-98 — The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A. No. 8294), committed as follows:

in gross violation of P.D. No. 1866 as amended by R.A. No. 8294. CONTRARY TO LAW.

2

In Criminal Case No. 4563-98 — The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y 3 GACUTAN of Election Offense in violation of Sec. 261 (9) , BP 881 (OMNIBUS ELECTION CODE), vis-à-vis COMELEC RESOLUTION # 1958 (GUN BAN), committed as follows: On May 8, 1998, at about 10:30 a.m. within the Election period which is from January 11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, and unlawfully, carry in his person a cal. .45 (NORINCO) pistol, bearing serial number 906347, and loaded with seven (7) rounds of live ammunitions, without any prior authority from the COMELEC in gross violation of Sec. 261 (9) of BP 881 (OMNIBUS ELECTION CODE) in relation to COMELEC RESOLUTION No. 2958 (GUN BAN). CONTRARY TO LAW.

4

Upon arraignment, the petitioner pleaded not guilty. Trial ensued. The facts, as found by the RTC and summarized by the CA, are as follows:

66 The prosecution showed that three days prior to the May 11, 1998 national and local elections, the Philippine National Police (PNP) of Pagadian City, through its Company Commander Major Pedronisto Quano, created a team composed of seven policemen with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban which was then being implemented by the COMELEC. SPO3 Cipriano Q. Pascua was the designated team leader. The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the Barangay Chairman of Danlugan, and the team put up a road block with the marking "COMELEC GUN BAN". Vehicles passing through the road block were required by the team to stop and their occupants were then politely requested to alight in order to allow routine inspection and checking of their vehicles. Motorists who refused the request were not forced to do so. At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass through the check point was stopped by the team and directed to park at the side of the road. As the occupants within the vehicle could not be seen through its tinted windows, SPO1 Eliezer Requejo, a member of the team, knocked on the vehicle’s window and requested the occupants to step down for a routine inspection. The eight occupants, which included the accused-appellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked at the right waist of Abenes. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC. Accused answered in the affirmative. The policemen then demanded for the pertinent documents to be shown to support Abenes’ claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes’ firearm, which was later identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its magazine containing seven live ammunitions. Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes to the PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn referred Abenes to a certain SPO2 Benvienido Albon for further investigation (TSN, August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer Requejo] pp. 29-50).

A certification dated May 18, 1998 from the Firearms and Explosives License Processing Section of the PNP, Pagadian City disclosed that Abenes is not a registered nor a licensed firearm holder (Record of Criminal Case No. 4559-98, p. 56). After the prosecution presented its evidence, [the] accused filed a Demurrer to Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by the trial court in a Resolution dated March 5, 1999 (supra, pp. 80-82). In his defense, accused-appellant tried to establish that the firearm did not belong to and was not recovered from him; that the firearm was recovered by the policemen from the floor of the vehicle inside a clutch bag which was allegedly left by an unidentified person who hitched a ride somewhere along the national highway of Tawagan Norte Zamboanga Del Sur and alighted near the Mabuhay Bazaar in Pagadian City (TSN, July 12, 1999 [Noel Rivera], pp. 7-13; September 15, 1999 [Rodolfo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado Gengania], 5 pp. 9-16). On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner on both charges, the dispositive portion of which states: WHEREFORE, in view of all the foregoing discussion, this Court hereby finds accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for Violation of P.D. No. 1866, as amended by Republic Act No. 8294, having been found in possession without license/permit of a Norinco .45 caliber pistol bearing Serial No. 906347 and 7 rounds of ammunitions and sentences him to imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of PRISION CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM, to EIGHT (8) YEARS of PRISION MAYOR in its MINIMUM, as MAXIMUM and a FINE of THIRTY THOUSAND PESOS (P30,000.00), Philippine currency. Insofar as Criminal Case No. 4559-98 is concerned. The .45 Caliber Pistol aforementioned and the seven (7) rounds of ammunitions are hereby forfeited in favor of the government the same being effects of the Violation of P.D. 1866, amended. As regards Criminal Case No. 4563-98, this Court also finds herein accused Rodolfo Abenes y Gacutan GUILTY of Violation of Section 264, in relation to Section 261, paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code and sentences him to imprisonment for a period of ONE (1) YEAR, and in addition thereto, herein accused is disqualified to hold any public office and deprived [of] the right of suffrage. It shall be understood that the

67 sentence herein imposed shall be served simultaneously with the sentence imposed in Criminal Case No. 4559-98. SO ORDERED.

6

The RTC found that, as between the positive and categorical assertions of facts by the two policemen – the witnesses for the prosecution – and the mere denial of the accused and his witnesses, the former must prevail over the latter; that the prosecution successfully proved that the petitioner had no license or permit to carry the firearm through the officer-in-charge of the firearms and explosives office who testified that, based on his records, the petitioner had not been issued a license, and whose testimony had not been impugned by the defense; and that the testimonies of the accused and his two witnesses to the effect that while aboard their private vehicle and on their way to attend an election campaign meeting, they simply stopped and allowed a complete stranger to hitch a ride who was carrying a clutch bag, left the same in the vehicle when he alighted, and which later turned out to contain the subject firearm, were flimsy and unbelievable. The RTC ruled that the defense of alibi or denial cannot prevail over the positive identification by eyewitnesses who have no improper motive to falsely testify against the petitioner, especially where the policemen and the petitioner do not know each other; and, that the petitioner failed to show any license or any other document to justify his lawful possession of the firearm. The petitioner appealed to the CA claiming that the checkpoint was not shown to have been legally set up, and/or that the frisking of the petitioner who was ordered to alight from the Tamaraw FX, along with his companions in the vehicle, violated his constitutional right against unlawful search and seizure; and, that the trial court erred in believing the version of the incident as testified to by the policemen instead of the version presented by the defense’s witness which is more consistent 7 with truth and human experience. On November 29, 2002, the CA rendered its Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the Joint Decision appealed from is AFFIRMED with the MODIFICATION that with respect to Criminal Case No. 4559-98, accusedappellant is sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional as minimum to 7 years and 4 months of prision mayor as maximum. SO ORDERED.

8

With respect to the validity of the checkpoint, the CA found that not only do the police officers have in their favor the presumption that official duties have been regularly performed, but also that the proximity of the day the checkpoint had been set up, to the day of the May 11, 1998 elections, specifically for the purpose of enforcing the COMELEC gun ban, gives a strong badge of the legitimacy of the checkpoint; that after a review of the records, the evidence adduced by the prosecution prevails over the self-serving and uncorroborated claim of the petitioner that he had been "framed"; and, that with respect to the admissibility of the firearm as evidence, the prosecution witnesses convincingly established that the .45 caliber pistol, tucked into the right waist of the petitioner when he alighted from the vehicle, was readily visible, and, therefore, could be seized without a search warrant under the "plain view" doctrine. The petitioner is now before this Court, raising the following issues: I. Given the circumstances, and the evidence adduced, was the check-point validly established? II. Given the circumstances, and the evidence adduced, was the petitioner’s constitutional right against unlawful search and seizure violated? III. Given the circumstances, and the evidence adduced, did not the honorable court of appeals commit a grave abuse of discretion for adopting the trial court’s unsubstantiated findings of fact? IV. Given the circumstances, and the evidence adduced, is not the petitioner entitled to an acquittal, if not on the ground that the prosecution failed to prove guilt beyond reasonable doubt, on the ground of reasonable doubt itself . . . as to where the gun was taken: from the floor of the vehicle or 9 from the waist of petitioner?

68 The appeal is partly meritorious. The Court reverses the CA’s finding of his conviction in Criminal Case No. 4559-98. After a thorough review of the records, this Court is of the view that the courts a quo – except for a notable exception with respect to the negative allegation in the Information – are correct in their findings of fact. Indeed, the version of the defense, as found by the lower courts, is implausible and belies the common experience of mankind. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the 10 circumstances. In addition, the question of credibility of witnesses is primarily for 11 the trial court to determine. For this reason, its observations and conclusions are 12 accorded great respect on appeal. The trial court's assessment of the credibility of a witness is entitled to great weight. It is conclusive and binding unless shown to be tainted with arbitrariness or unless, through oversight, some fact or circumstance of weight and influence has not been 13 considered. Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, or that the judge acted arbitrarily, his assessment of the credibility of 14 witnesses deserves high respect by appellate courts. Thus, the Court finds no cogent reason to disturb the findings of the lower courts that the police found in plain view a gun tucked into the waist of the petitioner during the Gun Ban period enforced by the COMELEC. So too must this Court uphold the validity of the checkpoint. The petitioner insists that the prosecution should have produced the mission order constituting the 15 checkpoint, and invokes Aniag, Jr. v. Comelec, where the Court purportedly held that firearms seized from a motor vehicle without a warrant are inadmissible because there was no indication that would trigger any suspicion from the policemen nor any other circumstance showing probable cause. On both points the petitioner is wrong. In the present case, the production of the mission order is not necessary in view of the fact that the checkpoint was established three days before the May 11, 1998 elections; and, the circumstances under which the policemen found the gun warranted its seizure without a warrant.

Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner. We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period. This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car’s doors or subjecting its passengers to a body search. There is 17 nothing discriminatory in this as this is what the situation demands. (Emphasis supplied)

16

In People v. Escaño, the Court, through the ponencia of Chief Justice Hilario G. Davide, Jr., held:

Thus, the Court agrees with the Solicitor General that petitioner’s reliance on Aniag is misplaced.

69 In Aniag, the police officers manning the checkpoint near the Batasang Pambansa complex stopped the vehicle driven by the driver of Congressman Aniag. After stopping the vehicle, the police opened a package inside the car which contained a firearm purportedly belonging to Congressman Aniag. In declaring the search illegal, the Supreme Court stated that the law enforcers who conducted the search had no probable cause to check the content of the package because the driver did not behave suspiciously nor was there any previous information that a vehicle hiding a firearm would pass by the checkpoint. In the instant case, the firearm was seized from the petitioner when in plain view, the policemen saw it tucked into his waist uncovered by his shirt. Under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be 18 presented as evidence. 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; and (c) it is immediately apparent to the officer that the item he observes may be evidence 19 of a crime, contraband or otherwise subject to seizure. All the foregoing requirements are present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle. As accurately found by the CA: xxx It must be emphasized that the policemen discovered the firearm [on] the person of the [petitioner] shortly after he alighted from the vehicle and before he was frisked. SPO3 Pascua’s testimony*,+ corroborated by that of SPO1 Requejo*,+ convincingly established that the holstered .45 caliber pistol tucked at the right waist of the [petitioner] was readily visible to the policemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwithstanding the absence of a Search Warrant, the policemen may validly seize the firearm and the same is admissible in evidence against the 20 [petitioner] pursuant to the "plain view doctrine" xxx.

Nor can the Court believe petitioner’s claim that he could not have freely refused the "police orders" issued by the police team who were "armed to the teeth" and "in the face of such show of force." The courts a quo consistently found that the police team manning the checkpoint politely requested the passengers to alight from their vehicles, and the motorists who refused this request were not forced to do so. These findings of fact are fully supported by the evidence in the record. However, the Court must underscore that the prosecution failed to satisfactorily prove the negative allegation in the Information that the petitioner possessed no license or permit to bear the subject firearm. It is a well-entrenched rule "that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the subject firearm, and the fact that the accused who owned or possessed the 21 firearm does not have the corresponding license or permit to possess the same." Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the 22 prosecution by proof beyond reasonable doubt. Witness for the prosecution SPO4 Gilbert C. Senados admitted that his records were outdated, i.e., that his Master List of holders of firearms only covered licenses up to 1994; that it was possible for the petitioner to acquire a license after 1994; and that he issued the Certification, dated May 18, 1998, stating that the petitioner carried no license or permit to possess the guns because he was ordered to do so by his 23 superiors. There is no evidence that between 1994 and May 8, 1998, the date the crime was allegedly committed, no license was issued to petitioner. While the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of the petitioner, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a 24 certification from the government agency concerned.

70 Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended. With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof. Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded, provides:

bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the election period; and, 3) the weapon is carried in a public place. Under said provision, it is explicit that even if the accused can prove that he is holding a valid license to possess such firearm, this circumstance by itself cannot exculpate him from criminal liability. The burden is on the accused to show that he has a written authority to possess such firearm issued by no less than the COMELEC. On this point, the petitioner failed to present any form of such authority, and, therefore, his conviction must be affirmed. Section 264 of the Omnibus Election Code provides:

Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense: (q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof. x x x x (Emphasis supplied) Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides: SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied) In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused. 25

Section 32 of R.A. No. 7166 is clear and unequivocal that the prohibited act to which this provision refers is made up of the following elements: 1) the person is

Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply 26 Section 1 of the Indeterminate Sentence Law which provides: SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum. Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be disposed of according to existing laws, which, in this case, must be read in light of Article 45 of the Revised Penal Code, to wit:

71 Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.— Every penalty imposed for the commission of a felony shall carry with it the forefeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.1awphi1.net WHEREFORE, the petition is partly GRANTED. The Decision dated November 29, 2002 of the Court of Appeals isREVERSED and SET ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, as amended, for failure of the prosecution to prove his guilt beyond unreasonable doubt. With respect to Criminal Case No. 4563-98, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced to an indeterminate sentence of one year of imprisonment as minimum to two years of imprisonment as maximum, not subject to probation; and he shall sufferDISQUALIFICATION to hold public office and DEPRIVATION of the right of suffrage. The subject firearm isCONFISCATED and FORFEITED in favor of the Government. SO ORDERED.