G.R. No. 189122 March 17, 2010 JOSE ANTONIO LEVISTE, Petitioner, vs.

THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. DECISION CORONA, J.: Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required, 1 is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not yet been proven, in the "dubious interval," often years long, between arrest and final adjudication? 2 Bail acts as a reconciling mechanism to accommodate both the accuseds interest in pretrial liberty and societys interest in assuring the accuseds presence at trial.3 Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail.4 An accused not released on bail is incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed. 5 Even if the conviction is subsequently affirmed, however, the accuseds interest in bail pending ap peal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison. 6 On the other hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time.7 Other recognized societal interests in the denial of bail pending appeal include the prevention of the accuseds flight from court custody, the protection of the community from potential danger and the avoidance of delay in punishment.8 Under what circumstances an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of the accused.9

Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court. 10 The Facts Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.11 He appealed his conviction to the Court of Appeals.12 Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part. The Court of Appeals denied petitioners application for bail.13 It invoked the bedrock principle in the matter of bail pending appeal, that the discretion to extend bail during the course of appeal should be exercised "with grave caution and only for strong reasons." Citing well-established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found that petitioner failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison, though he clearly preferred to be attended by his personal physician.14 For purposes of determining whether petitioners application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of petitioners conviction. It made a preliminary evaluation of petitioners case and made a prima facie determination that there was no reason substantial enough to overturn the evidence of petitioners guilt.

Petitioners motion for reconsideration was denied.15 Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail under the third paragraph of Section 5, Rule 114 of the Rules of Court was present. Petitioners theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal. The Issue The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? Section 5, Rule 114 of the Rules of Court provides: Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (emphasis supplied) Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years imprisonment should automatically be granted. Petitioners stance is contrary to fundamental considerations of procedural and substantive rules. Basic Procedural Concerns Forbid Grant of Petition Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.16 Other than the sweeping averment that "[t]he Court of Appeals committed grave abuse of discretion in denying petitioners application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof

under Rule 114, Section 5 [is] present, much less proven by the prosecution,"17 however, petitioner actually failed to establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong. We disagree. It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioners urgent application for admission to bail pending appeal. Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioners application for bail pending appeal. Grave abuse of discretion is not simply an error in judgment but it is such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.18 Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility.19 It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.20 Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate court. Nor could any such implication or imputation be inferred.

As observed earlier, the Court of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioners application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioners claim of ill health. By making a preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this Court. At best, petitioner only points out the Court of Appeals erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact.21 In this connection, Lee v. People22 is apropos: Certiorari may not be availed of where it is not shown that the respon dent court lacked or exceeded its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari. In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the courts findings and conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also unduly burden the courts. 23 (emphasis supplied) Wording of Third Paragraph of Section 5, Rule 114 Contradicts Petitioners Interpretation The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions of his bail without a valid justification; commission of the offense

while under probation, parole or conditional pardon; circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances. The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in remedial law: Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules: xxxxxxxxx e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5); f. After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6 years but not more than 20 years, and any of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, no bail shall be granted by said court (Sec. 5); x x x24 (emphasis supplied) Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking: Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied.25 (emphasis supplied)

In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating26 circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate courts denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion. On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed. Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellants case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice;27 on the basis thereof, it may either allow or disallow bail. On the other hand, if the appellants case falls within the second scenario, the appellate courts stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach.

Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy governing the grant of bail pending appeal. In particular, a careful reading of petitioners arguments reveals that it interprets the third paragraph of Section 5, Rule 114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the determination of whether any of the five bail-negating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending appeal. Petitioners theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its "discretion" into merely filling out the checklist of circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment exceeding six years. In short, petitioners interpretation severely curbs the discretion of the appellate court by requiring it to determine a singular factual issue whether any of the five bail-negating circumstances is present. However, judicial discretion has been defined as "choice." 28 Choice occurs where, between "two alternatives or among a possibly infinite number (of options)," there is "more than one possible outcome, with the selection of the outcome left to the decision maker."29 On the other hand, the establishment of a clearly defined rule of action is the end of discretion. 30 Thus, by severely clipping the appellate courts discretion and relegating that tribunal to a mere fact-finding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years, petitioners theory effectively renders nu gatory the provision that "upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary."

The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the applicable law on the matter.31 In view of the grave caution required of it, the court should consider whether or not, under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed.32 It should also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and reputation of the applicant,33 among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate court.34 In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and merely intended for delay but presents a fairly debatable issue.35 This must be so; otherwise, the appellate courts will be deluged with frivolous and time-wasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with the very strong presumption on appeal that the lower courts exercise of discretionary power was sound,36 specially since the rules on criminal procedure require that no judgment shall be reversed or modified by the Court of Appeals except for substantial error.37 Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies the expressio unius est exclusio alterius38 rule in statutory construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to be exclusive. The provision categorically refers to "the following or other similar circumstances." Hence, under the rules, similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail pending appeal. Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result from adopting petitioners interpretation that, where the penalty imposed by the trial

court is imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where the penalty imposed is more than six years imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions. Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses, compared to those convicted of less serious crimes? Petitioners Theory Deviates from History And E volution of Rule on Bail Pending Appeal Petitioners interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal. The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure: Sec. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment by a municipal judge and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right. Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court. Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Sec. 4. Capital offense, defined. A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied) The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows: The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the following policies concerning the effectivity of the bail of the accused, to wit: 1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application

for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended; 2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied; 3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional liberty, the following rules are laid down: 1) This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court; 2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal; 3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of

Court as he shall be deemed to have jumped his bail. (emphasis supplied) Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said rules as follows: SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of this Rule. (3a) SECTION 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, under conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n) SECTION 6. Capital offense, defined. A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4) SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. (emphasis supplied) The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now. The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong reasons. The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of First Instance (predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before final conviction in trial courts for non-capital offenses or offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.39 The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary.

Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail. A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it reiterated the "tough on bail pending appeal" configuration of Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final conviction.40 Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited. Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant of bail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances under the third paragraph of Section 5, Rule 114 is present? The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where our original constitutional and procedural provisions on bail emanated.41 While this is of course not to be followed blindly, it nonetheless shows that our treatment of bail pending appeal is no different from that in other democratic societies. In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion particularly with respect to extending bail should be exercised not with laxity but with caution and only for strong reasons.42 In fact, it has even been pointed out that "grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5."43

Furthermore, this Court has been guided by the following: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.44 (emphasis supplied) As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals45 (promulgated in 2001 when the present rules were already effective), that denial of bail pending appeal is "a matter of wise discretion." A Final Word Section 13, Article II of the Constitution provides: SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x (emphasis supplied)1avvphi1 After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.46 From then on, the grant of bail is subject to judicial discretion. At the risk of being repetitious, such discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial courts initial determination that the accused should be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the trial court and appellate review. In addition, at the

post-conviction stage, the accused faces a certain prison sentence and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system and court processes. WHEREFORE, the petition is hereby DISMISSED. The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with dispatch. Costs against petitioner. SO ORDERED. A.M. No. RTJ-97-1387 September 10, 1997 FLAVIANO B. CORTES, complainant, vs. JUDGE SEGUNDO B. CATRAL, Regional Trial Court, Branch 7, Aparri, Cagayan, respondent. RESOLUTION ROMERO, J.: Once again, the Court is asked to elucidate on the rules in the grant of the application for bail. A sworn letter complaint was filed by Flaviano Cortes charging Judge Segundo B. Catral of the RTC of Aparri, Cagayan with Gross Ignorance of the Law committed as follows: 1. He granted bail in murder cases without hearing: People v. Duerme, et al., Criminal Case No. 07-893 for murder and People v. Rodrigo Bumanglag, Criminal Case No. 08-866 for murder

These two cases are like the case of Teresita Q. Tucay V. Judge Roger Domagas, 242 SCRA 110 being classified as heinous crimes there (sic) are supposedly unbailable; 2. On May 3, 1995, Barangay Captain Rodolfo Castaneda's Criminal Case No. 11-6250 for Illegal Possession of Firearm was raffled and assigned to his sala. The provincial prosecutor granted a bailbond of P180,000.00 but it was reduced by Judge Segundo Catral for only P30,000.00. The worst part of it no hearing has been made from 1995 to the present because according to his clerks, he is holding it in abeyance. This Barangay Captain Rodolfo Castaneda is one of the goons of Julio "Bong" Decierto his nephew who has a pending murder case; 3. Another Barangay Captain Nilo de Rivera with a homicide case was granted with a bailbond of P14,800.00 by Judge Segundo Catral. The amount is too low. It is because this Nilo de Rivera is another goon of Julio Bong Decierto; 4. Jimmy Siriban the right hand man of Julio "Bong" Dicierto was sued for concubinage and convicted by Judge Herminio del Castillo in MTC. Jimmy Siriban appealed and it was elevated to the RTC Branch 08, the sala of Judge Segundo Catral. Judge Segundo Catral acquitted Jimmy Siriban, rumors in Aparri spread that the wife of Judge Segundo Catral went to Jimmy Siriban's house to get the envelope; 1 In his comment dated August 16, 1996, respondent judge branded the complainant as a "self anointed concern (sic) citizen" of Aparri, Cagayan who has gained notoriety as a character assasinator, a public nuisance and most often called speaker for hire during election time. Respondent further laments that "a 'ghost lawyer' is taking advantage of the notoriety of Mr. Flaviano Cortes by manipulating him like a robot and letting him loose like a mad dog barking on the wrong tree and biting everybody including the other members of the bench." 2

With regard to the first charge, respondent judge, in his comment, clarified that Criminal Case No. 07-893 is the case of People v. Willie Bumanglag v. Magno for frustrated homicide pending in Branch 7 of the Regional Trial Court of Aparri where the presiding judge is Hon. Virgilio Alameda. However, if the complainant is referring to Ahmed Duerme y Paypon, et al., Criminal Case No. 874 3 for murder pending in Branch 7 of the RTC where respondent was then designated as presiding judge, respondent stresses that the provincial prosecutor recommended P200,000.00 as bailbond for each of the accused. Subsequently, in a motion for reduction of bailbond, the resolution of the motion was submitted to the sound discretion of the court. The court, "mindful of the fact that the prosecution is banking on weak circumstantial evidence and guided by the factors prescribed in Section 9 of Administrative Circular 12-94 4 issued an order for reduction of the bailbond from P200,000.00 to 50,000.00." 5 In the case of People v. Rodrigo Bumanglag, Criminal Case 08-866 for murder, the inquest judge issued a warrant of arrest for the accused with no bail recommended. When the case was elevated to the Regional Trial Court upon information filed by the provincial prosecutor, the information made no mention of a bailbond. In the hearing of, the petition to determine whether or not the evidence of guilt is strong, the fiscal opted not to introduce evidence and recommended bail in the sum of P200,000.00 instead. Respondent judge "acting on the said recommendation and again guided by the provision of Section 9, Administrative Circular 12-94 in conjunction with the evidence extant on the record approved the recommendation of Prosecutor Apolinar Carrao." 6 A duplicate copy of trial prosecutor Apolinar Carrao's letter dated September 3, 1996 addressed to the provincial prosecutor Romeo Sacquing was presented by the respondent to disprove the accusation that he granted bail to the accused without conducting any hearing. 7 As regards the third charge concerning the illegal possesion of firearm against Barangay Captain Rodolfo Castaneda, the bailbond recommended by the prosecutor was P180,000.00. Accused, through counsel Atty. Bulseco, filed a motion for reduction of the bailbond to P30,000.00. Counsel even vouched and guaranteed the appearance of the accused in court, whenever required. The motion for reduction of bailbond was submitted without serious opposition and the prosecutor "mindful perhaps that there is no corpus of the crime as no firearm was caught or taken from the possession of the accused merely submitted the same to the discretion of the court." 8

In Criminal Case No. 08-915 concerning a homicide case against Barangay Captain Nilo de Rivero, respondent judge says that the bailbond of P14,800.00 was recommended by the acting Officer-In-Charge (OIC) as contained in his manifestation accompanying the information. 9 Respondent judge then "acting on the recommendation of the OIC provincial prosecutor and mindful of the guidelines in fixing a reasonable amount of bailbond coupled by the fact that the evidence on record is merely circumstantial and there was no eyewitness to the commission of crime granted bailbond in the sum of P14,800.00." 10 Finally, respondent judge says the accusation regarding the acquittal of one Jimmy Siriban is simply the product of a dirty imagination and is a dirty trick intended to defame the name of his family by rumor mongers who are unwilling to come out in the open to substantiate their accusation. On September 9, 1996, respondent submitted his additional comment dated September 5, 1996 informing the Office of the Court Administrator that Criminal Case No. 07-784, referred to in the letter complainant (sic) of Mr. Flaviano Cortes, has already been dismissed by Judge Virgilio Alameda, RTC, Branch 07, Aparri Cagayan, in his order dated August 16, 1996. 11 Respondent judge stresses that, as can be gleaned from the penultimate paragraph of said order, the accused, despite reduction of their bailbonds, remained detention prisoners because of their failure to post bond. In his original comment, respondent stated, among others, that the evidence against the accused in Criminal Case No. 07-874 was based on weak circumstantial evidence which prompted the court to grant them a reduced bailbond of P50,000.00. Respondent judge noted that the complaining witnesses never appeared despite the fact that the case had been set for hearing several times. The Office of the Court Administrator recommended the dismissal of the complaint saying that there is nothing in the allegations of the complainant that would warrant the imposition of administrative sanction against respondent judge. In recommending the dismissal of the complaint against respondent judge, the Office of the Court Administrator noted, ". . . complainant failed to show any indication that bad faith motivated the actuation of the respondent in granting and reducing the amount of bail of the accused in some of the criminal cases that were assigned in his sala. . . . it is crystal clear that the increase or reduction of bail rests in the sound discretion of the court depending upon the

particular circumstances of the case. It should be noted further that the reduction in the amount of bail of the accused in the criminal cases in question were all done by the respondent with the knowledge and conformity of the Public Prosecutor concerned. Moreover, the actions taken by the respondent were in the exercise of judicial discretion that may not be assailed in an administrative proceedings (sic)." 12 We do not agree. Bail is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. It is awarded to the accused to honor the presumption of innocence until his guilt is proven beyond reasonable doubt, and to enable him to prepare his defense without being subject to punishment prior to conviction. 13 Bail should be fixed according to the circumstances of each case. The amount fixed should be sufficient to ensure the case presence of the accused at the trial yet reasonable enough to comply with the constitutional provision that bail should not be excessive. 14 Therefore, whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant's character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. 15 When a person is charged with an offense punishable by death, reclusion perpetua or life imprisonment, bail is a matter of discretion. Rule 114, Section 7 of the Rules of Court states: "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action." Consequently, when the accused is charged with an offense punishable by death, reclusion perpetua or life imprisonment, the judge is mandated to conduct a hearing, whether summary or otherwise in the discretion of the court, not only to take into account the guidelines set forth in Section 9, Rule 114 of the Rules of Court, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused. A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is

practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered or admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination. 16 Respondent judge, in two instances, granted bail to an accused charged with murder, without having conducted any hearing as to whether the evidence of guilt against the accused is strong. In the case of People v. Ahmed Duerme y Paypon, at el., Criminal Case No. 874, accused Ahmed Duerme together with four other persons were charged with the crime of murder. The provincial prosecutor recommended the sum of P200,000.00 as bailbond for each accused. 17 The records do not reveal whether a hearing was actually conducted on the application for bail although respondent judge implies that there was one, stating that "acting on this recommendation of the provincial prosecutor and taking into account the guidelines prescribed in Section 9 of Administrative Circular 12-94, the court issued a warrant of arrest and fixed the amount of P200,000.00 for the provisional liberty of each of the accused." 18 Subsequently, counsel for accused Ahmed Duerme filed a motion for reduction of bail. The "hearing" of the motion was conducted on August 21, 1995 with the prosecution, not having interposed any opposition, and submitting the resolution of the motion to the sound discretion of the court instead. Respondent judge then issued an order granting a reduced bailbond of P50,000.00 for accused Ahmed Duerme inasmuch as "the evidence was not so strong to warrant the fixation of said amount." 19 Respondent judge, in his comment, disclosed that the prosecution was banking on weak circumstantial evidence since there was no eyewitness to the commission of the offense as borne out from the affidavits and sworn statements of the prosecution witnesses. 20 The order granting the reduced bailbond, however, did not contain a summary of the evidence for the prosecution. 21

In the case of People v. Rodrigo Bumanglag, Criminal Case No. 08-866, accused Bumanglag was charged with murder in a criminal complaint filed before the Municipal Trial Court of Sta. Ana, Cagayan. After conducting a preliminary investigation, the inquest judge issued a warrant of the arrest for the accused with no bail recommended. When the case was elevated to the Regional Trial Court, the information made no mention of a bailbond. Consequently, accused through counsel filed a petition for bail. In the hearing of the petition to determine whether or not the evidence of guilt against the accused was strong, the fiscal opted not to introduce evidence and recommended the sum of P200,000.00 instead. 22 Respondent judge, "acting on said recommendation and again guided by the provision of Section 9, Administrative Circular 12-94 in conjunction with the evidence extant on record," issued an order granting bail to the accused in the sum of P200,000.00. 23 Unable to post the said bond, accused through counsel filed a motion to reduce bail. 24 In the course of the hearing of the petition, the public prosecutor manifested that he had no objection to the sum of P50,000.00 as bail for the accused. Respondent judge, then "guided by the factual setting and the supporting evidence extant on record" 25 reduced the bail bond from P200,000.00 to P50,000.00 as recommended by the prosecutor. Once again, the order granting the bail of P200,000.00, as well as the reduced bail bond of P50,000.00, did not contain a summary of the evidence presented by the prosecution. Respondent judge insists that in the aforecited cases, a hearing was actually conducted on the application and motion for reduction of bail, but the public prosecutor opted not to introduce evidence and submitted the resolution of the petition, as well as the motion for reduction of bail, to the sound discretion of the court instead. Respondent observed that since it is a basic principle of procedure that the prosecution of criminal cases is under the direct control and supervision of the fiscal or prosecutor, would it be procedurally proper for the court to compel prosecutor Apolinar Carrao, the public prosecutor assigned in the case of People v. Rodrigo Bumanglag, Criminal Case No. 08-866, to prove the evidence of guilt of the accused for the crime of murder when the prosecutor candidly admitted in open court that in his honest view, the strength of evidence on hand for the state can only prove the crime of homicide and not murder? 26 In the recent case of Inocencio Basco v. Judge Leo M. Rapatalo, 27 this Court ruled that ". . . the judge is mandated to conduct a hearing even in cases where

the prosecution chooses to just file a comment or leave the application of bail to the sound discretion of the court. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. The importance of a hearing has been emphasized in not a few cases wherein the court ruled that, even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it against the accused." The reason for this is plain. Inasmuch as the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, it may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, 28 it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce evidence in his own rebuttal. 29 Respondent judge justifies the grant of bail in the two cases by stating that the prosecutor recommended the grant of bail. Respondent also added that in the case of People v. Ahmed Duerme, there were no eyewitnesses to the commission of the offense as borne out from the affidavits and sworn statements of the witnesses. 30 As a matter of fact, the case had already been dismissed for failure to prosecute by Judge Alameda inasmuch as the prosecutor himself admitted that there was lack of interest on the part of the witnesses to pursue the case and not a single witness ever went to court to see him. 31 The fact that Criminal Case No. 07-874 was subsequently dismissed by Judge Alameda does not completely exculpate respondent judge. We need only remind him that he is not bound by the recommendation of the prosecutor and the affidavits and sworn statements of the witnesses are mere hearsay statements which could hardly be the basis for determining whether or not the evidence of guilt against the accused is strong. Worth noting, too, is the fact that the order granting the application, as well as the reduction for bail in the aforecited cases, did not contain a summary of the

evidence presented by the prosecution. In Criminal Case No. 07-874, respondent only arrived at the conclusion that "the evidence was not so strong to warrant the fixation of said amount" 32 and the observation that: "When the hearing of this petition was called, some legal skirmishes arose between the Prosecutor and the Defense Counsel, after which, the prosecutor out of humanitarian reason yielded and manifested that he is amenable that the accused be admitted to bail in the amount of P200,000.00" in Criminal Case No. 08-866. 33 Well settled in a number of cases 34 is the rule that the court's order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judge's evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. The procedural lapse of respondent judge is aggravated by the fact that even though the accused in Criminal Case No. 07-874, People v. Ahmed Duerme, have yet to be arrested, respondent already fixed bail in the sum of P200,000.00. Respondent evidently knew that the accused were still at large as he even had to direct their arrest in the same order where he simultaneously granted them bail. 35 At this juncture, there is a need to reiterate the basic principle that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty 36 and it would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed. With regard to the third charge filed against respondent judge, we adopt the findings of the Office of the Court Administrator that the complainant failed to show that bad faith motivated the actuation of respondent judge in reducing the amount of bail in Criminal Case No. 11250 for Illegal Possession of Firearm against Barangay Captain Rodolfo Castaneda. Respondent judge, in granting and subsequently reducing the recommended bailbond of P180,000.00 considered the fact that there was no corpus of the crime as no firearm was taken from the possession of the accused, as well as the fact that counsel for the accused vouched and guaranteed the appearance of the accused in court whenever required. 37 Moreover, records show that, contrary to the allegations of the complainant, the trial of the case had already been set for hearing but on more than one occasion, the defense counsel, as well as the prosecutor, both moved to have it reset. 38

In Criminal Case No. 08-915 for homicide filed against accused Nilo de Rivera, complainant alleges that the amount of P14,800.00 granted by respondent as bailbond of the accused is too low. Respondent judge stresses that the amount was recommended by the prosecutor and not motu proprio by the trial court. Respondent added that the amount of bail was appropriate inasmuch as it was fixed in accordance with the guidelines set forth in Section 9 of Administrative Circular 12-94. As long as in fixing the amount of bail, the court is guided by the purpose for which bail is required, that is, to secure the appearance of the accused to answer charges brought against him, the decision of the court to grant bail in the sum it deems appropriate will not be interfered with. With respect to the last charge, we adopt the findings of the Office of the Court Administrator that there is nothing in the record to substantiate the allegation of the complainant that the acquittal of a certain Jimmy Siriban by respondent judge was tainted with irregularity. Other than his bare allegation, complainant has yet to present evidence as to any irregularity committed by respondent judge in acquitting Mr. Siriban. In sum, we find respondent Judge Segundo B. Catral guilty of gross ignorance of the law for having granted bail to the accused in Criminal Cases No. 07-874 and 08-866 without having conducted the requisite hearing. It is indeed suprising, not to say, alarming, that the Court should be besieged with a number of administrative cases filed against erring judges involving bail. After all, there is no dearth of jurisprudence on the basic principles involving bail. As a matter of fact, the Court itself, through its Philippine Judicial Academy, has been including lectures on the subject in the regular seminars conducted for judges. Be that as it may, we reiterate the following duties of the trial judge in case an application for bail is filed: 1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling

the court to exercise its sound discretion; (Sections 7 and 8, supra). 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Section 19, supra) Otherwise petition should be denied. 39 With such succinct but clear rules now incorporated in the Rules of Court, trial judges are enjoined to study them well and be guided accordingly. Admittedly, judges cannot be held to account for an erroneous decision rendered in good faith, but this defense is much too frequently cited even if not applicable. A number of cases on bail having already been decided, this Court justifiably expects judges to discharge their duties assiduously. For a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles. Faith in the administration of justice can only be engendered if litigants are convinced that the members of the Bench cannot justly be charged with a deficiency in their grasp of legal principles. WHEREFORE, in view of the foregoing, respondent Judge Segundo B. Catral is hereby ORDERED to pay a fine of P20,000.00 with the WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. SO ORDERED. G.R. No. 115407 August 28, 1995 MIGUEL P. PADERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24,

1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family. 3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and

prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him. 4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution. 5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge. 6

Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case. 7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion. 8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred on the

latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free." 12 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements

therefor. 13 Thus, in Feliciano vs. Pasicolan, etc., et al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. 16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. 17 in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said ex-parte motion and the peculiar circumstances obtaining in that incident, the

Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgent ex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. 19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area.

It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof. At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter.
20

In other words, the

motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. 22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment 23 and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. 26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the

evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. 27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. 31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue of this arrangement

that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992. Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out: PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here. PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned

here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT:

Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT: Without presenting any further evidence? PROSECUTOR ABEJO: Yes, Your Honor. 34 It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution. 3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison,
36

the Court, citing

Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it

questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months, 38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same. 39 ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED. G.R. No. L-2508 October 27, 1950 THE PEOPLE OF THE PHILIPPINES, plaintiff -appellee, vs. MAMERTO ABNER, ET AL., defendants. ROBERTO SOLER AND DOMINGO ABELLA, bondsmen-appellants. PARAS, J.:chanrobles virtual law library In a complaint signed by Lt. Fernando G. Regino, P. A., with the heading "In the Justice of the Peace Court of Tinambac, Camarines Sur," Mamerto Abner was charged, with others, with robbery in band with rape committed in the municipality of Tinambac, Province of Camarines Sur. Upon motion of the

assistant provincial fiscal of September 6, 1946, alleging that the justice of the peace of Tinambac was absent and the municipal mayor refused to receive the complaint, the Court of First Instance of Camarines Sur directed the Justice of the Peace of Naga, the capital, to conduct the necessary preliminary investigation. Mamerto Abner was thereafter admitted to bail and the herein appellants, Roberto Soler and Domingo Abella, executed the necessary bail bond for P15,000 dated October 4, 1946, and approved by the Justice of the Peace of Naga on the same date. Notwithstanding notice, the accused Abner and his bondsmen failed to appear at the preliminary investigation set for March 26, 1947. On April 2, 1947, Abner, through counsel, filed a petition waiving the right to a preliminary investigation. By order of April 5, 1947, the Justice of the Peace of Naga forwarded the case in respect to Abner to the Court of First Instance of Camarines Sur. On May 8, 1947, the provincial fiscal filed the corresponding information in the Court of First Instance of Camarines Sur. The trial originally set for November 25, 1947, was postponed to January 16, 1948, but upon motion of appellants, the trial was set for March 2, 1948. On February 28, 1948, the appellants filed a motion for another extension of thirty days within which to produce the body of Abner, which was granted, and the trial was again postponed to March 29, 1948. On this date, Abner and the appellants failed to appear. The provincial fiscal accordingly filed a petition for the confiscation of the bail bond executed by the herein appellants, and the same was granted by the Court of First Instance of Camarines Sur in its order of March 31, 1948. From this order the bondsmen appealed.chanroblesvirtualawlibrarychanrobles virtual law library have

Appellants contend that the court of first instance did not acquire jurisdiction, because no complaint was filed in the Justice of Peace Court of Tinambac, and reliance is placed on the allegation of the fiscal, in his motion of September 6, 1946, that the complaint signed by Lieutenant Regino was not so filed in view of the absence of the justice of the peace and the refusal of the municipal mayor of Tinambac to receive said complaint. It appears, however, that the bond executed by the appellants on October 4, 1946, contained the following recital: "A complaint having been filed on September 17, 1946 in the justice of the Peace Court of Tinambac, Camarines Sur .." This admission, which is subsequent to the motion of the fiscal of September 6, 1946, is inconsistent with appellants' contention. Moreover, the proceedings had before the Justice of the Peace of Naga and the Court of First Instance of Camarines Sur, in relation to the measures taken by the appellants prior to the confiscation of their bond, carry the implication that the complaint was duly filed. The

presumption that official duty was performed has not been destroyed. Although the Justice of the peace has jurisdiction to conduct preliminary investigations only of offenses committed within his municipality, the justice of the peace of the provincial capital, when, as in the case at bar, directed by the court of the first instance, may conduct such preliminary investigation of any offense committed anywhere within his province. (Sec. 2, Rule 108, Rules of Court.)chanrobles virtual law library It appears that the bond in question was not signed by the accused Abner as principal; and it is contended by the appellants that it is accordingly void. Section 1, Rule 110, of the Rules Court, provides that "bail is the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." Under this, there are two methods of taking bail: (1) by bail bond and (2) by recognizance. A bail bond is an obligation given by the accused with one or more sureties, with the condition to be void upon the performance by the accused of such acts as he may legally be required to perform. A recognizance is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. (Moran, Comments on the Rules of Court, 2d ed., Vol. II, page 592.) In U. S. vs. Sunico et al., 48 Phil., 826, 834, this court, citing Lamphire vs. State, 73 N. H., 462; 62 Atl., 786; 6 Am. & Eng. Ann. Cas., 615, defined a recognizance as "a contract between the sureties and the State for the production of the principal at the required time." The bail bond executed by the appellants, though so denominated, is essentially a recognizance, an "obligation" contracted with the State by the appellants, not requiring as an indispensable condition for its validity, the signature of the accused. In addition, under the circumstances of this case, the appellants were estopped from assailing the effectiveness of their bail contract. If, as contended by appellants, it would be difficult, without the accused Abner having signed as principal, for them to obtain indemnity from or to have power and control over him, They are solely to blame. Neither is there merit in the argument that the obligation of appellants under the bond is merely to pay P15,000 in case the accused should fail to pay that amount, because the latter, who has not signed it, is of course not bound thereby.chanroblesvirtualawlibrarychanrobles virtual law library

Appellants allege that the Government had launched a campaign for the capture of Abner, dead or alive, as a result of which he is forced to remain in hiding. Thus the appellants are allegedly unable to produce him in court, due to an act of the Government. In the order of the trial court denying appellants' motion for reconsideration, however, it is recited that "if the government launched the campaign against Abner and his followers in Tinambac and Partido during the months of July up to, December, 1947, it was because Mamerto Abner and his gang have turned out brigands who threatened to disturb the peace and tranquillity of the people in that part of the Province of Camarines Sur." Hence the alleged search for Abner was motivated by his own voluntary act and cannot, therefore, be invoked by appellants. (U. S. vs. Sunico, supra.)chanrobles virtual law library The appealed order is affirmed with costs against the appellants. So ordered.chanroblesvirtualawlibrarychanrobles virtual law library Moran, Bengzon, C. J., Pablo, Tuason, Montemayor and Reyes, JJ., concur. chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library Separate Opinionschanrobles virtual law library chanrobles virtual law library FERIA, J., concurring:chanrobles virtual law library I concur in the decision with the following modification in connection with the necessity of defendant's signature in his bail bond.chanroblesvirtualawlibrarychanrobles virtual law library A bail bond in criminal cases is an obligation subscribed, not by the accused, but by two or more sureties for the release of the defendant who is in the custody of the law, conditioned upon that the latter will appear before any court in which his appearance may be required. It is not different from recognizance, and for that reason Rule 110 of the Rules of Court uses the word bail bond and recognizance interchangeably. That the law does not require that the bail be subscribed or signed by the accused is shown by the provisions of section 9

which require that, "in case there are only two sureties, each must be worth the amount specified in the undertaking over and above all just debts etc."; by section 15 which provides that, when the appearance of the defendant is required by the court, his sureties, and not the accused, shall be notified to produce him or a given date in compliance with their obligation stipulated in the bail bond. And if the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty days within which to produce the accused, and to show cause why a judgment shall not be rendered against them for the amount of their bond; and "failing in these two requisites, a judgement shall be rendered against the bondsmen" (not against the accused); by section 17 which provides that, "for the purpose of surrendering the defendant, that bailors may arrest him, or on a written authority endorsed on a certified copy of the undertaking may cause him to be arrested" and specially by the form or bail bond found in General Order No. 58, which has not been modified or repealed by the Rules of Court. (Bandoy vs. Judge of First Instance of Laguna 14 Phil., 620, 625.) G.R. No. 153675 April 19, 2007 GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion

amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan , Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in

fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested

can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order. First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations. 11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14 But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D.

No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. 15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into

with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED. G.R. NO. 153979 February 6, 2006

REGINO SY CATIIS, Petitioner, vs. COURT OF APPEALS (17th Division), REYNALDO A. PATACSIL, ENRICO D. LOPEZ,LUZVIMINDA A. PORTUGUEZ and THE BUREAU OF JAIL MANAGEMENT AND PENOLOGY, NATIONAL CAPITAL REGION, MAKATI CITY JAIL, THROUGH ITS OFFICER-IN-CHARGE WARDEN, CHIEF INSP. ISAGANI M. GAMINO, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari filed by Regino Sy Catiis (petitioner) seeking to nullify the Decision1 dated June 14, 2002 of the Court of Appeals (CA) which sustained the Order dated December 18, 2001 of the Regional Trial Court, Branch 96, Quezon City,2 allowing private respondents to post bail and the Order dated December 21, 2001 of the Executive Judge of the same court3 approving the surety bond posted by respondents and their release. Petitioner filed a letter-complaint dated May 28, 2001 against private respondents Reynaldo A. Patacsil, Enrico D. Lopez, Luzviminda A. Portuguez and a certain Margielyn Tafalla before the Office of the City Prosecutor of Quezon City, for violation of Art. 315, No. 2(a) of the Revised Penal Code in relation to Presidential Decree No. 1689 (syndicated estafa) and other related offenses. The complaint was docketed as I.S. No. 01-10686. Private respondents, except for Tafalla, filed their joint counter-affidavits denying the charges against them. On October 10, 2001, Assistant City Prosecutor Alessandro D. Jurado issued a Resolution4 finding the existence of a probable cause for syndicated Estafa against private respondents and Tafalla with no bail recommended. The Resolution was approved by City Prosecutor Claro A. Arellano. An Information was filed on the same day by Prosecutor Jurado against private respondents and Tafalla before the Regional Trial Court of Quezon City and raffled off to Branch 96, which reads: The undersigned accuses REYNALDO A. PATACSIL, ENRICO D. LOPEZ, LUZVIMINDA A. PORTUGUEZ and MARGIELYN TAFALLA, of the crime of

Estafa under Article 315, paragraph 2(a) of the Revise Penal Code in relation to P.D. 1689, committed as follows: That on or about the 3rd week of January 2000 or subsequent thereto in Quezon City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another in a syndicated manner consisting of five (5) or more persons through corporations registered with the Securities and Exchange Commission (SEC) and/or unregistered foreign entities with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there willfully, unlawfully and feloniously defraud REGINO SY CATIIS and several other persons in the following manner, to wit: by falsely or fraudulently pretending or representing, in a transaction or series of transactions, which they made with the Complainant and the public in general to the effect that they were in a legitimate business of foreign exchange trading successively or simultaneously operating under the following name and style of Asia Profits Philippines, Incorporation, Winggold Management Philippines Incorporated, Belkin Management Consultancy, Inc. and/or Belkin Profits Limited or other unregistered foreign entities induced and succeeded in inducing complainant and several other persons to give and deliver and in fact, the latter and said persons gave and delivered to said accused the amount of at least US$ 123,461.14 or its equivalent in Philippine Pesos on the strength of said manifestations and representations, the accused knowing fully well that the above-named corporations registered with the SEC and/or those unregistered foreign entities are not licensed nor authorized to engage in foreign exchange trading corporations and that such manifestations and representations to transact in foreign exchange were false and fraudulent that resulted to the damage and prejudice of the complainant and other persons and that the defraudation pertains to funds solicited from the public in general by such corporations/associations.5 On November 7, 2001, Judge Lucas P. Bersamin issued an Order finding probable cause against all the accused and approved the recommendation of the City Prosecutor that the charge be non-bailable. The corresponding warrants of arrest were issued.6 A return7 on the warrant of arrest was made by PO3 Joselito M. Coronel, PNP Criminal Investigation and Detection Group, Camp Crame, Quezon City, with

the information that except for Margielyn Tafalla, who remained at large, all other accused were already detained at the Makati City Jail. On November 12, 2001, a notice of hearing was issued by Judge Bersamin setting the case for arraignment on November 20, 2001. Private respondents on the same day filed an urgent motion to fix bail. On November 20, 2001, private respondents, when arraigned, entered pleas of not guilty. The Prosecution was required to file their comment/opposition on private respondents motion to fix bail which they did through the Private Prosecutor with the conformity of Assistant City Prosecutor Arthur O. Malabaguio.8 On December 18, 2001, Judge Bersamin issued an Order reconsidering his earlier Order of November 7, 2001 by declaring that the offense charged is bailable. In finding that the accused are entitled to bail, Judge Bersamin made the following disquisitions: xxx In order to impose the penalty of life imprisonment to death under Sec. 1, P.D. No. 1689, the estafa or swindling must be committed by a syndicate. The law plainly states that a syndicate consists of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise, or scheme, and the defraudation results in the misappropriation of money or of funds solicited by corporations/associations from the general public. Herein, only four persons are actually charged. Consequently, the estafa charged has no relation to the crime punished with life imprisonment to death under Sec. 1, Presidential Decree No. 1689. The allegation of the information that the accused conspired with each other "in a syndicated manner consisting of five (5) or more persons through corporations registered with the Securities and Exchange Commission (SEC) and/or unregistered foreign entities with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme" cannot change the juridical nature of the offense charged. If the Government has chosen to indict only four persons, without more, the obvious reason is that only the persons actually charged were involved in the commission of the offense. As such, there was no syndicate.

In all likelihood, the allegation of "in a syndicated manner consisting of five (5) or more persons" is made herein solely for having bail denied. Whether that is true or not is beside the point, but the Court cannot now lend itself to such a likelihood which, according to the foregoing disquisition, lacks legal basis. For that matter, the Court must recant its approval of the recommendation to deny bail. The Prosecution represents that the Supreme Court has affirmed in People vs. Romero a conviction under Presidential Decree No.1689 "even if the accused charged is only less than five (5) accused." Such representation is grossly misleading. Far to the contrary, in People v. Romero, where two accused were actually charged but only one was ultimately penalized due to the death of the other accused during the pendency of the case, the Supreme Court did not impose the higher penalty of life imprisonment to death because the Prosecution "failed to clearly establish that the corporation was a syndicate, as defined under the law," holding, instead, that, since the crime was not committed by a syndicate, the proper penalty is that provided in the second paragraph of Sec.1, P.D. No. 1689, to wit: When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000.00 pesos. Yet, one should ask: Where, as here, the amount alleged in the information clearly "exceeds 100,000.00 pesos" such that the second paragraph of Sec. 1, P.D. No. 1689, is applicable, is the offense still bailable considering that the range of the imposable penalty is from reclusion temporal to reclusion perpetua? The answer is in the affirmative. Under Rule 110, 2000 Rules of Criminal Procedure, the Information should aver, among others, the qualifying and aggravating circumstances of the offense "in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstance and for the court to pronounce judgment."

A perusal of the information discloses that no aggravating circumstance has been alleged in the information. The omission consequently precludes the State from proving any aggravating circumstance which will raise the penalty to its maximum period of reclusion perpetua. The Court itself is also prohibited from imposing reclusion perpetua, since the requirement of complete allegations of the particulars in the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense pursuant to the due process clause of the Constitution. As stated in People v. Romero, supra, the penalty under the second paragraph of Sec.1, P.D. No. 1689, when there is neither mitigating or aggravating circumstance attendant, is the medium period of reclusion temporal, that is from sixteen (16) years and one (1) day to twenty (20) years. Hence, the offense charged is unquestionably bailable.9 On December 26, 2001, petitioner filed with the CA a petition for certiorari with prayer for temporary restraining order and/or writ of preliminary injunction10 assailing the Order of Judge Bersamin allowing private respondents to post bail. On the same day, then Associate Justice Romeo J. Callejo Sr.,11 Justice on Duty Per Office Memorandum of Presiding Justice, issued a Resolution 12 granting petitioners prayer for the issuance of a temporary restraining order, thus, private respondents and all those acting for and in their behalf were temporarily restrained from enforcing and implementing the Order of Judge Bersamin and from further proceeding in Criminal Case No. 01-105430. However, unknown to petitioner, private respondents had already filed or posted their surety bonds on December 21, 2001 with the Office of Executive Judge Monina A. Zenarosa13 who approved the same on the same day and ordered the immediate release of private respondents unless held for other lawful cause.14 Petitioner filed a supplemental petition with the CA on January 14, 2002 assailing the jurisdiction of Judge Zenarosa in issuing the Order dated December 21, 2001. On June 14, 2002, the CA issued its assailed decision denying due course to the petition and dismissed the same after it found no grave abuse of discretion

committed by Judge Bersamin and Judge Zenarosa in issuing the assailed orders. Hence, the instant petition filed by petitioner raising the following issues, to wit: A Whether or not the issuance of the questioned Decision promulgated June 14, 2002 by the 17th Division of the Court of Appeals sustaining the validity of the 1st assailed Order dated December 18, 2001 of Hon. Presiding Judge Lucas P. Bersamin of Branch 96 of the Regional Trial Court of Quezon City ruling that there should be at least five (5) persons that must be charged under Section 1, Presidential Decree No. 1689 is not in accordance with law or with applicable decisions of this Honorable Supreme Court. B Whether or not the questioned Decision sanctioning the grant of bail in the 1st assailed Order dated December 18, 2001 of Hon. Presiding Judge Lucas P. Bersamin of Branch 96 of the Regional Trial Court of Quezon City violated Section 7, Rule 114 of the Revised Rules of Criminal Procedure and actually departed from the accepted and usual course in the determination of bailability of criminal offenses. C Whether or not the questioned Decision sustaining the order of release in the 2nd assailed Order dated December 21 of Hon. Executive Judge Monina A. Zenarosa of the Regional Trial Court of Quezon City violated Section 17, Rule 114 of the Revised Rules of Criminal Procedure15 Anent the first issue, petitioner contends that under Section 1 of P.D. No. 1689, the term "any person" must be understood and read in its singular meaning so that even only one person can be indicted for committing "estafa or other forms of swindling" in relation to P.D. No. 1689 citing the case of People v. Romero; that Judge Bersamin erred when he already computed the possible penalty in case of private respondents conviction; that the capital nature of an offense for the purpose of bailability is determined by the penalty prescribed by law, not by penalty which may actually be imposed since the latter requires a

consideration of the evidence on trial; that since no evidence had yet been presented by both prosecution and defense, Judge Bersamin has again shown bias by already computing the imposable penalty just to stretch the application of the law and questionably grant bail in favor of private Respondents. We are not persuaded. The CA found that the assailed order of Judge Bersamin cannot be characterized as one issued with grave abuse of discretion for he correctly determined that the Information did not charge a syndicated Estafa; that with only four charged in the information, it could not be considered as committed by a syndicate which must consist of five or more persons and he cannot be faulted for that. Section 1 of P.D. No. 1689, increasing the penalty for certain forms of swindling or estafa, provides: SECTION 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks cooperatives, "samahang nayon(s)," or farmers associations, or of funds solicited by corporations/associations from the general public. When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos. Clearly, P.D. No. 1689 penalizes offenders with life imprisonment to death regardless of the amount involved, provided that a syndicate committed the crime. A syndicate is defined in the same law as "consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme." Under the second paragraph, it is provided that if the offenders are not members of a syndicate, they shall nevertheless be held liable for the acts prohibited by the law but they shall be penalized by reclusion temporal to reclusion perpetua if the amount of the fraud is more than P100,000.00.

Petitioners interpretation that the term "any person" in the first paragraph of section 1 could mean that even one person can be indicted for syndicated estafa is contrary to the provision of the law. It bears stressing that the law must be considered as a whole, just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning.16 It is a dangerous practice to base construction upon only a part of a section since one portion may be qualified by the other portion.17 In fact, there is no need for any construction or interpretation of P. D. No. 1689 since the law is clear and free from any doubt or ambiguity. Section 1 of P.D. No. 1689 has defined what constitutes a syndicate and such definition is controlling. Where a requirement is made in explicit and unambiguous terms, no discretion is left to the judiciary. It must see to it that its mandate is obeyed.18 In this case, the Information specifically charged only four persons without specifying any other person who had participated in the commission of the crime charged, thus, based on the definition of syndicate under the law, the crime charged was not committed by a syndicate. We find no reversible error committed by the CA when it upheld the ruling of Judge Bersamin that with only four persons actually charged, the estafa charged has no relation to the crime punished with life imprisonment to death under section 1 of P. D. No. 1689. The wordings in the information that the accused conspired with each other "in a syndicated manner consisting of five (5) or more persons through corporations registered with the Securities and Exchange Commission (SEC) and/or unregistered foreign entities with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme" is not sufficient compliance with the requirements of the law on what constitute a syndicate. It bears stressing that the first paragraph of the accusatory portion of the Information charges only four persons. To repeat, P.D. No. 1689 has provided for the definition of a syndicate and it is controlling. As correctly found by the trial court, if the government has chosen to indict only four persons, without more, the obvious reason is that only the persons actually charged were involved in the commission of the offense, thus, there was no syndicate.1avvphil.net Petitioners reliance in People v. Romero to support his argument is misleading. First, the issue of whether only one person can be indicted for syndicated estafa was not an issue in the Romero case. Secondly, the Court did not impose the penalty of life imprisonment to death on the accused since the

prosecution failed to clearly establish that the corporation was a syndicate as defined under the law. There is no other way of establishing a syndicate under P.D. No. 1689 than by the adherence to the definition provided by law. Since the crime charged was not committed by a syndicate as defined under the law, the penalty of life imprisonment to death cannot be imposed on private Respondents. Judge Bersamin is correct when he ruled that private respondents could only be punished with reclusion temporal to reclusion perpetua in case of conviction since the amount of the fraud exceeds P100,000.00. The next question is, whether Judge Bersamin is correct in finding that the crime charged is bailable despite that the imposable penalty ranges from reclusion temporal to reclusion perpetua? The Court answers in the affirmative. Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, provide: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusations. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. Clearly, it is now a requirement that the aggravating as well as the qualifying circumstances be expressly and specifically alleged in the complaint or information. Otherwise, they cannot be considered by the trial court in their judgment, even, if they are subsequently proved during trial.19 A reading of the Information shows that there was no allegation of any aggravating circumstance, thus Judge Bersamin is correct when he found that the lesser penalty, i.e., reclusion temporal, is imposable in case of conviction.

Section 13, Article III of the Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. Since the imposable penalty on private respondents, in case of conviction, is reclusion temporal, they are entitled to bail as a matter of right. Notably, Judge Bersamin issued his Order finding the crime charge bailable and fixed the amount of P150,000.00 each for the provisional liberty of private respondents only after petitioner had submitted their comment/opposition to petitioners motion to fix bail. Petitioner claims that the Order of Judge Bersamin allowing private respondents to post bail already prejudged the case; that he summarily decided the eventual and imminent dismissal of the criminal case without even the reception of evidence; that such prejudgment came from a ruling on a mere issue of bail. Such argument is baseless. The Order was issued on the basis that the allegations in the Information do not establish that the crime charged was committed by a syndicate as defined under the law where the penalty of life imprisonment to death could be imposed. Nowhere in the Order did Judge Bersamin state that the act complained of is not punishable at all. Petitioner next contends that private respondents filing of bail with Executive Judge Monina Zenarosa, other than Branch 96 where the case is pending, is questionable and not in accordance with Section 17, Rule 11420 of the Revised Rules on Criminal Procedure; that the records show that when private respondents filed their bail with Judge Zenarosa, Branch 96 was open and available as private respondents through their representative were able to pay for the issuance of the certifications on the Information and the Order dated December 18, 2001; that petitioners counsel and the Assistant City Prosecutor Arthur Malabaguio had personally received their respective copies of the Order dated December 18, 2001 inside the staff room of Branch 96 and they even attested that Judge Bersamin was physically present on December 21, 2002, the day private respondents filed their bail bond with Judge Zenarosa; that despite these circumstances, Judge Zenarosa still exercised

jurisdiction over the bail filed by private respondents and issued the Order dated December 21, 2001 approving the surety bonds and ordering the release of private respondents; that the CAs justification that Judge Z enarosa accepted the bail bond due to the fact that Judge Bersamin was momentarily out of his office or premises at the time of posting of the bond was not borne by the records. We are not persuaded. Section 17, Rule 114 of the Revised Rules on Criminal Procedure provides that bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. While Branch 96 is open and available on the day private respondents posted their bail with Judge Zenarosa, it does not necessarily follow that Judge Bersamin was available at that precise moment. Although it is alleged in the supplemental petition prepared by petitioners counsel, Atty. Rodeo Nuez, with the conformity of Prosecutor Malabaguio filed before the CA that both of them saw Judge Bersamin discharging his function on that day, it is not under oath. Moreover, it is not specifically stated in the supplemental petition that at the exact time Judge Zenarosa approved the bail, Judge Bersamin was available. Thus, petitioner failed to rebut the presumption that official duty had been regularly performed21 by Judge Zenarosa under the rules. WHEREFORE, the petition for review on certiorari is DENIED. The assailed decision of the Court of Appeals dated June 14, 2002 is AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 137681 January 31, 2002 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. CONRADO R. ANTONA, in his capacity as presiding judge, Regional Trial Court, Branch 4, Batangas City, DANTE FAJARDO, SR., PATERNO DE CASTRO, FILIPINA FAJARDO ARCE, and JOHN DOE, as principals and PIO ARCE, as accomplice, respondents. PARDO, J.:

The Case The case is a special civil action of certiorari with temporary restraining order and change of venue assailing the orders of respondent Judge Conrado R. Antona, granting bail to accused Dante Fajardo Sr., Paterno de Castro, Filipina Fajardo Arce, and John Doe as principals and Pio Arce as complice for murder filed with the Regional Trial Court, Batangas City, Branch 04. The Facts On January 19, 1998, Assistant City Prosecutor Leona Castor Castillo of Batangas filed with the Regional Trial Court, Batangas City, an information charging Dante Fajardo, Sr., Paterno de Castro, Filipina Fajardo Arce, and John Doe, as principals, and Pio Arce, as accomplice, with the murder of Numeriano Comia, Barangay Chairman, Batangas City.1 Subsequently, the case was assigned to respondent judges sala.2 On January 27, 1998, the trial court issued warrants of arrest for accused Fajardo Sr., de Castro, Arce, and John Doe.3 On March 10, 1998, the trial court granted an urgent motion of accused to suspend the efficacy of the warrants of arrest until further orders.4 On March 23, 1998, the prosecution filed a motion for reconsideration of the suspension order. On March 31, 1998, the trial court denied the motion for reconsideration.5 On December 3, 1998, the prosecution filed another motion to lift the suspension of the efficacy of the warrants of arrest. 6 On December 4, 1998, the trial court granted the motion and issued warrants of arrest for all the accused without bail except for Pio Arce, whose bail was fixed at P200,000.00.7 On December 15, 1998, accused Dante Fajardo and Filipina Fajardo Arce, while still at large, filed with the trial court an urgent petition for bail with supplemental motion for reduction of bail for accused Pio Arce, Jr. 8 On December 16, 1998, the trial court did not act on the petition because all the accused were still at large.9

On January 4, 1999, the accused filed with the trial court a motion for the resetting of the hearing of the urgent petition for bail to January 6, 1999. 10 On the same day, the trial court ordered the setting of the urgent petition for bail "subject to the condition that the accused in this case will be voluntarily surrendering to the jurisdiction of the Court per their letter dated December 29, 1998."11 On January 6, 1999, the trial court issued an order allowing the accused pending the petition for bail to be in the custody of the PNP Criminal Detection Group, Camp Crame, Quezon City, instead of custody at the Batangas City Jail.12 On January 12, 1999, the prosecution filed with the trial court an omnibus motion to reconsider the order of custody of accused, to declare the proceedings on the bail hearing null and void, and to ask respondent judge to inhibit from hearing the petition for bail.13 On February 1, 1999, the trial court denied the prosecutions omnibus motion for lack of merit.14 On February 15, 1999, the trial court granted the accuseds petition for bail and fixed their bail at P200,000.00 each.15 On February 25, 1999, respondent judge inhibited himself from further acting on the criminal case.16 Hence, this petition.17 The Issue The issue raised is whether the trial judge acted with grave abuse of discretion in granting bail to the accused. The Courts Ruling We grant the petition. The Revised Rules of Court provides "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action."18 In such case, a hearing, whether summary or

otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong.19 At the hearing, the prosecution has the burden of showing that the evidence of guilt is strong.20 In this case, the trial court scheduled several hearing dates for the petition for bail. The prosecution asked for a reasonable opportunity to present evidence. However, the trial court denied postponement ostensibly to give the accused a speedy trial. Instead, the trial court proceeded to hear the evidence for the defense, despite vigorous objection from the prosecution. From the evidence presented by the defense, respondent judge observed that the crime charged occurred in broad daylight in a place with many stores where people usually converged. Also, accused was a well-known personality in the area. However, respondent judge failed to give the prosecution reasonable time to adduce evidence, and instead, denied postponement but allowed the accused to present witnesses, resulting in a denial to the prosecution of due process of law. A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements.21 "To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process." 22 The prosecution must be given ample opportunity to show that the evidence of guilt is strong.23 The prosecution must be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is exercised in determining whether the evidence of guilt of the accused is strong.24 Indeed, the determination of whether the evidence of guilt is strong is a matter of judicial discretion.25 Though not absolute nor beyond control, the discretion of the trial court must be sound, and exercised within reasonable bounds. 26 Discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after the evaluation of the evidence submitted by the prosecution and the accused. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness.27

"[W]hether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground."28 Hence, in granting the petition for bail without giving the prosecution adequate opportunity to adduce evidence, the trial court acted with grave abuse of discretion. The Fallo WHEREFORE, the Court GRANTS the petition. The Court SETS ASIDE the orders granting bail to accused Dante Fajardo Sr., Paterno de Castro, Filipina Fajardo Arce, and Pio Arce in Criminal Case No. 9309, Regional Trial Court, Batangas City, Branch 04. No costs. SO ORDERED. G.R. No. 137681 January 31, 2002 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. CONRADO R. ANTONA, in his capacity as presiding judge, Regional Trial Court, Branch 4, Batangas City, DANTE FAJARDO, SR., PATERNO DE CASTRO, FILIPINA FAJARDO ARCE, and JOHN DOE, as principals and PIO ARCE, as accomplice, respondents. PARDO, J.: The Case The case is a special civil action of certiorari with temporary restraining order and change of venue assailing the orders of respondent Judge Conrado R. Antona, granting bail to accused Dante Fajardo Sr., Paterno de Castro, Filipina

Fajardo Arce, and John Doe as principals and Pio Arce as complice for murder filed with the Regional Trial Court, Batangas City, Branch 04. The Facts On January 19, 1998, Assistant City Prosecutor Leona Castor Castillo of Batangas filed with the Regional Trial Court, Batangas City, an information charging Dante Fajardo, Sr., Paterno de Castro, Filipina Fajardo Arce, and John Doe, as principals, and Pio Arce, as accomplice, with the murder of Numeriano Comia, Barangay Chairman, Batangas City.1 Subsequently, the case was assigned to respondent judges sala.2 On January 27, 1998, the trial court issued warrants of arrest for accused Fajardo Sr., de Castro, Arce, and John Doe.3 On March 10, 1998, the trial court granted an urgent motion of accused to suspend the efficacy of the warrants of arrest until further orders.4 On March 23, 1998, the prosecution filed a motion for reconsideration of the suspension order. On March 31, 1998, the trial court denied the motion for reconsideration.5 On December 3, 1998, the prosecution filed another motion to lift the suspension of the efficacy of the warrants of arrest. 6 On December 4, 1998, the trial court granted the motion and issued warrants of arrest for all the accused without bail except for Pio Arce, whose bail was fixed at P200,000.00.7 On December 15, 1998, accused Dante Fajardo and Filipina Fajardo Arce, while still at large, filed with the trial court an urgent petition for bail with supplemental motion for reduction of bail for accused Pio Arce, Jr. 8 On December 16, 1998, the trial court did not act on the petition because all the accused were still at large.9 On January 4, 1999, the accused filed with the trial court a motion for the resetting of the hearing of the urgent petition for bail to January 6, 1999. 10 On the same day, the trial court ordered the setting of the urgent petition for bail "subject to the condition that the accused in this case will be voluntarily surrendering to the jurisdiction of the Court per their letter dated December 29, 1998."11

On January 6, 1999, the trial court issued an order allowing the accused pending the petition for bail to be in the custody of the PNP Criminal Detection Group, Camp Crame, Quezon City, instead of custody at the Batangas City Jail.12 On January 12, 1999, the prosecution filed with the trial court an omnibus motion to reconsider the order of custody of accused, to declare the proceedings on the bail hearing null and void, and to ask respondent judge to inhibit from hearing the petition for bail.13 On February 1, 1999, the trial court denied the prosecutions omnibus motion for lack of merit.14 On February 15, 1999, the trial court granted the accuseds petition for bail and fixed their bail at P200,000.00 each.15 On February 25, 1999, respondent judge inhibited himself from further acting on the criminal case.16 Hence, this petition.17 The Issue The issue raised is whether the trial judge acted with grave abuse of discretion in granting bail to the accused. The Courts Ruling We grant the petition. The Revised Rules of Court provides "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action."18 In such case, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. 19 At the hearing, the prosecution has the burden of showing that the evidence of guilt is strong.20 In this case, the trial court scheduled several hearing dates for the petition for bail. The prosecution asked for a reasonable opportunity to present evidence.

However, the trial court denied postponement ostensibly to give the accused a speedy trial. Instead, the trial court proceeded to hear the evidence for the defense, despite vigorous objection from the prosecution. From the evidence presented by the defense, respondent judge observed that the crime charged occurred in broad daylight in a place with many stores where people usually converged. Also, accused was a well-known personality in the area. However, respondent judge failed to give the prosecution reasonable time to adduce evidence, and instead, denied postponement but allowed the accused to present witnesses, resulting in a denial to the prosecution of due process of law. A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements.21 "To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process." 22 The prosecution must be given ample opportunity to show that the evidence of guilt is strong. 23 The prosecution must be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is exercised in determining whether the evidence of guilt of the accused is strong.24 Indeed, the determination of whether the evidence of guilt is strong is a matter of judicial discretion.25 Though not absolute nor beyond control, the discretion of the trial court must be sound, and exercised within reasonable bounds. 26 Discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after the evaluation of the evidence submitted by the prosecution and the accused. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness.27 "[W]hether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should

be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground."28 Hence, in granting the petition for bail without giving the prosecution adequate opportunity to adduce evidence, the trial court acted with grave abuse of discretion. The Fallo WHEREFORE, the Court GRANTS the petition. The Court SETS ASIDE the orders granting bail to accused Dante Fajardo Sr., Paterno de Castro, Filipina Fajardo Arce, and Pio Arce in Criminal Case No. 9309, Regional Trial Court, Batangas City, Branch 04. No costs. SO ORDERED. G.R. No. L-57069 August 31, 1981 IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF EDMUNDO RAMIREZ; ATTORNEY ABDON A. ARRIBA petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. FERNANDO, C.J.: The writ of habeas corpus was relied upon by a member of the Philippine Bar, Abdon A. Arriba as counsel for Edmundo Ramirez, on the ground that the continued detention of his client, accused of attempted rape but unable to post his bail bond even after two years and five months had elapsed since the termination of the trial, was illegal. On the day after the petition was filed, on June 11, 1981, this Court issued the writ applied for, required respondent to make a return on or before Friday July 3, 1981, and set the hearing of the petition on Tuesday, July 7, 1981 at 11:00 o'clock in the morning. 1 The Court likewise dispensed with the appearance in person of detainee Edmundo Ramirez, who, according to the petition, was then confined in the provincial jail of Misamis Oriental. 2 It further required the Solicitor General to inquire as to "whether under the circumstances, release can be ordered and, if so, inform

the Court." 3 In a compliance Med on July 3, 1981, Solicitor General Estelito P. Mendoza 4 stated the following: "1. In its subject resolution, the Solicitor General is required 'to inquire as to whether under the circumstances, release' of the detainee, Edmundo Ramirez, 'can be ordered, and, if so, inform the Court.' 2. Immediately upon receipt of a copy of said resolution on June 17, 1981, undersigned counsel dispatched separate telegrams to Judge Tago M. Bantuas of the Court of First Instance of Misamis Oriental, Branch VII, before whom the criminal case of attempted rape against the subject detainee is pending, and to the respondent Provincial Warden of Misamis Oriental for information regarding the status and the facts and circumstances surrounding the detention in question. 3. Per information relayed to the undersigned counsel through long distance telephone by the Provincial Warden on July 1, 1981, detainee Edmundo Ramirez had been released on June 29, 1981, by virtue of an order issued by Judge Tago M. Bantuas who, on the same date, allegedly promulgated a decision in the aforementioned criminal case acquitting Edmundo Ramirez of the charge of attempted rape and that the foregoing is incorporated in the return which he allegedly filed with this Honorable Court. 4. In view of detainee's release, the instant petition may now be considered moot and academic." 5 A copy of the release order as well as the decision was thereafter submitted to the Court. The plea of the Solicitor General to consider the petition moot and academic is warranted. The release was ordered. The writ of habeas corpus had thus served its purpose as a means for securing the liberty of an individual whose continued detention finds no support in law. 1. Chief Justice Marshall correctly characterized habeas corpus as "a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause." 6 Correctly then was it described by Justice Malcolm as having been "devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. 7 Not so long ago this Court expressed a similar view: "The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If there

be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by law. Any deviation from the legal norms calls for the termination of the imprisonment. 8 2. It can be said that the accused obtained justice ultimately but at too high a cost. Had the case been terminated promptly as the law requires, he would have been set free much sooner. In the traditional sense, the right to a speedy trial cannot be invoked after the termination of the proceedings. Nor is mandamus the only appropriate remedy for a decision to be rendered if the statutory period set forth by law .had been exceeded. There could be cases where the writ of liberty would, in the language of Justice Malcohn "be the most efficacious remedy." The judgment of acquittal, long overdue, reinforces such an approach. WHEREFORE, the writ of habeas corpus is dismissed for being moot and academic. Judge Tago M. Bantuas is required to explain within fifteen (15) days the delay in rendering the decision of this case. G.R. No. 129670 February 1, 2000 MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND OTHER PURPOSES). His arrest was made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioner's activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door

of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-70550.1wphi1.nt On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged.1 On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual intercourse." No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases. On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that: 1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest having been made in accordance with the Rules. He must therefore remain under detention until further order of this Court; 2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in the amount of

P80,000.00 for each case or a total of P800,000.00 for all the cases under the following conditions: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; 3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning.2 On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the arraignment scheduled on May 23, 1997.3 Then on May 22, 1997, he filed a motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment. 4 On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997. On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing the trial court's order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash

and maintaining the conditions set forth in its order of May 16, 1997, respectively. While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing the total number of cases against him to 12, which were all consolidated. On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads: WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),5 of the May 23 [should be May 16], 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.6 The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the approval of petitioner's bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, 14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable." With respect to the denial of petitioner's motion to quash the informations against him, the appellate court held that petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him. Hence this petition. Petitioner contends that the Court of Appeals erred 7 1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's bail bonds "shall be made only after

his arraignment" is of no moment and has been rendered moot and academic by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses; 2. In not resolving the submission that the arraignment was void not only because it was made under compelling circumstance which left petitioner no option to question the respondent Judge's arbitrary action but also because it emanated from a void Order; 3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition for certiorari; and 4. In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse allegedly committed against each private complainant by the petitioner. We will deal with each of these contentions although not in the order in which they are stated by petitioner. First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions for the grant of bail to petitioner: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused;

The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the trial court which makes petitioner's arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his arraignment was also invalid because it was held pursuant to such invalid condition. We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial court's order of May 16, 1997 for the grant of bail because petitioner's contention is that his arraignment was held in pursuance of these conditions for bail. In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioner's bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, 14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment. This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose

between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.8 It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial court's order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such case, trial shall proceed in absentia." Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt, 9 (b) during trial whenever necessary for identification purposes,10 and (c) at the promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative. 11 At such stages of the proceedings, his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned. Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure petitioner's presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioner's constitutional rights. Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May 23, 1997 was also invalid. Contrary to

petitioner's contention, the arraignment did not emanate from the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the arraignment of petitioner could not be omitted. In sum, although the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings against him are valid. Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he argues that this case should be treated as an exception. He contends that the Court of Appeals should not have evaded the issue of whether he should be charged under several informations corresponding to the number of acts of child abuse allegedly committed by him against each of the complainants. In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to quash, nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is important to petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a child constitutes a separate offense, it will matter whether the other children are presented during the trial. The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can proceed without further delay.

Petitioner's contention is that the 12 informations filed against him allege only one offense of child abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of the number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only four informations, corresponding to the number of alleged child victims, can be filed against him. Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides: Sec. 5 Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxxxxxxxx (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child,14 whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or

any other consideration; or (b) under the coercion or influence of any adult, syndicate, or group. Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Air. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160, which provides: [t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared void.1wphi1.nt SO ORDERED. G.R. No. 148468 January 28, 2003 ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents. x---------------------------------------------------------x G.R. No. 148769 January 28, 2003

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. x---------------------------------------------------------x G.R. No. 149116 January 28, 2003 EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundation's treasurer who later deposited it in the Foundation's account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as

jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al ., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al. , docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: "That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,

AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and

Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE"; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE

PESOS

AND

SEVENTEEN

CENTAVOS

[P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW."1 On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.2 Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.3 On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.4 In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner. 5 When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.6 For his part, petitioner's co-accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier

than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before petitioner's arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioner's petition for bail on May 21 to 25, 2001. On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending motions as well as petitioner's motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution. On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.8 However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail

hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.9 On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.10 By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioner's motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioner's guilt of plunder, that he be granted provisional liberty on bail after due proceedings. 11 Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the amended Information. Petitioner, through counsel,

received on said date a copy of said resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution. Re: G.R. No. 148769 Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'S MOTION TO QUASH NOTWITHSTANDING THAT

I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER. A The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute 'ill-gotten wealth' as defined in Section 1(d), Republic Act No. 7080, as amended. II THE AMENDED OFFENSE."13 INFORMATION CHARGES MORE THAN ONE

Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads: "(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14 Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a "combination or series of overt or criminal acts" constituting

plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal acts." He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite "combination or series of acts" for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada "on several occasions" does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: "Sec. 6 Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute ; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information."15 The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense. 16 Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense.17 The use of derivatives or

synonyms or allegations of basic facts constituting the offense charged is sufficient.18 In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder "through any or a combination or a series of overt or criminal acts or similar schemes or means." And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19 we held that the word "series" is synonymous with the clause "on several instances"; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word "combination" contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that "plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law" and that: "x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x." 20 It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.21 The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter

to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them.23 Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.24 Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: "THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts

involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees."25 This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed. Re: G.R. No. 149116 Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that: "GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF

JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO."26 Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed

grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.27 Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 199828 and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.30 Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is no evidence linking him to the collection and receipt of jueteng money;32 (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.33 Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,34 and hence he should be spared from the inconvenience, burden and expense of a public trial.35 Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance. 36 Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and

committed errors of law or irregularities which have been prejudicial to his interest.37 He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.38 The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioner's omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that "a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused," and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.39 The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioner's omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsman's joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.40 The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.41 This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled: "x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said:

'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause' for filing of information against the supposed offender." In Cruz, Jr. vs. People,43 the Court ruled thus: "Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsman's appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari." Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: "In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the

accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44 Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused. 45 It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution may be granted.46 It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.47 The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.48 If the lack of a preliminary investigation does not render the

Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial.49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.''50 Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer's finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary. Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.52 The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the

amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment.54 In sum then, the petition is dismissed. Re: G.R. No. 148468 As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately. 55 Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman.56 Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution, 57 and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.58 Petitioner likewise assures the

prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.59 The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned.61 The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of penalty reduction.62 Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioner's case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar.63 The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender.64 An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and

Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash."66 However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him. 67 The Court's pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.68 It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail. With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a

motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed.69 He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court.70 The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court.71 Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial. 72 As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.73 On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.74 An accused may file a motion to quash the Information, as a general rule, before arraignment.75 These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic.

We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly. Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution.76 For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.77 In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: " x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding."78 There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more

petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.79 It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an

entirely different matter. For, with the participation of the former president in the hearing of petitioner's petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.81 Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioner's petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus: "For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime." 82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case," 83 the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioner's petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan.85 They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 2125, 2001.86 They argue further that bail is not a matter of right in capital offenses. 87 In support thereof, they cite Article III, Sec 13 of the Constitution, which states that "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."88

The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: "Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable . No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4 Bail, a matter of right, exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment."89 Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court.90 Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: "Sec. 8 Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify."91 Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the

evidence of guilt against an accused is strong.92 The prosecution shall be accorded the opportunity to present all the evidence it may deem necessary for this purpose.93 When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right. 94 In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001; Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001;

 Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001; Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance , dated May 27, 2001; Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.95 Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;96 Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and Edward Serapio, dated May 8, 2001;97 Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;98 and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.99 The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1)excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail;

 Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) days within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada; Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada; Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis "Chavit" Singson , filed by Joseph Estrada;

 Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada; Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapio's hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada; Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada; Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada; Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and

 Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.100 Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application.101 The rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:102 "When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court , the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal."103 Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioner's arraignment before the commencement of bail hearings and insisted on joint

bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioner's motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies. 104 He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law.105 Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioner's right to bail. 106 He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held that habeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary.108 However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court,109 the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.110 As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.111 In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" due to "its ability to cut through barriers of form and procedural mazes." 112 Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid,113 and even though the persons praying for its issuance were not completely deprived of their liberty.114

The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same115 applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioner's application for bail has yet to commence. As stated earlier, they delay in the hearing of petitioner's petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's right to bail. 117 It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail,118 or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail and the trial of Criminal Case No. 26558 as

against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE. No costs. SO ORDERED. A.M. No. MTJ-98-1153 February 29, 2000 MAGDALENA M. HUGGLAND,* complainant, vs. JUDGE JOSE C. LANTIN, respondent. RESOLUTION PER CURIAM: On 14 November 1997, the Court Administrator recommended for inclusion in the agenda of the Court en banc the matter of the news item which appeared in the 14 November 1997 issue of the Manila Bulletin concerning the arrest by agents of the National Bureau of Investigation (NBI) of Judge Jose Lantin, Presiding Judge of the Municipal Trial Court of San Felipe, Zambales, for allegedly having received marked money amounting to P5,000 from one Magdalena Huggland who was implicated in a criminal case. The P5,000 was allegedly part of the P25,000 being asked by Judge Lantin for the cancellation of the hold departure order issued against Ms. Huggland. In the en banc resolution of 9 December 1997, the Court required the Court Administrator to recommend specific action against Judge Lantin. In its en banc Resolution of 14 May 1998, the Court took note of the comment of Judge Lantin wherein he denied receipt of the marked money and condemned the search for the marked money conducted by the NBI. Considering the seriousness of the accusation against Judge Lantin, the Court resolved to redocket the case as a regular administrative matter, refer it to Justice Narciso Atienza, consultant of the Office of the Court Administrator, for investigation, report and recommendation, and placed Judge Lantin under preventive suspension for the duration of the investigation.

Justice Atienza conducted an investigation. On 5 February 1999 he submitted a 24-page Report and Recommendation, the pertinent portions thereof, with footnotes excluded, read as follows: ANTECEDENTS On October 30, 1997, the complainant filed a complaint for bribery against the respondent in the District Office of the NBI in Olongapo City. The complainant accomplished a Complaint Sheet, and executed an affidavit, claiming that the respondent demanded money in exchange of the cancellation of a hold departure order previously issued against her. Based on said complaint, an entrapment was conducted on November 12, 1997. The respondent was arrested after the amount of P5,000.00, in P500.00 bills, was recovered from one (1) of the left drawers of his table while the envelope in which the money was placed was recovered near the chair. A post operation statement was taken from the complainant while the arresting NBI agents executed a joint-affidavit which was utilized as the direct testimonies of the complainant and the witnesses, respectively. Clarificatory questions were asked before the complainant and the witnesses were cross-examined by the counsel for the respondent. UNDISPUTED FACTS The complainant, with three (3) others, were respondents in a complaint for Murder filed by SPO4 Lorenzo A. Feria in the Municipal Trial Court of San Felipe, Zambales for preliminary investigation, docketed as Crim. Case No. 3886. On July 21, 1995, SPO4 Feria filed a Motion for the Issuance of a Hold Departure Order against the complainant who was then at-large. In consonance with the motion, the respondent issued an order directing the Commission on Immigration and Deportation to include the name of the complainant in the hold departure list. After preliminary investigation, the respondent resolved to recommend that an information for murder be filed against the

complainant, and the three (3) others, without recommending bail, and transmitted the resolution of the case and the entire records to the Provincial Prosecutor of Zambales. The Provincial Prosecutor sustained the findings of the respondent and filed the corresponding information in the Regional Trial Court of Iba, Zambales on August 28, 1995. The case was docketed as Crim. Case No. 1797-1, and raffled to RTC Branch 69. On motion of accused Eduardo Guanga, a re-investigation was ordered by the RTC judge on May 7, 1996. After re-investigation, Assistant Prosecutor Quintillan recommended that the names of the complainant, Gerry Suarez and Eduardo Guanga, Jr. be dropped from the information for insufficiency of evidence. The recommendation was approved by the Provincial Prosecutor. EVIDENCE FOR THE COMPLAINANT (1) Magdalena Hugglan[d] in her Sinumpaang Salaysay, alleged that she learned that a hold departure order was issued against her at the airport when she was prevented from leaving the country to visit her husband in Okinawa, Japan. She said that she immediately hired a lawyer to look into the matter, but in the meantime, she went to Cebu to wait for her husband. Her husband fetched her from Cebu when he returned to the Philippines, and they proceeded to Zambales. She learned in Zambales that the case against her had been dismissed. She went to the office of the respondent and presented to him documents to prove that the case for which the hold departure order was issued had been dismissed but the respondent demanded P25,000.00 from her in exchange of the cancellation of the hold departure order. She waited for five (5) days, and when the respondent did not issue the order of cancellation of the hold departure order, she went to his house in Botolan, Zambales on April 30, 1997, and delivered P12,000.00, and promised that the balance shall be given on a later date. Upon receipt of the P12,000.00, the respondent immediately signed the order of cancellation and handed it to her.

Complainant claimed that the respondent came to her house twice, but on both occasions, she was out. In June, 1997, the respondent who happened to be her co-passenger in a Victory Liner bus called her, and asked: "O, ano na?" Knowing what respondent meant, she told him that she will just go to his place. When she did not go to the house of the respondent, she received a subpoena commanding her to appear in court at 2:00 o'clock in the afternoon on October 30, 1997. When she appeared in court on October 30, 1997, the respondent demanded from her the balance of P13,000.00. Complainant said the she told the respondent that she has no money, but she promised that she would give P5,000.00 on November 12, 1997. After pondering for sometime what to do, she decided to go to the office of the NBI and reported the matter. She gave the NBI agent P5,000.00 to entrap the respondent. On November 12, 1997, the NBI agents instructed her to se to the office of the respondent to deliver the money. A female NBI agent accompanied her to the office of the respondent while other agents positioned themselves outside the office. When she told respondent about the money, respondent instructed her to put the envelope containing the money inside the left drawer of the table, which she did. The respondent got a piece of newspaper and used it as a cover in holding the envelope containing the money, and then, he shook it. The money fell inside the drawer and the respondent used the same piece of a newspaper in counting the money. After counting the money the respondent closed the drawer. Thereafter, she stood up and went outside the office. 2. Jesusa D. Jamasali Special Agent of the NBI, testified that, posing as a cousin of the complainant, she accompanied her to the office of the respondent when the entrapment was made on November 12, 1997. She said that after they entered the office of the respondent at about 3:00 o'clock in the afternoon, she sat on chair in front of the respondent's table about eight (8) meters away while the complainant sat at the left side of the table. The complainant and the respondent talked for about fifteen (15) minutes, and then she saw the complainant dropped the

envelope containing the money inside the drawer, and stood up. After complainant left the court room, she followed and gave the pre-arranged signal that pay-off had taken place to the other NBI agents. Thereafter, the NBI agents entered the court room, introduced themselves and told the respondent that he was under arrest for bribery, and informed him of his rights. 3. David P. Golla, an agent of the NBI testified that he knows the complainant because in October, 1997, she filed a complaint in their office in Olongapo City against a judge of San Felipe, Zambales because the judge tried to extract money from her in consideration of an order. The complainant's sworn statement was taken, and thereafter, Atty. Joel Curammeng planned the entrapment operation against the respondent which was scheduled on November 12, 1997. The plan was for agent Jamasali to pose as a cousin of the complainant while other agents will just stay outside the office to wait for the signal of agent Jamasali. He stated that Atty. Gamaliel Cabrera, a photographer and two other assets were with him. After agent Jamasali had given the pre-arranged signal, they entered the court room, introduced themselves as NBI agents, and informed the respondents that he is under arrest for bribery and violation of RA. 3019, he claimed that he saw the money was recovered by agents Curammeng and Jamasali from one of the drawers of the respondent's table. 4. Joel A. Curammeng, the Supervising Agent of the NBI testified that he come to know the complainant when she filed a complaint in their office sometime in October, 1997. He said that the complainant accomplished a Complaint Sheet and subscribed it before him. He claimed that he took down the statement of the complainant after the entrapment operation while the elements of the NBI who conducted the entrapment executed a joint-affidavit. The money used in the entrapment was recovered from the left middle drawer of the respondent's table while the envelope was lying near the chair, and a torn piece of newspaper was on top of the table. They brought the respondent to their office in Olongapo City after the arrest where he (respondent) was finger printed and photographed. The peso bills were dusted with

ultraviolet power but the respondent was not subjected to laboratory examination because the complainant told him that respondent did not touch the money. Complainant rested [her case] with the admission of: Exhibit "A", Sinumpaang Salaysay ni Magdalena Huggland; Exhibit "B", Joint-Affidavit of Arresting Officers Exhibit "C"; P500.00 No. DC-334074; Exhibit "C-1", P500.00 No. GL-845992; Exhibit "C-2", P500.00 No. CL 820491; Exhibit "C-3", P500;00 No. DA-364817; Exhibit "C-4", P500.00 No. CB-196729; Exhibit "C-5", P500.00 No. CL-845928; Exhibit "C-6", P500.00 No. BY-315335; Exhibit "C-7", P500.00 No. GF-857781; Exhibit "C-8", P500.00 No. CF-857784; Exhibit "C-9", P500.00 No. 845978; Exhibit "D" white envelope where the money was allegedly placed, and the testimonies of Complainant Magdalena Huggland, NBI agent Jesus D. Jamasali, Agent David Golla and Supervising Agent Joel A. Curammeng. EVIDENCE FOR THE RESPONDENT (1) Respondent Jose Lantin y Cabal, gave a different version of the incident. In his comment dated January 23, 1998, surrounding his arrest by the NBI Agent, in the counter affidavit which he submitted in the Office of the Ombudsman in OMB-197-2114 dated December 18, 1997, and, in his Petition for Reconsideration dated August 21, 1998, which were utilized as his direct testimony, respondent claimed that he did not receive the marked money but it was allegedly recovered from one of the left drawers of his table immediately after complainant left. He asserted that it was a clear case of planting of evidence not an entrapment and a violation of his human rights. His table and all its drawers were ransacked and even his licensed firearm was confiscated without a warrant. He said that he was dragged out of his courtroom and when he protested, Atty. Curammeng and the other agents pushed him to force him to sit before his table with the alleged bribe money spread out for media propaganda because pictures were taken.

Respondent said that he heard Crim. Case No. 3886 on preliminary investigation, and after complying with the requirements, he issued a warrant for the arrest of the complainant without recommending bail, and issued a hold departure order. He said that his participation in the case ended after he has forwarded the records of the case to the Office of the Provincial Prosecutor of Zambales, until the complainant filed a motion to quash the hold departure order on April 28, 1997. He granted the motion on April 30, 1997, however, the cancellation is subject to the submission of the documents dismissing the charges. He required respondent to submit certified copies of the documents because he wanted the record complete for the issuance of the order of cancellation. Respondent asserted that he did not demand P25,000.00 from the complainant for approving the motion to quash the hold departure order. He averred that the order should issue as a matter of course because the case against the complainant for which the hold departure order was issued was already dismissed. The allegation that he was given P12,000.00 on April 30, 1997, and the balance of P13,000.00 shall be paid later, are concoctions of the complainant who was very vocal in expressing her disgust against him for issuing the warrant of arrest without the provision for bail. Respondent said that he did not go to the house of the complainant. He averred that sometime in October 1997, when be was checking on the inventory of his cases, he chanced upon the case of the complainant so he issued the subpoena addressed to all the accused for their appearance on October 30, 1997. On November 12, 1997, the complainant came to court and sat on the left side of his table. He had no occasion to talk to the complainant as his body was turned to the other side where be was getting some files, then all of a sudden, a person whom he came to know as NBI agent Curammeng told him, "Judge you are under arrest." He was surprised especially when Agent Curammeng with a lady and another man who are also NBI Agents were pushing him from his table when he positioned himself in such a way that they (NBI Agents) cannot open the

drawers of his table. At the office of the NBI in Olongapo City, one of the agents told him that the complainant was spending P50,000.00 to get him, and if he has P100,000.00, the matter could be arranged, but he told the agent that he is poor and he has no money.1wphi1.nt Respondent claimed that the complainant has made several attempts to blackmail him by trying to extort One Million Pesos (P1,000,000.00) from him which was reduced to Three Hundred Thousand Pesos (P300,000.00) in consideration of the withdrawal of the criminal complaint in the Sandiganbayan as well as the administrative complaint before he filed his petition. He stated that he filed a case of Estafa against Ruben Sacaguing and his wife who is the brother of a highly placed NBI official in Manila. The complainant and spouses Ruben and Lydia Sacaguing, impelled by evil motives and vengeance, conspired together in fabricating the instant case utilizing the powerful investigative authority of the National Bureau of Investigation. Juanita Florentino Lantin, 75 years old, married to Judge Jose C. Lantin, stated in her affidavit, which was utilized as her direct testimony, that she did not know nor have meet [ sic] the complainant in her house and even in any part of Zambales. She said that her husband had strict instructions not to entertain visitors or strangers at their house especially those who are involved in the investigation and prosecution of cases under his jurisdiction. She claimed that she could not allow the receipt of bribe money by her husband because it is contrary to her moral values as President of the Catholic Women's League, while her husband is affiliated with the Holy Name Society. She averred that they are not in dire need of money because they have properties where they get considerable income, and they have an only child who is a Mechanical Engineer and gainfully employed. Emilo R. Tapec, the Clerk of Court of the MTC, San Felipe, Zambales in his Incident Report dated November 18, 1997, which was utilized as his direct testimony, narrated that the respondent arrived in his office at 2:30 o'clock in the afternoon on

November 12, 1997, and all the employees were present. At about 3:00 o'clock, the complainant accompanied by a low-profiled looking lady arrived. The complainant sat at the right corner of the respondent's table while her companion sat at the center table about eight (8) meters away. He saw the complainant stood up and sat nearer the respondent but he was too busy at that time that he did not even see what transpired between the two. At about 3:40 o'clock in afternoon the complainant stood up and the respondent shook hands with her but complainant showed her hatred towards respondent. At about 3:45 o'clock in the afternoon, group of men suddenly entered their office and went direct to the table of the respondent and announced that they are NBI agents and invited the respondent to go with them to their office in Olongapo City. On cross-examination the witness testified that he is not familiar with the order of cancellation of the hold departure order dated April 30, 1996 [sic]. He is not sure who prepared the order, and he is not also sure if he has read the order before. The order has no initial of the person who typed it, and it is the policy in their court that the employee who types an order must put the initial on it. He was not the one who affixed the seal of the court in the order. He had not encountered the motion to Quash Hold Departure Order dated April 28, 1997. There is no showing that the Motion is stamped as proof that it was received in court. It is their policy that pleadings and documents filed in court must be stamped and initialed by the receiving employee. Danny P. Borja, 29 years old a COMELEC employee in his Salaysay which was utilized in [sic] his direct testimony, narrated that the office where he works is in the same room occupied by the Municipal Trial Court and the DILG. The different offices are not separated by partitions. On November 12, 1997, when he reported to his office between 4:00 at 4:30 o'clock in the afternoon, he saw two (2) female persons entered and approached the table where the respondent was seated. One of the ladies sat near at the left side of the table of the respondent

and the other lady moved away from the table, but while standing she was looking at the respondent and the lady who sat near him. When the lady sat neat the respondent stood up, she was met by the other lady and was asked. "Saan mo inilagay ang diyaryo". He heard the lady answered. "Naroon sa may drawer" The two ladies went out later, he saw one of the ladies came back with the male companions. He saw the crumpled newspaper on the floor outside the drawer of the respondent. The lady picked it up and placed it inside a big brown envelope while her male companions wanted the respondent to sit on his chairs but the respondent refused. They searched the drawers of the table of the respondent, grabbed his clutch bag and brought out a gun. Pictures were taken and they brought the judge out. The respondent rested his case with admission of Exhibit "1" Motion to quash Hold Departure Order; Exhibit "2", Order granting the Motion to Quash Hold Departure Order, Exhibit "3", Malayang Sinumpaang Salaysay of complainant; Exhibit "4, to "4-C", with submarkings are pictures of the Office of the Municipal Trial Court of San Felipe, Zambales, pp. 9-11 of Exh. 8; Exhibit "5", Hold Departure Order; Exhibit "6", Resolution of the Provincial Prosecutor dismissing the Murder Case against the complainant and her-co-accused; Exhibit "7", Comment filed by the respondent; Exhibit "8", Counter-Affidavit submitted by respondent before the Ombudsman; Exhibit "9", Petition for reconsideration filed by respondent; Exhibit "10", Subpoena issued by respondent; Exhibit "12", 12-a, 12-g Official records of the BIR; Exhibit "13", Executive clemency extended by Pres. Aquino to respondent; Exhibit "14", Certification of Acquittal of respondent in a Criminal Case filed against him; Exhibit "15", Affidavit of the wife of the respondent; Exhibit "16", Incident Report of Emilio Tapec, Clerk of Court of MTC, San Felipe, Zambales; Exhibit "17", Affidavit of Dany P. Borja and testimonies of the respondent, Juanita Lantin, Emilio Tapec and Danny P. Borja. ISSUE

The issue is whether this is case of entrapment or planting of evidence. For a clear presentation of the issue, let us distinguish entrapment from planting of evidence. In entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused and the law enforcement officials merely facilitate the commission of the offense, the accused cannot justify his conduct. Planting of evidence or incriminating innocent person is committed by performing an act by which the offender directly incriminates or imputes to an innocent person the commission of a crime. DISCUSSION From the testimonial and documentary evidence submitted by the parties, there is reason to believe that indeed, this is a case of entrapment not planting of evidence. The conclusion is based on the following: (1) The subpoena was illegally issued; (2) The Motion to Quash Hold Departure Order and the Order of Cancellation of the Hold Departure Order were prepared and typewritten by the respondent; and (3) The Money used in the entrapment operation was recovered from one (1) of the left drawers of the respondent's table. I. THE SUBPOENA WAS ILLEGALLY ISSUED Subpoena is a process directed to a person requiring him to attend and testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the Philippines or for the taking of his deposition. It may also require him to bring with him books, documents, or other things under his control, in which case it is called a subpoena duces tecum.

Under the definition, a subpoena can only be issued if there is a pending case in court. In the absence of a case in his court, a judge has absolutely no power or authority to issue a subpoena. The complainant went to the District Office of the NBI in Olongapo City and filed a complaint for bribery against the respondent on October 30, 1997, after she came from the Municipal Trial Court of San Felipe, Zambales in obedience to the subpoena illegally issued by the respondent. The subpoena was issued in connection with an alleged motion to quash hold departure order dated April 28, 1997. Complainant testified that she was constrained to file the complaint because when she appeared in court in obedience to the subpoena, the respondent demanded the balance of P13,000.00 which she promised to give after she received the order of cancellation of the hold departure order on April 30, 1997. Complainant claimed that the respondent demanded P20,000.00 from her in exchange of the order, but since she had only P12,000.00 at that time, respondent increased the demand to P25,000.00. The respondent denied that he demanded P13,000.00 from the complainant when she appeared in court on October 30, 1997. Respondent claimed that she issued the subpoena to require complainant to submit certified copies of documents showing that the case for which the hold departure order was issued had already been dismissed. The reason given by the respondent for issuing the subpoena is flimsy and should not be given weight. It is too shallow to inspire belief for the simple reason that he issued the order of cancellation of the hold departure order on April 30, 1997, while the subpoena commanding complainant to appear in court on October 30, 1997, was issued on October 23, 1987. In other words, the subpoena was issued five (5) months after he had issued the order of cancellation. When the respondent issued the subpoena, the entire records of the case, which was the basis for the issuance of the subpoena, was no longer in his possession.

Respondent admitted this. He said that after he terminated his preliminary investigation of the case in which the complainant was one (1) of the respondents, he transmitted the resolution of the case and the entire records to the Provincial Prosecutor of Zambales on August 1, 1995. The law requires the investigating judge to transmit the resolutions of the case and the entire records to the Provincial or City Prosecutor within ten (10) days after the conclusion of the preliminary investigation. The transmittal of the resolution of the case and the entire records after preliminary investigation to the Provincial/City Prosecutor is only ministerial for the investigating judge. After transmittal of the resolution of the case and the records, the Municipal Trial Court of Zambales in which the respondent was the presiding judge lost jurisdiction over the case. The respondent did not tell the truth when he stated in his counter-affidavit that while he was checking the inventory of cases for October, 1997, he chanced upon the records of the complainant, so he issued the subpoena. The canard was repeated when respondent testified during the investigation that he issued the subpoena because while going over certain documents, he saw the file of the complainant. How could the records of the complainant be with the inventory of cases for October, 1997, when said records had already been transmitted together with the resolution of the case to the Provincial Prosecutor of Zambales on August 1, 1995, or more than two (2) years earlier? Under the circumstances in which the respondent issued the subpoena, any person with unprejudiced mind would surely conclude that the subpoena was issued to compel complainant to pay the promised P13,000.00. Using the subpoena to compel the complainant to appear before him (respondent) was intended to sow fear in her mind because of the admonition in the subpoena: Fail not Under the Penalty of the Law. For illegally issuing the subpoena alone, the respondent can be dealt with administratively.

(2) MOTION TO QUASH HOLD DEPARTURE ORDER AND THE ORDER OF CANCELLATION OF THE HOLD DEPARTURE ORDER WERE PERSONALLY PREPARED TYPEWRITTEN BY THE COMPLAINANT. The complainant testified that the order of cancellation of the hold departure order was signed by the respondent and it was given to her only after she gave the amount of P12,000.00 on April 30, 1997 in his house. The motion to quash departure order was also given to her by the respondent and asked her to sign it. She added, however, that she does not know where they were prepared. The respondent denied having demanded money from the complainant in exchange of the issuance of the cancellation of the hold departure order. He also denied having received P12,000.00 from the complainant in his house on April 30, 1997. In support of such denials, respondent's wife was presented as a witness. Mrs. Lantin's testimony, sad to say, could not be given much weight. Her credibility is seriously impaired in view of her relationship with the respondent. She had a very strong motive to testify falsely because she knew that an adverse findings against her husband would mean forfeiture of all retirement privileges and benefits, and more importantly, the stigma as a consequence. Respondent claimed that he did not prepare the motion to quash hold departure order. He said that he first saw the motion on top of his table on April 29, 1997. Papers pass through in Clerk of Court, according to the respondent. However, the denial was contradicted by his Clerk of Court, Emillio Tapec, who testified that he had not seen the motion to quash hold departure order before. He said that there is no showing that the motion was filed in the office for it does not bear the stamp that it was filed, and received in court. Tapec further testified that papers filed in court are stamped and initialed by the receiving court employee.

Since the motion to quash hold departure order did not bear the stamp nor the initial of any of the court's employee, it is unquestionable that the motion was not filed and received in court thus, giving credence to the testimony of the complainant that it was made by respondent, and she was only asked to sign it. With respect to the cancellation of the hold departure order, witness Tapec testified that he had not seen nor had read it before. The witness observed that it has no initial of the person who typed it. He claimed that he did not type the order, and it is the policy in their office that papers issued by the court must be initialed by the typist. Since the order of cancellation of the hold departure order did not bear the signature of any of the employees of the court, it is indubitable that it was also typewritten by the respondent. What is really intriguing is that the respondent issued the order of cancellation when he has no more power to issue the same. He knew that his authority to issue any order in connection with the case ceased after the entire records has been transmitted to the Provincial Prosecutor. When asked on cross examination why he did not refer the motion to his trial fiscal, the respondent answered: I would say that this case has been out of my jurisdiction already. It has been forwarded to the fiscal. The fiscal dismissed it after re-investigation, so I have no more authority whatsoever. As a matter of fact, I am of the honest belief that even if I do not grant that, I could have referred it to the RTC because the RTC has control over the case. (3) THE MONEY USED IN THE ENTRAPMENT WAS RECOVERED FROM ONE (1) OF THE LEFT DRAWER OF THE RESPONDENT'S TABLE There is no dispute that the money used in the entrapment operation was recovered from one (1) of the left drawers of the respondent's table. It may have been inserted into his drawer

while he was looking for the Hugglan[d] case, not an entrapment according to the respondent. It was a well-planned vengeance of the complainant and the spouse Lydia and Ruben Sacaguing, a relative of a highly placed NBI official in the national office in Manila, at the instigation and connivance of the 2nd Assistant Provincial Prosecutor, the respondent asserted. The assertion, however, is worthless because respondent did not present evidence to substantiate his charge. No evidence was presented to prove that the spouses Sacaguing and the complainant knew each other on or before November 12, 1997. Respondent also failed to prove the alleged participation of a 2nd Assistant Prosecutor to the event that occurred on November 12, 1997, for which he was arrested. Conspiracy must be established by the same quantum of evidence as any other ingredient of the offense. The same degree of proof necessary to establish a finding of conspiracy, which is proof beyond reasonable doubt. The entrapment was planned by NBI Supervising Agent Curammeng after the complainant filed a complaint for bribery against the respondent. Supervising Agent Curammeng is a lawyer, and to accuse him of employing illegal means to destroy the reputation of the respondent who is a judicial officer must be rejected, unless the accusation is supported by evidence. On the other hand, credence should be given to the narration of the incident by the NBI Agents because of the presumption that they have performed their duties in a regular manner in the absence of proof to the contrary. The money used in the entrapment operation was recovered by the NBI Agents who immediately entered the courtroom after they received the pre-arranged signal from Agent Jamasali. The complainant said that she placed the money inside the drawer of the table after respondent pulled it open. The envelope, crumpled piece of newspaper which according to the complainant was used by the respondent in counting the money, were also recovered. Respondent testified that he did not see the money on November 12, 1998. What he saw were xerox copies of the money in the

office of the Ombudsman. His testimony is contrary to the testimonies of the NBI Agents who recovered the money. It contradicted his statements in his counter-affidavit submitted before the Ombudsman in OMB-1-97-2114, in which he stated: "He asked me to sit down on my chair with the money scattered. Respondent also claimed that he was arrested without a warrant and his drawers were ransacked, his firearm with a permit to carry was confiscated and he lost his valuables and a rolex watch. His arrest and the search conducted were unlawful because they were made without a warrant, according to respondent. Respondent must have lost sight of the fact that the law authorizes a warrantless arrest when, in the presence of a police officer or even a private person, a person to be arrested has committed, is actually committing, or is attempting to commit an offense. A search incidental to a lawful arrest is also allowed. In a case the Court said: There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person to be arrested. As early as 1909, the court has ruled that on officer making the arrest may take from the person to be arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used as evidence in the trial of the cause. With respect to the confiscation of the firearm, Supervising NBI Agent Curammeng testified that he took the firearm for safekeeping because the respondent is under custody and it is very dangerous for somebody under custody (sic) he has possession of a gun. The taking of the firearm for safekeeping is also legal. The alleged loss of valuables and a Rolex watch is unworthy of belief Respondent did not say what kind of valuables were lost,

and where were the valuables and the Rolex watch kept when he was arrested on November 12, 1997. If the valuables and the Rolex watch were in one (1) of the drawers of the table of the respondent, why were they there? It is contrary to human experience to keep valuables and a Rolex watch inside the drawer of a table that is in a place open to the public. Besides, the alleged loss of valuables and Rolex watch was not mentioned by the respondent in his "Comment" dated January 23, 1998, and in Counter-Affidavit which he submitted in OMB-97-2114. The respondent could not claim that the loss of valuables and a Rolex watch skipped his mind when he prepared his "Comment" and executed his Counter-Affidavit. The NBI Agents who testified were subjected to rigid and thorough cross-examination by the counsel for the respondent but he failed to discredit their testimonies. Full faith and credit should be given their testimonies because the respondent failed to show that the NBI Agents have been impelled by improper motive for them to testify against him. The testimonies of the NBI Agents carry with it (sic) the presumption of regular performance of official functions. With respect to the complainant, her testimony is simple and straightforward, and so detailed brought about on cross-examination which cannot simply be ignored despite minor inconsistencies on dates (sic). The inconsistency cited by the respondent are insignificant to affect the veracity of complainant's testimony. While testifying, complainant did not conceal her anger and contempt for the respondent. Her actuation is understandable, but her anger against the respondent did not mean that she fabricated her testimony. There is no proof that complainant is so vindictive as to falsely incriminate the respondent with [the] serious charge of bribery simply because he issued the hold departure order. There is no evidence on record that complainant was induced or influenced by any improper motive when she filed the complaint against the respondent. It must be recalled that complainant filed the complaint on October 30, 1997 after she came from the court in obedience to a subpoena that was illegally issued by the

respondent. From April 30, 1997, when she received the order of cancellation of the hold departure order after she gave the respondent P12,000.00, complainant did not bother to see the respondent until she received the subpoena. Complainant's testimony should be given full weight and credit. The defense is denial. Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law, and could not be given greater evidentiary value over the testimonies of witnesses who testified in the affirmative. Positive and forthright declaration is more worthy than (sic) mere uncorroborated and self-serving denials. The respondent submitted in evidence a news item that appeared in the July 27, 1975 issue of the Manila Bulletin Today showing that he was a recipient of a special award from the Deputy Commissioner of the Bureau of Internal Revenue for his alleged leadership in implementing P.D. 213 and 370, Evidence was also presented that the respondent was dismissed from the service for dishonesty and misconduct while employed at the BIR but was given Executive Clemency on October 7, 1991. In connection of (sic) the case of dishonesty and misconduct in office the respondent was charged in the Circuit Criminal Court in Olongapo, Zambales but he was acquitted. These documents from Exhibits 12 to 14 are immaterial as far as the actuations of the respondent as a judge is concerned. Respondent cannot crow on his acquittal in the Circuit Criminal Court because the quantum of evidence necessary for the conviction of an accused in a criminal case is proof beyond reasonable doubt, while in an administrative investigation only substantial evidence is necessary. In of the foregoing, the undersigned submits that respondent judge is guilty of grave and serious misconduct, which would have warranted his dismissal from the service had the investigation not [been] overtaken by his compulsory retirement.

WHEREFORE,

it

is

respectfully

recommended

that

the

retirement benefits, privileges and leave respondent may be entitled to be forfeited.

credits

which

The Court agrees with the findings, conclusion and recommendation of Justice Atienza. The culpability of respondent Judge for grave misconduct, gross dishonesty, conduct prejudicial to the best interest of the service and conduct unbecoming a judge has been established not just by substantial evidence which suffices in administrative investigation (Sec. 5, Rule 133, Rules of Court), by a clear preponderance of evidence. Respondent's court, the Municipal Trial Court of San Felipe, Zambales, had only a preliminary jurisdiction over Criminal Case No. 3886. After the preliminary investigation was conducted, and respondent judge had the filing of the corresponding information and forwarded the record of the case to the Provincial Prosecutor, the Court lost its preliminary jurisdiction over the case. The case was finally brought within the exclusive original jurisdiction of the Regional Trial Court of Iba, Zambales with the filing of the information on 28 August 1995. Clearly then, respondent Judge should have known that he had absolutely no power or authority to cancel the hold departure order which he issued in the course of the preliminary investigation. In the first place, he never had that authority from the inception of the case. In the conduct of the preliminary investigation a judge exercises a non-judicial function, an exception to his general duties. This is because a preliminary investigation is basically an executive function (People v. Navarro, 270 SCRA 393 [1997]). Consequently his findings are subject to review by the Provincial Prosecutor, whose findings in turn may, in appropriate cases, be reviewed by the Secretary of Justice (Balagapo v. Duquilla, 238 SCRA 645 [1994]). From the established fact, the conclusion is ineluctable that when complainant came to see respondent to plead for the cancellation of the hold order, the latter saw it as an opportunity to illegally extract money from the former by making him believe that, indeed, since he issued the hold departure order, only he can cancel or set it aside.

If respondent had not been inspired by evil motive, he could have simply advised the complainant to see her lawyer to file the appropriate pleading with the Regional Trial Court to annul or set aside the hold departure order. That respondent Judge had asked for P25,000 in consideration of the issuance of an order cancelling the hold departure order and had in fact received the initial partial payment of P12,000 were proven by the release on 30 April 1997, of the order of cancellation. It is interesting to note that as can be gathered from the testimony of Clerk of Court Emilio Tapec, both the motion to quash the hold departure order and the order of cancellation were not filed in due course with his office. The failure of complainant to pay the balance of P13,000 was equally conclusively established by the issuance by respondent of a subpoena commanding her to appear before him on 30 October 1997 at 2:00 p.m. The explanation given by respondent that it was done to compel complainant to submit certified copies of documents showing that the case for which the hold departure order was issued had already been dismissed is simply incredible. If the documents were not yet ready on 30 April 1997 and these were necessary for the issuance of the cancellation order, respondent need only to defer the release thereof. Then, too, if these were still not presented on 30 April 1997, respondent could have simply revoked or set aside the cancellation. Finally, he knew that the records of the case had been forwarded to the Provincial Prosecutor and his court had long lost its jurisdiction over the case, hence he could not validly issue a subpoena under the caption of the case. We do not hesitate to conclude that respondent Judge had tainted the image of the judiciary to which he owes fealty and the obligation to keep it at all time unsullied and worthy of the people's trust (Garcia vs. Dela Pea, 229 SCRA 766 [1994]). A judge should conduct himself at all times, in a manner which would reasonably merit the respect and confidence of the people for he is the visible representation of the law (Chan vs. Agcaoili, 233 SCRA 331 [1994]). Rule 2.01 of Canon 2 of the Code of Judicial Conduct directs that a judge should behave at all times as to promote public confidence in the integrity and impartiality of the Judiciary. The time honored rule is that a public official whose duty is to apply the law and dispense justice, be he a judge of a lower court or tribunal or a justice of the appellate courts, should not only be impartial, independent and honest but

should be believed and perceived to be impartial, independent and honest (Nazareno v. Almario, 268 SCRA 657 [1997]). Canon 3 of the Canons of Judicial Ethics solemnly mandates that the judge's official conduct should be free from the appearance of impropriety and his personal behavior, not only upon the bench and the performance of judicial duties, but also in his everyday life, should be beyond reproach. Perforce, the penalty of dismissal from the service is the most appropriate penalty under the circumstances. However, since respondent had reached the compulsory age of retirement during the pendency of this case, the imposition of that penalty has been rendered academic. Nonetheless, respondent cannot go scot free and be forgiven for the damage he caused to the institution he was bound by his oath and the Canons of Judicial Ethics and the Code of Judicial Conduct to serve with utmost integrity. The accessory penalties in case of dismissal from the service, as established by jurisprudence, namely, forfeiture of all retirement benefits, including earned leave credits, and disqualification from employment in any branch, agency or instrumentality of the government including government-owned or controlled corporation, must be given full force and effect. WHEREFORE, judgment is hereby rendered (a) finding respondent Judge Jose C. Lantin guilty of grave misconduct in office, gross dishonesty, conduct prejudicial to the best interest of the service and conduct unbecoming a judge; (b) holding that respondent Jose C. Lantin should have been dismissed from the service had the compulsory age of retirement not overtaken this case; (c) forfeiting all his retirement benefits, including leave credits; and (d) disqualifying him from employment in any branch, agency or instrumentality of the Government, including government-owned or controlled corporation. Respondent is further directed to show cause within ten (10) days from receipt of copy of this Resolution why he should not be disbarred.1wphi1.nt SO ORDERED. G.R. No. 133188 July 23, 2004 PEOPLE OF THE PHILIPPINES, appellee, appellee, vs. ELIZAR TOMAQUIN, appellant.

DECISION

AUSTRIA-MARTINEZ, J.: Once again, the Court is confronted with the issue of the admissibility of an extrajudicial confession. This appeal particularly involves the question of whether a barangay captain who is a lawyer can be considered an independent counsel within the purview of Section 12, Article III of the 1987 Constitution. On December 17, 1996, the Cebu City Prosecutor filed an Information charging appellant with Murder, committed as follows: That on or about the 15th day of December, 1996, about 2:30 a.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a bladed instrument (tres cantos), with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there suddenly and unexpectedly attack, assault and use personal violence upon one Jaquelyn Luchavez Tatoy, by stabbing her with said bladed instrument, hitting her on the vital parts of her body, thereby inflicting upon her physical injuries causing: "CARDIO RESPIRATORY ARREST DUE TO SHOCK & HEMORRHAGE SEC. TO STAB WOUNDS TO THE TRUNK (POSTERIOR ASPECT)" as a consequence of which, Jaquelyn Luchavez Tatoy died almost instantaneously. CONTRARY TO LAW.1 On arraignment, appellant pleaded "not guilty" to the charge, 2 and trial thereafter ensued. There were no eyewitnesses to the incident, and the p rosecutions evidence, aside from appellants extrajudicial confession, was mainly circumstantial.

As presented by the prosecution, the facts are as follows: At around 11:00 in the evening of December 14, 1996, appellant Elizar Tomaquin @ Hapon, together with Rico and Romy Magdasal, Noel Labay, and a certain Cardo, were drinking "Red Horse" beer in Itom Yuta, Lorega, Cebu City. Appellant left the group at around 1:00 in the morning, saying he has a headache. At the behest of Rico Magdasal, the group transferred to Lorega proper. A few minutes later, they heard Rustica Isogan shouting for help as the latter heard Jaquelyn 3 Tatoy, her goddaughter, asking for help. Isogan got two flashlights and they proceeded upstairs to Jaquelyns house. The first to go up was a certain Moises, followed by the brothers Rico and Romy Magdasal, while Noel and Cardo remained downstairs. Rico noticed that the hinge and the "walling" of the main door were damaged, as if it were kicked open, and only the light in the kitchen was turned on. Rico also saw a black shoe on the stairs and another in the sala, which he claims belong to appellant. When they went into the kitchen, they saw Jaquelyn bloodied and sprawled face-up on the floor, with her head inside a plastic container. Jaquelyn was brought to the hospital, where she expired. A neighbor later found a tres cantos with blood on it by the stairs, which Rico also identified to be appellants.4 A certain Rey got the black pair of shoes and tres cantos for safekeeping which were later turned over to Policeman Tariao of the Homicide Section, Ramos Police Station. The person who turned over the objects to Policeman Tariao was not identified.5 At around 12:00 in the afternoon of December 15, 1996, barangay tanods Julius Yosores and Armando Zabate of Lorega, Cebu City, searched for appellant because of the information given by Rico Magdasal that the shoes and tres cantos found in the scene of the crime belonged to appellant. Together with Rico, they went to the house of Wilson Magdasal where appellant was temporarily staying, and found him sleeping. Appellant was wearing a bloodstained maong shorts. The tanods told appellant that he is a suspect in the killing of Jaquelyn, and brought him to the house of barangay captain Atty. Fortunato Parawan. There, appellant was asked about the shirt he was wearing and he told them that it was in Wilson Magdasals house. It was Edgar Magdasal who found his shirt, wet and bloodstained, among the soiled clothes. Atty. Parawan then told his tanods to take appellant to the police station.6

In the morning of the next day, December 16, 1996, appellant was investigated by SPO2 Mario Monilar of the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his constitutional rights, appellant told SPO2 Monilar that he was willing to confess and asked for Atty. Parawan, the barangay captain, to assist him. SPO2 Monilar called Atty. Parawan but the latter told him that he will be available in the afternoon. When Atty. Parawan arrived at 2:00 in the afternoon, he conferred with appellant for around fifteen minutes. Atty. Parawan then called SPO2 Monilar and told him that appellant was ready to give his statement.7 Appellants extrajudicial confession, which was taken down completely in the Cebuano dialect,8 reads: Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa atong batakang balaod (Constitution) aduna kay katungod nga pahibaloon sa imong mga katungod, sama sa imong katungod sa pagpakahilum, ingon man duna kay katungod sa pagdamgop/pagpilig sa abogado o manlalaban aron motabang kanimo niining maong imbestighasyon nga may kalabutan sa kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30 sa kaadlawon kapin kongkulang niadtong petsa 15 sa bulan sa Disyembra 1996, didto sa Brgy Lorega proper, Siyudad sa Sugbo. Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado aron motabang kanimo karon, ako isip negrepresenttar sa Estado mohatag akong abogado kanimo. Nasabtan ba kini nimo? Tubag: OO, nasabtan ka ang akong katungod? Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong Batakang Balaod, anfg tanan nga imong isulti karon dinhi, mahimong magamit ebedensya pabor o batok kanimo sa bisan asaing husgado sa atong nasud. Nasabtan be usab kini nimo? Tubag: OO, nasabtan ko usab kanang taan. Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo anf mao nimong mga katungod ug anadam ka ba nga moperma karon dinhi timailhan sa imong tina-aw nga nga pagsabut? ingon man andam ka ba sa pagsulti sa matuod walay lain kon kili ang matuod lamang gayud? Tubag: O

Tubag: Oo, andam ako nga mpemar Sir ug ania karon dinhi ai Atty Parawan ang among Brgy Captain nga maoy akong giisip nga abogado nga akong pinili nga maoy motabang kanako karon. Aron sa pagmatuod, ako kining pirmahan ning ika petsa 16 sa bulan sa Disyembre 1996. ... Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar Tomaquin kon dili ang matuod lamang gayud? Ingon man andam ka ba nga modawat sa resulta o linugdangan niini? Tubag: Oo, andam gyud ako. Pangutana: Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o rmay kalambigitan sa imong pagkatawo, sa imong grado, imong trabaho, imong pinuy-anan ug uban pa? Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o apelyedo sa akong mama sanglit dili man kasado and akong mama ug papa. Ang apelyedo sa akong papa, Cabagui ug and akon angga Hapon. Ako 19 anyos ang panuigon, ulitawo ug kasamtangan nga nagpuyo sa Brgy Lorega proper duol sa kapilaya San Roque apan ako lumad nga taga Bo. Tunga, Moalboal, Cebu diin didto ano nakatungha sa grade six. Pangutana: Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man? Tubag: Sa sinugdanan nianang mga ala una kapin kon kulang kauba ko sa pag-inom si Rico Magdasal didito sa Brgy Lorega Proper ug taodtaod niadto nilakaw ako libot sa sitio Itom Tuta ug dayon nakong saka sa balay nila ni Jaqueline Tatoy sa Brgy Lorega nianang pagka mga alas 2:20 sa maong petsa/kadlawon agii sa aberto nga bentana sa akong tuyo sa pagkawat sa ilang colored nga TV. Pangutana: Nganong nakahiabwo ka man na duna silay TV nga colored? Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored TV.

Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man punta deretso. Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV. Pangutana: Nakuha ba gayod nimo anf maong TV? Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si Jaqueline Tatoy nga naghidga sa ilang may terrace ug nidagan siya padulong sa kusina nila ug diha-diha akong siyang ginsunod, gilayog ug gidunggab makadaghan pinaagi sa akong tres kantps nga hinagiban (Gidtudo ni Eliza rang Tres Kantos nga nakit-an didto sa patyang lawas nga Jaqueline Tatoy). Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline Totay? Tubag: Dili na ko nakahinumdom, ingon man dili sba ko makahinumdom kon diin to siya maigo. Basta manadaghan to nako siya dunggaba ginamit ko ang akong Tres kantos. Pangutana: Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang pagkapbabye o wala ka bay plano sa pag rape kaniya niadtong higayona? Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa pag rape niya. Ang ako ra gyud nga tuyo mao ra gyud and pagkawat sa ilang TV apan kay nisiyagit man siyang nakaila man kayo siya nako, nahadlok kong mahibaw-an sa ako untang pagkawat sa ilang TV, hinungdan nga ako siyang gilayog ug gidunggab makadaghan. Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug imong gidunggab? Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may kusina. Pangutana: Kaila ba nimong daan si Jaqueline Tatoy? Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtan-awan sa ilang TV.

Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat? Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan agi sa pultahan nga akong gisikaran dayon kanaog subay sa hagdan didto nabiyaan nako ang akong sapatos. Pangutana: Diin ka man paduiong dagan? Tubag: Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy. Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an? Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996, didtoy mga Brgy Tanods sa balay ni Wilson Magdasal diin ila akong gipangutaan tali sa maong hitabo og igo lan ako nitudlo sa akong white Slave shirt nga akong gihumulan ug tubig sa planggana sa tumong nga makuha ang mansa sa dugo nga pinisik sa akong paggdunggab patay ni Jaqueline Tatoy. Pangutana: Ngano ug unsa may diay kalabutan niadtong maong slaveless white shirt nimo? Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang TV nila ni Jaqueline ug sa iyang pagsiyagit ako siyang gidunggab-dunggab patay. (Elizar Yomaquin postivo nga nitudlo ug niangkon sa maong whitel sleve less shirt) Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha didto so hagdan sa balay nila ni Jaqueline Tatoy human siya nakit-i nga patay, unsa may imong ikasulti niini? Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo ug gain sa akong pagdagan akong napatiran kadtong ilang container. Pangutana: Sa pagkakaron, wala na akoy ipangutana kanimo. Ikay aduna ka pa bay ikasul ti o bakwion ba hinoon sa mao nimong gipamahayag nga naglangkob sa duha ka pahina lakip niining maong pahina?

Tubag: Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan. Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay tawo nga nagpugos, naghulga, nagsaad ug gnate o nag hadlok ba hinoon kon dili sa imong kaugalingon nga kabubut-on lamang. Tubag: Oo, andam ako pageram. Aron matuoron kining tanan kini akong permaahn ning petsa 16 sa Diusyembre 1996, Siyudad Sugbo, Pilipinas.9 On the witness stand, appellant did not deny that he had a drinking spree with Rico Magdasal and three other persons. His version of the incident is that it was Rico who committed the crime and not him. Appellant testified that Rico asked his help in stealing the television set from the Tatoys residence. When Jacquelyn saw them, she ran towards the kitchen but she did not reach it as Rico had stabbed her on the back with the tres cantos. Appellant claims that it was Rico who owns the tres cantos, as well as the pair of shoes, left inside Tatoys house. Afraid of what happened, appellant went home to Wilson Magdasals house and slept there. He was awakened the next morning by barangay tanod Julius Yosores who kicked him. Yosores also boxed and poked a gun at him. Appellant claims that Rico and Edgar Magdasal maltreated him in the presence of barangay captain Atty. Fortunato Parawan when he was brought to the latters house. He was made to admit committing the crime because Rico has a family while he is single.10 Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him to sign a blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with his expenses.11 After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity) rendered its decision on October 24, 1997, convicting appellant of the crime of Murder, to wit: WHEREFORE, in view of all the foregoing considerations, accused Elizar Tomaquin is found guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPERTUA, with the accessory penalties of the law; to indemnify the heirs of Jaquelyn Tatoy in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his

detention provided he will signify in writing that he will abide by all the rules and regulations of the penitentiary. SO ORDERED.12 Hence, this appeal. In his Brief, appellant raises the following Assignment of Errors: 1. THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED ACCUSED-APPELLANT BASED ON HIS UNCOUNSELLED CONFESSION; 2. THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE FULL CREDENCE AND FULL FAITH ON THE TESTIMONY OF THE PROSECUTION WITNESSES;13 Appellants extrajudicial confession was taken and transcribed entirely in the Cebuano dialect. Rule 132, Section 33 of the Revised Rules on Evidence provides: Sec. 33. Documentary evidence in an unofficial language.-- Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. The rule is that when there is presented in evidence an exhibit written in any language other than the official language (Filipino or English), if there is an appeal, that exhibit should be translated by the official interpreter of the court, or a translation should be agreed upon by the parties, and both original and translation sent to this court.14 In this case, there is no official translation of appellants extrajudicial confession in the Filipino or English language. If the Court were to strictly follow the rule, then appellants extrajudicial confession should not have been admitted by the trial court as evidence for the prosecution. Nevertheless, considering that appellant did not interpose any objection thereto, and the parties and the judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of Cebuano in which the

document was written,15 such extrajudicial confession was appropriately considered by the trial court as evidence for the prosecution. As stated at the outset, the crucial issue in this case is whether or not the extrajudicial confession executed by appellant, with the assistance of Atty. Fortunato Parawan, is admissible in evidence against him. There is no need at this point to secure an official translation of the confession to English. Section 12, Article III of the 1987 Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The words "competent and independent counsel" in the constitutional provision is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.16 As heretofore stated, Atty. Fortunato Parawan, at that time, was the barangay captain of Barangay Lorega, Cebu City. Under the 1991 Local Government Code, a barangay captain performs the following duties and functions: (a) The punong barangay, as the chief executive of the barangay government, shall exercise such powers and perform such duties and functions, as provided by this Code and other laws. (b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall: (1) Enforce all laws and ordinances which are applicable within the barangay; ...

(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and the sanggunian members in the performance of their duties and functions; . . .17 Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times. In fact, as barangay captain, Atty. Parawan is deemed a person in authority under Article 152 of the Revised Penal Code, to wit: ART. 152. Persons in authority and agents of persons in authority . Who shall be deemed as such. In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of appellant. In People vs. Culala,18 the Court reiterated the rule that a municipal attorney cannot be an independent counsel because as a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order, and it was seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Thus, the Court held that he is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations.19 This is reiterated in People vs. Taliman,20 and People vs. Velarde,21 where we further ruled that a municipal mayor cannot likewise be an independent counsel as required by the Constitution. Similarly in this case, considering that Atty. Parawans role as a barangay captain, was a peacekeeping officer of his barangay and therefore in direct conflict with the role of providing competent legal assistance to appellant who was accused of committing a crime in his jurisdiction, Atty. Parawan could not be considered as an independent counsel of appellant, when the latter

executed his extrajudicial confession. What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest. 22 Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. As held in People vs. Velarde:23 . . . The competent and independent lawyer so engaged should be present at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.24 Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent. 25 The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and vigilant. As testified by Atty. Parawan, hereinbelow quoted verbatim, this was what transpired when he went to the Ramos police station to assist appellant during the investigation: Q What happened when you arrived at the Ramos Police Station at around 2:00 oclock in the afternoon of December 16, 1996? A I go (sic) to the room where Policeman Monilar and the accused and had a conversation with the accused. Q What transpired during that conversation with the accused. A I asked him. Are you going to get me as your lawyer? Q And may we know what did he answer?

A Yes, Cap. Okay Cap. Q When you said "Cap" what did he mean by that word "Cap." A Being a Barangay Captain. Q After the accused told you that you were his counsel of choice. What did you do next if any? A I informed Elizar Tomaquin that do you know what will be the implication of your admission, you will be imprisoned. Q After you asked him whether he knew of the implication of his confession that could be because of that confession. What was his reaction? A Yes Cap. I know. And then I told him as follows: "Because of this confession you will be imprisoned." Q And what did he say after you told him again that if he would execute that affidavit of confession he would surely be imprisoned? A No I even continue that "why did he do that?" Q And what did he answer? A He answered to me that he was drunk at that time. Q And so what transpired next? A So I told him are you willing now to give your confession, then policeman Monilar went inside the room and we had that investigation. Q Now how was the investigation of the accused done? A It was made in a question and answer form. Q And in what language were the questions framed? A In the vernacular, vesaya.

Q What did you do during the question and answer form of investigation? A I just observed them. Q But did you stay there until the whole taking of the confession was over? A Yes I was there in the presence of two persons coming from my Barangay. ... Q When you arrived and saw Mr. Monilar with the accused as an Attorney did you immediately inquire what had happened before you arrived like; Did you start the investigation? did you inquire from that from Mr. Monilar? A He was already preparing this top portion here. INTERPRETER: Q Witness pointing to the upper portion of the certification up to the signature to that portion above the names typewritten thereon. ... Q And that means to say that when he prepared this from the top most portion to that portion immediately right before the typewritten name Elizar Tomaquin and Atty. Fortunato Parawan you were not around. Correct? A I was not around but we have already a conversation earlier with Monilar.26 Records also show that appellant was presented to SPO2 Monilar in the morning of December 16, 1996. When appellant intimated that he was willing to confess and requested the presence of Atty. Parawan, SPO2 Monilar called up Atty. Parawan and informed him of appellants decision. Atty. Parawan arrived at the Ramos Police Station only at 2:00 in the afternoon. 27 By the time Atty. Parawan arrived, the investigation had already started and SPO2 Monilar

had already asked and elicited information from appellant. Worse, Atty. Parawan merely "observed" during the entire investigation and failed to advise or explain to appellant the questions being propounded by SPO2 Monilar. He did not even bother to ask appellant if the extrajudicial confession he was about to execute was being voluntarily given. Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own testimony that he already suspected appellant as having committed the crime when the latter was brought to his house by the barangay tanods, viz.: Q Being an attorney naturally your first question to your arresting tanods was where was he arrested and how was he arrested and what is the reason why he was arrested. Correct? A Yes. ... Q You are telling this Court now Atty. Parawan that before the Barangay Tanods could explain to you the circumstances of his arrest you already started to ask questions like; Why did you have blood in your pants. Where is your t-shirt you wore. Where did you get that information since you were not in the house of Jaqueline Tatoy when she was killed? A It was like this. I heard that the victim suffered multiple stab wounds. So when I saw blood stains with all probability it might come from the victim. It was conclusion something like when I saw that t-shirt stained with blood. Q So you mean to this Court that you already reached the conclusion of mine (sic) that Elizar Tomaquin one of your constituents in the Barangay was already on your conclusion in mine (sic) the killer of Jacquilyn Tatoy before your tanods turned it over to the police for investigation. Is that what you are telling Atty. Parawan? A It is somewhat like that. That is why I ordered my tanod to bring him to the Homicide.28

The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellants rights as an accused during the investigation when he himself entertained the suspicion that appellant is guilty of the crime charged, and naturally, he would want appellant to admit having committed it. It was posited that appellant cannot challenge Atty. Parawans qualification as a competent and independent counsel because he was his choice. As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person under investigation for the commission of an offense shall have the right to have competent and independent counsel preferably of his own choice. Ideally, the lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning, but the word "preferably" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. 29 What is imperative is that the counsel should be competent and independent. That appellant chose Atty. Parawan does not estop appellant from complaining about the latters failure to safeguard his rights. It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega where appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The latter, however, fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and does not know how to read and write.30 As between him and Atty. Parawan who presumably knows the intricacies of the law and appellants predicament, Atty. Parawan should have known better and exercised his sound judgment before conceding to appellants choice. But it did not occur to him to inhibit himself from acting as appellants counsel and instead, he even let appellant go through the investigation and execute the extrajudicial confession knowing fully well that he was biased as regards appellants innocence. Quoted verbatim, Atty. Parawan testified thus: Q Atty. Parawan comparing yourself to the accused who is a graduate of Batchelor (sic) of Law compared to your constituent who is jobless, illiterate [and] of low intelligence. The question is this: It did not occur to your mine (sic) to inhibit yourself despite the request by telling the accused as barangay Captain there could be a conflict of interest and

bias that I would not be in (sic) effective counsel or assistance to you. Did it not occur toy our mine (sic) or not? A It did not occur to my nime (sic). ... Q But as experienced attorney you know very well that when you assist a suspect in the police station and the circumstances he was arrested the best assistance a lawyer could give is would be to tell the accused to remain silent. Would you agree? ... A It did not occur to my mine (sic) that time.31 Clearly, Atty. Parawan failed to meet the exacting standards of an independent and competent counsel as required by the Constitution. Thus, the extrajudicial confession executed by appellant, even if gospel truth, is deemed an uncounselled confession and therefore, inadmissible in evidence. In this regard, it may not be amiss to repeat the declaration of the Court in People vs. Deniega,32 stressing the role of the courts in ascertaining that extrajudicial confessions meet the exacting standards of the Constitution: Every so often, courts are confronted with the difficult task of taking a hard look into the sufficiency of extra-judicial confessions extracted by law enforcement authorities as the sole basis for convicting accused individuals. In cases of crimes notable for their brutality and ruthlessness, the impulse to find the culprits at any cost occasionally tempts these agencies to take shortcuts and disregard constitutional and legal safeguards intended to bring about a reasonable assurance that only the guilty are punished. Our courts, in the process of establishing guilt beyond reasonable doubt, play a central role in bringing about this assurance by determining whether or not the evidence gathered by law enforcement agencies scrupulously meets exacting standards fixed by the Constitution. If the standards are not met, the Constitution provides the corresponding remedy by providing a strict exclusionary rule, i.e., that "[a]ny confession or admission obtained in violation of

(Article III, Section 12(1) . . . hereof shall be inadmissible in evidence." Without appellants extrajudicial confession, the prosecutions case now teeters precariously on circumstantial evidence, namely: (1) Rico Magdasals testimony that: (a) appellant left their drinking session at 1:00 in the morning of December 16, 1996; (b) the tres cantos and pair of shoes found inside Jaquelyns residence belongs to appellant; and (c) appellant was wearing a pair of maong shorts and white sando shirt on the night of the crime, which blood-stained shirt was found among the soiled clothes in Wilson Magdasals house; (2) Medical Technologist Jude Daniel Mendozas testimony that the blood stains on appellants sando shirt and the tres cantos was of human origin.33 These circumstances, however, are not sufficient to demonstrate positively and convincingly that it was appellant who killed Jaquelyn. Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.34 As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. 35 The circumstantial evidence in this case does not constitute an unbroken chain leading to one fair and reasonable conclusion that appellant is the guilty person.

For one, appellants act of leaving the drinking session at 1:00 in the morning does not establish appellants whereabouts at the time the crime was committed. There is nothing in the testimony of Rico Magdasal and the other prosecution witnesses that will show if appellant indeed went to Jaquelyns house after he left the group. No one saw him enter or leave her residence. If at all, what was proved is that appellant was found by the barangay tanods sleeping at home in the afternoon of the same day. Added to that is the prosecutions failure to establish the chain of custody of these valuable pieces of evidence. Prosecution witness Armando Zabate testified that the pair of black shoes and tres cantos were given to a certain Rey for safekeeping. These were later turned over to a Policeman Tariao of the Ramos Police Station. Zabate, however, did not identify the person who turned over the objects to the police.36 There was no showing who turned over those articles to the police and Rey was not presented to identify if these were the same pair of shoes and tres cantos found in Jaquelyns house and turned over to the police. Policeman Tariao was not called to the witness stand so as to confirm if those articles were the same evidence turned over to him and later presented in court. Ordinarily, it would not be indispensable for the prosecution to allege and prove every single fact of the case. But in this case, the pieces of evidence are crucial to the prosecutions case. Also, the fact that a civilian obtained and received the evidence, the possibility that the integrity of these articles could have been compromised cannot be ignored. The Court even noted that during his direct examination, SPO2 Monilar was confused as to whether the pair of shoes presented in court was the same ones that were turned over to the police. It turned out that the marking he made on the shoes were washed off because at one time, the shoes fell in the canal located in front of the police station and they had to clean and wash the shoes! 37 Such sloppy handling renders the chain of custody of those pieces of evidence dubious, and damaging to the prosecutions case. And even if appellant did own the pair of shoes and tres cantos, the fact that it was found in the scene of the crime merely proved that he was in the residence of Jaquelyn at some point in time. But it does not prove when particularly he was there, his authorship of the crime or his motive for being

there. While the motive of an accused in a criminal case is generally held to be immaterial, not being an element of the crime, motive becomes important when, as in this case, the evidence of the commission of the crime is purely circumstantial.38 The prosecutions evidence that is perceived to be conclusive of appellants guilt is mainly the testimony of Rico Magdasal. Such testimony, however, is uncorroborated. The rule is that the testimony of one witness is sufficient to sustain a conviction, if such testimony positively establishes the guilt of the accused beyond reasonable doubt.39 Moreover, the doctrine of long standing that the testimony of a lone witness, if credible and positive, is sufficient to convict an accused applies only to eyewitnesses. Thus, an uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt.40 Ricos lone testimony is not sufficient to establish appellants guilt beyond reasonable doubt. In addition, appellant vehemently denied Ricos allegations. According to appellant, it was Rico who actually owns the pair of shoes and tres cantos; that it was he who bid appellant to go to the Tatoys residence and lift their TV set; and that it was Rico who stabbed Jaquelyn. Considering appellants denial and his different version of the incident, it became incumbent upon the prosecution to rebut appellant's allegations with further evidence to corroborate the statement of Rico. It must be noted that there were other persons present during their drinking spree, namely, Romy Magdasal, Noel Labay, and a certain Cardo. These persons could have been presented as witnesses to back up Ricos claim but the prosecution did not do so. Rico testified that appellant owned the tres cantos found by the stairs; but Rico also stated he only "heard" that the tres cantos was found by the stairs.41 Who found the tres cantos that was supposed to have been used to stab Jaquelyn? The neighbor who allegedly found it by the stairs was not presented in court to identify if the tres cantos presented by the prosecution was the alleged weapon in the stabbing of Jaquelyn. Such failure of the prosecution to corroborate the material points of Ricos testimony weakened their case. The Court also has serious misgivings on the probative value of the white sando shirt that appellant was allegedly wearing at the time of stabbing Jaquelyn, which Edgar Magdasal later found bloodstained among the soiled clothes.

First, when appellant was asked by the barangay tanods about the shirt he was wearing, he told them that it was in Wilson Magdasals house. According to barangay tanod Armando Zabate, it was Edgar Magdasal who found the shirt, "somewhat wet and bloody," among the soiled clothes. 42 Edgar Magdasal, however, was not presented to testify as to where he found the shirt, the state the shirt was in when he found it, and how he knew that it was the shirt worn by appellant. Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on appellants sando shirt, as well as the tres cantos, were human blood.43 Mendoza, however, did not conduct further tests to ascertain the type of blood found on these pieces of evidence nor did he match it with the victims blood type,44 hence, it does not connect the bloodstains to the herein victim. In People vs. Rodriguez, the Court ruled that the maong pants allegedly belonging to appellant and found positive of type O blood has no probative value since the blood type of appellant and the victim were not taken for purposes of comparison.45 The same ruling applies with regard to the bloodstains found on the tres cantos. Appellant enjoys in his favor the presumption of innocence until the contrary is proven. Proof of the guilt of the accused should not be tainted with ambiguity. Although appellants defense is weak, conviction must come from the strength of the prosecution's evidence and not from the weakness of the defense. In this case, the prosecutions evidence is not strong enough to justify a finding of guilt beyond reasonable doubt.46 Acquittal, therefore, is inevitable. WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and ordered RELEASED immediately, unless he is being detained for some other legal cause. The Director of the Bureau of Corrections is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of the date of his release, or the ground for his continued confinement, within ten (10) days from notice of herein decision. Costs de oficio. SO ORDERED.

G.R. Nos. L-46960-62 January 8, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appelle vs. WILFREDO ROJAS, TEODORO VILLARIN, SOLOMON TOTOY, GREGORIO TUNDAG and SINFROSO MASONG, defendants-appellants. The Solicitor General for plaintiff-appellee. Gregorio R. Castillo for defendants-appellants Rojas, Villarin, Tundag and Masong. Angel P. Purisima for defendant-appellant Solomon Totoy. PER CURIAM: The people of Digon in Margosatubig, Zamboanga del Sur must still be talking every now and then of the strange killings that shook their barrio on that tragic morning of May 23, 1973, when three girls were slain, the youngest only five years old, under the most mystifying and shocking circumstances. Even now the townsfolk are probably still asking, not without a tinge of superstitious fear, the nagging, unanswered questions in this macabre case; Why? Why the blameless victims? And why the ruthless manner of their slaying? Consider the carnage and the girls who fell before the bloodied knife: Zenaida Nastae, 21 years old, stabbed once to death, ears severed; Canda Carluman, 7 years old, stabbed once, hemorrhaging to death; and Mona Carluman, 5 years old, stabbed twice to death, ears severed. 1 These were Nature's creatures still on the threshold of their lives, and yet they were cut down in the innocence of their youth without mercy and without reason. The day following the massacre, prodded perhaps by a sense not only of duty but also of outrage, a joint PC-police posse arrested seven persons in Barrio Talanusa, to wit: Teodoro Villarin, Saturnino Totoy, Solomon Totoy, Gregorio Tundag, Sinfroso Masong, Mohamod Esmael and Balbino Estrera, all suspected of the killings. 2 Found in their possession and confiscated were two home-made shotguns, one .38 caliber homemade pistol with two live bullets, five hunting knives with scabbards, an undershirt with Latin words arranged in a mystic design, a pair of trousers, four bottles of oil and two human ears.
3

Wilfredo Rojas, their alleged leader, was arrested later in Malangas, also of Zamboanga del Sur, and turned over to the Margosatubig police.
4

After investigation, all the suspects were charged with the er of the above-named victims in three separate informations to which they all pleaded not guilty. 5 Later, on motion of the prosecution and over the objection of the other defendmurdants, Esmael and Estrera were discharged so they could be used as state witnesses. 6 Every one of the remaining defendants was provided with counsel de oficio 7 An extended trial followed and decision was finally rendered on January 27, 1975, convicting all of them and sentencing them to death. 8 The lone exception was Saturnino Totoy, who, because of the mitigating circumstance of minority, was meted out the lesser penalty of eight years and one day of prision mayor to fourteen years, eight months and one day of reclusion temporal . 9 All the accused were also held solidarily liable for the civil indemnity of P12,000.00, to be paid to the heirs of each of the three victims. 10 The sentence of death has brought the case to this Court on automatic review. The records are voluminous. The accused-appellants are raising factual and legal questions which opposing counsel have discussed knowledgably and with commendable spirit and earnestness. We shall rule upon these issues presently. On the basis of the testimonial and documentary evidence presented at the trial, the following is substantially what happened before and during the tragic incident, as the lower court saw it. Sometime in January 1973 there arrived in Barrio Talanusa, Margosatubig, Zamboanga del Sur, a stranger from Barrio Tuboran, Malangas, of the same province, bringing with him wordly wares and presumably also his own concept of the spirit. His name was Wilfredo Rojas. During his stay, he befriended the other accused, whom he taught to pray the "Our Father," the "Hail Mary," and the "I Believe," in profession of the Christian faith as he understood it. He also sold them on credit what he called "anting-anting" oil which, he claimed, would, when rubbed on their bodies, protect them from injury. 11 Rojas returned to Talanusa in April of the same year, staying there for two weeks, and then again in May, joining his new-found friends as usual in drinking wine and in reciting the prayers he had taught them. 12 All this was

leading to the tragic events that would transpire later that month by the sea in Digon. On that fateful morning of May 23, 1973, Rojas and his companions went to the church in Talanusa, where they prayed, rubbed the amulet oil on their bodies, and girded themelves as if preparing for battle. Rojas as was armed with a shotgun and a knife. Estrera also had a shotgun and a knife. Tundag carried a revolver and a knife. Esmael, Masong, Solomon Totoy and Saturnino Totoy were armed with knives. Villarin alone had no weapons. Rojas as told them they were going to Digon. 13 Together, these eight men proceeded to their destination, about a half-hour's walk away. Arriving at the seashore where the massacre was soon to take place, they immediately surrounded the copra kiln to prevent escape of the persons in the enclosure. In the "tapahan" were Zenaida Nastae, the eldest in the group, and the Carluman sisters, Dalma, Canda, Mona and Lina, their ages ranging from ten years to one. Rojas approached Zenaida and pretended to be looking for a person named Yoyong, continuing in casual conversation when he received a negative answer. The girls did not appear to be apprehensive as yet. Suddenly and without warning, Solomon Totoy fired at Dalma, but his gun jammed. Rojas then pulled out his knife and swung at Zenaida, fatally wounding her in the left side of her body with one stab. The second victim was Canda, whom Rojas stabbed (or shot?) in the head, resulting in her bleeding to death. Rojas finally turned on the smallest girl in the group, the terrified Mona, whom he stabbed twice in the stomach and in the back, also killing her. It is not certain when this actually happened whether before or after they had died but to make the gory crimes even more bizzarre, the ears of Zenaida and Mona were severed, by whom it is also not clear At any rate, after the butchery was done, Rojas ordered the group to run, and - run they did together from the bloody sands. 14 They had not reckoned with Dalma who, with her sister Lina, had escaped the killing by fleeing to the nearby sea and hanging on to a log until the men had left. 15 She would live to tell about the terrible bloodbath she had seen and survived and to point to the accused as the brutal killers. It was Dalma and the two state witnesses, Esmael and Estrera, who supplied the details in the above narration. 16 Although there are a number of inconsistencies in their testimony, due probably to the general confusion that

characterized the incident, we accept the factual findings of the trial judge. The trial judge has a superior competence in this regard. After all, as we remarked in an earlier case, 17 it is the trial judge who has the opportunity to observe the witnesses and assess their demeanor, to mark every nuance of tone or pause of hesitation or flush of face, and to determine, by the totality of his impressions and the plausibility of their testimony, if what they are saying should be rejected or believed. The trial judge described Dalma as sincere and straight-forward, relating her story without hesitation and sticking to it despite rigid cross-examination. The 18naivete of the ten-year old girl was especially impressive and, together with her detailed remembrance of her harrowing experience, convinced the court that she was telling the truth. As for state witnesses Esmael and Estrera, while it has been argued that their testimony came from a polluted source, they being themselves co-conspirators with the accused, it is noteworthy that their co-conspirator own respective accounts of the tragedy were consistent with each other and tallied essentially with Dalma's narration. 19 Thus settling the factual issues, we now address ourselves to the several legal questions raised by the accused-appellants in their assignment of errors. Specifically, they claim that the lower court erred in finding that there was a conspiracy among them; in imposing upon them collectively the sentence of death; and in considering against them the aggravating circumstances of cuadrilla dwelling and evident premeditation. 20 Additionally, Solomon Totoy challenges his supposed confession on the ground that it was taken in violation of the Bill of Rights. 21 A conspiracy exists when two or more persons come to an agreement to commit a crime and decide to commit it. 22 While it is desirable that the conspiracy be proved by direct evidence, like an express understanding among the plotters affirming their commitment and defining their respective roles, it may nevertheless be established at times by circumstantial evidence only. 23 Thus, to repeat established doctrine, where the accused move in concert toward a common purpose, conspiracy may be inferred from their joint acts and design, without need of direct evidence of the criminal agreement. 24 We have held in many cases that the conduct of the accused before, during and after the commission of the crime, are circumstances that can show whether or not there was a conspiracy among them. 25

In the case at bar, it is not disputed that the accused, in the morning of the killings, gathered at the church in Talanusa and observed what might be compared to the ceremonies of warriors before a battle: prayers for victory, anointing with oil against injury and death, and girding for combat. 26 Surely, one does not make such solemn preparations if the destination were a harmless party, as claimed by the accused. 27 The record shows that Rojas, the "commander" as he was called, simply told the group they were going to Digon, but he did not have to spell out their mission. If only because of the formidable arsenal they were carrying, the accused could not but have known that their object was more sinister than merrymaking and drinking and feasting at a social gathering. There was certainly a more deadly purpose, and all of them were aware of this. It has been established that upon their arrival in the "tapahan" at Digon at about eleven o' clock of that fatal morning, the accused immediately positioned themselves around the copra kiln enclosure, surrounding it to prevent the five girls inside from leaving. 28 One wonders why, if they were not acting in concert, they at once so placed themselves as to form a ring around the structure in an veritable siege of their defenseless and unsuspecting prey. Notably, every one took his spot as if by pre-arrangement, without need of the leader assigning to them their respective positions, in what some if they had a sense of the occult would call a circle of death. There is no evidence that when Solomon Totoy suddenly attempted to shoot Dalma, the rest of the group was surprised, objected or demonstrated. Nobody stopped Rojas when he started killing the astonished and terrified victims. There was no protest either when the ears of Zenaida and Mona were cut off on Rojas's orders and wrapped in leaves for safekeeping. 29 Everything was done apparently according to a preconceived design. The group knew beforehand what was going to happen for, indeed, they had planned it that way. In fact, as a final touch, after the massacre was over, Rojas ordered the men to run, and obediently they did, fleeing the scene of the crimes at the same time and together. 30 It is the above acts of the accused, and not necessarily the testimony of Esmael and Estrera as co-conspirators, that have established the conspiracy. These two state witnesses merely corroborated the principal account given by the unhesitant Dalma, who had seen everything and told it in every harrowing unforgettable detail.

The conspiracy having been established, it must now visit equal punishment on all the conspirators, on the legal theory that the act of one is the act of all. 31 This is settled juris prudence. There is no need to harp on it. Indeed, even if it be argued that some did less than the others, it cannot be denied that their very participation in the conspiracy added to its strength emboldened the actual killer, and contributed to the success of the common design. In the eyes of the law, each conspirator is a co-principal and equally guilty with the other members of the plot. 32 It is true that in People v. Nierra, 33 this doctrine was relaxed in favor of the two accused who, although adjudged as co-conspirators, were nonetheless held to be accomplices only and so entitled to a lesser penalty than that imposed on the other defendants. In that case, however, the participation of one was limited to introducing the killer to the other plotters and delivering the murder weapon to him and the other merely acted as look-out while the crime was being committed. In the instant case, however, every one of the accused acted in concert and was present at the scene of the crime while it was being committed and as an equal partner of the rest performed his designated part to complete its execution. There is no question that the killings were committed with treachery, to qualify the crimes to murder. Treachery exists when the offender commits any crime 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 any defense which the offended party might make, 34 In the instant case, the offended parties were young defenseless girls confronted by eight full-grown men armed with guns and knives who, to make a surprise attack, pretended to be looking for someone. Three bloody corpses, the victim of their guile and their superior strength and number, attested to the success of their wicked plot. We reject the finding by the trial court of dwelling and band as separate aggravating circumstances. 35 Even the Solicitor General believes that dwelling should not have been considered because the "tapahan" in which the murders were committed was a separate structure and did not form part of the building where the victims were residing. 36 As for band, it is unquestionable that cuadrilla is absorbed by treachery since its employment was consciously adopted to insure the execution of the plot without risk to the criminals, by

reason of their number, let alone their strength, from any defense the offended parties might make. 37 But evident premeditation is another matter and is correctly appreciated as an aggravating circumstance that will increase the penalty. The rule is that under normal conditions, when the conspiracy is directly established with proof of the attendant deliberation and selection of the method, time and means of executing the crimes, the existence of evident premeditation may be taken for granted. 38 In case of implied conspiracy, however, there must be proof as to how and when the plan was hatched and the time that elapsed before it was carried out, so it can be determined if the accused had sufficient time between its inception and its fulfillment to dispassionately consider the commission of the crime and its consequences. 39 As this Court has repeatedly held, there should be a showing that the accused had the opportunity for reflection, that he had the chance to weigh the pros and cons of the deed he was planning, and that he nonetheless persisted in carrying out his criminal design.
40

From the facts found by the lower court, there was such a showing. It would appear that the plan to murder the girls was conceived perhaps as early as during the meetings in April and May between Rojas and the other members of the group, or at the very latest when they all assembled in the church at Talanusa before they made the trip to Digon. Even as they were mouthing their prayers, they had already made up their minds, or perhaps were only affirming a decision reached earlier, to kill the girls in Digon. They knew then where they were going. They knew what they were going to do. Between the time they left the church in Talanusa and until they arrived in Digon a good thirty minutes' walk over a two-kilometer stretch during which they would have had nothing in mind but their mission they had sufficient time to reflect on the acts they were about to commit, to consult their conscience on the justification for the crime they were planning, and to desist, if they wanted to, from carrying out their deadly purpose. Coming now to Solomon Totoy's extrajudicial confession which he asks us to invalidate, all we have to do is test it against the requirements of Article IV, Section 20, of the 1973 Constitution. This statement was obtained from him on May 28, 1973. It is therefore covered by Magtoto v. Manguera 41 and other subsequent cases 42 holding that this section should be given only prospective operation from January 17, 1973, when the Constitution was ratified.

The said provision categorically states that "any person under investigation for the commission of an offense shall have the right to remain silent and to counsel and to be informed of such right." The record does not show that this requirement was observed. On the contrary, there merely appears in the opening paragraph of the said confession the vague statement that: The affiant has been informed of his rights under the Constitution of the Republic of the Philippines, and under the state of Martial Law, and the nature of the investigation, and without violence, intimidation, force nor reward the affiant declared as follows: xxx xxx xxx This surely does not suggest compliance with the constitutional mandate. The rights which Totoy was entitled to know were not specifically communicated to him. Being informed of his "rights under the Constitution of the Republic of the Philippines" did not mean he was informed particularly of his right to remain silent and to be assisted by counsel during his custodial investigation. He was not told he did not have to answer if he did not feel like answering. He was not told he had a right to be assisted by counsel. He was not given a chance to retain counsel de parte if he wanted to, and neither was he offered the services of counsel de oficio. Not knowing about his right to counsel, he could not have waived it; and in any case, the waiver, to be valid, would have needed the assistance of counsel under the ruling announced in People v. Galit, 43 which is still the prevailing doctrine notwithstanding the reservations of some members of this Court. In fine, what we see here is a superficial observance of the requirements of the Bill of Rights through a mere recitation by rote of the sacramental advise, which was inadequate to begin with. There was no sincere effort or desire to apply the guarantees of Section 20 that could have protected the suspect from the rash and uncounseled statements he subsequently made, knowing no better. That statement is, of course, not admissible against him. 44 We end on this note of perplexity and regret. From the legal viewpoint, motive need not be established as long as the defendants have been directly Identified, as in this case. 45 Even so, the towns people of Margosatubig, mindless of such legal niceties are probably still ammusing over the bloody

attack on that pleasant morning in May thirteen years ago when three young girls perished by the seashore in Digon at the hands of eight intruders. Was there perhaps a ritual killing on that tragic shore? There are those who suggest the hand of a fanatic religious group animated by a deadly hostility to Muslims, including innocent girls and children like the victims in this case. 46 Others see hidden meanings in the Latin inscriptions and cryptic designs on the shirt Rojas was wearing that fateful morning when, as one possessed, he slew and slew and slew. 47 The severed ears are especially intriguing and could perhaps reveal an esoteric purpose behind the savage knives the killers wielded in cold blood against their innocent prey. Still the question probes and lingers: Why? The answer lies in the warped mind of the stranger from Tuboran who came with his magic amulet oil and taught his believing followers to pray with him -and kill. All the accused-appellants are guilty of the three crimes of murder, qualified by treachery and aggravated by evident premeditation. Rejected as aggravating circumstances are band, because it is already absorbed by treachery; dwelling, because the "tapahan" was not part of the victims' residence; and cruelty, because it has not been shown that the ears of the two victims were severed while they were still alive. WHEREFORE, as above modified, the judgment of conviction is affirmed and the sentence of death is imposed on all the ..accused-appellants for each of the murders. The civil indemnity, for which they are solidarily liable, is increased to P30,000.00 for the heirs of each of the victims. No costs. SO ORDERED. G.R. No. L-59378 February 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NELIA NICANDRO y VELARMA, accused-appellant. PLANA, J.: This is an appeal from a judgment of the then Court of First Instance of Manila, Branch VIII, convicting the accused Nelia Nicandro y Velarma of violation of Section 4, Article II, in relation to Section 2(e), (f), (1), (m), and (o) Article I, of

Republic Act 6425, as amended (Dangerous Drugs Act), upon an information which reads: That on or about November 6, 1981, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell deliver, give away to another or distribute any prohibited drug, did then and there willfully, unlawfully, and knowingly sell or offer for sale four (4) sticks of marijuana cigarettes, marijuana flowering tops wrapped in a piece of newspaper, one (1) roach marijuana cigarette and marijuana seeds and ashes contained in a white plastic bag, which are prohibited drugs. The People's version of the facts is as follows: Not long before November 6,1981, the Drug Enforcement Unit of Police Station No. 5, Western Police District, Metropolitan Police Force, Manila, received complaints from concerned citizens regarding the illegal sale of prohibited drugs by one alias 'Nel' in the Commodore Pension House at Arquiza Street, Ermita, Manila (p. 4, tsn, Dec. 8, 1981). lt was also informed that the use of prohibited drugs in said place was rampant (pp. 3, 18-19, tsn, Ibid). Responding to said complaints and reports, Cpl. Salvador Guitan and Pfc. Romeo Joves of the Drug Enforcement Unit of said Police Station No. 5 placed the Commodore Pension House and its surroundings under surveillance for about a week (pp. 4-5, tsn, Ibid.). After the complaints and reports were verified to be true, an entrapment with the confidential informant acting as the buyer of marijuana was organized. (pp. 5-6, 29-30, tsn, Ibid.). At about 9:00 p.m. on November 6, 1981, the police team formed to carry out the entrapment plan was alerted of the presence of the drug pusher, alias 'Nel', at room 301 of the Commodore Pension House, selling marijuana to drug users (pp. 6, 32-33, tsn, Ibid.). Immediately Cpl. Salvador Guitan, Pat. Proceso Federes, Pat. Aurora Gomez and

Pfc. Romeo Joves proceeded to the said Commodore Pension House and met the female confidential informant at the corner of Arquiza Street and M.H. del Pilar Street, Ermita, Manila (pp. 6, 23, 33, tsn, Dec. 8, 1981; pp. 15-16, tsn. Dec. 9, 1981). Pfc. Joves gave the informant two (2) P5.00 bills, marked Exhibits "D" and "E", with his initial thereon, marked Exhibits "D-1", and "E-1" (Exhs. "D", "D-1" "E" and "E-1", pp. 3-4, Folio of Exhs.; pp. 6, 8, 35, tsn, Dec. 8, 1981; p. 16, tsn, Dec. 9, 1981). They instructed her to follow them to the Commodore Pension House (p. 33, tsn, Dec. 8, 1981). Following later, the informant went to room 301 of the Commodore Pension House (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Upon a given signal she knocked on the door of the room. Appellant Nelia Nicandro y Velarma, alias 'Nel', opened the door (p. 6, tsn, Dec. 8. 1981). The informant asked to buy some marijuana cigarette and gave appellant the two (2) marked P 5.00 bills (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Thereupon, the appellant delivered to informant four (4) sticks of marijuana cigarette (pp. 7, 25, tsn; Dec. 8,1981; p. 8, tsn, Dec. 9, 1981). Immediately the police team closed in and nabbed appellant (p. 7, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Pat. Gomez frisked appellant and got from the right front pocket of her pants the two (2), marked P5.00 bills (Exhs. "D" & " E ") and from the left pocket of her pants marijuana flowering tops wrapped in a piece of newspaper (pp. 8-9, 12, 34, tsn, Dec. 8, 1981; pp. 9-10, 17-19, tsn. Dec. 9, 1981). Appellant tried to escape by entering her rented room 301 but was immediately (pp. 8-9, tsn, Dec. 9, 1981). xxx xxx xxx Upon being investigated and after having been duly apprised of her constitutional rights, appellant orally

admitted having sold the four (4) sticks of marijuana cigarettes and the ownership of the marijuana flowering tops taken from her pocket, but refused to reduce her confession to writing (pp. 12-13, tan; Dec. 8, 1981. ... (People's Brief, pp. 3-6, 8.) To support the charges, the prosecution relied principally on Pat. Joves, who testified that he saw the accused sell marijuana cigarettes to the unnamed police informant, which allegedly the accused verbally admitted when she was under custodial investigation. Pat. Joves declared: Q Where were you when the informant handed the two P5.00 bills to the accused? A We were hidden within the vicinity of Room 301 sir. Q After your confidential informant have handed the two P5.00 bills to the accused, what happened next? A The accused in turn handed one small plastic bag containing suspected marijuana leaves. I beg to correct sir. I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir. Q What did you do when you saw the accused hand over to the confidential informant the four sticks of cigarettes containing marijuana? A When we saw the accused handed the four sticks of suspected marijuana cigarettes to our confidential informant, and after a pre-a rranged signal was given by the confidential informant that the accused had already sold her the marijuana cigarettes, we immediately nabbed said suspect and at

the same time we Identified ourselves as police officers. (TSN, Dec. 8, 1981, p. 7.) xxx xxx xxx Q You also conducted the investigation of this accused and confiscation of the articles of the crime? A Yes, sir. Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. Q Did you place that in writing? A The accused refused to place her statement in writing, sir. (Ibid., pp. 12-13.) xxx xxx xxx CROSS EXAMINATION Q And who were your companions in apprehending the accused?

A I was with Police Cpl. Salvador Guitan, Pat. Federis and Policewoman Aurora Gomez, sir. Q When you posted yourselves and other companions at the third floor of Commodore Pensione House, were there any other persons present in the premises, Pat. Joves? A There were other persons passing by or walking in the place from where we were posted sir. Q In fact, there were several or many persons in that place because there is a lodging house Pat. Joves when you posted yourselves there? There were several persons present there? A There are several persons present but they are just passing by or walking towards their rooms, sir. Q And you want this Court to believe that in spite of the presence of these people walking and passing to the place where you made the apprehension, you want this Court to believe that the accuse was then selling the alleged marijuana sticks? WITNESS: Please repeat the questions? ATTY. CARINGAL: Q You want the Court to believe that the accused was selling the prohibited drug in

public because according to you there were several persons present then? A There were several persons passing by sir at that place. Q You testified a while ago Pat. Joves that you have seen the accused handing a plastic bag to your confidential informant. How big is that plastic bag.? A It was not a plastic bag, sir but four sticks of marijuana cigarettes, sir. Q Do you want to impress this Honorable Court that the accused was selling this marijuana cigarette in the open? A The accused sold marijuana cigarettes also in a way that she will not be noticed by other persons sir. Q How were you able to say that the things handed by the accused to your confidential informant were four sticks of marijuana cigarettes when you have just said that the transactions was done secretly? A She was handing the marijuana cigarette secretly, sir. Q How were you able to say and how were you able to determine that the things handed to your confidential informant were four sticks of marijuana cigarettes? A We saw and observed that the accused handed sticks of suspected marijuana cigarettes and we also have a prearranged signal from the confidential informant that

the marijuana was already sold by the accused, sir. (Ibid., pp. 23-25.) Policewoman Aurora Gomez also testified but her testimony was limited to events subsequent to the alleged sale of marijuana cigarettes. She did not witness the sale. (TSN, Dec. 9, 1981, pp. 17-18, 21.) Neither did Cpl. Guitan or Pat. Federis. After trial, the trial court convicted the accused as aforesaid and imposed the penalty of reclusion perpetua and a fine of P20,000.00. In the instant appeal, defendant-appellant has assigned the following errors: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR VIOLATION OF SECTION 4 OF ARTICLE II IN RELATION TO SECTION 2(e), (1), (f) and (o), ARTICLE 1, R.A. 6425, AS AMENDED BY P.D. NO. 44 AND FURTHER AMENDED BY P.D. NO. 1675. II THE COURT A QUO GRAVELY ERRED IN GIVING PROBATIVE VALUE TO THE TESTIMONIES OF ALL POLICE OF OFFICERS WHICH ARE HEARSAY. III THE COURT A QUO GRAVELY ERRED IN ADMITTING PROSECUTION EVIDENCE WHICH WERE OBTAINED IN VIOLATION PETITION OF ACCUSED CONSTITUTIONAL RIGHTS. IV THE CONSTITUTIONAL RIGHTS OF THE ACCUSED MORE PARTICULARLY THE RIGHT TO CONFRONTATION AND TO CROSS-EXAMINE WITNESS AGAINST HER HAS BEEN VIOLATED.

Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be desired. It is at best uncertain whether any prosecution witness really saw the alleged sale of marijuana cigarettes. Patrolman Joves allegedly was an eyewitness. He testified that he saw the appellant sell marijuana cigarettes to the police informant, as the transaction took place openly just outside room 301, in the presence of several persons "passing by or walking in the place". But when his attention was called to the improbability that an illegal merchandise would openly be sold, he qualified his story by saying that appellant handed the marijuana cigarettes to appellant "secretly". Pat. Joves was not certain as to what he saw. At first, he said that after the police informant had paid appellant, the latter handed to the former "one small plastic bag containing suspected marijuana leaves." Then he corrected himself by saying: "I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir." It is probable that Pat. Joves really did not see either the alleged delivery of the marijuana cigarettes or the supposed payment therefor. After all, according to him, the transaction was effected "secretly". On the other hand, if the sale was made within the view of Pat. Joves and his companions, there would have been no need for them to wait for a signal from the police informant to indicate that the transaction had been completed, before closing in and arresting appellant. With the testimony of Pat. Joves seriously placed in doubt, there is not much left of the prosecution evidence. Note that the police informant was not presented as a witness, prompting the accused to invoke with reason the presumption that evidence willfully suppressed would be adverse if produced. [Rules of Court, Rule 131, Sec. 5(e).] In convicting the appellant, the trial court relied partly on her alleged oral admission declaraciones custodial investigation, as testified to by Pat. Joves. This reliance is assailed as violative of Section 20 of Article IV of the Constitution which reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain

silent and to counsel and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The above provision is an expanded version of the guarantee against self-incrimination, formally incorporating the doctrine in the landmark American case of Miranda vs. Arizona ... Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to

refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. [384 U.S. 436, 444-445. Incidentally, the Miranda doctrine rests on just one broad guarantee in the U.S. Constitution, i.e., that no person shall be compelled in any criminal case to be a witness against himself. (Fifth Amendment.)] When the Constitution requires a person under investigation "to be informed" of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefor, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. (See People vs. Ramos, 122 SCRA 312: People VS. Caguioa, 95 SCRA 2.) In other words, the right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights. Now, since the right "to be informed" implies comprehension, the degree of explanation required will necessary vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered. Thus, in the cited case of People vs. Ramos, this Court said: In the case at bar, appellant has only finished Grade VI, which means that he is not adequately educated to understand fairly and fully the significance of his constitutional rights to silence and to counsel. As mandated, it is not enough that the police investigator merely informs him of his constitutional rights to silence and to counsel, and then taking his statements down, the interrogating officer must have patience in explaining

these rights to him The records do not reveal that these requirements have been fully complied with, nor was there any showing that appellant has been represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of Rights which states that 'any confession obtained in violation of this section shall be inadmissible in evidence,' We hold that the verbal admissions of appellant during custodial investigation may not be taken in evidence against him. (pp. 321-322.) Like other constitutional rights, the right against self-incrimination, including the right of a person under investigation to remain silent and to counsel, and to be informed of such right, may be waived. To be valid, however, a waiver of the right must not only be voluntary; it must be made knowingly and intelligently (People vs. Caguioa, supra), which presupposes an awareness or understanding of what is being waived. It stands to reason that where the right has not been adequately explained and there are serious doubts as to whether the person interrogated knew and understood his relevant constitutional rights when he answered the questions, it is Idle to talk of waiver of rights. Going to the instant case, Pat. Joves testified that he conducted the custodial investigation of appellant. As to the manner of investigation, he tersely testified: Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. (TSN, December 8, 1981, pp. 12-13.)

According to Pat. Joves, he informed appellant of her constitutional rights when she was under custodial investigation. What specific rights he mentioned to appellant, he did not say. Neither did he state the manner in which the appellant was advised of her constitutional rights so as to make her understand them. This is particularly significant in the instant case because appellant is illiterate and cannot be expected to be able to grasp the significance of her right to silence and to counsel upon merely hearing an abstract statement thereof. As it is the obligation of the investigating officer to inform a person under investigation of his right to remain silent and to counsel, so it is the duty of the prosecution to affirmatively establish compliance by the investigating officer with his said obligation. Absent such affirmative showing, the admission or confession made by a person under investigation cannot be admitted in evidence. As broadly stated in the Miranda case and quoted with approval by the then Chief Justice Enrique M. Fernando in People vs. Caguioa, supra, ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial investigation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (95 SCRA 2,9. Emphasis supplied.) The reason is not difficult to see. A constitutional guarantee should be liberally construed with a view to promoting its object. ... Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. xxx xxx xxx In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and

intelligent waiver of these rights be assumed on a silent record. ... (Miranda case, 384 U.S. 436, 491, 498-499.) Thus, in People vs. Ramos, supra, the Court ruled that the verbal admission of the accused during custodial investigation was inadmissible, although he had been apprised of his constitutional rights to silence and to counsel, for the reason that the prosecution failed to show that those rights were explained to him, such that it could not be said that "the apprisal was sufficiently manifested and intelligently understood" by the accuse. Similarly, in People vs. Caguioa, the Court sustained the rejection by the trial court of the extrajudicial admission made by the accused during custodial investigation, there being no showing by the prosecution that there was sufficient compliance with the constitutional duty to inform the accused of his rights to silence and to counsel, without which there could be no intelligent waiver of said rights. In said case, the accused a native of Samar was interrogated in Tagalog. The prosecution did not show that the accused's acquaintance with Tagalog was such that he could fully understand the questions posed to him. All considered, we hold that the guilt of appellant has not been established beyond reasonable doubt. WHEREFORE, the appealed decision is reversed and set aside, and the appellant is hereby acquitted on the basis of reasonable doubt. SO ORDERED. G.R. No. L-59378 February 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NELIA NICANDRO y VELARMA, accused-appellant. PLANA, J.: This is an appeal from a judgment of the then Court of First Instance of Manila, Branch VIII, convicting the accused Nelia Nicandro y Velarma of violation of Section 4, Article II, in relation to Section 2(e), (f), (1), (m), and (o) Article I, of

Republic Act 6425, as amended (Dangerous Drugs Act), upon an information which reads: That on or about November 6, 1981, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell deliver, give away to another or distribute any prohibited drug, did then and there willfully, unlawfully, and knowingly sell or offer for sale four (4) sticks of marijuana cigarettes, marijuana flowering tops wrapped in a piece of newspaper, one (1) roach marijuana cigarette and marijuana seeds and ashes contained in a white plastic bag, which are prohibited drugs. The People's version of the facts is as follows: Not long before November 6,1981, the Drug Enforcement Unit of Police Station No. 5, Western Police District, Metropolitan Police Force, Manila, received complaints from concerned citizens regarding the illegal sale of prohibited drugs by one alias 'Nel' in the Commodore Pension House at Arquiza Street, Ermita, Manila (p. 4, tsn, Dec. 8, 1981). lt was also informed that the use of prohibited drugs in said place was rampant (pp. 3, 18-19, tsn, Ibid). Responding to said complaints and reports, Cpl. Salvador Guitan and Pfc. Romeo Joves of the Drug Enforcement Unit of said Police Station No. 5 placed the Commodore Pension House and its surroundings under surveillance for about a week (pp. 4-5, tsn, Ibid.). After the complaints and reports were verified to be true, an entrapment with the confidential informant acting as the buyer of marijuana was organized. (pp. 5-6, 29-30, tsn, Ibid.). At about 9:00 p.m. on November 6, 1981, the police team formed to carry out the entrapment plan was alerted of the presence of the drug pusher, alias 'Nel', at room 301 of the Commodore Pension House, selling marijuana to drug users (pp. 6, 32-33, tsn, Ibid.). Immediately Cpl. Salvador Guitan, Pat. Proceso Federes, Pat. Aurora Gomez and

Pfc. Romeo Joves proceeded to the said Commodore Pension House and met the female confidential informant at the corner of Arquiza Street and M.H. del Pilar Street, Ermita, Manila (pp. 6, 23, 33, tsn, Dec. 8, 1981; pp. 15-16, tsn. Dec. 9, 1981). Pfc. Joves gave the informant two (2) P5.00 bills, marked Exhibits "D" and "E", with his initial thereon, marked Exhibits "D-1", and "E-1" (Exhs. "D", "D-1" "E" and "E-1", pp. 3-4, Folio of Exhs.; pp. 6, 8, 35, tsn, Dec. 8, 1981; p. 16, tsn, Dec. 9, 1981). They instructed her to follow them to the Commodore Pension House (p. 33, tsn, Dec. 8, 1981). Following later, the informant went to room 301 of the Commodore Pension House (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Upon a given signal she knocked on the door of the room. Appellant Nelia Nicandro y Velarma, alias 'Nel', opened the door (p. 6, tsn, Dec. 8. 1981). The informant asked to buy some marijuana cigarette and gave appellant the two (2) marked P 5.00 bills (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Thereupon, the appellant delivered to informant four (4) sticks of marijuana cigarette (pp. 7, 25, tsn; Dec. 8,1981; p. 8, tsn, Dec. 9, 1981). Immediately the police team closed in and nabbed appellant (p. 7, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Pat. Gomez frisked appellant and got from the right front pocket of her pants the two (2), marked P5.00 bills (Exhs. "D" & " E ") and from the left pocket of her pants marijuana flowering tops wrapped in a piece of newspaper (pp. 8-9, 12, 34, tsn, Dec. 8, 1981; pp. 9-10, 17-19, tsn. Dec. 9, 1981). Appellant tried to escape by entering her rented room 301 but was immediately (pp. 8-9, tsn, Dec. 9, 1981). xxx xxx xxx Upon being investigated and after having been duly apprised of her constitutional rights, appellant orally

admitted having sold the four (4) sticks of marijuana cigarettes and the ownership of the marijuana flowering tops taken from her pocket, but refused to reduce her confession to writing (pp. 12-13, tan; Dec. 8, 1981. ... (People's Brief, pp. 3-6, 8.) To support the charges, the prosecution relied principally on Pat. Joves, who testified that he saw the accused sell marijuana cigarettes to the unnamed police informant, which allegedly the accused verbally admitted when she was under custodial investigation. Pat. Joves declared: Q Where were you when the informant handed the two P5.00 bills to the accused? A We were hidden within the vicinity of Room 301 sir. Q After your confidential informant have handed the two P5.00 bills to the accused, what happened next? A The accused in turn handed one small plastic bag containing suspected marijuana leaves. I beg to correct sir. I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir. Q What did you do when you saw the accused hand over to the confidential informant the four sticks of cigarettes containing marijuana? A When we saw the accused handed the four sticks of suspected marijuana cigarettes to our confidential informant, and after a pre-a rranged signal was given by the confidential informant that the accused had already sold her the marijuana cigarettes, we immediately nabbed said suspect and at

the same time we Identified ourselves as police officers. (TSN, Dec. 8, 1981, p. 7.) xxx xxx xxx Q You also conducted the investigation of this accused and confiscation of the articles of the crime? A Yes, sir. Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. Q Did you place that in writing? A The accused refused to place her statement in writing, sir. (Ibid., pp. 12-13.) xxx xxx xxx CROSS EXAMINATION Q And who were your companions in apprehending the accused?

A I was with Police Cpl. Salvador Guitan, Pat. Federis and Policewoman Aurora Gomez, sir. Q When you posted yourselves and other companions at the third floor of Commodore Pensione House, were there any other persons present in the premises, Pat. Joves? A There were other persons passing by or walking in the place from where we were posted sir. Q In fact, there were several or many persons in that place because there is a lodging house Pat. Joves when you posted yourselves there? There were several persons present there? A There are several persons present but they are just passing by or walking towards their rooms, sir. Q And you want this Court to believe that in spite of the presence of these people walking and passing to the place where you made the apprehension, you want this Court to believe that the accuse was then selling the alleged marijuana sticks? WITNESS: Please repeat the questions? ATTY. CARINGAL: Q You want the Court to believe that the accused was selling the prohibited drug in

public because according to you there were several persons present then? A There were several persons passing by sir at that place. Q You testified a while ago Pat. Joves that you have seen the accused handing a plastic bag to your confidential informant. How big is that plastic bag.? A It was not a plastic bag, sir but four sticks of marijuana cigarettes, sir. Q Do you want to impress this Honorable Court that the accused was selling this marijuana cigarette in the open? A The accused sold marijuana cigarettes also in a way that she will not be noticed by other persons sir. Q How were you able to say that the things handed by the accused to your confidential informant were four sticks of marijuana cigarettes when you have just said that the transactions was done secretly? A She was handing the marijuana cigarette secretly, sir. Q How were you able to say and how were you able to determine that the things handed to your confidential informant were four sticks of marijuana cigarettes? A We saw and observed that the accused handed sticks of suspected marijuana cigarettes and we also have a prearranged signal from the confidential informant that

the marijuana was already sold by the accused, sir. (Ibid., pp. 23-25.) Policewoman Aurora Gomez also testified but her testimony was limited to events subsequent to the alleged sale of marijuana cigarettes. She did not witness the sale. (TSN, Dec. 9, 1981, pp. 17-18, 21.) Neither did Cpl. Guitan or Pat. Federis. After trial, the trial court convicted the accused as aforesaid and imposed the penalty of reclusion perpetua and a fine of P20,000.00. In the instant appeal, defendant-appellant has assigned the following errors: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR VIOLATION OF SECTION 4 OF ARTICLE II IN RELATION TO SECTION 2(e), (1), (f) and (o), ARTICLE 1, R.A. 6425, AS AMENDED BY P.D. NO. 44 AND FURTHER AMENDED BY P.D. NO. 1675. II THE COURT A QUO GRAVELY ERRED IN GIVING PROBATIVE VALUE TO THE TESTIMONIES OF ALL POLICE OF OFFICERS WHICH ARE HEARSAY. III THE COURT A QUO GRAVELY ERRED IN ADMITTING PROSECUTION EVIDENCE WHICH WERE OBTAINED IN VIOLATION PETITION OF ACCUSED CONSTITUTIONAL RIGHTS. IV THE CONSTITUTIONAL RIGHTS OF THE ACCUSED MORE PARTICULARLY THE RIGHT TO CONFRONTATION AND TO CROSS-EXAMINE WITNESS AGAINST HER HAS BEEN VIOLATED.

Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be desired. It is at best uncertain whether any prosecution witness really saw the alleged sale of marijuana cigarettes. Patrolman Joves allegedly was an eyewitness. He testified that he saw the appellant sell marijuana cigarettes to the police informant, as the transaction took place openly just outside room 301, in the presence of several persons "passing by or walking in the place". But when his attention was called to the improbability that an illegal merchandise would openly be sold, he qualified his story by saying that appellant handed the marijuana cigarettes to appellant "secretly". Pat. Joves was not certain as to what he saw. At first, he said that after the police informant had paid appellant, the latter handed to the former "one small plastic bag containing suspected marijuana leaves." Then he corrected himself by saying: "I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir." It is probable that Pat. Joves really did not see either the alleged delivery of the marijuana cigarettes or the supposed payment therefor. After all, according to him, the transaction was effected "secretly". On the other hand, if the sale was made within the view of Pat. Joves and his companions, there would have been no need for them to wait for a signal from the police informant to indicate that the transaction had been completed, before closing in and arresting appellant. With the testimony of Pat. Joves seriously placed in doubt, there is not much left of the prosecution evidence. Note that the police informant was not presented as a witness, prompting the accused to invoke with reason the presumption that evidence willfully suppressed would be adverse if produced. [Rules of Court, Rule 131, Sec. 5(e).] In convicting the appellant, the trial court relied partly on her alleged oral admission declaraciones custodial investigation, as testified to by Pat. Joves. This reliance is assailed as violative of Section 20 of Article IV of the Constitution which reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain

silent and to counsel and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The above provision is an expanded version of the guarantee against self-incrimination, formally incorporating the doctrine in the landmark American case of Miranda vs. Arizona ... Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to

refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. [384 U.S. 436, 444-445. Incidentally, the Miranda doctrine rests on just one broad guarantee in the U.S. Constitution, i.e., that no person shall be compelled in any criminal case to be a witness against himself. (Fifth Amendment.)] When the Constitution requires a person under investigation "to be informed" of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefor, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. (See People vs. Ramos, 122 SCRA 312: People VS. Caguioa, 95 SCRA 2.) In other words, the right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights. Now, since the right "to be informed" implies comprehension, the degree of explanation required will necessary vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered. Thus, in the cited case of People vs. Ramos, this Court said: In the case at bar, appellant has only finished Grade VI, which means that he is not adequately educated to understand fairly and fully the significance of his constitutional rights to silence and to counsel. As mandated, it is not enough that the police investigator merely informs him of his constitutional rights to silence and to counsel, and then taking his statements down, the interrogating officer must have patience in explaining

these rights to him The records do not reveal that these requirements have been fully complied with, nor was there any showing that appellant has been represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of Rights which states that 'any confession obtained in violation of this section shall be inadmissible in evidence,' We hold that the verbal admissions of appellant during custodial investigation may not be taken in evidence against him. (pp. 321-322.) Like other constitutional rights, the right against self-incrimination, including the right of a person under investigation to remain silent and to counsel, and to be informed of such right, may be waived. To be valid, however, a waiver of the right must not only be voluntary; it must be made knowingly and intelligently (People vs. Caguioa, supra), which presupposes an awareness or understanding of what is being waived. It stands to reason that where the right has not been adequately explained and there are serious doubts as to whether the person interrogated knew and understood his relevant constitutional rights when he answered the questions, it is Idle to talk of waiver of rights. Going to the instant case, Pat. Joves testified that he conducted the custodial investigation of appellant. As to the manner of investigation, he tersely testified: Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. (TSN, December 8, 1981, pp. 12-13.)

According to Pat. Joves, he informed appellant of her constitutional rights when she was under custodial investigation. What specific rights he mentioned to appellant, he did not say. Neither did he state the manner in which the appellant was advised of her constitutional rights so as to make her understand them. This is particularly significant in the instant case because appellant is illiterate and cannot be expected to be able to grasp the significance of her right to silence and to counsel upon merely hearing an abstract statement thereof. As it is the obligation of the investigating officer to inform a person under investigation of his right to remain silent and to counsel, so it is the duty of the prosecution to affirmatively establish compliance by the investigating officer with his said obligation. Absent such affirmative showing, the admission or confession made by a person under investigation cannot be admitted in evidence. As broadly stated in the Miranda case and quoted with approval by the then Chief Justice Enrique M. Fernando in People vs. Caguioa, supra, ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial investigation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (95 SCRA 2,9. Emphasis supplied.) The reason is not difficult to see. A constitutional guarantee should be liberally construed with a view to promoting its object. ... Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. xxx xxx xxx In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and

intelligent waiver of these rights be assumed on a silent record. ... (Miranda case, 384 U.S. 436, 491, 498-499.) Thus, in People vs. Ramos, supra, the Court ruled that the verbal admission of the accused during custodial investigation was inadmissible, although he had been apprised of his constitutional rights to silence and to counsel, for the reason that the prosecution failed to show that those rights were explained to him, such that it could not be said that "the apprisal was sufficiently manifested and intelligently understood" by the accuse. Similarly, in People vs. Caguioa, the Court sustained the rejection by the trial court of the extrajudicial admission made by the accused during custodial investigation, there being no showing by the prosecution that there was sufficient compliance with the constitutional duty to inform the accused of his rights to silence and to counsel, without which there could be no intelligent waiver of said rights. In said case, the accused a native of Samar was interrogated in Tagalog. The prosecution did not show that the accused's acquaintance with Tagalog was such that he could fully understand the questions posed to him. All considered, we hold that the guilt of appellant has not been established beyond reasonable doubt. WHEREFORE, the appealed decision is reversed and set aside, and the appellant is hereby acquitted on the basis of reasonable doubt. SO ORDERED. G.R. No. 108494 September 20, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL MARRA y ZARATE, ALLAN TAN, alias "Allan Yao," PETER DOE, PAUL DOE and TOM DOE, accused. SAMUEL MARRA y ZARATE, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

REGALADO, J.: In an information filed before the Regional Trial Court, Branch 43, Dagupan City, Samuel Marra y Zarate, John Doe, Peter Doe, Paul Doe and Tom Doe were charged with the crime of murder for the fatal shooting of one Nelson Tandoc on March 7, 1992. 1 On June 4, 1992, an amended information was filed wherein Allan Tan, alias "Allan Yao," was indicated as an accused instead of John Doe. 2 A warrant of arrest was thereafter issued against Allan Tan 3 but the same was returned unserved, 4 hence trial proceeded with regard to herein accused-appellant Samuel Marra alone. Duly assisted by counsel, appellant pleaded not guilty upon arraignment on May 15, 1992. 5 After trial on the merits, judgment was rendered by the court below on October 8, 1992 finding appellant guilty beyond reasonable doubt of the crime charged, attended by the aggravating circumstance of nighttime, and sentencing him to suffer the penalty of reclusion perpetua. He was further ordered to pay the heirs of Nelson Tandoc the sums of P50,000.00 as death indemnity, P50,000.00 as actual damages, P100,000.00 as moral damages, and the costs. 6 The prosecution's eyewitness, Jimmy Din, positively identified appellant as the triggerman in the killing of Nelson Tandoc. Din recounted that at around 2:00 A.M. on March 7, 1992, he and his friend, Nelson Tandoc, were conversing with each other in front of Lucky Hotel located at M.H. del Pilar Street, Dagupan City, which was owned by the witness' father and of which he was the administrator. He noticed a man pass by on the opposite side of the street. The man made a dirty sign with his finger and Din informed Tandoc thereof. The man repeated his offensive act and called them by waving his hands. Infuriated, they followed the man until the latter stopped in front of the Dunkin' Donuts store at the corner of Arellano and Fernandez streets. They demanded an explanation from the man but they were not given any. 7 At that instant, two men arrived and one of them inquired what was going on. Tandoc informed him that they were just demanding an explanation from the man. Din was surprised when Tandoc unexpectedly slapped one of the two men. A brawl ensued, with Tandoc clashing with the two men while Din exchanged blows with the man who made the dirty finger sign. After the fisticuffs, their three opponents ran away in a westward direction. 8

Tandoc and Din then decided to walk back to the hotel. When they were about to enter the place, they noticed that the men with whom they just had a fight were running towards them. Sensing danger, they ran inside the annex building of the hotel and immediately secured the lock of the sliding outer door. They entered a room and waited until they felt that the situation had normalized. After ten to fifteen minutes, thinking that the men were no longer in the vicinity, they left the room. Having decided to go home, Tandoc opened the sliding door. All of a sudden, Din saw Appellant, who at that time was wearing a security guard's uniform, shoot Tandoc with a revolver. There was a fluorescent bulb installed at the front of the hotel which enabled Din to identify the assailant. Tandoc was shot in the middle of the chest and he fell down. Then, Din saw four to five men scamper away from the scene.
9

Aware of his injury, Tandoc told Din, "Tol, I was shot." The latter tried to chase appellant and his companions but he failed to catch up with them. Din and his wife then brought Tandoc to the Villaflor Hospital. The victim was taken to the emergency room but he expired an hour later. 10 At about 3:45 A.M. of March 7, 1992, SPO3 Reynaldo de Vera of the Dagupan City Police Station received a report about a shooting incident at the annex building of the Lucky Hotel. He proceeded to the crime scene along with SPO4 Orlando Garcia, SPO3 Mauricio Flores and SPO3 Noli de Castro. Upon their arrival about five minutes later, they were informed by the wife of Jimmy Din that the victim had been brought to the Villaflor Hospital. They proceeded to the hospital where Din informed them that he could recognize the man who killed Tandoc and that the killer was, at that time, wearing the polo shirt of a security guard's uniform. 11 They decided to proceed to an eatery called "Linda's Ihaw-Ihaw." Seeing the security guard of a nearby bus company, they inquired from him if he knew of any unusual incident that happened in the vicinity. The guard said that he saw the guard of "Linda's Ihaw-Ihaw," together with some companions, chasing two persons running towards M. H. del Pilar Street. He further added that the man was wearing a polo shirt of a security guard's uniform. Asked where that particular guard might be, he pointed to a man eating inside the eatery nearby. The man eating was not in a security guard's uniform. 12 They approached the man and inquired whether he was the security guard of "Linda's Ihaw-Ihaw," which the latter answered in the affirmative. After a series

of questions, they learned that he was Samuel Marra, that his tour of duty was from 7:00 P.M. of a preceding day to 6:00 A.M. the following day, that he was still on duty at around 2:30 in the morning of March 7, 1992, and that the firearm issued to him was in his house. Upon their request to see the firearm, they proceeded to Marra's residence at Interior Nueva Street. 13 When they arrived, Marra took a .38 caliber revolver from inside an aparador and handed it to De Vera. De Vera also found five live bullets and one spent shell. Smelling gunpowder from the barrel of the gun, De Vera asked Marra when he last fired the gun but the latter denied ever having done so. Abruptly, De Vera asked him point-blank why he shot Tandoc. Marra at first denied the accusation but when informed that someone saw him do it, he said that he did so in self-defense, firing at the victim only once. Tandoc allegedly had a samurai sword with him at the time of the incident. However, persistent efforts on the part of the policemen to thereafter locate said bladed weapon proved futile. Marra also admitted that prior to the incident, he chased the victim and Din. The officers then took Marra to the police station where he was detained.
14

Meanwhile, De Vera went to Villaflor Hospital from where he fetched Din and brought him to the police station. There, Din definitely identified Marra as the assailant. During the investigation, De Vera also found out that Marra had not firearm license. 15 Dr. Tomas G. Cornel, Assistant City Health Officer of Dagupan City, testified that he conducted an autopsy on a certain Nelson Tandoc. He found a gunshot wound on the victim with the point of entry of the left side of the anterior chest wall and the point of exit at the lower left portion of the right shoulder. 16 Prosecutor Gregorio Gaerlan, stepfather of the victim, testified on the funeral, burial and other expenses incurred by the family. He declared that they paid Funeraria Quiogue P25,000.00 for its services; Villaflor Hospital, P2,875.00 for the confinement of Tandoc; St. John Memorial Cathedral, P350.00; Eternal Garden, P3,000.00 for the interment fee and P150.00 for the rent of the tent during the burial; and that they spent P2,300.00 for the video tape expenses and P11,800.00 for food and drinks during the wake. 17 Understandably, appellant gave a different version of the incident. Marra declared in court that he used to work as a security guard at "Linda's Ihaw-Ihaw" from seven o'clock in the evening to six o'clock in the morning of

the following day. On March 6, 1992, he reported for duty at seven o'clock that evening as was his usual practice. At around four o'clock down of the following day, he went home to change his clothes. He proceeded to the Five Star Bus Terminal which was adjacent to "Linda's Ihaw-Ihaw." He saw Neneng, the cashier of said eatery, and together they ordered arroz caldo. Later, at about 5:00 A.M., he was approached by four policemen who inquired if he was a security guard. He answered in the affirmative. He was also asked about his sidearm. When he answered that it was at his residence, they all went to his house to look for it. After he handed over the firearm to the policemen, he was brought to the city hall where he was detained. 18 Under cross-examination, he insisted that when he handed the gun to the policeman, there were five live bullets, and not four live bullets and one empty shell as claimed by the prosecution. Prior to the incident, he had never met Jimmy Din nor does he know of any cause why Din would harbor any ill feelings against him. 19 After a careful scrutiny of the records and an objective evaluation of the evidence, the Court is not disposed to reverse the judgment of the lower court, the decision of the latter being amply supported by the established facts and fully sustained by the applicable law. In assailing the decision of the court below, the defense argues that "Jimmy Din . . . was not able to identify the assailant in a definite and believable manner." It goes on to state further that " Jimmy Din was inside the hotel when Nelson Tandoc was shot and his vision was o(b)structed by the door. Jimmy Din was also not familiar with the accused. Under the circumstances by which he allegedly witnessed the shooting, how could be identify clearly an assailant at the distance of 45 meters?" 20 Appellant's counsel is only partly correct, having conveniently failed to mention other vital parts of Din's testimony. An impartial review of said testimony readily reveals that Din was indeed in a position to know the identity of the assailant. Firstly, Din knew for a fact that the persons he and Tandoc fought with near the Dunkin' Donuts store were the same men who chased them while they were on their way back to the hotel because he was able to take a good look at them. During the chase, he naturally turned around to look at the men who were running after them and who were at that time in front of the Balingit Trading store which was well-lighted.
21

It logically follows that they

were the same persons who were waiting for them when they later came out of the hotel, and he was familiar with their identities because of their previous encounter. Secondly, we do not agree with appellant that the door blocked the view of Din. Said door, partly made of plywood, had a spring hinge which makes it possible for the door to close by itself. However, at that time the spring hinge had been weakened by long and constant use such that it would take some time for it to close the door, thereby allowing Din sufficient opportunity to have an unobstructed view of the scene outside. 22 Thirdly, Din was quite near the victim and appellant, which proximity, enabled him to clearly see what really happened. He thus readily perceived the actual shooting at the time when Tandoc pushed the door open. At that precise moment, Din was at the left side of Tandoc and about four to five meters away from the assailant. 23 Lastly, the place was brightly illuminated by a 20-watt fluorescent bulb installed on the outside wall in front of the hotel. Marra was only about three meters away therefrom. Such physical conditions would undeniably afford a clear view from inside the hotel of the immediate area outside and in front of the same where the incident took place. The prosecution presented another vital witness in the person of Sgt. Reynaldo de Vera, whose testimony we shall repeat here for easy reference. In capsulized form, De Vera narrated the sequence of events that happened after he and his companions went to the crime scene to conduct an investigation. Having received information that a man in a security guard's uniform was involved in the incident, they sought information from a security guard of a nearby bus terminal. Said security guard pointed them to Marra, who at that time was eating in a carinderia nearby. Informed by Marra that his gun was at his residence, they all went to Marra's residence to get the same. After receiving said firearm, De Vera asked appellant why he killed Tandoc but Marra initially denied any participation in the killing. Nevertheless, when confronted with the fact that somebody saw him do it, Marra admitted the act although he alleged it was done in self-defense. This testimony of De Vera as to the confession of Marra is of significant weight, but the admissibility thereof shall also be passed upon.

Section 12(1), Article III of the 1987 Constitution provides that "(a)ny person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. . . . ." The critical inquiry then is whether or not Marra was under custodial investigation when he admitted the killing but invoked self-defense. We believe that he was not so situated. Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. 24 In the case at bar, appellant was not under custodial investigation when he made the admission. There was no coercion whatsoever to compel him to make such a statement. Indeed, he could have refused to answer questions from the very start when the policemen requested that they all go to his residence. The police inquiry had not yet reached a level wherein they considered him as a particular suspect. They were just probing into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guard's uniform. As we held in People vs. Dy: 25 "What was told by the accused to Pat. Padilla was a spontaneous statement not elicited through questioning, but given in an ordinary manner. No written confession was sought to be presented in evidence as a result of formal custodial investigation. 26 The trial Court, therefore, cannot be held to have erred in holding that compliance with the constitutional procedure on custodial investigation is not applicable in the instant case, . . . ." Accordingly, the testimony of Sgt. de Vera assumes a dominant dimension because it totally destroys the defense of denial cum alibi subsequently raised by appellant. In his answers to Sgt. De Vera, appellant expressly admitted that he shot Tandoc, albeit with an exculpatory explanation. This admission of Marra is in complete contrast to the statements he later made in open court. In addition, the law provides that the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein may be given in evidence against him and, in certain circumstances, this

admission may be considered as part of the res gestae. In a similar situation involved in the aforecited case of People vs. Dy, this Court held: . . . the oral confession made by the accused to Pat. Padilla that "he had shot a tourist" and that the gun he had used in shooting the victim was in his bar which he wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9) is competent evidence against him. The declaration of an accused acknowledging his guilt of the offense charged may be given in evidence against him (Sec. 29 [now Sec. 33], Rule 130). It may in a sense be also regarded as part of the res gestae. The rule is that, any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such a case it must be given in substance. (23 C.J.S. 196, cited in People vs. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431). (Italics supplied.) In any event, even without his admission, the case against appellant has been duly established by the other evidence of the prosecution, as earlier discussed. However, persistently arguing for an acquittal, the defense points out that when the police officers saw Marra, he was not in a blue uniform whereas Din testified that the person who shot Tandoc was wearing the polo shirt of a security guard's uniform. This is a puerile argument since appellant himself removed any lingering doubts on this point. He said that on ending his tour of duty at 4:00 A.M. of March 7, 1992, he decided to go home to change clothes, after which he went to "Linda's Ihaw-Ihaw" to eat. This explains why, at the time the police officers saw him, he was already in civilian clothes. The shooting had taken place earlier at around 2:00 A.M. At that time, Marra was still in his security guard's uniform, being then on duty. However, while we agree that the crime committed by appellant was murder qualified by treachery, we reject the finding that the same was aggravated by nighttime. No evidence was presented by the prosecution to show that nocturnity was specially sought by appellant or taken advantage of by him to facilitate the commission of the crime or to ensure his immunity from capture.
27

At any rate, whether or not such aggravating circumstance should be

appreciated, the penalty to be imposed on appellant would not be affected considering the proscription against the imposition of the death penalty at the time when the offense in the instant case was committed. WHEREFORE, the judgment of the court a quo finding accused-appellant Samuel Marra y Zarate guilty of the crime of murder and imposing upon him the penalty and civil liabilities therein stated is hereby AFFIRMED. SO ORDERED. G.R. No. 130612 May 11, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO DOMANTAY, @ "JUNIOR OTOT," accused-appellant. MENDOZA, J.: This case is here on appeal from the decision 1 of the Regional Trial Court of Dagupan City (Branch 57), finding accused-appellant guilty of rape with homicide and sentencing him to death, and to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs. The facts hark back to the afternoon of October 17, 1996, at around 4 o'clock, when the body of six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The child's body bore several stab wounds. Jennifer had been missing since lunch time. The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural health physician of Malasiqui, showed that Jennifer died of multiple organ failure and hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations or signs of inflammation of the outer and inner labia and the vaginal walls of the victim's genitalia, although the vaginal canal easily admitted the little finger with minimal resistance. Noting possible commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal expert of the NBI. 2 The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a cousin of the victim's grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the evening of that day, police

officers Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National Police (PNP) picked up accused-appellant at the Malasiqui public market and took him to the police station where accused-appellant, upon questioning by SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1 Espinoza and another policeman took accused-appellant to Bayambang and recovered the bayonet from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to evidence the confiscation of the weapon. 3 On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for murder against accused-appellant before the Municipal Trial Court (MTC) of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed an autopsy on the embalmed body of Jennifer. The result of his examination of the victim's genitalia indicated that the child's hymen had been completely lacerated on the right side. Based on this finding, SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the following information was filed: 4 That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and armed with a bayonnete, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6 years old against her will and consent, and on the same occasion, the said accused with intent to kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her death, to the damage and prejudice of her heirs. At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso

Manuel, and Dr. Ronald Bandonill, to establish its accused-appellant had raped and killed Jennifer Domantay.

charge

that

Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two brothers-in-law, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the latter's house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of Macasaeb's house, tending to some pigeons in his yard. 5 After the group had consumed several bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to buy two bottles of gin and a bottle of Sprite.
6

Edward said he joined the group and sat between Daudencio

Macasaeb and accused-appellant. 7 Edward said that accused-appellant, who, apparently had one too many then, rolled up his shirt and said: "No diad Antipolo tan L[i]pa et walay massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis" ("In Antipolo and Lipa, there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody here, and they will cry and cry"). Edward Domantay saw that tucked in the left side of accused-appellant's waistline was a bayonet without a cover handle. 8 It was not the first time that Edward had seen accused-appellant with the knife as the latter usually carried it with him. 9 Jiezl Domantay, 10, likewise testified. She said that, at about 2 o'clock in the afternoon on October 17, 1996, she and four other children were playing in front of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the bamboo grove of Amparo Domantay where Jennifer's body was later found. Accused-appellant was about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of Jiezl Domantay. 10 Lorenzo Domantay, a relative of the victim, corroborated Jiezl's testimony that accused-appellant had gone to Amparo Domantay's bamboo grove in the afternoon of October 17, 1996. Lorenzo said that afternoon, on his way to his farm, he saw accused-appellant about 30 meters away, standing at the spot in the bamboo grove where Jennifer's body was later found. Accused-appellant appeared restless and worried as he kept looking around. However, as Lorenzo was in a hurry, he did not try to find out why accused-appellant appeared to be nervous. 11

Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17, 1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once. Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-appellant was nervous and afraid. Accused-appellant later changed his mind. Instead of going to the town proper, he alighted near the Mormon's church, outside Malasiqui. 12 In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate occasions, accused-appellant had confessed to the brutal killing of Jennifer Domantay. SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the Malasiqui police station in the evening of October 17, 1996. Before he commenced his questioning, he apprised accused-appellant of his constitutional right to remain silent and to have competent and independent counsel, in English, which was later translated into Pangasinense.
13

According to SPO1 Espinoza, accused-appellant agreed to answer the questions of the investigator even in the absence of counsel and admitted killing the victim. Accused-appellant also disclosed the location of the bayonet he used in killing the victim. 14 On cross-examination, Espinoza admitted that at no time during the course of his questioning was accused-appellant assisted by counsel. Neither was accused-appellant's confession reduced in writing. 15 Espinoza's testimony was admitted by the trial court over the objection of the defense. Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer Domantay's case. 16 On October 23, 1996, Manuel went to Malasiqui to interview accused-appellant who was then detained in the municipal jail. He described what transpired during the interview thus: 17 PROS. QUINIT: Q Did you introduce yourself as a media practitioner?

A Yes, sir. Q How did you introduce yourself to the accused? A I showed to Bernardino Domantay alias "Junior Otot" my I.D. card and I presented myself as a media practitioner with my tape recorder [in] my hand, sir. Q What was his reaction to your request for an interview? A He was willing to state what had happened, sir. Q What are those matters which you brought out in that interview with the accused Bernardino Domantay alias "Junior Otot"? A I asked him what was his purpose for human interest's sake as a reporter, why did he commit that alleged crime. And I asked also if he committed the crime and he answered "yes." That's it. xxx xxx xxx PROS. QUINIT: Q You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you ask him that? A I asked him very politely. Q More or less what have you asked him on that particular matter?

asked

"Junior

Otot,"

Bernardino

Domantay, "Kung pinagsisisihan mo ba ang iyong ginawa?" "Opo" sabi niya, "Ibig mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?", "Ako nga po" The [l]ast part of my interview, "Kung nakikinig ang mga magulang ni Jennifer, ano ang gusto mong iparating?", "kung gusto nilang makamtan ang hustisya ay tatanggapin ko". That is what he said, and I also asked Junior Otot, what was his purpose, and he said, it was about the boundary dispute, and he used that little girl in his revenge. On cross-examination, Manuel explained that the interview was conducted in the jail, about two to three meters away from the police station. An uncle of the victim was with him and the nearest policemen present were about two to three meters from him, including those who were in the radio room. 18 There was no lawyer present. Before interviewing accused-appellant, Manuel said he talked to the chief of police and asked permission to interview accused-appellant. 19 On questioning by the court, Manuel said that it was the first time he had been called to testify regarding an interview he had conducted. 20 As in the case of the testimony of SPO1 Espinoza, the defense objected to the admission of Manuel's testimony, but the lower court allowed it. Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996, testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained on her back, 21 the average depth of which was six inches. 22 He opined that the wounds were probably caused by a "pointed sharp-edged instrument." 23 He also noted on the aforehead, neck, and breast bone of the victim. 24 As for the results of the genital examination of the victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused within 24 hours of her death. He added that the genital area showed signs of inflammation. 25 Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the victim after the latter's body was brought to her parents' house, identified and authenticated the five pictures (Exhibits A, B, C, D, and E) offered by the prosecution.

The defense then presented accused-appellant as its lone witness. Accused-appellant denied the allegation against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1 o'clock in the afternoon of October 17, 1996, he was bathing his pigs outside in the house of his brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio was then having drinks in front of his (Macasaeb's) house. Accused-appellant claimed, however, that he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom Macasaeb had requested to buy some more liquor, for which reason he gave money to Edward Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of cigarettes. 26 He denied Edward Domantay's claim that he (accused-appellant) had raised his shirt to show a bayonet tucked in his waistline and that he had said he would massacre someone in Guilig. 27 Accused-appellant also confirmed that, at about 2 o'clock in the afternoon, he went to Alacan passing on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Domantay was following him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church, just outside of the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police station where he was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victim's parents because of a boundary dispute. 28 With respect to his extrajudicial confession to Celso Manuel, he admitted that he had been interviewed by the latter, but he denied that he ever admitted anything to the former. 29 As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of its decision reads: 30 WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino Domantay @ "Junior Otot" guilty beyond reasonable doubt with the

crime of Rape with Homicide defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four Hundred Eighty Thousand Pesos (P480,000.00), 31 and to pay the costs. SO ORDERED. In this appeal, accused-appellant alleges that: 32 I THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE BY THE ACCUSED-APPELLANT. II THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III, 12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining proof of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt beyond reasonable doubt. 33 Art. III, 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with

one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this section or section 17 hereof shall be inadmissible in evidence. This provision applies to the stage of custodial investigation, that is, "when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect." 34 R.A. No. 7438 has extended the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning. 35 Decisions 36 of this Court hold that for an extrajudicial confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. In the case at bar, when accused-appellant was brought to the Malasiqui police station in the evening of October 17, 1996, 37 he was already a suspect, in fact the only one, in the brutal slaying of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights guaranteed in Art. III, 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what transpired during accused-appellant's interrogation: 38 [I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of his constitutional right as follows; that he has the right to remain silent; that he has the right to a competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided with one, and further informed [him] that all he will say will be reduced into writing and will be used the same in the proceedings of the case, but he told me that he will cooperate even in the absence of his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the weapon used [and] where he gave [it] to.

But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the presence of counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1 Espinoza's testimony on the alleged confession of accused-appellant should have been excluded by the trial court. So is the bayonet inadmissible in evidence, being, as it were, the "fruit of the poisonous tree." As explained in People v. Alicando: 39 . . . According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegal obtained evidence taints all evidence subsequently obtained. We agree with the Solicitor General, however, that accused-appellant's confession to the radio reporter, Celso Manuel, is admissible. In People v. Andan, 40 the accused in a rape with homicide case confessed to the crime during interviews with the media. In holding the confession admissible, despite the fact that the accused gave his answers without the assistance of counsel, this Court said: 41 [A]ppellant's [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was "tense and intimidating" and was similar to that which prevails in a custodial investigation. 42 We are not persuaded. Accused-appellant was interviewed while he was inside his cell. The

interviewer stayed outside the cell and the only person besides him was an uncle of the victim. Accused-appellant could have refused to be interviewed, but instead, he agreed. He answered questions freely and spontaneously. According to Celso Manuel, he said he was willing to accept the consequences of his act. Celso Manuel admitted that there were indeed some police officers around because about two to three meters from the jail were the police station and the radio room. 43 We do not think the presence of the police officers exerted any undue pressure or influence on accused-appellant and coerced him into giving his confession. Accused-appellant contends that "it is . . . not altogether improbable for the police investigators to ask the police reporter (Manuel) to try to elicit some incriminating information from the accused." 44 This is pure conjecture. Although he testified that he had interviewed inmates before, there is no evidence to show that Celso was a police beat reporter. Even assuming that he was, it has not been shown that, in conducting the interview in question, his purpose was to elicit incriminating information from accused-appellant. To the contrary, the media are known to take an opposite stance against the government by exposing official wrongdoings. Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under circumstances where it is apparent that accused-appellant confessed to the killing our of fear. As already stated, the interview was conducted on October 23, 1996, 6 days after accused-appellant had already confessed to the killing to the police. Accused-appellant's extrajudicial confession is corroborated by evidence of corpus delicti, namely, the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by the other prosecution witnesses dovetails in material points with his confession. He was seen walking toward the bamboo grove, followed by the victim. Later, he was seen standing near the bamboo grove where the child's body was found. Rule 133 of the Revised Rules on Evidence provides: 3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.

4. Evidence necessary in treason cases. No person charged with treason shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court. Accused-appellant argues that it was improbable for a brutal killing to have been committed without the children who were playing about eight to ten meters from Amparo Domantay's grove, where the crime took place, having heard any commotion. 45 The contention has no merit. Accused-appellant could have covered the young child's mouth to prevent her from making any sound. In fact, Dr. Bandonill noted a five by two inch (5" x 2") contusion on the left side of the victim's forehead, which he said could have been caused by a hard blunt instrument or by impact as her head hit the ground. 46 The blow could have rendered her unconscious, thus precluding her from shouting or crying. Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo Domantay because while Jiezl said she had seen accused-appellant walking towards the bamboo grove, followed by the victim, at around 2 o'clock in the afternoon on October 17, 1996. Lorenzo said he saw accused-appellant standing near the bamboo grove at about the same time. These witnesses, however, did not testify concerning what they saw exactly the same time. What they told the court was what they had seen "at around" 2 o'clock in the afternoon. There could have been a between difference in time, however little it was, between the time Jiezl saw accused-appellant and the victim walking and the time Lorenzo saw accused-appellant near the place where the victim's body was later found. Far from contradicting each other, these witnesses confirmed what each had said each one saw. What is striking about their testimonies is that while Jiezl said she saw accused-appellant going toward the bamboo grove followed by the victim "at around" 2 o'clock in the afternoon on October 17, 1996, Lorenzo said he had seen accused-appellant near the bamboo grove "at around" that time. He described accused-appellant as nervous and worried. There is no reason to doubt the claim of these witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testified falsely against the latter. Jiezl, on the other hand, is also surnamed Domantay and could also be related to accused-appellant and has not been shown to have any reason to testify falsely against accused-appellant. At the time of the incident, she was only 10 years old.

For the foregoing reasons, the Court is convinced of accused-appellant's guilt with respect to the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accused-appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides: Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without the attendance of any of the circumstances enumerated in the next preceding article [murder], shall be deemed guilty of homicide and be punished by reclusion temporal. The killing was committed with the generic aggravating circumstance of abuse of superior strength. The record shows that the victim, Jennifer Domantay, was six years old at the time of the killing. She was a child of small build, 46" in height. 47 It is clear then that she could not have put up much of a defense against accused-appellant's assault, the latter being a fully grown man of 29 years. Indeed, the physical evidence supports a finding of abuse of superior strength: accused-appellant had a weapon, while the victim was not shown to have had any; there were 38 stab wounds; and all the knife wounds are located at the back of Jennifer's body. But we think the lower court erred in finding that the killing was committed with cruelty. 48 The trial court appears to have been led to this conclusion by the number of wounds inflicted on the victim. But the number of wounds is not a test for determining whether there was circumstance. 49 "The rest . . . is whether the accused deliberately and sadistically augmented the victim's suffering thus . . . there must be proof that the victim was made to agonize before the [the accused] rendered the blow which snuffed out [her] life." 50 In this case, there is no such proof of cruelty. Dr. Bandonill testified that any of the major wounds on the victim's back could have caused her death as they penetrated her heart, lungs and liver, kidney and intestines. 51 Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping Jennifer Domantay. Art. 335. of the Revised Penal Code, as amended, in part provides: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances.

1. By using force or intimidation; 2. When the woman is deprive of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. As the victim here was six years old, only carnal knowledge had to be proved to establish rape. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a woman. 52 For this purpose, it is enough if there was even the slightest contact of the male sex organ with the labia of the victim's genitalia. 53 However, there must be proof, by direct or indirect evidence, of such contact. Dr. Ronald Bandonill's report on the genital examination he had performed on the deceased reads: 54 GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The surrounding genital area shows signs of inflammation. xxx xxx xxx REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a hard, rigid instrument. Hymenal laceration is not necessary to prove rape; 55 neither does its presence prove its commission. As held in People v. Ulili, 56 a medical certificate or the testimony of the physician is presented not to prove that the victim was raped but to show that the latter had lost her virginity. Consequently, standing alone, a physician's finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established. 57 This conclusion is based on the medically accepted fact that a hymenal tear may be caused by objects other than the male sex organ
58

or may arise from

other causes. 59 Dr. Bandonill himself admitted this. He testified that the right side of the victim's hymen had been completely lacerated while the surrounding genital area showed signs of inflammation. 60 He opined that the laceration had been inflicted within 24 hours of the victim's death and that the inflammation was due to a trauma in that area. 61 When asked by the private prosecutor whether the lacerations of the hymen could have been caused by the insertion of a male organ he said this was possible. But he also said when questioned by the defense that the lacerations could have been caused by something blunt other than the male organ. Thus, he testified: 62 PROS. F. QUINIT: Q Now, what might have caused the complete laceration of the right side of the hymen, doctor? A Well, sir, if you look at my report there is a remark and it says there; findings at the genital area indicated the probability of penetration of that area by a hard rigid instrument. Q Could it have been caused by a human organ? A If the human male organ is erect, fully erect and hard then it is possible, sir. xxx xxx xxx ATTY. VALDEZ: Q In your remarks; finding at the genital area indicates the probability of penetration of that area by a hard rigid instrument, this may have also been caused by a dagger used in the killing of Jennifer Domantay is that correct?

A Well, sir when I say hard rigid instrument it should not be sharp pointed and share rigid, it should be a hard bl[u]nt instrument. Q Do you consider a bolo a bl[u] instrument, or a dagger? A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir. Q This Genital Examination showed a complete laceration of the right side of the hymen, this may have been possibly caused by a dagger, is it not? A No, sir. I won't say that this would have been caused by a dagger, because a dagger would have made at its incision . . . not a laceration, sir. Q But this laceration may also have been caused by other factors other the human male organ, is that correct? A A hard bl[u]nt instrument, sir could show. Q My question is other than the human male organ? A Possible, sir. xxx xxx xxx COURT: Q You mentioned that the hymen was lacerated on the right side? A Yes, your Honor.

Q And if there is a complete erection by a human organ is this possible that the laceration can only be on the right side of the hymen? A Yes, your Honor, its possible. Q How about if the penetration was done by a finger, was it the same as the human organ? A Well, it defends on the size of the finger that penetrat[es] that organ, if the finger is small it could the superficial laceration, and if the finger is large then it is possible your honor. Q How about two fingers? A Possible, sir. To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial evidence. In those instances, however, the prosecution was able to present other tell-tale signs of rape such as the location and description of the victim's clothings, especially her undergarments, the position of the body when found and the like. 63 In People v. Macalino, 64 for instance, the Court affirmed a conviction for the rape of a two-year old child on the basis of circumstantial evidence. 65 The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had been produced by sexual intercourse is corroborated by the testimony given by complainant. Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on the child's buttocks and some blood on her private part.(Emphasis in the original)

In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-appellant sexually abused the victim. The only circumstance from which such inference might be made is that accused-appellant was seen with the victim walking toward the place where the girl's body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a blunt object into her organ, thus causing the lacerations in the hymen. Otherwise, there is no circumstance from which it might reasonably be inferred that he abused her, e.g., that he was zipping up his pants, that there was spermatozoa in the girl's vaginal canal. Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the stab wounds on the body of the victim, he testified:
66

[A]fter examining the body I took note that were several stab wounds . . . these were all found at the back area sir . . . extending from the back shoulder down to the lower back area from the left to the right. Considering the relative physical positions of the accused and the victim in crimes of rape, the usual location of the external bodily injuries of the victim is on the face, 67 neck, 68 and anterior portion 69 of her body. Although it is not unnatural to find contusions on the posterior side, these are usually caused by the downward pressure on the victim's body during the sexual assault. 70 It is unquestionably different when, as in this case, all the stab wounds (except for a minor cut in the lower left leg) had their entry points at the back running from the upper left shoulder to the lower right buttocks. It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was immediately after it was found. 71 Furthermore, there is a huge bloodstain in the back portion of her shorts. 72 This must be because she wearing this piece of clothing when the stab wounds were inflicated or immediately thereafter, thus allowing the blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull down the girl's lower garments in order to consummate the rape, then, he must have, regardless of when the stab wounds were inflicted, pulled up the victim's shorts and undergarments after the alleged rape, otherwise, the victim's shorts would

not have been stained so extensively. Again, this is contrary to ordinary human experience. Even assuming that Jennifer had been raped, there is no sufficient proof that it was accused-appellant who had raped her. He did not confess to having raped the victim. From the foregoing, we cannot find that accused-appellant also committed rape. In the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt. 73 Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount of P30,000.00 as actual damages. However, the list of expenses produced by the victim's father, Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by a receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory damages only for such loss as he has duly proved. Therefore, the award of actual damages should be reduced to P12,000.00. In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil Code provides for the payment of exemplary damages when the crime is committed with one or more aggravating circumstance. An amount of P25,000.00 is deemed appropriate. 74 In accordance with our rulings in People v. Robles 75 and People v. Mengote, 76 the indemnity should be fixed at P50,000.00 and the moral damages at P50,000.00. 77 WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered FINDING accused-appellant guilty of homicide with the aggravating circumstance of abuse of superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages, P25,000.00, as exemplary damages, and P12,000.00, as actual damages, and the costs.1wphi1.nt SO ORDERED.

G.R. No. 135862 May 2, 2002 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL PRINCIPE y MOLINA, accused-appellant. PER CURIAM: This case is here for review pursuant to Rule 122, Sec. 3, par. (d), and Sec. 10 of the Revised Rules of Criminal Procedure in view of the decision, 1 dated September 18, 1998, of the Regional Trial Court, Branch. 27, Cabanatuan City, imposing on accused-appellant Rafael Principe y Molina the penalty of death for the rape-slaying of a 6-year old child, Arlene Ipurong, in Cabanatuan City on August 9, 1998. The information against accused-appellant alleged: "That on or about the 9th day of August, 1998, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge of one ARLENE IPURONG y GONZALES, who was then 6 years of age and by reason of (or) on the occasion thereof, said ARLENE IPURONG y GONZALES was killed."2 Upon arraignment, during which the information was read, interpreted, and explained to accused-appellant and the consequences of a plea of guilt explained to him, accused-appellant, assisted by counsel, pleaded guilty3 to the charge, whereupon the trial court ordered the prosecution to present evidence to prove the guilt of accused-appellant and the precise degree of his culpability. Accordingly, the prosecution presented five witnesses, namely: Lerma Morales,4 Frederick Agrigado,5 Miguel Bernabe,6 Alfredo Apan,7 and Danilo Ipurong.8 Their testimonies established the following facts: Accused-appellant, an elementary graduate and then 19 years old, had a drinking spree with eight friends at the birthday party of Freddie Saragpon, held in the latter's house on Perigola Street, Valdefuente, Cabanatuan City on August 9, 1998, starting 9:00 a.m. At about 4:00 p.m., accused-appellant went to buy some "pulutan" at the Best-Line Eatery located along the national

highway. Accused-appellant had only maroon shorts on and was wearing slippers. As it was raining, he brought an umbrella with him. On the way, he passed by the victim, 6-year old Arlene Ipurong, who asked if she could share his umbrella. Arlene was his niece, her paternal grandmother being the sister of accused-appellant's mother. Accused-appellant carried Arlene on his back and went to Best-Line Eatery to buy the "puIutan."9 They were seen by witness Alfredo Apan as they passed by the church between 3:00 to 4:00 p.m. Apan was in the church attending an activity of the Singles for Christ.10 At the restaurant, accused-appellant was served by witness Lerma Morales. Lerma noticed the child with him, whom accused-appellant introduced as his niece. After getting the "pulutan," accused-appellant took the hand of Arlene, and the two went in the direction of an abandoned house, approximately 10 meters from the restaurant.11 Accused-appellant took Arlene to the abandoned house, which was owned by a certain Jet Magno. There, accused-appellant ordered Arlene to undress. Although Arlene complied, she told him that she was going to tell somebody about it. This angered accused-appellant, who picked up a big rock and hit the child with it three times on the forehead. When Arlene fell unconscious, accused-appellant pulled down his shorts to his knees and raped her. Accused-appellant then brought her to the toilet and dumped her into the bowl.12 At about 5:30 p.m., accused-appellant went back to Saragpon's house. He was still without any shirt on. He was wet from the rain and was no longer wearing his slippers. As accused-appellant was gone for about one and a half hours, some of his drinking buddies got tired of waiting for him and already fell asleep. After giving the "pulutan" to his friends, accused-appellant left.13 In the meantime, at about 5:00 p.m. of the same day, Arlene's father, Danilo Ipurong, a tricycle driver, arrived home from work and, realizing that her daughter was not in their house, started searching for her. He came upon a group playing "tong-its" but Arlene was not there.14 Danilo continued his search, now joined by several people, including Alfredo Apan. Then Apan saw accused-appellant and asked him, "Hindi ba ikaw ang may dala-dala noong bata sa balikat mo nang pagitan ng 3-4 ng hapon na iyon?" ("Wasn't it you who was carrying the child sometime between 3 and 4 o'clock in the afternoon?")

Accused-appellant denied he was with the child, saying "Si kuya naman, hindi ko dinala ang bata." ("No, I didn't bring the child with me.") Apan began to suspect that accused-appellant had something to do with the disappearance of Arlene. He informed the Chief of the Bantay Bayan, Miguel Bernabe, of his suspicions.15 For this reason, Bernabe invited accused-appellant for questioning, but the latter denied having anything to do with the disappearance of the child.16 At around 8:00 p.m., Alfredo Apan and Danilo Ipurong found the body of Arlene in the toilet bowl in the abandoned house. Danilo was shocked and he screamed.17 On August 10, 1998, the body of Arlene was taken to the City Health Office of Cabanatuan City. Upon the request of PO2 Romeo Lopez, the investigating officer, Dr. Jun B. Concepcion, the medico-legal officer, conducted an autopsy. His findings are as follows: "HT: 100 cm. in length. (+) Abrasions, multiple, with hematoma and lacerated wounds, (2) linear on the midfrontal area. Abrasions measuring to 6-5 cms. in diameter extending down to (L) pen-orbital area. This involving the subconjunctival area, laterally. (+) Skull fractures, multiple, depressed, frontal area. (+) Hematomas, both upper arm, medially. GENITALIA: (+) Abrasions, opening of the vagina, 3 O'CLOCK, with bleeding. (+) Abrasions, 12-o'clock, fresh, vaginal canal (+) Vaginal discharges, creamy-white in character flowing out of the vagina. Extracted 0.5 ml for sperm analysis then submitted to PNP-CRIME LAB, CAPITOL COMPOUND, NE. on same day and place in a disposable syringe with marking of: X - I. CAUSE OF DEATH:

INTRA-CRANIAL INJURIES, SEVERE, EXTRA-CRANIAL INJURIES, SEVERE."18

SECONDARY

TO

Dr. Concepcion issued a death certificate indicating the cause of death as: "Immediate cause: Antecedent cause: a. intracranial severe injuries

b. Extra cranial injuries severe"19

Dr. Concepcion testified that Arlene sustained severe fractures on the forehead, which could have been caused by a hammer, a hollow block, or a hard piece of wood. Likewise, there were hematomas on her upper arms which were possibly caused by a strong grip from the assailant. In addition, Arlene also sustained abrasions on the external opening of her genital organ and an abrasion along the vaginal canal, which could have been caused by the penetration of a penis or some other object. There was fresh blood coming out of the abrasions. Dr. Concepcion found secretions in the vagina, which could be vaginal secretions or semen from the assailant. From the vaginal bleeding, Dr. Concepcion concluded that the rape of Arlene occurred before she died. The victim's death was caused by the severe injuries sustained on the head. 20 An investigation was conducted by the police in the evening of August 9, 1998. Several witnesses pointed to accused-appellant as the person who was last seen with the victim Arlene. Accused-appellant was subsequently taken into custody by the police, and an information was filed against him on August 10, 1998. 21 On August 17, 1998, accused-appellant was interrogated by the police, to whom, after reading his rights in Tagalog and in the presence of accused-appellant's father and of his counsel Atty. Cesar Villar, he admitted hitting Arlene with a large rock until she was unconscious and subsequently raping her. Accused-appellant claimed that he was drunk at that time.22 On September 18, 1998, the trial court rendered its decision, the dispositive part of which reads: "WHEREFORE, premises considered, the Court hereby finds, and so holds, the accused GUILTY, beyond reasonable doubt, of

the crime of Rape with Homicide, and hereby sentences him to suffer the penalty of DEATH. The accused is further ordered to indemnify the heirs of the deceased offended party in the sum of P50,000.00, and the additional sum of P21,307.00 representing funeral expenses. SO ORDERED."23 Hence, this appeal. Accused-appellant's sole assignment of error is that"THE COURT A QUO MANIFESTLY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE HIS IMPROVIDENT PLEA OF GUILT." Accused-appellant contends that the trial court failed to ascertain whether accused-appellant was fully apprised of the legal consequences of his plea, considering that he finished only up to the sixth grade of the elementary school. Accused-appellant is correct. When an accused enters a plea of guilt to a capital offense, Section 3 of Rule 116 of the Rules of Criminal Procedure provides that it is the duty of the trial court to observe the following rules: (1) it must conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea; (2) it must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) it must asks the accused if he desires to present evidence in his behalf and allow him to do so if he desires. 24 This is because a plea of guilt must be based on a free and informed judgment. Thus, the inquiry must focus on the voluntariness of the plea and the full comprehension of the consequences of the plea.25 In this case, the trial court failed to comply fully with the requirement to conduct a searching inquiry to determine whether accused-appellant's plea was voluntary and done with full comprehension of the consequences thereof. Before the hearing, the trial court asked accused-appellant: "COURT:

Are you still willing to present evidence for your defense or you want the prosecution (to) present evidence and you still insist on admitting what you did to Arlene Ipurong y Gonzales? R. PRINCIPE: I will now admit the same, I will not present any other evidence, sir. COURT: Do you know that because you admit the guilt, you may be sentenced to death like Echegaray? R. PRINCIPE: Yes, sir."26 Thus, in determining whether accused-appellant was aware of the full consequences of his plea of guilt, the trial court simply asked him whether he knew that he "may" be sentenced to death, implying that it was possible that the death penalty might not be imposed on him. But Art. 266-B of the Revised Penal Code provides for the mandatory imposition of the death penalty if the crime of rape is committed against a child below seven years old. In fact, even if the victim is not a child below seven years of age but homicide is committed by reason of or on the occasion of the rape, the imposable penalty is death. Indeed, as noted in People vs. Nadera,27 a mere warning that the accused faces the supreme penalty of death is insufficient. More often than not, an accused pleads guilty because he hopes for a lenient treatment or a lighter penalty. Thus, in the case at bar, when the trial court again asked accused-appellant his final plea, accused-appellant answered: "COURT: Mr. Principe, for the last time, the court would like to ask you your final plea before the case is submitted for resolution. ACCUSED PRINCIPE:

A As narrated. I have admitted my guilt, sir, in connection with this case. My only plea is, if possible, kindly give me the minimum penalty that the Court can impose. COURT: Q In other words, you admit your guilt because you did it. Only, what you want is leniency from the Court? A Yes, sir. Q I want to tell you that what you stated in open court are recorded and it is finally for the Supreme Court to give you leniency. A Yes, sir."28 Although accused-appellant said he was admitting guilt "because [he] did it," there is doubt whether that was his only reason for pleading guilty because he also said he "wanted leniency from the court." This makes it doubtful whether his plea was voluntary. While accused-appellant's improvident plea should be disregarded,

nevertheless his conviction cannot be set aside as there is, in addition to his plea, other sufficient and credible evidence on which the judgment of the trial court rests.29 This evidence consists of accused-appellant's extrajudicial confession, his testimony in open court, and the testimony of the other witnesses. With respect to accused-appellant's extrajudicial confession, the Constitution,30 R.A. No. 7438,31 and caselaw32 lay down four fundamental requirements for the admissibility of extrajudicial confessions in general, to wit: (a) the confession must be voluntary; (b) it must be made with the assistance of competent and independent counsel; (c) the confession must be express; and (d) it must be in writing. In this case, after accused-appellant was read his rights in Tagalog, he signified his intention to confess his participation in the rape and killing of Arlene. He did this in the presence of his father and with the assistance of Atty. Cesar Villar, who had been chosen by his father for him. In his confession, he stated categorically that he took Arlene to an abandoned house near Best-Line Eatery, where he struck her on the head with a rock,

raped her, and afterwards dumped her body into the toilet bowl in order to hide it. Accused-appellant's confession was placed in writing and it was signed by him, his counsel, and the administering officer. Accused-appellant acknowledged his extrajudicial confession in court. The court asked him if he executed the extrajudicial confession voluntarily and in the presence of counsel, and he answered in the affirmative. Accused-appellant testified with some relatives present in the courtroom, including his grandmother. In addition, he was assisted by his counsel de oficio, Atty. Victor Galang. Finally, the testimonies of witnesses for the prosecution confirm

accused-appellant's testimony that he committed the crime. One of his drinking companions, Frederick Agrigado, testified that accused-appellant left them at about 4 p.m. to buy "pulutan" from the Best-Line Eatery. Another witness, Alfredo Apan, said he saw accused-appellant with the victim Arlene on his back walking towards the highway at about the same time. After the disappearance of the victim, Alfredo Apan confronted accused-appellant, telling him that he was the last person seen with the child. Accused-appellant's vehement denial aroused Apan's suspicions as he was the one who saw accused-appellant with Arlene. At the restaurant, accused-appellant was served by Lerma Morales, who noticed that he was with a 6-year old child, whom accused-appellant introduced as his niece. After accused-appellant was given his order, he took the child's hand and led her to the abandoned house. When he returned to his drinking companions, they noted it was already about 5:30 p.m. and that he had been gone for one and a half hours. Arlene's body was found missing at past 5 p.m. of that same day. All the above witnesses placed accused-appellant at the scene of the crime at the time it took place. The conviction of an accused may be based on circumstantial evidence provided the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.33 Thus, while there is no eyewitness account as to who raped and killed Arlene, the above circumstances strongly point to no other person than accused-appellant as the perpetrator of the crime. This conclusion becomes all the more certain and inevitable when the circumstantial evidence is considered together with accused-appellant's extrajudicial confession and his own testimony in open court.

The trial court correctly imposed the penalty of death. Art. 266-B of the Revised Penal Code provides for the imposition of the death penalty when, by reason or on the occasion of the rape, homicide is committed. In this case, accused-appellant knocked Arlene unconscious to facilitate his dastardly design. The severity of the blows caused her death. Thus, the imposable penalty is death.34 The fact that Arlene was below seven years old at the time of the rape cannot be taken into account against accused-appellant as, although her age was alleged in the information, it was not proven during the trial. The trial court erred, however, in fixing the civil indemnity at P50,000.00. In People vs. Robles, Jr.35 and in subsequent cases,36 this Court ruled that where homicide is committed by reason or on the occasion of the rape, the civil indemnity shall be not less than P100,000.00. The trial court likewise erred in granting the heirs of the deceased victim an additional amount of P21,307.00 representing funeral expenses. Under Art. 2199 of the Civil Code, a party is entitled to compensation only for such pecuniary loss suffered by him as proven.37 The recovery thereof must be premised upon competent proof and the best evidence obtainable, such as receipts, by the injured party showing the actual expenses incurred in connection with the death, wake, or burial of the victim. The list of expenses incurred for the wake, funeral, and burial of the victim amounting to P21,307.0038 submitted by Arlene's father is self-serving and not proved.39 Thus, the trial court's award of P21,307.00 for funeral expenses cannot be affirmed. However, the reason Arlene's father was unable to present the receipt for the funeral parlor was because the latter's representative refused to issue a receipt until he had fully paid the entire amount, which he had not done at the time of the trial. Under Art. 2224 of the Civil Code, temperate damages may be recovered if it is shown that such party suffered some pecuniary loss but the amount cannot, from the nature of the case, be proved with certainty. 40 As there is no doubt the heirs of the victim incurred funeral expenses, although the amount thereof has not been proven, it is appropriate to award P15,000.00 by way of temperate damages to the heirs of the victim. In addition, the heirs are entitled to moral damages in the amount of P50,000.00 in accordance with Art. 2219 of the Civil Code for the physical

suffering, mental anguish, serious anxiety, and moral shock caused by the manner by which Arlene was raped and killed.41 WHEREFORE, the judgment of the Regional Trial Court, Branch 27, Cabanatuan City is AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay the heirs of the victim, Arlene Ipurong, P100,000.00 as civil indemnity, P15,000.00 as temperate damages, and P50,000.00 as moral damages. Upon finality of this decision, let the Records of this case be forthwith forwarded to the Office of the President for the possible exercise of her pardoning power. SO ORDERED. G.R. No. 158236 September 1, 2004 LIGAYA V. SANTOS, petitioner, vs. DOMINGO I. ORDA, JR., respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Decision 1 of the Court of Appeals in CA-G.R. SP No. 72962 granting the petition for certiorari filed by Domingo I. Orda, Jr. and nullifying the Orders2 of the Regional Trial Court of Paraaque City, Branch 258 dated July 5, 2002 and July 23, 2002 in People v. Ligaya V. Santos, et al., for murder, docketed as Criminal Cases Nos. 01-0921 and 01-0425. The Antecedents On January 17, 2001, Dale B. Orda, a college student and son of respondent, Assistant City Prosecutor of Manila Domingo Orda, Jr., was shot by a male person on a motorcycle at the corner of Ayala Boulevard and San Marcelino Street, Manila. Dale was then seated at the passengers seat at the back of their car, while his father was at the wheel. Fortunately, Dale survived the shooting.3

At about 6:20 p.m. on April 2, 2001, another son of the respondent, Francis Orda, a twenty-year-old senior engineering student of the Mapua Institute of Technology, was shot to death at Saudi Arabia Street corner Sierra Leone Street, Better Living Subdivision, Barangay Don Bosco, Paraaque City. Gina Azarcon, a helper at the Bakers Brew Coffee Shop at the corner of Saudi Arabia and Somalia Streets, Barangay Don Bosco, gave a sworn statement to the police investigators on April 1, 2001, declaring that three male persons perpetrated the crime, two of whom shot the victim inside his car.4 On April 7, 2001, Azarcon gave a supplemental affidavit pointing to and identifying Rolly Tonion and Jhunrey Soriano as two of the assailants. 5 An Information was filed in the RTC of Paraaque City, docketed as Criminal Case No. 01-0425 on April 18, 2001, charging Rolly Tonion alias "Komang" and Jhunrey Soriano with murder for the killing of Francis Orda.6 The accused filed a petition for bail. The prosecution presented Gina Azarcon as its witness in opposition to the petition. On June 7, 2001, Ernesto M. Regala and his son, Dennis C. Regala, a barangay tanod of Barangay 659, Arroceros, Ermita, Manila, executed separate affidavits before the Assistant City Prosecutor of Paraaque City. Ernesto narrated that at about 10:00 p.m. on April 1, 2001, he sent his son, Dennis, to deliver collections from the public toilet at Arroceros to Barangay Chairman Ligaya Santos. When Dennis had not yet arrived by 11:00 p.m., he decided to fetch his son. While they were in Santos office, Dennis and Ernesto heard Santos saying, "Gusto ko malinis na trabaho at walang bulilyaso, baka makaligtas na naman si Orda." They saw Santos give a gun to Rolly Tonion, who was then with Edna Cortez, a certain Nognog, Ronnie Ybaez, and another male companion. Dennis then gave Ernestos collection amounting to P400 to Santos. At 11:00 p.m. on April 2, 2001, Cortez told Ernesto that the son of the assistant city prosecutor was ambushed at the Better Living Subdivision, and that the latter was fortunate because the bullet intended for him hit his son instead.7 For his part, Dennis alleged that at 9:00 a.m. on April 3, 2001, Tonion asked him to return the gun to Santos for him, but that he refused to do so. On April 15, 2001, Santos asked him to monitor the activities of the respondent and his son at the store owned by the latter, located at the LRT Station at Arroceros.

The respondent executed an affidavit-complaint dated June 7, 2001 and filed the same in the Office of the City Prosecutor of Paraaque City, charging Santos, Cortez and Ybaez with murder for the death of his son Francis. 8 The case was docketed as I.S. No. 01-F-2052. In her counter-affidavit, Santos denied the charge and claimed that the affidavits executed by Ernesto and Dennis were all lies. She averred that she was in their house in Cavite City on April 1, 2001 and returned to Manila only in the early morning of April 2, 2001. Her alibi was corroborated by the affidavits of Anthony Alejado, Marianito Fuentes, Normita Samonte, and Lilian Lemery. She also denied Dennis claims that she asked him to monitor the activities of the respondent and his son on April 15, 2001. She alleged that the respondent filed the charge and other baseless charges against her to enable him to gain control over Plaza Lawton where his store was located. Cortez also denied the charge. She claimed in her affidavit that Santos was not in her office on April 1, 2001, it being a Sunday. She alleged that the affidavits of Dennis and Ernesto were lies. On July 31, 2001, the investigating prosecutor issued a Resolution finding probable cause against Santos and Cortez for murder.9 An Information for murder was, thereafter, filed on August 29, 2001 against Santos and Cortez, docketed as Criminal Case No. 01-0921.10 On August 30, 2001, Azarcon executed an affidavit implicating Barangay Kagawad Christopher Castillo, his brother Girlie Castillo, and Robert Bunda for the killing of Francis. On the same day, the respondent executed an affidavit-complaint charging them for the same crime.11 On September 7, 2001, the trial court issued an Order requiring the prosecutor to submit additional evidence against Cortez.12 Sabino M. Frias, thereafter, executed an affidavit on September 18, 2001, implicating Santos, Cortez, the Castillo brothers, Bunda, and Pedro Jimenez, the driver of Santos, in the killing of Francis.13 Meanwhile, Santos, Cortez, and Ybaez filed a petition for review of the resolution of the prosecutor in I.S. No. 01-F-2052 in the Department of Justice (DOJ).14 On their motion, the trial court suspended the proceedings against Santos and Cortez and the issuance of warrants for their arrest. However, on September 12, 2001, Azarcon executed an affidavit recanting her statement against the Castillo brothers and Bunda.15

In the meantime, during the hearing on October 23, 2001, the prosecution terminated the presentation of its testimonial evidence in Criminal Case No. 01-0425 on the accused Tonion and Sorianos petition for bail and offered its documentary evidence. The accused presented Azarcon as their first witness to prove their innocence of the crime charged. On November 12, 2001, the public prosecutor issued a Resolution in I.S. No. 01-H-3410 finding probable cause for murder against the Castillo brothers and Bunda. On November 28, 2001, the public prosecutor filed a motion to amend information and to admit amended information against them as additional accused.16 The accused, thereafter, filed a petition for review of the resolution of the public prosecutor before the DOJ on January 7, 2002.17 They also filed a motion to suspend proceedings and the issuance of warrants of arrest in Criminal Cases Nos. 01-0425 and 01-0921 and a motion to admit newly discovered evidence, namely, Azarcons affidavit of recantation. 18 The public prosecutor opposed the motion and filed a motion to admit second amended information with Pedro Jimenez as additional accused.19 On February 5, 2002, the trial court issued an Order denying the motion of the accused Castillo brothers and Bunda and ordering the issuance of warrants for the arrest of Santos and Cortez.20 The court then issued the said warrants based on its finding of probable cause against them21 for lack of probable cause to recall the warrants of arrest, and to examine the witnesses. The court, however, denied the motion on the ground that it had not yet acquired jurisdiction over their persons and it had not yet received any resolution from the Secretary of Justice on their petition for review. On February 20, 2002, the trial court issued an Order denying the petition for bail by Tonion and Soriano, 22 ruling that the evidence of guilt was strong. In the meantime, Ernesto and Dennis recanted their affidavits.23 During the trial on April 23, 2002 in Criminal Case No. 01-0425, accused Tonion and Soriano presented Dennis as their witness.24 On April 26, 2002, the trial court issued an Order admitting the second amended Information against the Castillo brothers, Bunda, and Jimenez and ordering the issuance of warrants for their arrest.25 On April 29, 2002, the said warrants were issued by the court. On June 11, 2002, Secretary of Justice Hernando B. Perez issued a Joint Resolution reversing the assailed resolution of the public prosecutor and

directing the latter to withdraw the Informations against Santos, Cortez, Bunda, the Castillo brothers, and Jimenez. The Secretary of Justice found Azarcon, Frias, Dennis, and Ernesto incredible witnesses because of their recantations, to wit: WHEREFORE, the petition is GRANTED and the assailed resolutions are hereby REVERSED AND SET ASIDE. The City Prosecutor of Paraaque City is hereby directed to cause the withdrawal of the criminal Informations for murder filed before the Regional Trial Court, Branch 258, Paraaque City, against respondents LIGAYA SANTOS, EDNA CORTEZ and RONNIE YBAEZ (I.S. No. 01-F-2052) and against respondents CHRISTOPHER and GIRLIE CASTILLO and ROBERT BUNDA (I.S. No. 01-H-3410) and to report to this Department the action taken within ten (10) days from receipt hereof. SO ORDERED.26 On June 27, 2002, the respondent filed a motion for reconsideration thereof. However, the public prosecutor filed a motion to withdraw the Informations in the two cases on June 20, 2002 in compliance with the joint resolution of the Secretary of Justice. On July 2, 2002, the respondent filed a comment/opposition to the motion to withdraw the Informations filed by the public prosecutor, contending: I- THAT COMPLAINANT HEREBY ADOPTS ITS POSITION RAISED IN ITS MOTION FOR RECONSIDERATION FILED WITH THE DEPARTMENT OF JUSTICE (COPY ATTACHED AS ANNEX "A"). HENCE, THE DETERMINATION OF THE INSTANT MOTION IS STILL PREMATURE ESPECIALLY SO THAT ALL THE ACCUSED-MOVANTS ARE STILL AT LARGE, EVADING SERVICE OF ARREST WARRANT, IN WHICH CASE THEY ARE NOT ENTITLED TO ANY RELIEF; II- THAT THE LATE (SIC) FINDINGS OF NO PROBABLE CAUSE FOR THE ACCUSED BY THE DEPARTMENT OF JUSTICE IS NOT BINDING;

III- THAT THE HONORABLE COURT HAS JUDICIOUSLY AND SOUNDLY ADJUDGED THE EXISTENCE OF PROBABLE CAUSE; and, IV- THAT TO GIVE DUE COURSE TO THE INSTANT MOTION WOULD ONLY CREATE CHAOS AND INJUSTICE.27 Pending resolution of the motion for reconsideration, the trial court issued an Order on July 5, 2002 granting the motion of the public prosecutor to withdraw the Informations in the interest of justice and equity.28 The trial court ruled that such withdrawal would not prevent the refiling of the Informations against the accused who would not be able to invoke double jeopardy, considering that the court had not yet acquired jurisdiction over their persons. The private complainant filed a motion for reconsideration of the order which was not opposed by the public prosecutor. Nonetheless, on July 23, 2002, the trial court issued an Order denying the motion on the ground that it could not order the refiling of the Informations if the DOJ and the public prosecutor refused to do so.29 The respondent forthwith filed a petition for certiorari with the Court of Appeals (CA) assailing the orders of the trial court. On March 19, 2003, the CA rendered a Decision granting the petition. The appellate court ruled that the trial court abused its discretion in granting the withdrawal of the Informations without making an independent evaluation on the merits of the case. Santos filed a motion for reconsideration of the decision and a supplement to the said motion, which was opposed by the respondent. On May 6, 2003, Santos and Cortez were arrested based on the warrants issued by the trial court. On May 22, 2003, the CA issued a resolution denying the said motion for reconsideration for lack of merit. Santos filed a petition for review on certiorari with this Court contending as follows: A.) THE COURT OF APPEALS ERRED GRAVELY AND ACTED ARBITRARILY IN NULLIFYING THE ORDER OF THE TRIAL COURT GRANTING THE PROSECUTIONS MOTION TO WITHDRAW THE INFORMATIONS IN CRIMINAL CASES NOS. 01-0921 AND 01-0425 PURSUANT TO DOJ JOINT RESOLUTION DATED 11 JUNE 2002.

B.) THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DIRECTLY REINSTATING THE CRIMINAL COMPLAINTS, INCLUDING THE WARRANTS OF ARREST, WITHOUT AFFORDING THE TRIAL COURT THE OPPORTUNITY TO EXERCISE ITS JUDICIAL PREROGATIVE OF DETERMINING WHETHER TO PURSUE OR DISMISS THE COMPLAINTS PURSUANT TO ITS OWN EVALUATION OF THE CASE AND EVIDENCE IN LIGHT OF THE DOJ JOINT RESOLUTION FINDING LACK OF PROBABLE CAUSE.30 The threshold issue is whether or not the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in granting the public prosecutors motion to withdraw the Informations and in lifting the warrant of arrest against the petitioner on the Secretary of Justices finding that there was no probable cause for the filing of the said Informations. The petitioner avers that the trial court did not abuse its judicial discretion when it granted the motion of the public prosecutor to withdraw the two Informations as ordered by the Secretary of Justice in his Joint Resolution on the finding that there was no probable cause against the accused therein to be charged with murder. The petitioner asserts that, by allowing the withdrawal of the Informations without an independent assessment of the merit of the evidence and without prejudice to the refiling thereof, the court did not thereby order the dismissal of the cases for insufficiency of evidence. The petitioner posits that, after all, the trial court had not yet acquired complete criminal jurisdiction to resolve the cases because it had not yet acquired jurisdiction over the persons of all the accused. The petitioner argues that the CA erred in relying on the rulings of this Court in Crespo v. Mogul31 and Perez v. Hagonoy Rural Bank, Inc.32 because the said cases involve the withdrawal of the Informations and the dismissal of the cases for insufficiency of evidence. In contrast, the public prosecutor filed a motion merely to withdraw the Informations and not to dismiss the cases due to insufficiency of evidence. In its comment on the petition, the Office of the Solicitor General (OSG) avers that the decision of the CA is in conformity with the rulings of this Court in Balgos, Jr. v. Sandiganbayan,33 Dee v. Court of Appeals,34 Roberts, Jr. v. Court of Appeals,35 Ledesma v. Court of Appeals,36 Jalandoni v. Drilon37 and Solar Team Entertainment, Inc. v. How.38 The OSG asserts that the rulings of this Court apply whether the motion filed by the public prosecutor was for the

withdrawal of the Informations due to lack of probable cause or insufficiency of evidence. The OSG avers that the trial court had acquired jurisdiction over the persons of all the accused, either by their respective arrests or by the filing of pleadings before the court praying for affirmative reliefs. In her reply to the comment of the OSG, the petitioner insisted that she did not submit herself to the jurisdiction of the trial court by filing her motion to quash the Informations for lack of probable cause and to examine the witnesses before the issuance of the warrant of arrest against her. As the trial court itself held, it had not yet acquired jurisdiction over her person. In nullifying the assailed orders of the trial court, the appellate court ratiocinated as follows: To support these assigned errors, petitioner contends that the respondent Judge committed grave abuse of discretion when he granted the Motion to Withdraw Informations filed by his trial prosecutor based on the Joint Resolution of the Department of Justice and in denying petitioners motion for reconsideration. We resolve to grant this petition considering that this contention is impressed with merit. The rule, therefore, in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court which has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation (Crespo v. Mogul, 151 SCRA 462).

However, if the trial court has failed to make an independent finding of the merits of the case or make an independent evaluation or assessment of the merits of the case, but merely anchored the dismissal of the case on the revised position of the prosecution, the trial court has relinquished the discretion he was duty-bound to exercise because, in effect, it is the prosecution through the Department of Justice which decides what to do and that the trial court was reduced into a mere rubber stamp, in violation of the ruling in Crespo vs. Mogul (Martinez vs. Court of Appeals, 237 SCRA 576, 577), which is the situation obtaining in this case considering that the dismissal of the criminal cases against private respondents was based solely on [the] recommendation of the Secretary of Justice because the reliance of public respondent Judge was based solely on the prosecutors averment that the Secretary of Justice had recommended the dismissal of the case against private respondent which is an abdication of the trial courts duty and jurisdiction to determine a prima facie case, in blatant violation of the courts pronouncement in Crespo vs. Mogul (Perez vs. Hagonoy Rural Bank, 327 SCRA 588). Moreover, public respondent having already issued the warrants of arrest on private respondents which, in effect, means that a probable cause exists in those criminal cases, it was an error to dismiss those cases without making an independent evaluation especially that the bases of the probable cause are the same evidence which mere made the bases of the Joint Resolution dated June 11, 2002 of the Secretary of Justice. Consequently, the dismissal order dated July 5, 2002 having been issued upon an erroneous exercise of judicial discretion, the same must have to be set aside.39 We agree with the appellate court. In Crespo v. Mogul,40 the Court held that once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on

what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant or deny the same. Contrary to the contention of the petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before or after arraignment of the accused.41 The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People or the private complainant to due process of law. 42 When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive of the Secretary of Justice but in sound exercise of its judicial prerogative.43 In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime was committed or that the evidence in the possession of the public prosecutor is insufficient to support a judgment of conviction of the accused. As the Court emphasized in Martinez v. Court of Appeals, 44 the trial court must make an independent evaluation or assessment of the merits of the case and the evidence on record of the prosecution: Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that no libel was committed. The trial judge did not make an independent evaluation or assessment of the merits of the case. Reliance was placed solely on the conclusion of the prosecution that "there is no sufficient evidence against the said accused to ascertain the allegation in the information" and on the supposed lack of objection to the motion to dismiss, this last premise being, however, questionable, the prosecution having failed, as observed, to give private complainant a copy of the motion to dismiss. In other words, the grant of the motion to dismiss was based upon considerations other than the judges own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the

prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was, indeed, no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its supposed insufficiency. As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo v. Mogul. The dismissal order having been issued in violation of private complainants right to due process as well as upon an erroneous exercise of judicial discretion, the Court of Appeals did not err in setting aside said dismissal order and remanding the case to the trial court for arraignment of petitioner as accused therein and for further proceedings. Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case.45 The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; 46 or any evidence

already adduced before the court by the accused at the time the motion is filed by the public prosecutor. In this case, the trial court failed to make an independent assessment of the merits of the cases and the evidence on record or in the possession of the public prosecutor. In granting the motion of the public prosecutor to withdraw the Informations, the trial court relied solely on the joint resolution of the Secretary of Justice, as gleaned from its assailed order: For resolution is the Motion to Withdraw Criminal Informations filed on June 21, 2002 by the Office of the City Prosecutor, this jurisdiction, to which a Comment/Opposition thereto was filed by private complainant Domingo I. Orda, Jr. on July 2, 2002. It appears that the motion is in compliance with the Joint Resolution of the Department of Justice (DOJ) promulgated on June 11, 2002 directing said Office to cause the withdrawal of the criminal informations for murder against the accused, Ligaya V. Santos, Edna Cortez, and Ronnie Ybaez, in Crim. Case No. 01-0921 (I.S. No. 01-F-2052) and against Christopher Castillo, Girlie Castillo, and Robert Bunda in Crim. Case No. 01-0425 (I.S. No. 01-H-3410), copy of which was received by this Court on June 19, 2002. The Court, after going over the Comment/Opposition filed by the private complainant, vis--vis the Joint Motion for Reconsideration of the Resolution of the DOJ, is of the firm belief and honest opinion and so holds that meanwhile that the Motion for Reconsideration of the private complainant is pending before the DOJ, justice and equity dictates that this Court has to give due course to the Motion to Withdraw the Criminal Informations, specially so that warrants for the arrest of all the accused have been issued. No injustice, prejudice, or damage will be suffered by the private complainant considering that if ever his Motion for Reconsideration will be granted by the DOJ, said criminal informations may be refiled and the principle of double jeopardy cannot be invoked by all the accused as the Court has not yet acquired jurisdiction over the persons. Upon the other hand, the warrants of arrest will serve as swords of damocles hanging over the heads of the accused if the Court will rule otherwise.47 In granting the public prosecutors motion, the trial court abdicated its judicial power and acted as a mere surrogate of the Secretary of Justice.

Worse, as gleaned from the above order, the trial court knew that the Joint Resolution of the Secretary of Justice had not yet become final and executory because the respondent, the private complainant, had filed a timely motion for the reconsideration thereof which had not yet been resolved by the Secretary of Justice. It behooved the trial court to wait for the resolution of the Secretary of Justice on the motion for reconsideration of the respondent before resolving the motion of the public prosecutor to withdraw the Informations. In fine, the trial court acted with inordinate haste. Had the trial court bothered to review its records before issuing its assailed order, it would have recalled that aside from the affidavits of Azarcon, Ernesto and Dennis, there was also the affidavit of Frias implicating the petitioner and the other accused to the killing of Francis and that it even gave credence to the testimony and affidavit of Azarcon when it denied Tonion and Sorianos petition for bail. Moreover, the trial court found probable cause against the petitioner and issued a warrant for her arrest despite the pendency of her petition for review in the Department of Justice, only to make a complete volte face because of the Joint Resolution of the Secretary of Justice. The bare fact that the trial court had issued warrants of arrest against Santos, Cortez, the Castillo brothers, and Bunda, who were the petitioners in the Department of Justice, did not warrant an outright grant of the public prosecutors motion to withdraw the Informations. The court had already acquired jurisdiction over the cases when the Informations were filed; hence, it had jurisdiction to resolve the motion of the public prosecutor, one way or the other, on its merits. While it may be true that the accused could be incarcerated, as warrants of arrest had already been issued against them pending the resolution of the respondents motion for reconsideration, the same does not justify ignoring the rules and running roughshod over the rights of the respondent. Justice and equity is not for the accused alone; the State and the private complainant are entitled thereto, as well. Moreover, the petitioner had submitted herself to the jurisdiction of the court when she filed her motion to examine the witnesses, and suspend the proceedings and the issuance of a warrant for her arrest. The trial court committed another travesty when it denied the motion for reconsideration of its July 5, 2002 Order, on its ratiocination that

In

todays

hearing

on

the

Motion

for

Reconsideration,

considering that the Public Prosecutor informed the Court that their office will no longer file any opposition thereto, the said Motion for Reconsideration is denied considering that the filing and the withdrawal of an Information is purely an executive function and the Court cannot order the refiling if the Department of Justice or the Public Prosecutors Office refuses to do so. 48 This is so because the July 5, 2002 Order of the court had not yet become final and executory when the private complainant filed her motion for reconsideration of the said order.49 Until and unless the July 5, 2002 Order shall have become final and executory, the Informations filed with the court were not yet considered withdrawn. On the other hand, if the trial court had granted the motion for reconsideration of the respondent and set aside its July 5, 2002 Order, there would no longer be a need to refile the Informations. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed Decision of the Court of Appeals is AFFIRMED. SO ORDERED. G.R. No. 158236 September 1, 2004 LIGAYA V. SANTOS, petitioner, vs. DOMINGO I. ORDA, JR., respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. SP No. 72962 granting the petition for certiorari filed by Domingo I. Orda, Jr. and nullifying the Orders2 of the Regional Trial Court of Paraaque City, Branch 258 dated July 5, 2002 and July 23, 2002 in People v. Ligaya V. Santos, et al., for murder, docketed as Criminal Cases Nos. 01-0921 and 01-0425. The Antecedents

On January 17, 2001, Dale B. Orda, a college student and son of respondent, Assistant City Prosecutor of Manila Domingo Orda, Jr., was shot by a male person on a motorcycle at the corner of Ayala Boulevard and San Marcelino Street, Manila. Dale was then seated at the passengers seat at the back of their car, while his father was at the wheel. Fortunately, Dale survived the shooting.3 At about 6:20 p.m. on April 2, 2001, another son of the respondent, Francis Orda, a twenty-year-old senior engineering student of the Mapua Institute of Technology, was shot to death at Saudi Arabia Street corner Sierra Leone Street, Better Living Subdivision, Barangay Don Bosco, Paraaque City. Gina Azarcon, a helper at the Bakers Brew Coffee Shop at the corner of Saudi Arabia and Somalia Streets, Barangay Don Bosco, gave a sworn statement to the police investigators on April 1, 2001, declaring that three male persons perpetrated the crime, two of whom shot the victim inside his car.4 On April 7, 2001, Azarcon gave a supplemental affidavit pointing to and identifying Rolly Tonion and Jhunrey Soriano as two of the assailants. 5 An Information was filed in the RTC of Paraaque City, docketed as Criminal Case No. 01-0425 on April 18, 2001, charging Rolly Tonion alias "Komang" and Jhunrey Soriano with murder for the killing of Francis Orda.6 The accused filed a petition for bail. The prosecution presented Gina Azarcon as its witness in opposition to the petition. On June 7, 2001, Ernesto M. Regala and his son, Dennis C. Regala, a barangay tanod of Barangay 659, Arroceros, Ermita, Manila, executed separate affidavits before the Assistant City Prosecutor of Paraaque City. Ernesto narrated that at about 10:00 p.m. on April 1, 2001, he sent his son, Dennis, to deliver collections from the public toilet at Arroceros to Barangay Chairman Ligaya Santos. When Dennis had not yet arrived by 11:00 p.m., he decided to fetch his son. While they were in Santos office, Dennis and Ernesto heard Santos saying, "Gusto ko malinis na trabaho at walang bulilyaso, baka makaligtas na naman si Orda." They saw Santos give a gun to Rolly Tonion, who was then with Edna Cortez, a certain Nognog, Ronnie Ybaez, and another male companion. Dennis then gave Ernestos collection amounting to P400 to Santos. At 11:00 p.m. on April 2, 2001, Cortez told Ernesto that the son of the assistant city prosecutor was ambushed at the Better Living Subdivision, and that the latter was fortunate because the bullet intended for

him hit his son instead.7 For his part, Dennis alleged that at 9:00 a.m. on April 3, 2001, Tonion asked him to return the gun to Santos for him, but that he refused to do so. On April 15, 2001, Santos asked him to monitor the activities of the respondent and his son at the store owned by the latter, located at the LRT Station at Arroceros. The respondent executed an affidavit-complaint dated June 7, 2001 and filed the same in the Office of the City Prosecutor of Paraaque City, charging Santos, Cortez and Ybaez with murder for the death of his son Francis. 8 The case was docketed as I.S. No. 01-F-2052. In her counter-affidavit, Santos denied the charge and claimed that the affidavits executed by Ernesto and Dennis were all lies. She averred that she was in their house in Cavite City on April 1, 2001 and returned to Manila only in the early morning of April 2, 2001. Her alibi was corroborated by the affidavits of Anthony Alejado, Marianito Fuentes, Normita Samonte, and Lilian Lemery. She also denied Dennis claims that she asked him to monitor the activities of the respondent and his son on April 15, 2001. She alleged that the respondent filed the charge and other baseless charges against her to enable him to gain control over Plaza Lawton where his store was located. Cortez also denied the charge. She claimed in her affidavit that Santos was not in her office on April 1, 2001, it being a Sunday. She alleged that the affidavits of Dennis and Ernesto were lies. On July 31, 2001, the investigating prosecutor issued a Resolution finding probable cause against Santos and Cortez for murder.9 An Information for murder was, thereafter, filed on August 29, 2001 against Santos and Cortez, docketed as Criminal Case No. 01-0921.10 On August 30, 2001, Azarcon executed an affidavit implicating Barangay Kagawad Christopher Castillo, his brother Girlie Castillo, and Robert Bunda for the killing of Francis. On the same day, the respondent executed an affidavit-complaint charging them for the same crime.11 On September 7, 2001, the trial court issued an Order requiring the prosecutor to submit additional evidence against Cortez.12 Sabino M. Frias, thereafter, executed an affidavit on September 18, 2001, implicating Santos, Cortez, the Castillo brothers, Bunda, and Pedro Jimenez, the driver of Santos, in the killing of Francis.13

Meanwhile, Santos, Cortez, and Ybaez filed a petition for review of the resolution of the prosecutor in I.S. No. 01-F-2052 in the Department of Justice (DOJ).14 On their motion, the trial court suspended the proceedings against Santos and Cortez and the issuance of warrants for their arrest. However, on September 12, 2001, Azarcon executed an affidavit recanting her statement against the Castillo brothers and Bunda.15 In the meantime, during the hearing on October 23, 2001, the prosecution terminated the presentation of its testimonial evidence in Criminal Case No. 01-0425 on the accused Tonion and Sorianos petition for bail and offered its documentary evidence. The accused presented Azarcon as their first witness to prove their innocence of the crime charged. On November 12, 2001, the public prosecutor issued a Resolution in I.S. No. 01-H-3410 finding probable cause for murder against the Castillo brothers and Bunda. On November 28, 2001, the public prosecutor filed a motion to amend information and to admit amended information against them as additional accused.16 The accused, thereafter, filed a petition for review of the resolution of the public prosecutor before the DOJ on January 7, 2002.17 They also filed a motion to suspend proceedings and the issuance of warrants of arrest in Criminal Cases Nos. 01-0425 and 01-0921 and a motion to admit newly discovered evidence, namely, Azarcons affidavit of recantation.18 The public prosecutor opposed the motion and filed a motion to admit second amended information with Pedro Jimenez as additional accused.19 On February 5, 2002, the trial court issued an Order denying the motion of the accused Castillo brothers and Bunda and ordering the issuance of warrants for the arrest of Santos and Cortez.20 The court then issued the said warrants based on its finding of probable cause against them21 for lack of probable cause to recall the warrants of arrest, and to examine the witnesses. The court, however, denied the motion on the ground that it had not yet acquired jurisdiction over their persons and it had not yet received any resolution from the Secretary of Justice on their petition for review. On February 20, 2002, the trial court issued an Order denying the petition for bail by Tonion and Soriano, 22 ruling that the evidence of guilt was strong. In the meantime, Ernesto and Dennis recanted their affidavits.23 During the trial on April 23, 2002 in Criminal Case No. 01-0425, accused Tonion and Soriano presented Dennis as their witness.24

On April 26, 2002, the trial court issued an Order admitting the second amended Information against the Castillo brothers, Bunda, and Jimenez and ordering the issuance of warrants for their arrest.25 On April 29, 2002, the said warrants were issued by the court. On June 11, 2002, Secretary of Justice Hernando B. Perez issued a Joint Resolution reversing the assailed resolution of the public prosecutor and directing the latter to withdraw the Informations against Santos, Cortez, Bunda, the Castillo brothers, and Jimenez. The Secretary of Justice found Azarcon, Frias, Dennis, and Ernesto incredible witnesses because of their recantations, to wit: WHEREFORE, the petition is GRANTED and the assailed resolutions are hereby REVERSED AND SET ASIDE. The City Prosecutor of Paraaque City is hereby directed to cause the withdrawal of the criminal Informations for murder filed before the Regional Trial Court, Branch 258, Paraaque City, against respondents LIGAYA SANTOS, EDNA CORTEZ and RONNIE YBAEZ (I.S. No. 01-F-2052) and against respondents CHRISTOPHER and GIRLIE CASTILLO and ROBERT BUNDA (I.S. No. 01-H-3410) and to report to this Department the action taken within ten (10) days from receipt hereof. SO ORDERED.26 On June 27, 2002, the respondent filed a motion for reconsideration thereof. However, the public prosecutor filed a motion to withdraw the Informations in the two cases on June 20, 2002 in compliance with the joint resolution of the Secretary of Justice. On July 2, 2002, the respondent filed a comment/opposition to the motion to withdraw the Informations filed by the public prosecutor, contending: I- THAT COMPLAINANT HEREBY ADOPTS ITS POSITION RAISED IN ITS MOTION FOR RECONSIDERATION FILED WITH THE DEPARTMENT OF JUSTICE (COPY ATTACHED AS ANNEX "A"). HENCE, THE DETERMINATION OF THE INSTANT MOTION IS STILL PREMATURE ESPECIALLY SO THAT ALL THE ACCUSED-MOVANTS ARE STILL AT LARGE, EVADING SERVICE OF ARREST WARRANT, IN WHICH CASE THEY ARE NOT ENTITLED TO ANY RELIEF;

II- THAT THE LATE (SIC) FINDINGS OF NO PROBABLE CAUSE FOR THE ACCUSED BY THE DEPARTMENT OF JUSTICE IS NOT BINDING; III- THAT THE HONORABLE COURT HAS JUDICIOUSLY AND SOUNDLY ADJUDGED THE EXISTENCE OF PROBABLE CAUSE; and, IV- THAT TO GIVE DUE COURSE TO THE INSTANT MOTION WOULD ONLY CREATE CHAOS AND INJUSTICE.27 Pending resolution of the motion for reconsideration, the trial court issued an Order on July 5, 2002 granting the motion of the public prosecutor to withdraw the Informations in the interest of justice and equity.28 The trial court ruled that such withdrawal would not prevent the refiling of the Informations against the accused who would not be able to invoke double jeopardy, considering that the court had not yet acquired jurisdiction over their persons. The private complainant filed a motion for reconsideration of the order which was not opposed by the public prosecutor. Nonetheless, on July 23, 2002, the trial court issued an Order denying the motion on the ground that it could not order the refiling of the Informations if the DOJ and the public prosecutor refused to do so.29 The respondent forthwith filed a petition for certiorari with the Court of Appeals (CA) assailing the orders of the trial court. On March 19, 2003, the CA rendered a Decision granting the petition. The appellate court ruled that the trial court abused its discretion in granting the withdrawal of the Informations without making an independent evaluation on the merits of the case. Santos filed a motion for reconsideration of the decision and a supplement to the said motion, which was opposed by the respondent. On May 6, 2003, Santos and Cortez were arrested based on the warrants issued by the trial court. On May 22, 2003, the CA issued a resolution denying the said motion for reconsideration for lack of merit. Santos filed a petition for review on certiorari with this Court contending as follows: A.) THE COURT OF APPEALS ERRED GRAVELY AND ACTED ARBITRARILY IN NULLIFYING THE ORDER OF THE TRIAL

COURT GRANTING THE PROSECUTIONS MOTION TO WITHDRAW THE INFORMATIONS IN CRIMINAL CASES NOS. 01-0921 AND 01-0425 PURSUANT TO DOJ JOINT RESOLUTION DATED 11 JUNE 2002. B.) THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DIRECTLY REINSTATING THE CRIMINAL COMPLAINTS, INCLUDING THE WARRANTS OF ARREST, WITHOUT AFFORDING THE TRIAL COURT THE OPPORTUNITY TO EXERCISE ITS JUDICIAL PREROGATIVE OF DETERMINING WHETHER TO PURSUE OR DISMISS THE COMPLAINTS PURSUANT TO ITS OWN EVALUATION OF THE CASE AND EVIDENCE IN LIGHT OF THE DOJ JOINT RESOLUTION FINDING LACK OF PROBABLE CAUSE.30 The threshold issue is whether or not the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in granting the public prosecutors motion to withdraw the Informations and in lifting the warrant of arrest against the petitioner on the Secretary of Justices finding that there was no probable cause for the filing of the said Informations. The petitioner avers that the trial court did not abuse its judicial discretion when it granted the motion of the public prosecutor to withdraw the two Informations as ordered by the Secretary of Justice in his Joint Resolution on the finding that there was no probable cause against the accused therein to be charged with murder. The petitioner asserts that, by allowing the withdrawal of the Informations without an independent assessment of the merit of the evidence and without prejudice to the refiling thereof, the court did not thereby order the dismissal of the cases for insufficiency of evidence. The petitioner posits that, after all, the trial court had not yet acquired complete criminal jurisdiction to resolve the cases because it had not yet acquired jurisdiction over the persons of all the accused. The petitioner argues that the CA erred in relying on the rulings of this Court in Crespo v. Mogul31 and Perez v. Hagonoy Rural Bank, Inc.32 because the said cases involve the withdrawal of the Informations and the dismissal of the cases for insufficiency of evidence. In contrast, the public prosecutor filed a motion merely to withdraw the Informations and not to dismiss the cases due to insufficiency of evidence.

In its comment on the petition, the Office of the Solicitor General (OSG) avers that the decision of the CA is in conformity with the rulings of this Court in Balgos, Jr. v. Sandiganbayan,33 Dee v. Court of Appeals,34 Roberts, Jr. v. Court of Appeals,35 Ledesma v. Court of Appeals,36 Jalandoni v. Drilon37 and Solar Team Entertainment, Inc. v. How.38 The OSG asserts that the rulings of this Court apply whether the motion filed by the public prosecutor was for the withdrawal of the Informations due to lack of probable cause or insufficiency of evidence. The OSG avers that the trial court had acquired jurisdiction over the persons of all the accused, either by their respective arrests or by the filing of pleadings before the court praying for affirmative reliefs. In her reply to the comment of the OSG, the petitioner insisted that she did not submit herself to the jurisdiction of the trial court by filing her motion to quash the Informations for lack of probable cause and to examine the witnesses before the issuance of the warrant of arrest against her. As the trial court itself held, it had not yet acquired jurisdiction over her person. In nullifying the assailed orders of the trial court, the appellate court ratiocinated as follows: To support these assigned errors, petitioner contends that the respondent Judge committed grave abuse of discretion when he granted the Motion to Withdraw Informations filed by his trial prosecutor based on the Joint Resolution of the Department of Justice and in denying petitioners motion for reconsideration. We resolve to grant this petition considering that this contention is impressed with merit. The rule, therefore, in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court which has the option to grant or deny the same. It does not

matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation (Crespo v. Mogul, 151 SCRA 462). However, if the trial court has failed to make an independent finding of the merits of the case or make an independent evaluation or assessment of the merits of the case, but merely anchored the dismissal of the case on the revised position of the prosecution, the trial court has relinquished the discretion he was duty-bound to exercise because, in effect, it is the prosecution through the Department of Justice which decides what to do and that the trial court was reduced into a mere rubber stamp, in violation of the ruling in Crespo vs. Mogul (Martinez vs. Court of Appeals, 237 SCRA 576, 577), which is the situation obtaining in this case considering that the dismissal of the criminal cases against private respondents was based solely on [the] recommendation of the Secretary of Justice because the reliance of public respondent Judge was based solely on the prosecutors averment that the Secretary of Justice had recommended the dismissal of the case against private respondent which is an abdication of the trial courts duty and jurisdiction to determine a prima facie case, in blatant violation of the courts pronouncement in Crespo vs. Mogul (Perez vs. Hagonoy Rural Bank, 327 SCRA 588). Moreover, public respondent having already issued the warrants of arrest on private respondents which, in effect, means that a probable cause exists in those criminal cases, it was an error to dismiss those cases without making an independent evaluation especially that the bases of the probable cause are the same evidence which mere made the bases of the Joint Resolution dated June 11, 2002 of the Secretary of Justice. Consequently, the dismissal order dated July 5, 2002 having been issued upon an erroneous exercise of judicial discretion, the same must have to be set aside.39 We agree with the appellate court.

In Crespo v. Mogul,40 the Court held that once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant or deny the same. Contrary to the contention of the petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before or after arraignment of the accused.41 The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People or the private complainant to due process of law. 42 When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive of the Secretary of Justice but in sound exercise of its judicial prerogative.43 In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime was committed or that the evidence in the possession of the public prosecutor is insufficient to support a judgment of conviction of the accused. As the Court emphasized in Martinez v. Court of Appeals,44 the trial court must make an independent evaluation or assessment of the merits of the case and the evidence on record of the prosecution: Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that no libel was committed. The trial judge did not make an independent evaluation or assessment of the merits of the case. Reliance was placed solely on the conclusion of the prosecution that "there is no sufficient evidence against the said accused to ascertain the allegation in the information" and on the supposed lack of objection to the motion to dismiss, this last premise being, however, questionable, the prosecution having failed, as observed, to give private complainant a copy of the motion to dismiss.

In other words, the grant of the motion to dismiss was based upon considerations other than the judges own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was, indeed, no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its supposed insufficiency. As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo v. Mogul. The dismissal order having been issued in violation of private complainants right to due process as well as upon an erroneous exercise of judicial discretion, the Court of Appeals did not err in setting aside said dismissal order and remanding the case to the trial court for arraignment of petitioner as accused therein and for further proceedings. Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case.45

The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; 46 or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor. In this case, the trial court failed to make an independent assessment of the merits of the cases and the evidence on record or in the possession of the public prosecutor. In granting the motion of the public prosecutor to withdraw the Informations, the trial court relied solely on the joint resolution of the Secretary of Justice, as gleaned from its assailed order: For resolution is the Motion to Withdraw Criminal Informations filed on June 21, 2002 by the Office of the City Prosecutor, this jurisdiction, to which a Comment/Opposition thereto was filed by private complainant Domingo I. Orda, Jr. on July 2, 2002. It appears that the motion is in compliance with the Joint Resolution of the Department of Justice (DOJ) promulgated on June 11, 2002 directing said Office to cause the withdrawal of the criminal informations for murder against the accused, Ligaya V. Santos, Edna Cortez, and Ronnie Ybaez, in Crim. Case No. 01-0921 (I.S. No. 01-F-2052) and against Christopher Castillo, Girlie Castillo, and Robert Bunda in Crim. Case No. 01-0425 (I.S. No. 01-H-3410), copy of which was received by this Court on June 19, 2002. The Court, after going over the Comment/Opposition filed by the private complainant, vis--vis the Joint Motion for Reconsideration of the Resolution of the DOJ, is of the firm belief and honest opinion and so holds that meanwhile that the Motion for Reconsideration of the private complainant is pending before the DOJ, justice and equity dictates that this Court has to give due course to the Motion to Withdraw the Criminal Informations, specially so that warrants for the arrest of all the accused have been issued. No injustice, prejudice, or damage will be suffered by the private complainant considering that if ever his Motion for Reconsideration will be granted by the DOJ, said criminal informations may be refiled and the principle of double jeopardy cannot be invoked by all the accused as the Court has not yet acquired jurisdiction over the persons. Upon the other hand, the warrants of arrest will

serve as swords of damocles hanging over the heads of the accused if the Court will rule otherwise.47 In granting the public prosecutors motion, the trial court abdicated its judicial power and acted as a mere surrogate of the Secretary of Justice. Worse, as gleaned from the above order, the trial court knew that the Joint Resolution of the Secretary of Justice had not yet become final and executory because the respondent, the private complainant, had filed a timely motion for the reconsideration thereof which had not yet been resolved by the Secretary of Justice. It behooved the trial court to wait for the resolution of the Secretary of Justice on the motion for reconsideration of the respondent before resolving the motion of the public prosecutor to withdraw the Informations. In fine, the trial court acted with inordinate haste. Had the trial court bothered to review its records before issuing its assailed order, it would have recalled that aside from the affidavits of Azarcon, Ernesto and Dennis, there was also the affidavit of Frias implicating the petitioner and the other accused to the killing of Francis and that it even gave credence to the testimony and affidavit of Azarcon when it denied Tonion and Sorianos petition for bail. Moreover, the trial court found probable cause against the petitioner and issued a warrant for her arrest despite the pendency of her petition for review in the Department of Justice, only to make a complete volte face because of the Joint Resolution of the Secretary of Justice. The bare fact that the trial court had issued warrants of arrest against Santos, Cortez, the Castillo brothers, and Bunda, who were the petitioners in the Department of Justice, did not warrant an outright grant of the public prosecutors motion to withdraw the Informations. The court had already acquired jurisdiction over the cases when the Informations were filed; hence, it had jurisdiction to resolve the motion of the public prosecutor, one way or the other, on its merits. While it may be true that the accused could be incarcerated, as warrants of arrest had already been issued against them pending the resolution of the respondents motion for reconsideration, the same does not justify ignoring the rules and running roughshod over the rights of the respondent. Justice and equity is not for the accused alone; the State and the private complainant are entitled thereto, as well. Moreover, the petitioner had submitted herself to the jurisdiction of the court when she filed

her motion to examine the witnesses, and suspend the proceedings and the issuance of a warrant for her arrest. The trial court committed another travesty when it denied the motion for reconsideration of its July 5, 2002 Order, on its ratiocination that In todays hearing on the Motion for Reconsideration, considering that the Public Prosecutor informed the Court that their office will no longer file any opposition thereto, the said Motion for Reconsideration is denied considering that the filing and the withdrawal of an Information is purely an executive function and the Court cannot order the refiling if the Department of Justice or the Public Prosecutors Office refuses to do so. 48 This is so because the July 5, 2002 Order of the court had not yet become final and executory when the private complainant filed her motion for reconsideration of the said order.49 Until and unless the July 5, 2002 Order shall have become final and executory, the Informations filed with the court were not yet considered withdrawn. On the other hand, if the trial court had granted the motion for reconsideration of the respondent and set aside its July 5, 2002 Order, there would no longer be a need to refile the Informations. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed Decision of the Court of Appeals is AFFIRMED. SO ORDERED. G.R. No. 186472 July 5, 2010 PEOPLE OF THE PHILIPPINES, Appellee, vs. ANTONIO SIONGCO y DELA CRUZ, ERIBERTO ENRIQUEZ y GEMSON, GEORGE HAYCO y CULLERA, and ALLAN BONSOL y PAZ, Accused, ANTONIO SIONGCO y DELA CRUZ and ALLAN BONSOL y PAZ, Appellants. DECISION NACHURA, J.:

Before the Court for review is the September 20, 2007 Decision 1 of the Court of Appeals (CA), affirming the guilty verdict rendered by the Regional Trial Court (RTC), Branch 166, Pasig City,2 promulgated on November 6, 2000, against appellants Antonio Siongco (Siongco) and Allan Bonsol (Bonsol), with modification on the penalty imposed and the amount of damages to be paid to their victim, Nikko Satimbre (Nikko).3 This review is made, pursuant to the pertinent provisions of Sections 3 and 10 of Rule 122 and Section 13 of Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M. No. 00-5-03-SC. The factual findings of both courts show that between 6:00 and 7:00 p.m. of December 27, 1998, 11-year-old Nikko, a resident of Balanga, Bataan, was induced by Siongco to board a bus bound for Pilar, Bataan, together with the latters friends, Marion Boton (Boton) and Eriberto Enriquez (Enriquez). Nikko was told that the two would accompany him in getting the "Gameboy" that Siongco promised. Siongco was no stranger to Nikko as he used to be a security guard at Footlockers shoe store where Nikkos mother, Elvira Satimbre (Elvira), works as a cashier. After a short stop in Pilar, Bataan, the three proceeded to Mariveles, Bataan, where they met with George Hayco (Hayco). The boy was then brought to Dinalupihan, Bataan, where he was kept for the night.4 Meanwhile, Elvira arrived home at 7:00 p.m. and found that her son was not there. She searched for him in the places he frequented, but to no avail. As her continued search for the child proved futile, she reported him missing to the nearest police detachment.5 The following day, December 28, 1998, Enriquez and Siongco took Nikko to Bicutan, Taguig, Metro Manila.6 On December 29, 1998, Elvira received a phone call from a man, later identified as appellant Siongco, who claimed to have custody of Nikko and asked for P400,000.00 in exchange for his liberty. Elvira haggled with her sons captor until the latter agreed to reduce the ransom money to P300,000.00. Elvira was also able to talk to her son who was only able to utter "Hello Ma" as Siongco immediately grabbed the phone from him. Siongco warned Elvira to refrain from reporting the matter to the police. He also threatened that Nikko would be killed if she fails to give the ransom money at 6:00 p.m. of the next day at Genesis Bus Station in Pasay City. 7 That night, Elvira telephoned the Office of the Chief of Police of Balanga, Bataan and reported that Nikko was kidnapped.8

On December 30, 1998, Enriquez and Siongco moved Nikko to Pateros and cautioned him not to tell anybody that he was kidnapped. They stayed at the house of Heracleo San Jose (Heracleo), a relative of Enriquez. They again called Elvira who failed to keep her appointment with them in Pasay City. She explained that she was still gathering funds for the ransom money. The captors reiterated their threats and, at midnight, they called and instructed her to proceed to Avenida with whatever available money she had, subject to a subsequent agreement as to the balance. Elvira refused and insisted that she preferred to give the amount in full.9 In the morning of December 31, 1998, Siongco called Elvira several times with the same threats and demands. Elvira agreed to meet them that afternoon at the Genesis Bus Station in Pasay City. Nikko was allowed to speak with his mother and he assured her that he was not being maltreated. After the call, Enriquez informed Nikko that his mother wanted a "kaliwaan" (face to face exchange) deal. Soon thereafter, Enriquez and Siongco left to meet Elvira, while Nikko stayed behind.10 On the same day, Police Senior Inspector Rodolfo Azurin, Jr. (Police Senior Inspector Azurin, Jr.) was on duty at Crimes Operation Division of the Philippine Anti-Organized Crime Task Force (PAOCTF) office in Camp Crame, Quezon City. At 11:00 a.m., Elvira arrived and requested for assistance for the recovery of her kidnapped son. The PAOCTF team then instructed her to bring to the pay-off site a brown envelope with a letter asking for extension of payment. After briefing, Azurin and other police operatives proceeded to Genesis Bus Station in Pasay City. While waiting for Elvira, they noticed two (2) male persons, later identified as Enriquez and Siongco, restlessly moving around the place. At around 2:30 p.m., Elvira arrived carrying the brown envelope. As instructed by the kidnappers, she positioned herself near a tree and tied a white kerchief around her neck. Shortly thereafter, Enriquez approached Elvira and took the brown envelope from her. As he was walking away, the PAOCTF team arrested him. Thereafter, they followed Siongco, who hurriedly hailed a taxicab and sped away. Siongco was arrested at the residence of Heracleo in Pateros where Nikko was also rescued. Thereafter, Siongco and Enriquez were brought to Camp Crame.11 The investigations of Nikko and the two detainees, coupled with the follow-up operations of the PAOCTF, led to the arrest of appellant Bonsol, and the other cohorts, Hayco and Boton.12

On January 4, 1999, an Information13 was filed in court, charging herein appellants Siongco and Bonsol, together with Enriquez, Hayco, Boton, and a John Doe, with KIDNAPPING and SERIOUS ILLEGAL DETENTION under Article 267 of the Revised Penal Code. Arraigned on February 24, 1999, the five accused pleaded not guilty to the offense charged.14 Trial then ensued; in the course of which, the prosecution presented in evidence the oral testimonies of its witnesses: 1) the victim himself, 11-year-old Nikko; 2) his mother, Elvira; 3) Heracleo, relative of accused Enriquez; 4) Police Senior Inspector Azurin, Jr. of the PAOCTF; and 5) Police Superintendent Paul Tucay, the one who arrested Bonsol, Hayco and Boton.15 With the exception of Boton, all of the accused took the witness stand. Hayco and Bonsol denied knowledge of and participation in the crime. Siongco testified that, on December 27, 1998, he saw Nikko at a "peryahan" in Balanga, Bataan but he did not mind the boy as he was busy conversing with Enriquez about their business of selling toys. He went to Manila and stayed at the house of Heracleo on December 28 and 29, 1998 to collect installment payments from customers. On December 31, 1998, he went to his brothers house in San Juan, Metro Manila and when he came back to Pateros on the same day, he was arrested by PAOCTF agents. Enriquez declared that Nikko voluntarily went with them. He affirmed that he travelled with Nikko and Siongco to Manila. They stayed in Bicutan and then moved to Pateros. He alleged that they called Nikkos mother because the boy kept asking for a "Gameboy." He went to the Genesis Bus Station to meet Nikkos mother, who, according to Siongco, would have something tied around her neck.16 The RTC rejected the denials and alibis raised by the accused and held that they conspired and mutually helped one another in kidnapping and illegally detaining Nikko by taking him through a circuitous journey from Balanga, Bataan to Manila where ransom demands for his liberty were made. In a decision dated November 6, 2000, the RTC convicted Siongco, Bonsol, Enriquez and Hayco of the offense charged in the Information and meted upon them the extreme penalty of death. Boton was ACQUITTED on the ground of reasonable doubt. The pertinent portion of the RTC decision reads:

WHEREFORE, the Court finds accused Antonio Siongco y Dela Cruz, Eriberto Enriquez y Gemson, George Hayco y Cullera and Allan Bonsol y Paz GUILTY beyond reasonable doubt of the crime of Kidnapping and Serious Illegal Detention for the purpose of extorting ransom, as defined and penalized under Article 267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659, and are hereby sentenced to suffer the Supreme penalty of Death and indemnify the victim, Nikko Satimbre, and his mother, Elvira Satimbre, each, in the amount of P50,000.00, as moral damages, plus the costs of suit. On the ground of reasonable doubt, the Court finds accused Marion Boton y Cereza NOT GUILTY of the crime charged in the Information. SO ORDERED.17 From the RTC, the case went directly to this Court for automatic review.18 The parties were then required to file, as they did file, their respective appellants 19 and appellees20 briefs. Consistent with this Courts ruling in People v. Mateo,21 the case was transferred to the CA22 for intermediate review and disposition. Upon review, the CA concurred with the factual findings and conclusions of the trial court and affirmed the judgment of conviction but modified the penalty imposed to reclusion perpetua. The CA increased the amount of moral damages to P100,000.00 and awarded P100,000.00 as exemplary damages, to be paid jointly and solidarily by the accused to their victim, Nikko. The fallo of the CA Decision states: WHEREFORE, the Judgment dated November 6, 2000 of the RTC Branch 166, Pasig City, in Criminal Case No. 115317-H, is AFFIRMED with the MODIFICATION that accused-appellants are sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and ordered to jointly and solidarily pay private complainant Nikko Satimbre the amounts of P100,000.00 as moral damages and P100,000.00 as exemplary damages. SO ORDERED.23 Only herein appellants Siongco and Bonsol were able to perfect an appeal 24 of the CA Decision. Consequently, in its September 29, 2008 Resolution, 25 the CA declared the conviction of accused Enriquez and Hayco as final and executory, and a Partial Entry of Judgment was made against them. 26 In a

Resolution dated April 13, 2009,27 this Court accepted the appeal interposed by Siongco and Bonsol. We deny the appeal. Article 267 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, defines and penalizes kidnapping and serious illegal detention as follows: Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female, or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. In the recent People of the Philippines v. Christopher Bringas y Garcia, Bryan Bringas y Garcia, John Robert Navarro y Cruz, Erickson Pajarillo y Baser (deceased), and Eden Sy Chung,28 we reiterated the following elements that must be established by the prosecution to obtain a conviction for kidnapping, viz.: (a) the offender is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense, any of the following circumstances is present: (1) the kidnapping or detention lasts for

more than three days; (2) it is committed by simulating public authority; (3) any serious physical injuries are inflicted upon the person kidnapped or detained, or threats to kill him are made; or (4) the person kidnapped or detained, is a minor, a female, or a public officer. If the victim is a minor, or is kidnapped or detained for the purpose of extorting ransom, the duration of detention becomes immaterial. The essence of kidnapping is the actual deprivation of the victims liberty, coupled with indubitable proof of the intent of the accused to effect such deprivation.29 As correctly held by the RTC and the CA, the prosecution indubitably proved beyond reasonable doubt that the elements of kidnapping and serious illegal detention obtain in the case at bar. Accused-appellants are private individuals who, together with their cohorts, took 11-year-old Nikko out of his hometown in Balanga, Bataan on December 27, 1998. They brought him to Manila on December 28, 1998, where demands for a P400,000.00 ransom were made to his mother. Appellants contend that the essential element of detention or deprivation of liberty was absent because Nikko voluntarily went with them and that he was free to move around and play with other children. We disagree. The deprivation required by Article 267 of the Revised Penal Code means not only the imprisonment of a person, but also the deprivation of his liberty in whatever form and for whatever length of time. It includes a situation where the victim cannot go out of the place of confinement or detention or is restricted or impeded in his liberty to move.30 In this case, although Nikko was free to move around, he was at all times under the alternate watch of appellants and their cohorts. He was in their physical custody and complete control as he was kept in places strange and unfamiliar to him. While he was allowed to play in the houses where he was kept, the fact remains that he was under the control of his captors who left him there, as he could not leave the house until they shall have returned for him. Because of his tender age and the fact that he did not know the way back home, he was then and there deprived of his liberty.1avvphi1 As to the contention of appellant Siongco that there was no force or intimidation involved in the taking, this Court held in People of the Philippines v. Ernesto Cruz, Jr. y Concepcion and Reynaldo Agustin y Ramos 31 that the fact

that the victim voluntarily went with the accused did not remove the element of deprivation of liberty, because the victim went with the accused on a false inducement, without which the victim would not have done so. In the present case, when Nikko boarded the bus bound for Pilar, Bataan, he was under the impression that Bonsol and Enriquez were to be trusted as he was assured by Siongco that the two would accompany him to get his much desired "Gameboy." Without such assurance, Nikko would not have boarded the said vehicle. In kidnapping, the victim need not be taken by the accused forcibly or against his will. What is controlling is the act of the accused in detaining the victim against his or her will after the offender is able to take the victim in his custody. In short, the carrying away of the victim in the crime of kidnapping and serious illegal detention can either be made forcibly or, as in the instant case, fraudulently.32ten.lihpwal Equally significant is the fact that, in kidnapping, the victims lack of consent is also a fundamental element.33 The general rule is that the prosecution is burdened to prove lack of consent on the part of the victim. However, where the victim is a minor, lack of consent is presumed. In this case, Nikko was only 11 years old when he was kidnapped; thus incapable of giving consent, and incompetent to assent to his seizure and illegal detention. The consent of the boy could place appellants in no better position than if the act had been done against his will. A kidnapper should not be rewarded with an acquittal simply because he is ingenious enough to conceal his true motive from his victim until he is able to transport the latter to another place.34 The identical factual findings of both the trial and appellate courts likewise show that the actuations and roles played by appellants Siongco and Bonsol undoubtedly demonstrate that they conspired with Hayco and Enriquez in kidnapping and illegally detaining Nikko. Being sufficiently supported by evidence on record, we find no reason to disturb the same. Siongco was the one who promised Nikko a "Gameboy." He told the boy to go with Bonsol and Enriquez and get the toy in Pilar, Bataan. On December 28, 1998, he arrived in Dinalupihan, Bataan to fetch Nikko. From there, he, Enriquez and Nikko left for Bicutan, Taguig, Metro Manila in a bus. The following day, Siongco, Nikko, Enriquez, and the latters friend went to the marketplace and called Nikkos mother. Siongco demanded from her payment of P400,000.00 as a condition for the boys release. Siongco repeatedly telephoned Elvira with the same demand and threats over the next couple of

days. On December 31, 1998, he instructed Enriquez to meet Elvira at the Genesis Bus Station to get the ransom money. It is immaterial whether appellant Bonsol acted as a principal or as an accomplice because the conspiracy and his participation therein have been established. In conspiracy, the act of one is the act of all and the conspirators shall be held equally liable for the crime.35 On the pretext of getting Nikkos much desired "Gameboy," Bonsol and Enriquez were able to conveniently whisk Nikko out of Balanga and bring him to Pilar, then to Mariveles, and eventually to Dinalupihan, where Siongco fetched him. Thus, Enriquez and Siongcos plan of bringing Nikko to Metro Manila, a terrain unfamiliar to the boy and where the two could enjoy anonymity to carry out their ultimate goal of extorting ransom money from Nikkos mother, was accomplished. As shown by the evidence, without the participation of appellant Bonsol, the commission of the offense would not have come to fruition. Finally, appellants bewail that they were deprived of their right to an independent and competent counsel when the RTC appointed Atty. Michael Moralde (Atty. Moralde) as their counsel de oficio during the pre-trial conference, direct examination and cross-examination of the prosecutions principal witness, Nikko. This was so, despite Atty. Moraldes manifestation during Nikkos cross-examination that the defense of his actual client, accused Boton, conflicts with that of the other accused.36 A scrutiny of the records shows that Atty. Moralde was appointed as appellants counsel de oficio in six (6) hearings, because their regular counsel de oficio, Atty. Antoniano from the Public Attorneys Office P AO), wa s inexplicably absent. There is no denial of the right to counsel where a counsel de oficio is appointed during the absence of the accused's counsel de parte, or in this case the regular counsel de oficio, pursuant to the court's desire to finish the case as early as practicable under the continuous trial system.37 The choice of counsel by the accused in a criminal prosecution is not a plenary one. If the chosen counsel deliberately makes himself scarce, the court is not precluded from appointing a de oficio counsel, which it considers competent and independent, to enable the trial to proceed until the counsel of choice enters his appearance. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused, to the detriment of the eventual resolution of the case.38

The fact that Botons defense conflicts with that of appellants is immaterial because, as borne out by records, Atty. Moralde expressly declared that the questions he propounded to Nikko were only for his client Boton. Thereafter, Atty. Antoniano was furnished with copies of the transcript of stenographic notes of the proceedings she missed and was given ample opportunity to conduct her own cross-examination during the subsequent hearings. Eventually, she adopted the cross-examination conducted by the other defense counsels.391avvphi1 The CA correctly modified the penalty imposed by the RTC to reclusion perpetua without eligibility for parole. The penalty for kidnapping for the purpose of extorting ransom from the victim or any other person under Article 267 of the Revised Penal Code40 is death. However, R.A. No. 934641 has banned the imposition of death penalty and reduced all death sentences to reclusion perpetua without eligibility for parole.42 In line with prevailing jurisprudence,43 an award of P50,000.00 as civil indemnity is proper. The award of P100,000.00 moral damages is increased to P200,000.00 considering the minority of Nikko.44 As the crime was attended by a demand for ransom, and by way of example or correction, Nikko is entitled to P100,000.00 exemplary damages as correctly awarded by the CA. 45 WHEREFORE, the September 20, 2007 Decision..of the Court of Appeals in CA-G.R. CR-H.C. No. 00774, finding appellants Antonio Siongco y dela Cruz and Allan Bonsol y Paz guilty beyond reasonable doubt of KIDNAPPING and SERIOUS ILLEGAL DETENTION, is AFFIRMED with the MODIFICATION that a P50,000.00 civil indemnity is awarded and the amount of moral damages is increased to P200, 000.00. Costs against appellants. SO ORDERED. G.R. No. 185840 June 29, 2010 PEOPLE OF THE PHILIPPINES, Appellee, vs. PEDRO BASADA y DEL MONTE, RICARDO BASADA y QUIMADA, CRISANTO BASADA y QUIMADA, and REYNALDO BASADA y QUIMADA, Appellants.

DECISION ABAD, J.: This case is about the failed attempt of prosecution witnesses to implicate the other members of the assailants family in the crime of homicide. The Facts and the Case The Assistant Provincial Prosecutor of Marikina charged the accused Pedro, Ricardo alias Carding, Reynaldo alias Rene, Crisanto alias Totoy, and Buyo, all surnamed Basada, and Elmer Apelado before the Regional Trial Court (RTC) of San Mateo, Rizal, in Criminal Case 2929 with the crime of murder. Upon arraignment, all of the accused pleaded not guilty to the charge, except Reynaldo and Buyo, who were then both at large. The prosecution presented Eutiquio Alea who testified that his brother, Jill, lived next to his house in Vista Rio Village in San Jose, Montalban, Rizal. On May 19, 1996, at about 2 p.m., Eutiquio was at his house when he heard Reynaldo invite Jill to a drinking session at Eddie Basadas house, which was about 300 meters away. At first, Jill did not agree but he eventually gave in to Reynaldos request. So at about 3 p.m., Jill and Reynaldo left for Eddies place. Noel Aneri testified that those present at the drinking session were, aside from himself, his brother Celso, Jill, Reynaldo, Elmer, and Jills brothers-in-law. At about 5 p.m., an altercation broke out between Jill and Reynaldo because the latter thought that Jills brothers-in-law might talk too much. Reynaldo boxed Jill on the body, prompting the latter to run outside. Reynaldo went after Jill and hurled a stone at him to slow him down. When Reynaldo reached Jill, he stabbed him at the back with a balisong. While Reynaldo and Jill grappled for the knife, Pedro, Crisanto, Buyo, Ricardo, and Elmer came to Reynaldos aid. Noel, who allegedly watched the fight from about a distance of three meters, saw Ricardo stab Jill at the back. Elmer, who was behind Jill, stabbed the latter, too. Pedro held Jills shorts while boxing him. Buyo and Crisanto, who were also throwing punches, held Jills right and left arms, respectively. Eutiquio said that he saw all these happen because he went out of his house when a child screamed, "Pinagtulung-tulungan ng Basada." He immediately turned around, however, and returned to his house out of fear of what he saw.

Subsequently, the accused left Jill and ran towards a forested area. Noel brought Jill to a hospital where the latter died. The autopsy report on Jills cadaver showed that he sustained a contusion on the head, multiple abrasions, and six stab wounds, all on the left part of his body, three of which were fatal. It seemed probable to the medico-legal examiner that only one weapon was used in stabbing Jill. On April 16, 1999 the RTC rendered a decision acquitting Elmer but finding Pedro, Ricardo, and Crisanto guilty beyond reasonable doubt of the crime charged. It sentenced them to suffer the capital punishment of death. After the promulgation of the decision, Reynaldo was apprehended and tried. On June 15, 2004 the RTC rendered a decision, finding him likewise guilty beyond reasonable doubt of murder, sentencing him to also suffer the penalty of death. The Court of Appeals (CA) rendered judgment1 in CA-G.R. CR-HC 01343 on February 21, 2008, affirming the decision of the RTC but reducing the death penalty imposed on Reynaldo to reclusion perpetua. The CA found Pedro, Ricardo, and Crisanto guilty beyond reasonable doubt as mere accomplices and sentenced each of them to suffer the indeterminate penalty of 10 years and 1 day of prision mayor, as minimum, to 18 years of reclusion temporal, as maximum. The CA ordered all of the accused to solidarily pay the heirs of Jill Alea P50,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages; and P25,000.00 as exemplary damages. Pedro, Ricardo, Crisanto, and Reynaldo appealed to this Court from that decision. The Issue Presented The only issue presented in this case is whether or not the CA erred in holding that Reynaldo murdered Jill by stabbing him with the aid, as accomplices, of Pedro, Ricardo, and Crisanto. The Rulings of the Court As a general rule, a trial courts assessment of the credibility of a witness is entitled to great weight.2 But this is true only if the trial court had not

overlooked some fact or circumstance of great weight and persuasiveness, which if taken into account, could affect the outcome of the case.3 Here, there are several telltale signs that the prosecution witnesses did not tell the truth. Eutiquio claims that he came out of his house on hearing a child scream, "Pinagtulung-tulungan ng Basada" and that he then went to the place where the reported commotion was taking place. But the spot where his brother was attacked, just outside the house where they were drinking, was about 300 meters from Eutiquios house. Given that the child saw what was taking place, he had to travel some 300 meters to get near Eutiquios house and shout the alarm. For his part, Eutiquio had to get out of his house and travel the same 300 meters to get to the place that the child described. Under the circumstances, what the child sawEutiquios brother being ganged up on by the Basadaswould have long come to pass. Besides, it is quite unbelievable that, as Eutiquio saw his brother being attacked, he would turn back and go home, mindless of what his brother was going through. Although Eutiquio may have been afraid, it was unnatural for him not to do anything to help his brother. He could have shouted or ran for help. And, if he really saw the stabbing, he would have at least stayed to take his brother to the hospital. What is more, Eutiquio and Noel testified that they saw all six accused swarm over Jill, either stabbing or throwing punches at him. If Eutiquio and Noel were to be believed, Reynaldo was the first to stab his brother, followed by Ricardo who pulled the knife from Jill's back and stabbed him again with it. But it is most unlikely for Reynaldo who was the main assailant to stand aside so Ricardo could take over the attack, pull out the knife, and use it again against Jill. Even more incredible is Noels claim that Ricardo also stood aside to let Elmer himself get the knife and stab Jill a third time. Indeed, the trial court acquitted Elmer since the autopsy report did not show the stab wound he allegedly inflicted on Jills body. Moreover, it was apparent that Eutiquio and Noel had improper motives for trying to implicate the other Basadas. Eutiquio wanted Reynaldos entire family to suffer for the killing of his brother Jill. Noel, on the other hand, admittedly entertained a grudge against Crisanto prior to the stabbing incident. What should be given credence are the testimonies of those witnesses who had no motive or reason to lie.

Domingo Catalo testified that he was part of the drinking party. He did not see the other Basadas there and it was only Reynaldo who fought with Jill on that occasion. Concepcion Cristobal, another witness, testified that Ricardo was her stay-in worker on the day of the stabbing incident. Finally, Tirso Ramiscal corroborated the alibis of Pedro and Crisanto that they were at that time at the San Mateo cockpit. Although ordinarily the defense of alibi cannot prevail in the face of positive identification,4 that rule cannot apply in this case because of the utterly dubious stories of those who identified the supposed assailants. The prosecution has the burden of proving the guilt of the accused beyond reasonable doubt.5 The overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt.6 Here, the prosecution amply proved that Reynaldo stabbed Jill but utterly failed to show the involvement of the others in the offense. Despite proof of Reynaldos guilt, however, the evidence is lacking as to the existence of the qualifying circumstance of treachery. The CA was correct in holding that treachery was not present in this case. For treachery to qualify Jills killing to murder, the prosecution had to prove (1) that Reynaldo used means to ensure his safety from Jills defensive or retaliatory acts; and (2) that Reynaldo deliberately adopted such means.7 Here, the prosecution had been unable to prove that Reynaldo used means of attack that prevented Jill from defending himself. One witness, Catalo, testified that it was actually Jill who struck first, precluding any notion of treachery on Reynaldos part.8 Under the circumstances, the Court finds Reynaldo guilty merely of the lesser offense of homicide and acquits the rest of the accused. For his crime, Reynaldo should suffer the penalty of reclusion temporal.9 As regards his civil liability, he should pay his victims heirs P50,000.00 as death indemnity,10 another P50,000.00 as moral damages because of the physical suffering and mental anguish that the crime brought about, 11 P25,000.00 as temperate damages, and P840,000.00 as indemnity for the victim's loss of earning capacity.1avvphi1 The Court bases the indemnity for loss of earning capacity on Jills income at the time of death and his probable life expectancy. His wife, Evelyn, testified that Jill's annual gross income was P48,000.00. Deducting from this his necessary and incidental expenses, estimated at 50%, the net balance of his

income would be P24,000.00 per annum. Using the following formula: 2/3 x 80 27 (age of the victim at time of death), Jills life expectancy would be 35 more years. Multiplying the net balance of his annual income by his life expectancy, Jills loss of his earning is P840,000.00. WHEREFORE, the Court PARTLY REVERSES and MODIFIES the decision of the Court of Appeals in CA-G.R. CR-HC 01343 dated February 21, 2008 and finds Reynaldo Basada GUILTY beyond reasonable doubt of the crime of homicide, SENTENCES him to suffer the penalty of reclusion temporal, and ORDERS him to indemnify the heirs of Jill Alea in the amounts of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages; and P840,000.00 for loss of earning capacity. The Court also orders him to pay the costs. On the other hand, the Court ACQUITS Ricardo Basada, Pedro Basada, and Crisanto Basada of the crime of which they are charged for failure of the prosecution to prove their guilt beyond reasonable doubt and ORDERS their IMMEDIATE RELEASE from prison, unless they are detained for some other lawful or valid cause. SO ORDERED.