[G.R. No. 129211. October 2, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

WILFREDO RODRIGUEZ Y CULO and LARRY ARTELLERO Y RICO,[1] accused, LARRY ARTELLERO Y RICO, accused-appellant. DECISION QUISUMBING, J.: On appeal is the decision dated November 13, 1995 of the Regional Trial Court of Manila, Branch 29,[2] in Criminal Case No. 91-99526, convicting appellant and his co-accused of the crime of murder, sentencing them to suffer the penalty of reclusion perpetua, ordering them to pay the heirs of the victim P50,000.00 as indemnity, and to pay the costs. Appellant Larry Artellero was employed as a cement mixer and helper of co-accused Wilfredo Rodriguez, a mason in the construction of the upper floors of the Far East Bank and Trust Company, Blumentritt Branch, Sta. Cruz, Manila. Both were charged with the crime of robbery with homicide for the killing of the bank security guard, Ramon Matias y Ibay. The trial court found both guilty of murder. Both appealed. However, Rodriguez withdrew his appeal for financial reasons. Although only Artellero is the appellant now, in view of the circumstances obtaining in this case, we are compelled to review Rodriguezs conviction as well. The facts of the case are as follows: On October 11, 1991, early in the morning, at the Far East Bank and Trust Company branch office in Rizal Avenue cor. Batangas St., Sta. Cruz, Manila, a messenger discovered the lifeless body of Matias, inside the bank premises. The body was hogtied with a nylon cord, and bore 32 stab wounds. The chairs and tables inside the bank were in disarray. The banks emergency exit vault bore chisel marks. At around 6:00 A.M., SPO3 Mendoza and two other officers of the Western Police District arrived after receiving a report on the incident. They interviewed the bank janitor, a Mr. Cawagdan, and the other security guard, Dionisio Vargas. Then they ordered the transfer of the body of Matias to the morgue. The police found a bloodstained scissors mate inside a podium located near the main entrance of the bank. The head guard of the banks security agency (Leopard) also reported that three .38 cal. revolvers and five 12 gauge shotguns were missing from the guard rostrum.[3] At around 4:00 P.M., SPO3 Jamoralin and four other WPD policemen conducted a follow-up investigation. They learned from Vargas that there was an on-going construction on the upper floors of the bank, and that appellant and his co-accused had access to the bank after office hours. SPO3 Jamoralin asked Vargas to accompany them to the barracks of the construction workers where they saw appellant at the ground floor of the construction site. On the third floor, they saw the coaccused, Rodriguez, packing his personal belongings. When asked why he was packing, Rodriguez replied that he had nothing more to do (at the site). SPO3 Jamoralin and the other police officers saw a pair of worn-out maong pants on appellants bed, which had reddish stains on the right leg. The police also saw reddish stains on accuseds shirt. Rodriguez explained that he had a wound on his neck. However, when the police examined his neck, they found no wound. The police then arrested Rodriguez and appellant and brought them to the police station for interrogation. The police took the maong and t-shirt and had them examined by the Chemistry Section of National Bureau of Investigation (NBI).[4] On October 15, 1991, Rodriguez executed a sworn statement confessing that he and appellant together with one Rading Mendoza, and two other men whose names he did not know, killed Matias. Rodriguez was assisted by Atty. Procopio Lao III, of the Public Attorneys Office. On October 18, 1991, appellant and Rodriguez were charged with the crime of Robbery with Homicide under the following Information:[5] That on or about October 11, 1991, in the City of Manila, Philippines, the said accused, whose true names, identities and present

whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon the person of RAMON MATIAS, a security guard on duty at Far East Bank and Trust Company, by then and there stabbing the latter several times with a bladed instrument, hitting him on the different parts of the body, thereby inflicting upon the said RAMON MATIAS mortal stab wounds which were the direct and immediate cause of his death; that once the said RAMON MATIAS was attacked, assaulted and/or killed in the manner above-described, the said accused, with intent of gain, take, rob and carry away three (3) pieces of caliber .38 revolvers and five (5) pieces of 12 gauge shotguns, all valued not less than P5.00; belonging to the Far East Bank and Trust Company, to the damage and prejudice of the said bank in the aforesaid amount of P5.00, Philippine Currency. Contrary to Law. Upon arraignment on November 22, 1991, appellant and Rodriguez entered their respective pleas of not guilty.[6] During trial, the prosecution presented the following witnesses: (1) SPO3 Jaime D. Mendoza, (2) SPO3 Rodolfo A. Jamoralin, Jr., both of the Crimes against Persons Division of the WPD, (3) Atty. Procopio Lao III of the Public Attorneys Office (PAO), and (4) Carolyn Y. Custodio, Supervisor of the Chemistry District of the NBI. Custodio testified that the reddish stains on Rodriguezs pants and shirt were positive for type O human blood, which was also the blood type of Rodriguez.[7] The testimony of Dr. Dario L. Gajardo, Chief and Medico-Legal Officer of the PNP Crime Laboratory, was dispensed with upon admission of the defense of the authenticity of the Necropsy Report,[8] which stated that the cause of death was cardio-respiratory arrest due to shock and hemorrhage secondary to multiple stab wounds in the body.[9] The prosecution likewise offered in evidence the photograph of the body of the victim when it was found, the nylon cord used to tie him, the Sworn Statement of security guard Dionisio Vargas, the Certification issued by the Leopard Agency as to the missing firearms, the sworn statement of Rodriguez, the Progress Report of SPO3 Jamoralin, the Booking Sheet and Arrest Report, the Letter-Request of Chief Inspector Jose Pring addressed to the Director of the NBI, the NBI Laboratory Report No. B-91-1613, the maong pants and shirt, and the PNP Medico-Legal Report.[10] After presentation of the prosecutions evidence, appellant filed a Demurrer to the Evidence[11]on the grounds that the prosecution failed to establish the guilt of the accused beyond reasonable doubt and that testimonies of the prosecution witnesses were hearsay. Upon the Opposition[12] of the public prosecutor, the trial court denied the demurrer for lack of merit.[13] The evidence for the defense consists of the testimonies of the following witnesses: (1) Evangelo U. Javellano, Jr., Bank Manager of the FEBTC, Blumentritt branch, who testified that bank policy prohibits the guards from allowing persons into the bank after office hours, except for official visitors coming from higher ranks,[14] (2) appellant, and (3) Rodriguez. On the stand, both Rodriguez and appellant admitted that they were provincemates from Masbate and co-workers in the construction site. They slept inside the building on the night before the incident but denied any participation in killing. They claimed that they learned of the killing only on October 11, 1991, at around 7:00 A.M., when they saw many people milling around the area. Rodriguez claimed that on the night of October 11, 1991, he was mauled by policemen to confess to the crime. Appellant, on his part, testified that the policemen merely placed him outside the room where Rodriguez was being interrogated, and that the police did not take any statement from him. Appellant also denied owning the maong pants which the police said were taken from his bed.[15] After due trial, the trial court rendered a decision[16] finding appellant and Rodriguez guilty of murder, instead of robbery with homicide, disposing thus:

WHEREFORE, the accused Larry Artellero Y Rico and Wilfredo Rodriguez Y Culo are hereby found guilty of the crime of Murder as defined and penalized under Art. 248 of the Revised Penal Code and each of them are (sic) hereby sentenced to suffer the penalty of Reclusion Perpetua and pay civil indemnity of P50,000.00 by each of them to the heirs of the victim Ramon Matias Y Ibay and to pay the costs. The charge of Robbery with Homicide is dismissed it being not the proper charge. The accused are acquitted from the charge of Robbery for insufficiency of evidence. SO ORDERED. Only appellant pursued his appeal. In his brief,[17] he contends that the trial court erred in: I. ... GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSION OF CO-ACCUSED, WILFREDO RODRIGUEZ, ALLEGED COCONSPIRATOR, IN PROVING CONSPIRACY AS CIRCUMSTANTIAL EVIDENCE TO SHOW PROBABILITY OF PARTICIPATION OF LARRY ARTILLERO AS CO-CONSPIRATOR. II. ... HOLDING THAT THE MAONG PANTS STAINED WITH HUMAN BLOOD TYPE O IS THAT OF ACCUSED-APPELLANT, AND AS PART OF CIRCUMSTANTIAL EVIDENCE OF GUILT OR PARTICIPATION IN THE COMMISSION OF THE CRIME. III. ... HOLDING THAT THE FACT OF WORKING AND SLEEPING TOGETHER WITH CO-ACCUSED FOR SIX (6) MONTHS, AS PART OF CIRCUMSTANTIAL EVIDENCE TO FINGER POINT GUILT TO ACCUSED-APPELLANT. IV. ... RENDERING DECISION MORE SERIOUS THAN CHARGED IN THE INFORMATION. Instead of filing an Appellees Brief, the Office of the Solicitor General filed a Manifestation and Motion in Lieu of Appellees Brief[18] contending that: (1) THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL CONFESSION OF ACCUSED WILFREDO RODRIGUEZ AGAINST HIS CO-ACCUSED, APPELLANT LARRY ARTELLERO. (2) ASSUMING FOR THE SAKE OF ARGUMENT THAT ACCUSED RODRIGUEZS EXTRAJUDICIAL CONFESSION IS ADMISSIBLE AGAINST APPELLANT ARTELLERO, THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF THE CRIME OF MURDER. The OSG points out that the prosecution failed to prove the existence of a conspiracy between appellant and Rodriguez independent of the extrajudicial confession of the latter. The fact that Rodriguez and appellant have been working in the construction site for six months prior to the incident is insufficient to make a finding of conspiracy. Further, the fact that type O blood stains were found on appellants maong pants and Rodriguezs t-shirt has no probative value since appellant denied owning the maong pants, and more importantly, the victims blood type was not examined, hence there was no point of comparison. Lastly, the OSG contends that the trial court erred in convicting appellant of murder considering that the Information failed to allege the circumstances qualifying the killing to murder. The resolution of the issue regarding the guilt of appellant, in our view, hinges on whether the extrajudicial confession of accused Rodriguez is admissible not only against him but also against appellant. We find that Rodriguezs confession is constitutionally flawed so that it could not be used as evidence against them at all. The four fundamental requisites for the admissibility of a confession are (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing.[19] We find the second requisite lacking. Prosecution witness SPO3 Jamoralin testified that the accused and appellant were arrested and brought to the police station at around 5:00 P.M. of October 11,

1991.[20] The records show that the extrajudicial confession of Rodriguez was taken down by Pat. David D. Tuazon at 2:00 P.M. of October 15, 1991.[21] Atty. Lao confirmed on the stand that the police investigators called him at around 2:00 P.M. of October 15, 1991, and that he conferred with the accused for about 10 minutes prior to the execution of the extrajudicial confession.[22] Evidently, Rodriguez and appellant were detained for four days, but Atty. Lao of the PAO was called only on the fourth day of detention when accused was about to put his confession in writing. Under the factual milieu, the moment accused and appellant were arrested and brought to the police station, they were already under custodial investigation. In the case of People v. Bolanos,[23] we held that an accused who is on board the police vehicle on the way to the police station is already under custodial investigation, and should therefore be accorded his rights under the Constitution. In this case, the teaching of Bolanos clearly went unheeded. The rights of persons under custodial investigation is enshrined in Article III, Section 12 of the 1987 Constitution which provides: Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or section 17 hereof (right against self-incrimination) shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation for the rehabilitation of victims of tortures or similar practices, and their families. Custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.[24] When Rodriguez and appellant were arrested by the police in the afternoon of October 11, 1991, they were already the suspects in the slaying of the security guard, Ramon Matias, and should have been afforded the rights guaranteed by Article III, Section 12 of the 1987 Constitution, particularly the right to counsel. The records do not show that Rodriguez and appellant, at the time of their arrest in the afternoon of October 11, 1991, were informed of the well-known Miranda rights. Worse, they were not provided with competent and independent counsel during the custodial investigation prior to the execution of the extrajudicial confession. In People v. De la Cruz, 279 SCRA 245 (1997), we declared as inadmissible the extrajudicial confession of accused where the interrogation started at 9:00 A.M. and his lawyer arrived only at 11:00 A.M.. Jurisprudence is clear that an accused under custodial investigation must continuously have a counsel assisting him from the very start thereof.[25] In this case, Rodriguez and appellant were in the hands of the police for about four days without the assistance of counsel. In People v. Compil,[26] we held that: The operative act, it has been stressed, is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements, and not the signing by the suspect of his supposed extrajudicial confession. Thus in People v. de Jesus (213 SCRA 345 [1992]) we said that admissions obtained during custodial investigation without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution. So flagrant a violation of the constitutional right to counsel of the accused cannot be countenanced. In People v. Olivarez, Jr.,[27] we explained that:

The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting confession even by the slightest coercion as would lead the accused to admit something false. What is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. These constitutional guarantees have been made available to protect him from the inherently coercive psychological, if not physical, atmosphere of such investigation. Moreover, so stringent is this requirement that even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion, or even if it had been voluntarily given.[28] Since the extrajudicial confession executed by Rodriguez was given in violation of the safeguards in Art. III, Sec. 12 of the 1987 Constitution, we hold that Rodriguezs confession is totally inadmissible, and it was error for the trial court to use it in convicting Rodriguez and appellant. Insofar as Rodriguez is concerned, the trial court relied on his extrajudicial confession in convicting him. Aside from said extrajudicial confession, however, there is a dearth of evidence on record, whether direct or circumstantial, linking Rodriguez to the commission of the crime. As to appellant, the trial court convicted him on the basis of two pieces of circumstantial evidence which show conspiracy: (1) the extrajudicial confession of accused implicating him as one of the perpetrators and (2) the fact that the maong pants allegedly belonging to appellant was found positive of type O blood. The former being inadmissible and the latter being of no probative value since the blood type of appellant and the victim were not taken for purposes of comparison, there remains nothing to support appellants conviction. As pointed out by the Office of the Solicitor General, even granting arguendo that the extrajudicial confession of accused was admissible, Section 33 of Rule 130 of the Rules of Court provides that such confession is only admissible against the confessant. In order to be admissible against his co-accused, Section 30 of Rule 130 of the Rules of Court require there must be independent evidence aside from the extrajudicial confession to prove conspiracy. In this case, however, no other piece of evidence was presented to prove the alleged conspiracy. Although it is only appellant who persisted with the present appeal, the well-established rule is that an appeal in a criminal proceeding throws the whole case open for review of all its aspects, including those not raised by the parties.[29] The records show that Rodriguez had withdrawn his appeal due to financial reasons.[30] However, Section 11 (a) of Rule 122 of the Rules of Court provides that [a]n appeal taken by one or more [of] several accused shall not affect those who did not appeal, except insofar as the judgment of the appellant court is favorable and applicable to the latter. As we have elucidated, the evidence against and the conviction of both appellant and Rodriguez are inextricably linked. Hence, appellants acquittal, which is favorable and applicable to Rodriguez, should benefit the latter. WHEREFORE, the decision of the trial court convicting appellant LARRY ARTELLERO y RICO and co-accused WILFREDO RODRIGUEZ y CULO is hereby REVERSED. Appellant and Rodriguez are ACQUITTED of the crime of murder and ordered immediately released from prison, unless held for another lawful cause. The Director of Prisons is directed to inform this Court of his compliance, within ten (10) days from receipt of this Decision. No costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

DECISION DAVIDE, JR., J.: In an Information[1] filed on 30 August 1990, in Criminal Case No. 9086748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866,[2] as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1, and A-2,[4] while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner.[5] At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with [t]heir eyes moving very fast.[6] Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioners front waist line.[7] Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander.[8] On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.[9] Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapios advice, petitioner and Casan manifested thei r willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio

EN BANC [G.R. No. 123595. December 12, 1997] SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit for examination.[11] On cross-examination, Serapio admitted that he took petitioners confession knowing it was inadmissible in evidence.[12] Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he [f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present, and concluded that the grenade was [l]ive and capable of exploding. On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991.[13] Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This officer then inserted the muzzle of his gun into petitioners mouth and said, [y]ou are the one who shot me. Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented.[14] The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information.[ 15] Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been premature.[16] The RTC emphasized that Yu and his companions were [c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence[17] and the officers [h]ad to act in haste, as petitioner and his companions were acting suspiciously, considering the time, place and reported cases of bombing. Further, petitioners group suddenly ran away in different directions as they saw the arresting officers approach, thus [i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.[18] The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish petitioners guilt beyond reasonable doubt. In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs.[21]

In his Appellants Brief [22] filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS ARREST. 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto.[24] In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was planted by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioners possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was attempting to commit an offense, thus: We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote,[26] which petitioner relied upon, was inapplicable in light of [c]rucial differences, to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here,

PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him. Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them. Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section 5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30] The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this Court, yet the trial court transmi tted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioners guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an X mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in

court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes moving very fast. Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same.[31] The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped *** A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop and frisk."[35] In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure of t he grenade from the accused [as] an appropriate incident to his arrest, hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search.[36] In this instance, the law requires that there first be a lawful arrest before a search can be made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.[38] Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stopand-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment ***[39] Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"[40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.[41] Finally, a "stop-andfrisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, here are at least three (3) reasons why the stop-and-frisk was invalid: First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two

days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on crossexamination: Q A Q A And what were they doing? They were merely standing. You are sure of that? Yes, sir.

Q And when you saw them standing, there were nothing or they did not create any commotion? A Q A None, sir. Neither did you see them create commotion? None, sir.[42]

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.[43] What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de oficio. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Martinez, JJ., concur. Panganiban, J., please see separate opinion.

G.R. No. 125539 July 27, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO PATALIN, JR., ALEX MIJAQUE, AND NESTOR RAS, accused-appellants.

MELO, J.: Accused-appellants Alex Mijaque and Alfonso Patalin, Jr, were charged before Branch 25 of the Regional Trial Court of the 6th Judicial Region stationed in Iloilo City, with the crime of robbery.* The Amended information dated October 11, 1985 charged: a) In Crim. Case No. 18376 for Robbery with Physical Injuries, accused Alfonso Patalin, Jr. and Alex Mijaque are penalized to suffer the indeterminate penalty of imprisonment of Ten (10) years, and One (1) day of Prision Mayor, as minimum, to Seventeen (17) years and Four (4) months of Reclusion Temporal, as maximum, to indemnify Corazon Aliman the amount of P700.00 representing the value of her property robbed from her and also to indemnify Reynaldo Aliman the amount of P8,000.00 representing the expenses he incurred for his medication and hospitalization due to the wounds he suffered. b) In Criminal Case No. 18305 for Robbery with Multiple Rapes, accused Alfonso Patalin, Jr. Alex Mijaque and Nestor Ras are sentenced to a death penalty and to indemnify the members of the Carcillar family the amount of P6,500.00 representing the cash and articles taken from them. In both cases the accused are also ordained to pay the costs. SO ORDERED. (p. 80, Rollo.) The trial court arrived at the aforestated conclusion based on the following findings: Criminal Case No. 18376 The crime of robbery (with physical injuries) was indeed committed by accused-appellants Alfonso Patalin, Jr. and Alex Mijaque, as well as by their unidentified companions, based on the positive identification made by complaining witness Corazon Aliman, and corroborated by her son Reynaldo and the latter's half-sister Josephine Belisario (p. 77, Rollo). Criminal Case No. 18305 (pp, 92-93, II Record.) In a Second Amended Information also dated October 11, 1985 and docketed as Criminal Case No. 18305, accused-appellants Alex Mijaque, Alfonso Patalin, Jr., and Nestor Ras were charged before the same court with the crime of robbery with multiple rape, thusly: That on or about August 11, 1984, in the municipality of Lambunao, province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named three (3) accused, with deliberate intent, and without any justifiable motive, conspiring, confederating and working together with Richard Doe, Philip Doe and Robert Doe who are still at large, all armed with firearms and other deadly weapons, thereby performing [sic] themselves into a band, entered the dwelling of Jesusa Carcillar, and once inside, with intent to gain and with violence against, and/or intimidation of persons, did then and there wilfully, unlawfully and feloniously take, steal and carry away Five Hundred (P500.00) Pesos in cash, one (1) ring worth Two Thousand (P2,000.00) Pesos, one (1) pair of earrings worth One Thousand (P1,000.00) Pesos, and one (1) Seiko wrist watch worth Three Thousand (P3,000.00) Pesos, making a total of Six Thousand Five Hundred (P6,500.00) Pesos, against the will and/or consent of the owner; that on the occasion thereof, the abovenamed three (3) accused, conspiring and working together with their companions who are still at large, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with Perpetua Carcillar, Juliana Carcillar, Rogelia Carcillar, and Josephine Belesario, against their will and consent.1wphi1.nt CONTRARY TO LAW. (pp. 90-91, II Record.) Upon arraignment on November 12, 1985, accused-appellants entered a plea of "not guilty" to both crimes charged (p. 103, II Record). After trial on the merits, a joint judgment was rendered, disposing: Wherefore, premises considered there being sufficient and satisfactory proof showing that the accused in these two cases are guilty beyond reasonable doubt of the charges filed against them, they are hereby sentenced as follows: At about 7:30 in the evening of August 11, 1984, while Reynaldo Aliman, his half sister Josephine Belisario, and their mother Corazon Aliman were having a conversation inside their house at Barangay Lumanay, municipality of Lambunao, province of Iloilo, appellant Alfonso Patalin, Jr., who was outside the fenced perimeter of said The prosecution's version of the August 11, 1984 incident, based on the testimony of prosecution witnesses Dr. Edgardo Carmelo, Dra. Leticia Sitchon Santiago, Reynaldo Aliman, Josephine Belisario, Juliana Carcillar, Rogelia Carcillar, and Perpetua Carcillar, is summarized in the Solicitor General's consolidated Brief, as follows: Accused-appellants Alfonso Patalin, Jr., Alex Mijaque, and Nestor Ras, as well as an unidentified companion, acted in concert to commit the crime of robbery with multiple rape. They were positively identified by the following witnesses. Juliana Carcillar who was raped twice by Alex Mijaque; Josephine Belisario who was raped once by Alex Mijaque; Rogelia Carcillar who was raped by Alex Mijaque; and Perpetua Carcillar, who was raped by Nestor Ras, after Alfonso Patalin, Jr. failed in his attempt to rape her. Accused-appellant Patalin was likewise identified by Reynaldo Aliman who personally knew him as former barangay-mate for a long time, as well as by Corazon Aliman, mother of Reynaldo. The identification of accused-appellants was facilitated and aided by a bright full moon and due to the fact that they tarried in the crime scene for a long period of time, thus allowing their victims to imprint in their memory the countenance or visage of accused-appellants. Said positive and clear identification by the complaining witnesses, who were not shown to have ill motive to falsify the truth and to implicate accused-appellants, prevail over the latter's defense of denial. Band, nocturnity, and dwelling, were likewise appreciated against accused-appellant (pp. 78-79, Rollo). The errors assigned by the accused-appellant in their individual briefs are summarized as follows: (1) The trial court erred in finding that accused-appellants are responsible for the crimes charged; (2) The trial court erred in convicting accused-appellant Patalin notwithstanding the fact that the latter was arrested without a warrant; (3) Assuming without conceding that accused-appellants (Patalin and Ras) committed the crimes charged, the trial court in erred in imposing the penalty of death as the same was suspended upon the ratification of the 1987 Constitution (pp. 86, 146, 204, Rollo).

That on or about August 11, 1984, in the municipality of Lambunao, province of Iloilo, Philippines, and within the jurisdiction of this Court, the above named two (2) accused, conspiring, confederating and cooperating with three (3) others whose identities are still unknown and who are still at large, armed with bladed weapons by means of force, violence and intimidation, taking advantage of the nighttime to better realize their purpose, and in the dwelling of the offended party, did then and there wilfully, unlawfully and feloniously take, steal and carry away, with intent to gain, cash amount of Three Hundred (P300,00) Pesos, Philippine Currency, owned by the victim Corazon Aliman and the following personal property: one (1) adjustable wrench, one (l) vise grip, one (1) screw driver, one (1) pair of levis pants, one (1) travelling bag and one (1) wallet containing ten (P10,00) pesos, with a total value of Four Hundred (P400.00) Pesos, Philippine Currency, owned by the victims Reynaldo Aliman and Josephine Belesario, the over all total of cash and personal property being SEVEN HUNDRED (P700.00) PESOS, Philippine Currency, without the consent of the abovementioned offended parties and to their damage and prejudice in the aforestated amount; that by reason or on the occasion of said Robbery, the above named two (2) accused did then and there hack victim Reynaldo Aliman twice hitting him and inflicting wounds which required medical attendance of more than thirty (30) days, as well as inflict physical injuries to the other victims Corazon Aliman and Josephine Belesario causing them to sustain injuries requiring medical attendance for several number of days. CONTRARY TO LAW.

house, called out Reynaldo Aliman by his nickname and asked the latter to let him and the other persons with him in (pp. 5-6, TSN, Dec. 16, 1986). Reynaldo Aliman opened the window and, because of the moonlight, saw appellant Alfonso Patalin, Jr. with (2) other persons. Appellant Alfonso Patalin, Jr. asked again Reynaldo Aliman to let them in (pp. 7-8, ibid.). Reynaldo Aliman opened the gate and Alfonso Patalin together with his companions, one of whom is appellant Alex Mijaque, entered the premises (pp. 8, 10-11, ibid.). Immediately upon entering, appellant Alfonso Patalin, Jr. pointed the beam of his flashlight at Reynaldo Aliman. At this juncture, appellant Alex Mijaque hacked Reynaldo Aliman twice with a bolo hitting the latter at the neck, right arm, and the chest (pp. 14-16, ibid.). Thereupon, Reynaldo Aliman immediately ran away (p. 17, ibid.). Corazon Aliman and Josephine Belisario, who went to the balcony of their house, witnessed the hacking incident and the former shouted for help (p. 6, TSN, July 21, 1987; pp. 8-9, TSN, June 30, 1988). Two of the assailants, one of whom is appellant Alex Mijaque, pushed Corazon Aliman and Josephine Belisario inside their house, covered their mouth and told them not to make any noise. Later, appellant Alex Mijaque dragged Josephine Belisario to the house of the latter's aunt (sister of Corazon Aliman) which is beside their house. The other man stayed put and while holding a double-bladed knife, threatened to kill Corazon Aliman if the latter will not give him money. After Corazon Aliman gave him three hundred pesos (P300.00) cash, he ransacked the house and took one (1) wrist watch, one (1) vise grip, one (1) screw driver one, (1) pair of Levis trousers, one (1) travelling bag, and one (1) wallet containing ten pesos (P10.00); the total value thereof is seven hundred pesos (P700.00) inclusive of the three hundred pesos (P300.00) cash. Thereafter, the man also dragged Corazon Aliman to her sister's house (pp. 6-8, TSN, July 21, 1987; pp. 11-12, TSN, June 30, 1988). Josephine Belisario, who was dragged by Alex Mijaque to her aunt's house which is just twenty (20) meters away, saw six (6) persons, one of whom is appellant, Alfonso Patalin, Jr., outside the house of her aunt. Josephine Belisario was forced to call out her aunt's name and ask that the door be opened for her. While the door was being opened, it was kicked by one of the six (6) persons. Alfonso Patalin immediately went in, boxed the aunt of Josephine Belisario on the body and announced that they are staging a hold-up. The other companions of appellant Alfonso Patalin, Jr., including appellant Alex Mijaque, who were armed with knive's a bolo and a gun also went in and restrained Josephine Belisario's cousins, namely Rogelio, Juliana, Perpetua, Roy, and Victoriano, who are all surnamed Carcillar, (pp. 11-15, TSN, June 30, 1988; p. 11, TSN, June 29, 1989). Josephine Belisario together with her aunt and cousins were all forced to lie face down on the floor of the sala (p. 15, TSN, June 30, 1998; p. 7, TSN, Feb. 15, 1990). Appellant Alfonso Patalin got hold of Mrs. Carcillar (Josephine Belisario's aunt and the mother of her cousins), kicked and boxed the latter and exclaimed: "Money, money". "It is money we want." Appellant Alfonso Patalin forced Mrs. Carcillar into a room where the latter gave him money (p. 16, TSN, June 30, 1988; pp. 7-8, February 15, 1990.). Then, appellants and their companions seized the following personalities of the Carcillars: (1) one Seiko 5 wristwatch worth three thousand pesos (P3,000.00), (2) two (2) pairs of lady's rings worth two thousand (P2,000.00), (3) one (1) pair of earrings, and (4) two (2) travelling bags (p. 9, TSN, February 15, 1990). Rogelia Carcillar was brought outside their house by appellant Alex Mijaque who was armed with a butcher's knife and threatened to kill her if she will not lie down. Because of fear, she did as she was told (pp. 10, 16-17, TSN, February 15, 1990). Appellant Alex Mijaque forcibly removed her underwear and placed himself on top of Rogelia. She tried to resist but appellant Alex Mijaque pressed the tip of his knife at the former's neck and succeeded in having sexual intercourse with her (pp. 11-12, ibid.). Thereafter, appellant Alex Mijaque brought her inside the house and ordered her to lie face down on the floor again (pp. 13-14, ibid.). Then, one of the companions of appellant Alex Mijaque who was armed with a gun took her outside and brought her to a place not far from where she was raped (p. 14, ibid.). This man, at the point of a gun, threatened to kill her if she will not obey his orders. Rogelia Carcillar, who feared for her life, was left with no choice but to obey the man's orders. There, she was raped for the second time by this gun-wielding man (pp. 15-16, ibid.). While Rogelia Carcillar was

being raped, appellant Alfonso Patalin was also outside the house standing on guard (p. 18, ibid.). Juliana Carcillar was likewise brought outside the house by appellant Alex Mijaque who, with his knife, tried to rape her but he initially failed because of her resistance. This angered appellant Alex Mijaque and he tried to kill Juliana Carcillar by stabbing the latter but was prevailed upon not to do so by one of his companions (pp. 12-15, TSN, June 29, 1989). Appellant Alex Mijaque, after delivering fist blows on the body of Juliana Carcillar, turned her over to one of his companions who was in the garden outside the house and armed with a gun. This man threatened her with the gun and mauled her. She was overpowered and he undressed her. He inserted his finger on her sex organ and eventually succeeded in having sexual intercourse with her (pp. 15-17, ibid.). Then, this companion of appellant Alex Mijaque brought Juliana Carcillar back inside the house and ordered to look for money. When she told him that they have no more money, he kept on harming her. In the course thereof, he found and took a Seiko wristwatch owned by Perpetua Carcillar. Then, he brought her outside the house again where he had a brief conversation with appellants Nestor Ras and Alfonso Patalin. She was then brought back inside the house and ordered to lie face down on the floor again. While at this position, appellant Alex Mijaque approached her and brought her outside the house. She refused to obey appellant Alex Mijaque's order to lie down on the ground so he pushed her downwards. Her strength gave out and he succeeded in raping her twice. She was then brought back inside the house (pp. 18-21, TSN, June 29, 1989). Josephine Belisario, while laying face down on the floor of the sala, was dragged by appellant Alex Mijaque inside one of the rooms. He threatened her with his knife and was able to undress her. He fondled her breasts, pulled her pubic hair and eventually succeeded in having sexual intercourse with her. She was then left inside the room. Two companions of appellant Alex Mijaque came in bringing with them her cousins Rogelia and Perpetua Carcillar. One of them saw Josephine Belisario and brought her to another room. The man demanded money from her but she was not able to give him money. The man was also carrying a knife and threatened her with the same. She resisted when he was forcing her to lie down on the bed but her strength finally gave out . He likewise succeeded in having sexual intercourse with her. After raping her, the man took a piggy bank which was at the foot of the bed and brought her back to the room where she was first raped. Her aunt and cousins were also inside the said room (pp. 17-25, TSN, June 30, 1988). Perpetua Carcillar suffered the same fate. While laying face down on the floor of the living room, she was pulled by the hair by appellant Alfonso Patalin and ordered to stand up. When she stood up, she realized that her sister were no longer there. Appellant Alfonso Patalin, armed with a double-bladed knife, brought her outside the house, ordered her to undress and lie down. Because of fear, Perpetua Carcillar, who was then only thirteen (13) years old, obeyed appellant Alfonso Patalin. He tried to force his penis into her vagina but did not succeed. Then, appellant Alfonso Patalin handed her over to appellant Nestor Ras, a member of their group who was only about two (2) arms length away. Appellant Nestor Ras, armed with a double-bladed knife which he was pointing at Perpetua Carcillar, ordered her to lie down. He fondled her breasts, kissed her, and succeeded in having sexual intercourse with her. After raping her, appellant Nestor Ras brought her back inside the house. When she was returned inside the house, the intruders were still demanding for money from her mother and were taking turns in beating the latter (pp.4, 15-23, TSN, July 12, 1990). Appellants left, together with the other assailants, taking with them the valuables stated earlier after threatening them not to report the matter to the police or else they will return and kill all of them (p.19, TSN, February 15, 1990). Reynaldo Aliman was brought to Ricardo Ladrido Memorial Hospital where he received first aid. He was then brought to West Visayas Medical Center located in Manduriao, Iloilo (pp. 18-20, TSN, December 16, 1986) and was treated by Dr. Edgardo Carmelo (p. 4, TSN, May 14, 1986). Reynaldo Aliman sustained the following injuries: (1) hackwound, mid forearm, area ulnar side middle third forearm, and (2) hack wound, left side of neck (pp. 5-6, ibid; Exhibit A). Reynaldo Aliman was confined in the hospital for almost three (3) months and he

spent more than eight thousand pesos (P8,000.00) for medicines, food and other expenditures (p. 19, TSN, December 16, 1986). Dr. Leticia Sitchon Santiago examined and treated Josephine Belisario two days after she was raped. A hematoma, about 3x4 inches in diameter, was found on the left shoulder of Josephine Belisario which could have been caused by forcing the latter to lie down on the ground. Josephine Belisario "vagina admits two (2) fingers". Further, hematoma was noted in the hymen at nine o'clock and three o'clock positions and fresh lacerations was also noted at nine, eleven, and three o'clock positions. These are indications that a foreign object, which could be a human penis, was inserted in the vagina and caused the lacerations of the hymen (pp. 6-9, TSN, September 3, 1986).1wphi1.nt Rogelia Carcillar, Juliana Carcillar and Perpetua Carcillar were also examined and treated by Dr. Leticia Santiago but such was conducted three days after the incident (p. 17, ibid). A hematoma was noted in the occipital region of the head of Rogelia Carcillar (p. 18, ibid). Her vagina admits two fingers snugly and the perineum has a lacerated wound which is one centimeter in length (pp. 18-19, ibid; pp. 2-3, TSN, November 10, 1986). Fresh lacerations were likewise noted in her hymen at eight, eleven and three o'clock positions (p. 3, TSN, November 10, 1986). Dr. Santiago further testified that a foreign object was inserted in the vagina of Rogelia Carcillar (p. 19, TSN, September 3, 1986; p. 3, TSN, November 10, 1986). Juliana Carcillar, 22 years old, sustained a hematoma in the forehead, left and right side of the face, upper right arm, uppermost and lower portions of the left thigh, occipital region of the head and left side of the mouth. She also sustained the following injuries: (1) 1/2 cm. lacerated wound on the left side of the lower lip, (2) bite mark with hematoma on the left shoulder, (3) 1 cm. incised wounds on the right index finger and right thumb, (4) 4 inches incised wound on the right forearm, and (5) multiple abrasions at the back including the portion below the waistline, her vagina admits two fingers and fresh lacerations in the hymen were noted at eight, eleven, and four o'clock positions (pp. 10-15, TSN, November 10, 1986). Perpetua Carcillar, 13 years old, sustained a centimeter lacerated wound on the perineum which was also swollen. Her vagina admits two fingers snugly (pp. 8-9, ibid). A fresh laceration at six o'clock position and a hematoma also at six o'clock position were noted on her hymen (Exhibit C, p. 15, Record). (pp. 300-311, Rollo.) Denial and alibi were set up by accused-appellants based on their testimony and that of their witnesses, Alejandro Tabucan, Felizardo Lebona, Rhodora Losaria, and Cristina Gumban. The denials, together with other arguments, are summarized as follows: Alfonso Patalin Accused-appellant Alfonso Patalin alleges that his name was only included by Jesus Larang, whom he described as the land lord of Jesusa Carcillar and the Carcillar sisters, to force him to reveal the names of the persons who staged the robbery and rape. Verily, he declared on the stand that when the victims saw him at the police station, two of them (Josephine Belisario and Reynaldo Aliman) even smiled at him (tsn, August 13, 1993, pp. 10-11, 19-20). In his brief, he argues that he was not positively identified, rationalizing that when prosecution witness Josephine Belisario was asked on the stand if she recognized "the person who called [her] brother Reynaldo," said witness responded that she did not know the person who called her brother, and that she only recognized the caller's voice (tsn, August 11, 1988, pp. 30-31). Further, accusedappellant Patalin also alleges that he was arrested without a warrant. Alex Mijaque Accused-appellant Alex Mijaque argues that in the sworn statement of Reynaldo Aliman (p. 3, II Record), there is no mention of his name nor that of accused-appellant Patalin as the perpetrators of the crimes charged. Moreover, during the preliminary examination in the lower court, accused-appellant Mijaque was also not named as one of the

malefactors. He likewise points out that in the police blotter, the first report mentioned that the alleged offenders were unknown persons. No rape was reported. In the second report, it was blottered that the alleged offenders were four unidentified persons. Again, no rape was reported. Accused-appellant Mijaque likewise takes note of the report given by Rogelia Carcillar who merely narrated the robbery but did not report any rape. According to this accused-appellant, the police authorities of Iloilo, Manduriao (also referred to in the record as "Mandurriao") received a complaint from a resident thereat that his television set was stolen previous to the incidents herein involved. Accused-appellant Mijaque was suspected as the thief and was picked up by the agents of the Manduriao Police Station without any warrant of arrest and was thence detained for three days without any complaint (p. 93, Rollo). Meanwhile, the robbery at Lambunao, Iloilo was being flashed at all police stations in Iloilo. The arresting officers of the Manduriao Police Station, so accused-appellant Mijaque contends, in order to save themselves from charges of arbitrary detention, immediately referred him for custodial investigation in regard to the Lambunao robbery. Consequently, three days after his confinement, a criminal complaint for robbery with physical injuries and another for robbery with rape was filed against him by the Chief of Police of Lambunao, Iloilo. Nestor Pas The third accused-appellant, Nestor Pas, argues that his name was never mentioned by Dr. Edgardo Carmelo, and that Josephine Belisario was merely led by the public prosecutor into mentioning his name. He also states that the witnesses' declarations as regards his identification are confusing and inconsistent (pp. 208-210, Rollo). Further, it is contended that Rogelio Carcillar himself, when asked by the public prosecutor about what happened to his sister Perpetua Carcillar, testified that "Nothing happened to them" (p. 210, id). And when Perpetua Carcillar and the other female prosecution witnesses reported the alleged incident to the police authorities, they never mentioned that they were raped. As mentioned, all three accused-appellants, aside from denying the charges, also presented their respective alibis. Accused-appellant Patalin testified that he was at home with his parents, wife, and children, at Pandan, Lambunao (tsn, August 13, 1993, pp. 16-17) at the time of the incident. As corroborative witness, he presented Felizardo Lebona, the person in charge of the plantation where he was working, who testified that accused-appellant Patalin did not leave the plantation house from August 9 to 12, 1984 (tsn, October 15, 1993, pp. 4-5). For his part, accused-appellant Mijaque insists that he had no opportunity to get out of the farm where he was working which was located in Manduriao, Iloilo (tsn, May 6, 1993, p. 6). In July, 1985, he was arrested for theft of a television set and detained in the Lambunao jail for investigation. Although three of the herein complainants were brought in front of his detention cell, he was not identified. Instead, the policemen pointed to him and said, "That is Alex Mijaque who raped you. If you will not include him, he will file a case against you." Moreover, he testified that he was mauled in jail (tsn, July 29, 1993, pp. 10-13). Defense witness, Alejandro Tabucan, neighbor of accusedappellant Mijaque, corroborated the latter's alibi that on August 11, 1984, they had a drinking spree from 6 o'clock in the evening to 12 o'clock midnight, and accused-appellant Mijaque was not able to leave the premises in Manduriao. Tabucan also said that he saw Mijaque still asleep the following morning (tsn, August 6, 1993, pp. 4-5, 10). Lastly, accused-appellant Nestor Ras declared that he was in the province of Antique (particularly, in Igbangkal, Dao) on August 11, 1984 (tsn, December 17, 1993, p. 4). As corroborative witness, he presented Cristina Gumban, a vendor who testified that on August 11, 1984, she bought cassava and sweet potatoes from accused-appellant Ras in Igbangkal, Dao, Antique from 3 o'clock to 5 o'clock in the afternoon, and that he saw Ras put the purchased items in a sack (tan, March 4, 1994, p. 4). We are not persuaded by the above posturing and are compelled to affirm.

Of primordial consideration in appellate matters is the legal principle that the assessment of the credibility of witnesses and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination (People vs. Ombrog, 268 SCRA 93 [1997]). We generally uphold and respect this appraisal since, as an appellate court, we do not deal with live witnesses but only with the cold pages of a written record (People vs. Herbieto, 269 SCRA 472 [1997]). A close examination of the record convinces us of the prosecution witnesses' credibility, particularly the ravished victims, who, for approximately two agonizing hours, were subjected to a hellish nightmare occurring in the very privacy of their own homes. As pointed out by the Office of the Solicitor General in its consolidated brief, the defense was not able to prove any motive on the part of the private complainants to falsely testify that they were robbed and raped by accused-appellants. In fact, two of the rape victims, Josephine Belisario and Rogelia Carcillar, were even married to first cousins of accused-appellant Patalin (pp. 327-328, Rollo), and would not ordinarily turn against a relative although this be by mere affinity unless they really suffered the fate they narrated. Accused-appellants rely on the delay or vacillation on the part of the complaining witnesses. As discussed above in their individual defenses, they emphasize that Reynaldo Aliman failed to mention the names of the perpetrators in his sworn statement; that on August 11, 1984, Reynaldo instructed a relative, Jesus Larang, to report the hacking and robbery incidents at the Lambunao Police Department, as well as the robbery committed in the Carcillar household, and that the police blotter stated that the alleged offenders were unknown persons but contained no report of any rape; and that Rogelia Carcillar's report did not mention that she was raped. Time and again, we have ruled that delay in lodging a criminal accusation does not impair the credibility of a witness if such delay is satisfactorily explained (People vs. Bugarin, 273 SCRA 384 [1997]). An examination of Reynaldo Aliman's sworn statement (p. 3, I Record) shows that he clearly identified one of the callers as accused-appellant Alfonso Patalin. Anent his failure to mention accused-appellant Mijaque's name, he explained on cross-examination that he did not know yet the name of the person who attacked him with the bolo at the time he executed his sworn statement (tsn, Dec. 16, 1986, pp. 35, 3839). It was only later that he found out that the name of his assailant was Alex Mijaque. As regards Jesus Larang, the fact that he mentioned "unknown persons" in his report does not affect Reynaldo's categorical and positive identification of accused-appellants Patalin and Mijaque as the perpetrators of the hacking and robbery incidents at his home. Anent the rape victims, it was clearly explained that their assailants told them not to report the matter to the police, otherwise, the assailants will return and kill them (tsn, Feb. 15, 1990, p. 19). The victims were overcome by fear and shame (ibid., p. 31). Besides, the delay in reporting the multiple rapes was not procrastination as this was only 3 days from the date of the incident (tsn, June 30, 1988, p. 22), a far shorter period than those mentioned in People vs. Gecomo (254 SCRA 82 [1996]) where we held that a delay of 17 or 35 days, or even 6 months, by a victim of rape in reporting the attack on her honor, does not detract from the veracity of her charge. The defense also notes certain inconsistencies in the testimony of the complaining witnesses, as follows: (1) Juliana Carcillar testified earlier that the only light in the house came from a kerosene lamp placed on a small table which was extinguished as a result of it being knocked down, thus placing the house in darkness, while on the other hand, Perpetua Carcillar, earlier said that although there was no more light in the house coming from the lamp, yet she could still see because the light of the moon still illuminated their house, allegedly through the plastic roofing; and (2) the prosecution witnesses could not agree concerning the date they went to San Dionisio, Iloilo to identify accused-appellant Nestor Ras, as well as the date when Ras was arrested. Inconsistencies in the testimony of witnesses, when referring only to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony, and

do not impair the credibility of such witnesses where there is consistency in relating the principal occurrence and the positive identification of the assailant (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]). In fact, honest inconsistencies on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when the crime is shocking to the conscience and numbing to the senses (People vs. Agunias, 279 SCRA 52 [1997]). With respect to the defenses of denial and alibi, significantly, these defenses, if unsubstantiated by clear and convincing evidence, are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People vs. Gayon, 269 SCRA 587 [1997]). Positive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial (People vs. Javier, 269 SCRA 181 [1997]). Verily, even if the defense of denial is supported by the testimony of friends of the accused, it deserves the barest consideration (People vs. Gamiao, 240 SCRA 254 [1995]). It will be given weight only if it would preclude any doubt that the accused could not have been physically present at the place of the crime or its vicinity at the time of commission (People vs. Daquipil, 240 SCRA 314 [1995]; People vs. De Roxas, 241 SCRA 369 [1995]; People vs. Morin, 241 SCRA 709 [1995]; People vs. Rivera, 242 SCRA 26 [1995]; People vs. Dela Iglesia, 241 SCRA 718 [1995]; People vs. Umali, 242 SCRA 17 [1995]; People vs. Dayson, 242 SCRA 124 [1995]; People vs. Espinosa, Jr. 243 SCRA 7 [1995]; People vs. Parica, 243 SCRA 557 [1995]; People vs. Escoto, 244 SCRA 87 [1995]). Accused-appellant Mijaque testified that on August 11, 1984, he was in Manduriao, Iloilo. The overland travel time from the town of Manduriao to Lambunao is approximately one hour and twenty minutes. Accused-appellant Patalin testified that he was in Barangay Pandan, which is merely adjacent to Lambunao. Lastly, accusedappellant Nestor Ras testified that he was in Antique, a province neighboring Iloilo, which is approximately two hours away therefrom via overland transportation. The defense tried to corroborate these alibis by presenting witnesses who testified on details which happened ten years prior to the date their testimony was given, and hence of naturally doubtful credibility. Mutatis mutandi People vs. Queliza (279 SCRA 145 [1997]), considering that the places where accused-appellants alleged they were at could be traversed by motorized vehicles, it was not impossible that accused-appellants could not have been at the crime scene by 7 o'clock or 7:30 o'clock in the evening on August 11, 1984. More importantly and damning yet is the positive identification of their presence thereat by the victims. The trial court correctly appreciated the aggravating circumstances of nighttime and dwelling in Criminal Case No. 18376 considering that nighttime facilitated the commission of the crime and the evidence shows that accused-appellants took advantage of the darkness to successfully consummate their plans (People vs. Apduhan, Jr., 24 SCRA 798 [1968]). Dwelling is clear from the abuse of confidence which the victims reposed in the offenders by opening the door to them, as well as the violation of the sanctity of privacy in the victims' homes. He who goes to another's house to slander him, hurt him, or do him wrong, is more guilty than he who offends him elsewhere (Reyes, The Revised Penal Code Criminal Law, Vol. I, 1993 ed., citing the dissenting opinion of Justice Villareal in People vs. Ambis, 68 Phil. 635 [1939] and Viada, 5th ed., Vol. II, pp. 323-324). We further affirm the trial court's finding on the presence of the aggravating circumstance of band considering that Reynaldo Aliman testified that accusedappellants Patalin and two other companions (one of whom was later identified as accused-appellant Mijaque) entered his home (tsn, p. 7, Dec. 16, 1986). This was corroborated by Josephine Belisario who even saw four (4) persons enter their gate, one of whom was accusedappellant Patalin (tsn, p.10, June 30, 1988). These same aggravating circumstances likewise attended the commission of the crime of robbery with multiple rape in Criminal Case No. 18305 and this was clearly testified to by the victims thereof who stated that five persons, including accused-appellant Patalin, armed with a bolo, a knife, and a long gun, entered their dwelling that unfortunate night (tsn, June 29, 1989, p. 10; February 15, 1990, p. 5).

With respect to accused-appellants Patalin and Mijaque's defense that they were arrested without warrants, suffice it to say that any objection, defect, or irregularity attending an arrest must be made before the accused enters his plea (Padilla vs. CA, 269 SCRA 402 [1997]). As correctly pointed out in the People's consolidated brief, the record shows no objection was ever interposed prior to arraignment and trial (p. 324, Rollo). It is indubitable that there was conspiracy in the commission of the crimes in both Criminal Cases No. 18376 and 18305. In the first criminal case, the evidence clearly shows that accused-appellants Patalin and Mijaque, together with unidentified companions, committed the crime charged. Said culprits shared the common criminal objective of robbing the victims and inflicting wounds upon Reynaldo Aliman on the occasion of the robbery. In the second case, all three accusedappellants (together with unidentified companions), who were positively identified by the victims themselves, undoubtedly had the common criminal design of robbing the household of Jesusa Carcillar, and of committing multiple rape on the occasion of the robbery. Accused-appellant Mijaque dragged Josephine Belisario to her aunt's house and the other culprits followed suit. Accused-appellant Patalin boxed Jesusa Carcillar and announced that they were staging a holdup. After robbing the household, they proceeded in ravishing the four young female victims, Rogelia, Juliana, Josephine, and Perpetua, one after the other, thus truly exhibiting their concerted acts. Conspiracy exists when two or more persons came to an agreement concerning the commission of a felony and decide to commit it (People vs. Abarri, 242 SCRA 39 [1995]). It cannot be merely presumed. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. In the case at bar, although there was no proof of previous actual agreement among accused-appellants adduced at the trial . . . direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy maybe, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, then a conspiracy maybe inferred though no actual meeting among them to concert means is proved (People vs. Carbonel, 48 Phil. 868; See also People vs. Viray, 147 SCRA 146; People vs. Balignasay, G.R. No. 76743, May 22, 1992; People vs. Galit, 230 SCRA 486). . . ( People vs. Miranday, 242 SCRA 620 [1995]). Verily, the participation of each of the accused-appellants was exhibited by the straightforward testimony of the victims themselves. This brings us to the crucial issue raised by accused-appellants on the death penalty. At the time the crimes charged were committed in 1984, robbery with rape was punishable by death (Art. 294, Revised Penal Code). However, by virtue of the ratification of the 1987 Constitution, specifically Paragraph (1), Section 19 of Article III thereof, the death penalty was abolished. Hence, the argument that it could not be imposed upon accused-appellants. Said provision reads as follows: Sec. 19 (1) Excessive fines shall not be imposed nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. The constitutional abolition of the death penalty immediately took effect upon the ratification of the 1987 Constitution. However, said provision left the matter open for Congress to revive capital punishment at its discretion, "for compelling reasons involving heinous crimes." Simply stated, it did not prevent the legislature from reimposing the death penalty at some future time (Bernas, The 1987

Constitution of the Republic of the Philippines: A Commentary, 1996 ed., pp. 507-508). Congress eventually restored the death penalty by virtue of Republic Act No. 7659 or the Death Penalty Law which took effect on January 1, 1994. Accused-appellants are of the position that since the Constitution's abolition of the death penalty had retroactive effect, being beneficial to the accused, the restoration or imposition of the death penalty on January 1, 1994 would no longer cover them notwithstanding the fact that the decision was rendered by the trial court on June 14, 1995, when the Death Penalty Law had already taken effect. Article 21 of the Revised Penal Code provides that no felony shall be punishable by any penalty not prescribed by law prior to its commission. At the time of the commission of the crime in 1984, as held by the trial court, robbery with rape, if committed with the use of a deadly weapon or by two or more persons, was punishable by reclusion perpetua to death (Article 294[2], Revised Penal Code [as amended by Presidential Decree No. 767]). True, in 1987, the Constitution abolished the death penalty subject to Congress' future restoration thereof "for compelling reasons involving heinous crimes." At the time of such ratification, the instant case was still at its trial stage. No penalty had as yet then been imposed. Considering that the provision provides that "[a]ny death penalty already imposed shall be reduced to reclusion perpetua," it is clear that the framers intended said provision to have a retroactive effect on cases pending without any penalty of death having been imposed yet. Consequently, upon ratification of the 1987 Constitution, any death penalty already imposed is automatically without need for any executive action commuted (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 508). The instant case poses the following issue: When the death penalty was abolished in 1987 and was retroactively applied to herein accused-appellants, did they gain a vested right thereto so that any future act restoring the death penalty would no longer cover them? An affirmative answer would free accused-appellants from the fatal clutches of the death penalty. Ours is a government of laws and not of men. The idea that an individual may be compelled to hold his life (or lose it), or the means of living, at the mere will of another, is intolerable in any country where freedom prevails (Villavicencio vs. Lukban, 39 Phil. 778 [1919]). Before us is a heinous crime indeed where people were harmed, robbed, ravished, and abused in the defaced sanctity of their own homes. It is but human nature to feel some measure of loathing, disgust, and hatred for the offenders considering the inhuman aspect of the crime committed. However, the ascendancy of the law is axiomatic in our type of government. Every official act must be based on and must conform to the authority of a valid law, lacking which the act must be rejected (Cruz, Phil. Political Law, 1996 ed., p. 51). The nobility of our intention is insufficient. There is no doubt that the abolition of the death penalty in 1987 retroactively affected and benefited accused-appellants. Article 22 of the Revised Penal Code provides that "[p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal . . . although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." A statute is penal when it imposes punishment for an offense committed against the state (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 5). The above-cited provision of the Constitution is penal in character since it deals with the penalty to be imposed for capital crimes. This penal provision may be given retroactive effect during three possible stages of a criminal prosecution: (a) when the crime has been committed and the prosecution began; (b) when sentence has been passed but the service has not begun; and (c) when the sentence is being carried out (Gregorio, Fundamentals of Criminal Law Review, 1988 ed., p. 167, citing Escalante vs. Santos, 56 Phil. 483 [1932]). In the light of the discussion above, there is no question that the abolition of the death penalty benefits herein accused-appellants. Perforce, the subsequent reimposition of the death penalty will not

affect them. The framers of the Constitution themselves state that the law to be passed by Congress reimposing the death penalty (Republic Act 7659) can only have prospective application (Bernas, The 1987 Constitution the Republic of the Philippines: A Commentary, 1996 ed., p. 508, citing I RECORD, p. 748; Bernas, The Intent of the 1986 Constitution Writers, 1995 ed., p. 227, citing I Record, p. 747-748). There is no question that a person has no vested right in any rule of law which entitles him to insist that it shall remain unchanged for his benefit, nor has he a vested right in the continued existence of a statute which precludes its change or repeal, nor in any omission to legislate on a particular matter. However, a subsequent statute cannot be so applied retroactively as to impair a right that accrued under the old law (Agpalo, Statutory Construction, 1986 ed., p. 264, citing Benguet Consolidated Mining Co. vs. Pineda, 98 Phil. 711 [1956]; Laurel vs. Misa, 76 Phil. 372 [1946]). Courts have thus given statutes strict construction to prevent their retroactive operation in order that the statutes would not impair or interfere with vested or existing rights. Clearly, accused-appellants' right to be benefited by the abolition of the death penalty accrued or attached by virtue of Article 22 of the Revised Penal Code. This benefit cannot be taken away from them. Since the retroactive application of a law usually divests rights that have already become vested (Benzonan vs. Court of Appeals, 205 SCRA 515 [1992]), the rule in statutory construction is that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used (Balatbat vs. Court of Appeals, 205 SCRA 419 [1992]). By analogy, we apply the rule in labor law which provides that benefits accruing to workmen under the old law cannot be taken away from them by a succeeding law. In the case at bar, there is greater reason to apply this principle since the very taking of life is involved and is at issue. As regards accused-appellant's civil liability, the trial court, in Criminal Case No. 18376, correctly awarded P700.00 to Corazon Aliman representing the total value of the cash and personal property forcibly taken, and P8,000.00 to Reynaldo Aliman representing expenses incurred for medication and hospitalization. However, in Criminal Case No. 18305, the trial court failed to order indemnification for the multiple rapes. Thus, in line with the pronouncement in People vs. Victor (G.R. No. 127903, July 9, 1998) wherein we said: One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court believes that, on like considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity. accused-appellants should be made to pay P375,000.00 as indemnification for five counts of rape (considering that Juliana Carcillar was twice raped by accused-appellant Mijaque) in addition to the sum of P6,500.00 representing the value of the cash and articles that were taken from the victims. In line with the recent ruling in People vs. Prades (G.R. No. 127569, July 30, 1998), moral damages in the amount of P50,000.00 for each count of rape, or a total of P250,000.00 is likewise awarded. Lastly, so that the instant case may serve as an object lesson to the public, exemplary damages in the amount of P10,000 per count of rape is further awarded (People vs. Burce, 269 SCRA 293 [1997]). Because of the findings of conspiracy, accused-appellants Patalin and Mijaque are jointly and severally liable for the amounts awarded in Criminal Case No. 18376; whereas all three accused-appellants are solidarily liable for the amounts awarded in Criminal Case No. 18305. WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS said judgment, with the following modifications:

(a) In Criminal Case No. 18376, for purposes of the Indeterminate Sentence Law, considering that the aggravating circumstances of band, nighttime, and dwelling attended the commission of the crime, accused-appellants Patalin and Mijaque are hereby sentenced to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum; (b) Accused-appellants Patalin and Mijaque are jointly and severally held liable for the amounts awarded by the trial court in said criminal case, particularly, the amount of P700.00 representing the total value of the cash and articles taken from Corazon Aliman, and P8,000.00 representing the expenses incurred by Reynaldo Aliman for medication and hospitalization; (c) In Criminal Case No. 18305, the penalty imposed is reduced to reclusion perpetua; and (d) Aside from the amount of P6,500.00 already awarded by the trial court to the Carcillar family representing the value of the cash and articles taken, the victims in Criminal Case No. 18305 are hereby awarded an additional P75,000 as indemnity for each count of rape, P50,000.00 for each count of rape as moral damages, and P10,000 for each count of rape as exemplary damages, for which amounts all the three accused-appellant are jointly and severally liable. SO ORDERED.1wphi1.nt Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and YnarezSantiago, JJ., concur. Davide, Jr., C.J., is on leave. Footnotes * On January 21, 1985, an Information for robbery with multiple rape was filed against Alfonso Patalin and was docketed as Criminal Case No. 18305. Said criminal case was consolidated with Criminal Case No. 18376 based on an Information for robbery with physical injuries against the same accused and was heard by Branch 25, Regional Trial Court, Iloilo City (pp. 1-2, 53-55, 11 Record). On July 1, 1985, a motion for consolidation was filed by private prosecutor Rodolfo Valera Cabado manifesting that another information was filed against Nestor Ras for robbery in band with multiple rape, docketed as Criminal Case No. 18835, which was founded on the same facts presented in the first two criminal cases. Eventually, the three cases were consolidated. Later, Alex Mijaque was identified and apprehended as an additional conspirator in the aforesaid Criminal Cases No. 18305 and 18835. Subsequently, a motion to admit Amended Information and to dismiss Criminal Case No. 18835 was filed by the prosecution. As a result, two cases were jointly tried by the lower court, namely, Criminal Case No. 18305 entitled "The People of the Phils. v. Alfonso Patalin, Alias "Alpoc", Nestor Ras, and Alex Mijaque, Alias "Aprik" for Robbery in band with rape, and Criminal Case No. 18376 entitled "The People of the Phils, v. Alfonso Patalin, Jr. Alias "Alpoc", and Alex Mijaque, Alias "Aprik" for robbery with physical injuries (pp 74-76, 86, 88-93, 11 Record). The Lawphil Project - Arellano Law Foundation

SECOND DIVISION [G.R. Nos. 153524-25. January 31, 2005] RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON. ANIANO DESIERTO in his capacity as Head of the Office of the Ombudsman, HON. ORLANDO C. CASIMIRO in his capacity as Deputy Ombudsman for Military, P/INS. JEFFREY T. GOROSPE, SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B. ALVIAR, JR., PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1 JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4 PEDRO PAREL, respondents.

DECISION CHICO-NAZARIO, J.: Yet again, we are tasked to substitute our judgment for that of the Office of the Ombudsman in its finding of lack of probable cause made during preliminary investigation. And, yet again, we reaffirm the timehonored practice of non-interference in the conduct of preliminary investigations by our prosecutory bodies absent a showing of grave abuse of discretion on their part. Petitioners, thru a special civil action for certiorari,[1] contend precisely that the public respondents herein officers of the Office of the Ombudsman gravely abused their discretion in dismissing the complaint for violation of Article 125 of the Revised Penal Code (Delay in the delivery of detained persons) against private respondents herein, members of the Philippine National Police stationed at the Municipality of Santa, Ilocos Sur. From the respective pleadings[2] of the parties, the following facts appear to be indubitable: 1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day before the 14 May 2001 Elections[3]), petitioners were arrested without a warrant by respondents police officers for alleged illegal possession of firearms and ammunition; 2. Petitioner Soria was arrested for alleged illegal possession of .38 cal. revolver (a crime which carries with it the penalty of prision correccional in its maximum period) and for violation of Article 261 par. (f) of the Omnibus Election Code in relation to the Commission on Election Resolution No. 3328 (which carries the penalty of imprisonment of not less than one [1] year but not more than six [6] years); 3. Petitioner Bista was arrested for alleged illegal possession of sub-machine pistol UZI, cal. 9mm and a .22 cal. revolver with ammunition; 4. Immediately after their arrest, petitioners were detained at the Santa, Ilocos Sur, Police Station. It was at the Santa Police Station that petitioner Bista was identified by one of the police officers to have a standing warrant of arrest for violation of Batas Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of Vigan, Ilocos Sur, docketed as Criminal Case No. 12272; 5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election day), petitioners were brought to the residence of Provincial Prosecutor Jessica Viloria in San Juan, Ilocos Sur, before whom a Joint-Affidavit against them was subscribed and sworn to by the arresting officers. From there, the arresting officers brought the petitioners to the Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at about 6:00 p.m. the Joint-Affidavit was filed and docketed; 6. At about 6:30 in the evening of the same day, 14 May 2001, petitioner Soria was released upon the order of Prosecutor Viloria to undergo the requisite preliminary investigation, while petitioner Bista was brought back and continued to be detained at the Santa Police Station. From the time of petitioner Sorias detention up to the time of his release, twenty-two (22) hours had already elapsed; 7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was brought before the MTC of Vigan, Ilocos Sur, where the case for violation of Batas Pambansa Blg. 6 was pending. Petitioner Bista posted bail and an Order of Temporary Release was issued thereafter; 8. At this point in time, no order of release was issued in connection with petitioner Bistas arrest for alleged illegal possession of firearms. At 4:30 in the afternoon of the same day (15 May 2001), an information for Illegal Possession of Firearms and Ammunition, docketed as Criminal Case No. 4413-S, was filed against petitioner Bista with the 4th Municipal Circuit Trial Court of Narvacan, Ilocos Sur. At 5:00 in the afternoon, informations for Illegal Possession of Firearms and Ammunition and violation of Article 261 par. (f) of the Omnibus Election Code in relation to COMELEC Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No. 2268-N, respectively, were filed in the Regional Trial Court at Narvacan, Ilocos Sur; 9. On 08 June 2001, petitioner Bista was released upon filing of bail bonds in Criminal Cases No. 2268-N and No. 4413-S. He was detained for 26 days. 10. On 15 August 2001, petitioners filed with the Office of the Ombudsman for Military Affairs a complaint-affidavit for violation of Art. 125 of the Revised Penal Code against herein private respondents. 11. After considering the parties respective submissions, the Office of the Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002 dismissing the complaint for violation of Art. 125 of the Revised Penal Code for lack of merit; and 12. On 04 March 2002, petitioners then filed their motion for reconsideration which was denied for lack of merit in the second assailed Resolution dated 25 March 2002. Article 125 of the Revised Penal Code states: Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel. It is not under dispute that the alleged crimes for which petitioner Soria was arrested without warrant are punishable by correctional penalties or their equivalent, thus, criminal complaints or information should be filed with the proper judicial authorities within 18 hours of his arrest. Neither is it in dispute that the alleged crimes for which petitioner Bista was arrested are punishable by afflictive or capital penalties, or their equivalent, thus, he could only be detained for 36 hours without criminal complaints or information having been filed with the proper judicial authorities. The sole bone of contention revolves around the proper application of the 12-18-36 periods. With respect specifically to the detention of petitioner Soria which lasted for 22 hours, it is alleged that public respondents gravely erred in construing Article 125[4] as excluding Sundays, holidays and election days in the computation of the periods prescribed within which public officers should deliver arrested persons to the proper judicial authorities as the law never makes such exception. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and applied without any attempts at interpretation.[5] Public respondents, on the other hand, relied on the cases of Medina v. Orozco, Jr.,[6] and Sayo v. Chief of Police of Manila[7] and on commentaries[8] of jurists to bolster their position that Sundays, holidays and election days are excluded in the computation of the periods provided in Article 125,[9] hence, the arresting officers delivered petitioners well within the allowable time. In addition to the foregoing arguments and with respect specifically to petitioner Bista, petitioners maintain that the filing of the information in court against petitioner Bista did not justify his continuous detention. The information was filed at 4:30 p.m. of 15 May 2001 but the orders for his release were issued by the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that based on law and jurisprudence, if no charge is filed by the prosecutor within the period fixed by law, the arresting officer must release the detainee lest he be charged with violation of Article 125.[10] Public respondents countered that the duty of the arresting officers ended upon the filing of the informations with the proper judicial authorities following the rulings in Agbay v. Deputy Ombudsman for the Military,[11] and People v. Acosta.[12] From a study of the opposing views advanced by the parties, it is evident that public respondents did not abuse their discretion in

dismissing for lack of probable cause the complaint against private respondents. Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[13] No grave abuse of discretion, as defined, can be attributed to herein public respondents. Their disposition of petitioners complaint for violation of Article 125 of the Revised Penal Code cannot be said to have been conjured out of thin air as it was properly backed up by law and jurisprudence. Public respondents ratiocinated thus: As aptly pointed out by the respondents insofar as the complaint of Rodolfo Soria is concerned, based on applicable laws and jurisprudence, an election day or a special holiday, should not be included in the computation of the period prescribed by law for the filing of complaint/information in courts in cases of warrantless arrests, it being a no-office day. (Medina vs. Orosco, 125 Phil. 313.) In the instant case, while it appears that the complaints against Soria for Illegal Possession of Firearm and Violation of COMELEC Resolution No. 3328 were filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at 4:30 p.m., he had already been released the day before or on May 14, 2001 at about 6:30 p.m. by the respondents, as directed by Prov. Prosecutor Jessica [Viloria]. Hence, there could be no arbitrary detention or violation of Article 125 of the Revised Penal Code to speak of.[14] Indeed, we did hold in Medina v. Orozco, Jr.,[15] that . . . The arresting officers duty under the law was either to deliver him to the proper judicial authorities within 18 hours, or thereafter release him. The fact however is that he was not released. From the time of petitioners arrest at 12:00 oclock p.m. on November 7 to 3:40 p.m. on November 10 when the information against him for murder actually was in court, over 75 hours have elapsed. But, stock should be taken of the fact that November 7 was a Sunday; November 8 was declared an official holiday; and November 9 (election day) was also an official holiday. In these three no-office days, it was not an easy matter for a fiscal to look for his clerk and stenographer, draft the information and search for the Judge to have him act thereon, and get the clerk of court to open the courthouse, docket the case and have the order of commitment prepared. And then, where to locate and the uncertainty of locating those officers and employees could very well compound the fiscals difficulties. These are considerations sufficient enough to deter us from declaring that Arthur Medina was arbitrarily detained. For, he was brought to court on the very first office day following arrest. And, in Sayo v. Chief of Police of Manila[16] -. . . Of course, for the purpose of determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised Penal Code, the means of communication as well as the hour of arrest and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration. As to the issue concerning the duty of the arresting officer after the information has already been filed in Court, public respondents acted well within their discretion in ruling thus: In the same vein, the complaint of Edimar Bista against the respondents for Violation of Article 125, will not prosper because the running of the thirty-six (36)-hour period prescribed by law for the filing of the complaint against him from the time of his arrest was tolled by one day (election day). Moreover, he has a standing warrant of arrest for Violation of B.P. Blg. 6 and it was only on May 15, 2001, at about 2:00 p.m. that he was able to post bail and secure an Order of Release. Obviously, however, he could only be released if he has no other pending criminal case requiring his continuous detention.

The criminal Informations against Bista for Violations of Article 125, RPC and COMELEC Resolution No. 3328 were filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes G and I, Complaint-Affidavit of Edimar Bista) but he was released from detention only on June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes J and K, Complaint-Affidavit). Was there a delay in the delivery of detained person to the proper judicial authorities under the circumstances? The answer is in the negative. The complaints against him was (sic) seasonably filed in the court of justice within the thirty-six (36)-hour period prescribed by law as discussed above. The duty of the detaining officers is deemed complied with upon the filing of the complaints. Further action, like issuance of a Release Order, then rests upon the judicial authority (People v. Acosta [CA] 54 O.G. 4739).[17] The above disposition is in keeping with Agbay v. Deputy Ombudsman for the Military,[18] wherein we ordained that . . . Furthermore, upon the filing of the complaint with the Municipal Trial Court, the intent behind Art. 125 is satisfied considering that by such act, the detained person is informed of the crime imputed against him and, upon his application with the court, he may be released on bail. Petitioner himself acknowledged this power of the MCTC to order his release when he applied for and was granted his release upon posting bail. Thus, the very purpose underlying Article 125 has been duly served with the filing of the complaint with the MCTC. We agree with the position of the Ombudsman that such filing of the complaint with the MCTC interrupted the period prescribed in said Article. All things considered, there being no grave abuse of discretion, we have no choice but to defer to the Office of the Ombudsmans determination that the facts on hand do not make out a case for violation of Article 125 of the Revised Penal Code. As we have underscored in numerous decisions -We have consistently refrained from interfering with the investigatory and prosecutorial powers of the Ombudsman absent any compelling reason. This policy is based on constitutional, statutory and practical considerations. We are mindful that the Constitution and RA 6770 endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutorial powers, virtually free from legislative, executive or judicial intervention, in order to insulate it from outside pressure and improper influence. Moreover, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal. Hence, if the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings, unless clothed with grave abuse of discretion. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it. In much the same way, the courts will be swamped with cases if they will have to review the exercise of discretion on the part of fiscals or prosecuting attorneys each time the latter decide to file an information in court or dismiss a complaint by a private complainant.[19] (Emphasis supplied) WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and the Order dated 25 March 2002 of the Office of the Ombudsman are hereby AFFIRMED. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

FIRST DIVISION [G.R. No. 144317. August 5, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. MICHAEL MONTE y ABDUL, appellant.

DECISION YNARES-SANTIAGO, J.: This is an appeal from the decision[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case No. 99-171228, finding appellant Michael Monte guilty beyond reasonable doubt of violation of Article III, Section 15 of Republic Act 6425, otherwise known as the Dangerous Drugs Act of 1972,[2] as amended, and sentencing him to suffer the penalty of reclusion perpetua, with all the accessory penalties provided by law, and to pay the costs. Appellant Michael Monte was charged with violation of Article III, Section 15, of RA 6425, as amended, in an information which reads: That on or about March 1, 1999, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did then and there wilfully, unlawfully, and knowingly sell or offer for sale five (5) heatsealed transparent plastic bags each containing white crystalline substance with a total weight [of] 262.272 grams known as shabu containing methamphetamine hydrochloride, which is a regulated drug. Contrary to law.[3] When arraigned, appellant pleaded not guilty. Thereafter, trial ensued. The following facts are established: On March 1, 1999, at about 6:00 in the morning, SPO2 Virgilio Martinez of the Metro Manila Drug Enforcement Group, National Capital Region Police Office (MMDEG-NCRPO), Camp Bagong Diwa, Taguig Metro Manila, received a call from a confidential informant about the illegal drug activities of appellant Michael Monte on P. Casal Street, San Miguel Manila.[4] A team of eight operatives, SPO1 Isagani Jimenez included, was organized to conduct surveilance and buy-bust operations.[5] They prepared fake money which were arranged in a bundle placed in between genuine P500.00 bills.[6] SPO1 Jimenez was designated as the poseur buyer.[7] Upon arriving at P. Casal Street, the confidential informant met SPO1 Jimenez and introduced him to appellant as a prospective buyer of 250 grams of shabu. Appellant told them that he can deliver the desired quantity of shabu at P50,000.00 per 50 gram. After SPO1 Jimenez agreed to the price, appellant told him to come back at 10:00 in the evening of the same day.[8] The team returned to the scene at the designated time and positioned themselves strategically around the area. After a few minutes, the informant and appellant arrived and, after a brief conversation, SPO1 Jimenez handed the bundle of money to appellant, who in turn gave Jimenez white crystalline substance contained in five plastic sachets. Immediately, SPO1 Jimenez introduced himself as a police officer and simultaneously raised his right hand as a pre-arranged signal to his companions that the sale had been consummated. Appellant tried to escape, but he was arrested by SPO1 Jimenez, with the help of his companions who had rushed to the scene after seeing the signal. SPO1 Jimenez confiscated from appellant the bundle of money. Appellant was then brought to the MMDEG-NCRPO station for investigation. The five plastic sachets containing the white crystalline substance, which weighed 262.272 grams were forwarded to the PNP Crime Laboratory for examination and were found positive for methamphetamine hydrochloride or shabu, a regulated drug. Appellant denied the charge and claimed that he was framed up by the police. He alleged that on March 1, 1999, at 3:30 in the afternoon, his friend, a certain Sherman, and the latters female companion, dropped by his sisters house where he was then staying. Sherman invited him to go with them to the Luneta Park and later to have a snack at Jollibee.[9] They boarded a black Mitsubishi Pajero. As soon as they passed Ayala bridge, they were blocked by a Honda Civic. Eight armed men in civilian clothes alighted therefrom and introduced themselves as police officers. Appellant and his companions were ordered to alight from the Pajero and were frisked.[10] Afterwards, appellant was made to board the Honda Civic while Sherman and his female companion boarded the Pajero.[11] Inside the Honda Civic, appellant was mauled by the police officers.[12] He was brought to the Drug Enforcement Unit in Bicutan, Taguig, where he was tortured by putting a plastic bag

over his head and tying it around his neck.[13] He was told to put up a bailbond for his release.[14] On July 10, 2002, the trial court rendered a decision convicting appellant of the crime charged, the dispositive portion of which reads: WHEREFORE, the accused, Michael Monte y Abdul, is hereby convicted of the crime of Violation of Section 15, Article III of R.A. 6425 as amended without any aggravating and/or mitigating circumstances, and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law and to pay the costs. The 262.272 grams of shabu is forfeited in favor of the government and is ordered turned over to the Dangerous Drugs Board, for proper disposition. SO ORDERED.[15] Hence this appeal, raising the following errors: I. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE UNBELIEVALE TESTIMONY OF PROSECUTION WITNESS SPO1 ISAGANI JIMENEZ AND IN GIVING IN HIS FAVOR THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY DESPITE THE APPARENT IRREGULARITIES IN THE MANNER THEY CONDUCTED THE ALLEGED BUY-BUST OPERATION. II. THE COURT A QUO GRAVELY ERRED IN GIVING SCANT CONSIDERATION TO THE EVIDENCE PRESENTED BY THE ACCUSED APPELLANT. III. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.[16] The issue of whether or not the prosecution was able to prove beyond reasonable doubt the guilt of appellant Michael Monte is the core of the instant appeal. Appellant argues that the trial court failed to consider the irregularities in the conduct of the buy-bust operation which could have exculpated him from criminal liability. He said that while the prosecution claimed that two genuine 500 peso bills were put, one on top and the other at the bottom of the fake money, it failed to show the source of the said bills, which creates doubt as to their existence and to the prosecutions claim that said genuine 500 peso bills were taken from appellant. Appellant maintains that as a standard operating procedure in buy-bust operations, the law enforcers put mark on the money bills and have them photocopied. In the case at bar, the police officers who participated in the buy bust neither marked nor photocopied the two 500 peso bills. Also, SPO1 Jimenez, the lone prosecution witness, testified that he confiscated from appellant 262.272 grams of shabu. However, he did not present the Booking Sheet and Arrest Report which would show that shabu was indeed taken from appellant. The appeal is without merit. In the prosecution for the sale of regulated drugs, like shabu, what is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti.[17] Corpus delicti is the body or substance of the crime, and establishes the fact that a crime has been actually committed.[18] It has two elements, namely: (1) proof of the occurrence of a certain event; and (2) some persons criminal responsibility for the act.[19] SPO1 Jimenez, the poseur-buyer, clearly established the above elements, viz: an illegal sale of the regulated drug actually took place and appellant was the author thereof. He testified as follows: Prosecutor Panfilo Pabelonia, Jr. to witness Q: When you arrived at that bridge [P. Casal], was the accused already there? A: He was not yet there, Sir.

Q: How long did you wait? A: Around 10 minutes then the accused arrived.

Q: The accused arrived together with the confidential informant? A: Yes, Sir.

Q: After the accused arrived together with the confidential informant, what transpired? A: He asked me the money and I also asked him where is the shabu, and when I handed the money to him I asked him to hand to me the shabu and when the shabu was handed to me, I introduced myself as police officer and at the same time I held the accused and signaled for my companions to approach us.[20] The result of the laboratory examination conducted on the white crystalline substance confiscated from appellant and forwarded to the Western Police District bolsters the foregoing testimony that, indeed, what was sold by appellant was shabu, a regulated drug. The results of the examination states: FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE results to the tests for methylamphetamine hydrochloride, a regulated drug. x x x CONCLUSION: Specimen A contains methylamphetamine hydrochloride, a regulated drug. x x x.[21] Moreover, the prosecution witness was able to present and identify in court the confiscated drugs, which are corroborating pieces of evidence of the corpus delicti, thus: Prosecutor Jaime Guray to witness: Q: And you also testified that you were handed by the accused 5 plastic sachets containing white crystalline substance? A: Yes, sir.

We find nothing irregular in the turn-over of appellant to the Drug Enforcement Unit in Taguig, Metro Manila, although the Rules provide that persons arrested without a warrant shall be delivered to the nearest police station or jail. As correctly argued by the Solicitor General, the place where appellant was brought after the arrest for inquest is immaterial to the ultimate issue of whether he peddled illicit drugs. Moreover, the records show that appellant was brought to the Drug Enforcement Unit in Taguig, Metro Manila because the arresting officers belonged to the Metro Manila Drug Enforcement Group, National Capital Region Police Office (MMDEG-NCRPO), Camp Bagong Diwa, Taguig, Metro Manila, which office was more specialized in the area of drug investigation. In People v. Garcia,[24] it was held that there was nothing irregular in the turn-over of appellant, who was arrested without a warrant for illegal possession of marijuana, to the Criminal Investigation Service (CIS) Office at the Baguio Water District Compound instead of bringing him to the nearest police station, since the CIS office was more specialized in the area of investigation of drug offenses. Nevertheless, considering that appellant had entered his plea and actively participated in the trial of the case, he submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest.[25] Even assuming that appellant was not afforded the assistance of a counsel of his own choice, the proceedings in the trial court will not necessarily be struck down because no incriminatory evidence in the nature of a compelled or involuntary confession or admission was used as evidence against him. Appellants guilt was clearly established by the evidence adduced by the prosecution, which consisted of the testimony of SPO1 Jimenez, the arresting officer and poseur buyer, together with the documentary and object evidence which were formally offered and admitted in evidence in the trial court. Anent the appellants defense that he was framed-up, we are aware that in some instances, law enforcers resort to the practice of planting evidence to extract information or even to harass civilians.[26] However, like alibi, frame-up is viewed with disfavor for it is selfserving, can easily be fabricated and is a common standard defense ploy in most prosecutions for violations of the Dangerous Drugs Act.[27] Clear and convincing evidence is required to prove the defense.[28] In the case at bar, apart from claiming that he was a victim of frame-up and extortion by the narcotics agents of the MMDEG-NCRPO, appellant failed to present any evidence to substantiate his claim. He testified that he was accompanied by a friend, a certain Sherman and the latters female companion, when the vehicle they were boarding was blocked by the Honda Civic being used by the narcotics operatives. However, he failed to present in court these two persons to corroborate his claim. Everything considered, we find that the prosecution has established appellants guilt beyond reasonable doubt. Accordingly, he must suffer for his serious crime of being a merchant of death, a killer without mercy who poisons the mind and deadens the body of his victims.[29] The penalty prescribed under Section 15 of Article III, in relation to Section 20 of Article IV, of the Dangerous Drugs Act of 1972, as amended by RA 7659, for unauthorized sale of 200 grams or more of shabu or methylamphetamine hydrochloride is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. In the case at bar, as the penalty of reclusion perpetua to death consists of two (2) indivisible penalties, appellant was correctly meted the lesser penalty of reclusion perpetua, conformably with Article 63 (2) of the Revised Penal Code that when there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. However, we note that the trial court did not impose a fine. The imposition of fine is mandatory in cases of conviction of unauthorized sale of regulated drugs. Courts may fix any amount within the limits established by law and; in fixing the amount in each case, attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit.[30] As stated above, the law prescribes the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos if the shabu involved weighs 200 grams or

Q: If shown to you these five plastic sachets containing white crystalline substance which you said was handed to you by the accused, will you be able to identify the same? A: Yes, sir.

Q: May I invite you in the table, Mr. witness, and examine these five plastic sachets which have been marked as Exhibit F, F-1 to F-5 for the prosecution and tell us what relation is these five plastic sachets to the plastic sachets which you stated that was handed to you by the accused? A: These were the shabu that were sold to me by the accused, sir.[22] We find no reason to deviate from the findings of the trial court. It is very clear from the testimony of the prosecution witness that his narration of events was positive, probable and in accord with human experience. It bears the badges of truth, such that it is extremely difficult for a rational mind not to find it credible. SPO1 Jimenezs testimony was coherent, straightforward and unperturbed even under the intense cross-examination by the defense and searching questions by the trial court. Appellant claims that there were irregularities in his arrest. He said that instead of bringing him to the Western Police District on United Nations Avenue, Manila, the arresting officers brought him to the Drug Enforcement Unit in Bicutan, Taguig, Metro Manila, in clear violation of the mandate of Section 5, Rule 113 of the Rules of Court.[23] Further, the arresting officers did not inform him of his basic constitutional rights. He was not afforded the assistance of a competent and independent counsel of his choice during custodial investigation.

more. Considering that the amount of shabu sold in this case weighed 262.272 grams, we deem the amount of Five Hundred Thousand Pesos (P500,000.00) reasonable.[31] WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case No. 99-171228, finding appellant Michael Monte y Abdul guilty beyond reasonable doubt of violation of Article III, Section 15 of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law, is AFFIRMED, with the MODIFICATION that appellant is further ordered to pay a fine in the amount of Five Hundred Thousand Pesos (P500,000.00). Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur. [1] RTC Record, pp. 66-68. [2] Section 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug. [23] Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

was incidental to an arrest that was doubtless lawful even if admittedly without warrant. The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division. On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila: The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows: That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit: one (1) cal. 38 "S & W" bearing Serial No. 8720-T without first having secured the necessary license or permit therefor from the proper authorities. Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3 The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion perpetua. 4 It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial court. The following are the pertinent provision of the Bill of Rights: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

lawphil Today is Monday, July 23, 2012 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 87059 June 22, 1992 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.: Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows: Sec. 5. Arrest without warrant when lawful. A peace officer or private person may, without a warrant, arrest a person; (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution. Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section. Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer. These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence. The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accusedappellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken? These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not

been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established. The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence. This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant. Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed. The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it. Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house. In the landmark case of People v. Burgos, 9 this Court declared: Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied) xxx xxx xxx In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus: If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. (Emphasis supplied) It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. There is no need to discuss the other issues raised by the accusedappellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him. We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable. The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accusedappellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized. This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it. WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs. SO ORDERED. Grio-Aquino, Medialdea and Bellosillo, JJ., concur.

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 oclock, when the body of six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The childs 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 victims 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 victims 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 accusedappellant 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 victims genitalia indicated that the childs 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 charge that accused-appellant had raped and killed Jennifer Domantay. 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 latters house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of Macasaebs 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 accusedappellant.[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

SYLLABI/SYNOPSIS

EN BANC [G.R. No. 130612. May 11, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO DOMANTAY, @ JUNIOR OTOT, accusedappellant. DECISION 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

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-appellants 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 oclock 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 Jennifers 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 Jiezls testimony that accused-appellant had gone to Amparo Domantays bamboo grove in the afternoon of October 17, 1996. Lorenzo said that 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 Jennifers 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 Mormons church, outside Malasiqui.[12] In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate occasions, accusedappellant 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 accusedappellants confession reduced in writing.[15] Espinozas 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 Domantays 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 A Q Did you introduce yourself as a media practitioner? Yes, sir. How did you introduce yourself to the accused?

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 interests sake as a reporter, why did he commit that alleged crime. And I asked also if he committed the crime and he answered yes. Thats it. .... PROS. QUINIT: Q You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you ask him that? A Q I asked him very politely. More or less what have you asked him on that particular matter?

A I 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 Manuels 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 contusions on the forehead, 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 latters 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 allegations 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 oclock in the afternoon of October 17, 1996, he was bathing his pigs outside 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 (Macasaebs) 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 Domantays 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]

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?

Accused-appellant also confirmed that, at about 2 oclock 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 victims 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 ACCUSEDAPPELLANT. 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. .... (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 accusedappellants 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 Espinozas 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 on 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-appellants 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]ppellants [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 out 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-appellants 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 childs 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 Domantays grove, where the crime took place, having heard any commotion.[45] The contention has no merit. Accused-appellant could have covered the young childs 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 victims 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 oclock 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 at exactly the same time. What they told the court was what they had seen at around 2 oclock in the afternoon. There could have been a 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 victims 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 oclock 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 testify 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 accusedappellants guilt with respect to the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accusedappellant 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-appellants 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 Jennifers 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 cruelty as an aggravating circumstance.[49] The test . . . is whether the accused deliberately and sadistically augmented the victims 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 victims 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 accusedappellant 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 deprived 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 victims genitalia.[53] However, there must be proof, by direct or indirect evidence, of such contact. Dr. Ronald Bandonills 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 inflamation. .... 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 physicians 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 victims 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 victims death and that t he 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?

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 vict ims 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 childs 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 girls 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 girls 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 there 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 victims 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 brought to her parents house 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 was wearing this piece of clothing when the stab wounds were inflicted 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 girls lower garments in order to consummate the rape, then, he must have, regardless of when the stab wounds were inflicted, pulled up the victims shorts and undergarments after the alleged rape, otherwise, the victims 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 victims 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.

A If the human male organ is erect, fully erect and hard then it is possible, sir. .... 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 sharp rigid, it should be a hard bl[u]nt instrument. Q A Do you consider a bolo a bl[u]nt instrument, or a dagger? 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 wont 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 Q A .... COURT: Q A You mentioned that the hymen was lacerated on the right side? Yes, your Honor. A hard bl[u]nt instrument, sir could show. My question is other than the human male organ? Possible, sir.

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 depends on the size of the finger that penetrat[es] the organ, if the finger is small it could the superficial laceration, and if the finger is large then it is possible your honor. Q A How about two fingers? Possible, sir.

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. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes, and YnaresSantiago, JJ., concur. Purisima, and Buena, JJ., took no part in the deliberations.

SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills[3]-- as money for the buy-bust operation. The market price of one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial numbers in the police blotter.[4] The team rode in two cars and headed for the target area. At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he got the marijuana from his associate.[5] An hour later, "Jun" appeared at the agreed place where PO3 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth."[6] "Jun" led the police team to "Neneth's" house nearby at Daang Bakal. The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried marijuana leaves. Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth."[8] The policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned them over to the investigator at headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at the PNP Crime Laboratory.[9] The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams.[10] The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a pusher in their community. When accused-appellant denied the charge, the men led him to their car outside and ordered him to point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house. Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as PO3 Manlangit, pushed open the door and he and his companions entered and looked around the house for about three minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered her house, three men were already inside. Accused-appellant Doria, then still at the door, overheard one of the men say that they found a carton box. Turning towards them, Doria saw a box on top of the table. The box was open and had something inside. PO3 Manlangit ordered him and Violeta to go outside the house and board the car. They were brought to police headquarters where they were investigated.

SYLLABI/SYNOPSIS

EN BANC [G.R. No. 125299. January 22, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants. DECISION PUNO, J.: On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972.[1] The information reads: "That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law. CONTRARY TO LAW."[2] The prosecution contends the offense was committed as follows: In November 1995, members of the North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City. On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City to prepare for the buybust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit,

Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife.[11] Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing in front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the artesian well to fetch water. She was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and took her to her house. She found out later that the man was PO3 Manlangit. Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the table. This was the first time she saw the box. The box was closed and tied with a piece of green straw. The men opened the box and showed her its contents. She said she did not know anything about the box and its contents. Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and that her husband never returned to their house after he left for Pangasinan. She denied the charge against her and Doria and the allegation that marked bills were found in her person.[12] After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court found the existence of an "organized/syndicated crime group" and sentenced both accusedappellants to death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as follows: "WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both CONVICTED of the present charge against them. According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which explicitly state that: 'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime.' the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs. The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for destruction in accordance with law. Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City.

Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review. SO ORDERED."[13] Before this Court, accused-appellant Doria assigns two errors, thus: "I THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER. II THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14] Accused-appellant Violeta Gaddao contends: "I THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED. II THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY. III THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST. IV THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT."[15] The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her person and house, and the admissibility of the pieces of evidence obtained therefrom. Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of an offense.[16] Entrapment has received judicial sanction when undertaken with due regard to constitutional and legal safeguards.[17] Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public interest in the formulation and application of decent standards in the enforcement of criminal law.[19] It also took off from a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist.[20]

In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.[21] The classic definition of entrapment is that articulated by Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer."[23] It consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and (b) the origin of the criminal design in the minds of the government officials rather than that of the innocent defendant, such that the crime is the product of the creative activity of the law enforcement officer.[24] It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent person into a criminal career.[25] Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had.[26] Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted.[27] The law tolerates the use of decoys and other artifices to catch a criminal. Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the nature of a confession and avoidance.[29] It is a positive defense. Initially, an accused has the burden of providing sufficient evidence that the government induced him to commit the offense. Once established, the burden shifts to the government to show otherwise.[30] When entrapment is raised as a defense, American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United States[31] to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his state of mind and inclination before his initial exposure to government agents.[32] All relevant facts such as the accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of mind before the crime.[33] The predisposition test emphasizes the accused's propensity to commit the offense rather than the officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary innocent and the trap for the unwary criminal."[35] If the accused was found to have been ready and willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement.[36] Some states, however, have adopted the "objective" test.[37] This test was first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct.[39] The inquiry is focused on the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct.[40] The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the offense;[41] for purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully.[42] Official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or importuning,[43] or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not.[44] Proponents of this test believe that courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on behalf of the government to bring about the crime "cannot be countenanced." To some extent, this

reflects the notion that the courts should not become tainted by condoning law enforcement improprieties.[45] Hence, the transactions leading up to the offense, the interaction between the accused and law enforcement officer and the accused's response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are considered in judging what the effect of the officer's conduct would be on a normal person.[46] Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the "subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory practices will be deemed impermissible.[47] Delving into the accused's character and predisposition obscures the more important task of judging police behavior and prejudices the accused more generally. It ignores the possibility that no matter what his past crimes and general disposition were, the accused might not have committed the particular crime unless confronted with inordinate inducements.[48] On the other extreme, the purely "objective" test eliminates entirely the need for considering a particular accused's predisposition. His predisposition, at least if known by the police, may have an important bearing upon the question of whether the conduct of the police and their agents was proper.[49] The undisputed fact that the accused was a dangerous and chronic offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy.[50] Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now combine both the "subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme Court declared that the permissibility of police conduct must first be determined. If this objective test is satisfied, then the analysis turns to whether the accused was predisposed to commit the crime.[53] In Baca v. State,[54] the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation.[55] The hybrid approaches combine and apply the "objective" and "subjective" tests alternatively or concurrently. As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug.[57] The conduct of the BIR agent was condemned as "most reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.[62] It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction between entrapment vis-avis instigation or inducement. Quoting 16 Corpus Juris,[64] we held: "ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into crime for the purpose of instituting

criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorised by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are cases holding the contrary."[65] The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,[66] the appellate court declared that "there is a wide difference between entrapment and instigation." The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker."[69] The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal.[71] It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is considered an absolutory cause.[72] To determine whether there is entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test first applied in United States v. Phelps has been followed in a series of similar cases.[73] Nevertheless, adopting the "objective" approach has not precluded us from likewise applying the "subjective" test. In People v. Boholst,[74] we applied both tests by examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous convictions of other crimes[75] and held that his opprobrious past and membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining his defense that led to his acquittal. The distinction between entrapment and instigation has proven to be very material in anti-narcotics operations. In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory statutes.[77] They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and immoral.[79] Laws defining crimes mala prohibita condemn behavior directed, not against particular individuals, but against public order.[80] Violation is deemed a wrong against society as a whole and is generally unattended with any particular harm to a definite person.[81] These offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for any member of the public, no matter how furiously he

condemns acts mala prohibita, to be willing to assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that the police must be present at the time the offenses are committed either in an undercover capacity or through informants, spies or stool pigeons.[82] Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds abominable abuse. Frequently, a person who accepts payment from the police in the apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the police. The informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses underworld characters to help maintain law and order is not an inspiring one.[83] Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous law enforcers' motivations are legion-- harassment, extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and hapless persons, particularly unsuspecting provincial hicks.[85] The use of shady underworld characters as informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be extra-vigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy, although necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87] "[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the employment of illegal means."[88] It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual.[89] It is the duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless enforcement.[90] Courts should not allow themselves to be used as an instrument of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug offenses.[91] We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale.[92] The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement. In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the prearranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed the

marked money to accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was apprehended when he later returned and handed the brick of marijuana to PO3 Manlangit. PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his credibility was not crumpled on crossexamination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police.[93] It is well-settled that except when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers,[94] or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant,[95] or that only the informant was the poseur-buyer who actually witnessed the entire transaction,[96] the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies.[97] There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses.[98] The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution proved that money was paid to accused-appellant Doria in consideration of which he sold and delivered the marijuana. Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton box contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each of the ten (10) bricks, however, were identified and marked in court. Thus: "ATTY. ARIAS, Counsel for Florencio Doria: Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box? A This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana brick we confiscated from the suspect, sir. Q Please open it and show those eleven bricks. Witness bringing out from the said box...

Here, sir, my signature, my initials with the date, sir.

PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature. Q Whose signature is that?

ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to him by the accused Jun, your Honor? PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration. COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court. ATTY. VALDEZ A sir. We submit, your Honor.

This brick is the one that was handed to me by the suspect Jun,

COURT Why do you know that that is the thing? Are you sure that is not "tikoy?" A Q Yes, your Honor. What makes you so sure?

A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to the PCCL, your Honor. Q What are you sure of?

A I am sure that this is the brick that was given to me by one alias Jun, sir. Q What makes you so sure?

A Because I marked it with my own initials before giving it to the investigator and before we brought it to the PCCL, your Honor. x x x.

PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked as Exhibit "D?" COURT Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic? A This one, the signature, I made the signature, the date and the time and this Exhibit "A." Q A How about this one? I don't know who made this marking, sir. May it be of record that this was just entered this

PROSECUTOR

ATTY. VALDEZ, Counsel for Violeta Gaddao: Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when the question posed to the witness was what was handed to him by Jun? COURT So be it.

PROSECUTOR morning. Q

I am asking you about this "itim" and not the "asul."

ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box showed to him and brought in front of him. COURT Noted.

A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir. PROSECUTOR enclosed... May we place on record that the one that was

Q Now tell the court, how did you know that those are the eleven bricks? x A Q x x.

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other entries included in the enclosure. COURT Noted. The court saw it.

I have markings on these eleven bricks, sir. Point to the court, where are those markings?

Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece of paper inside which reads: "D394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?" COURT Tag it. Mark it.

Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom? A Q A Q It was given to me by suspect Jun, sir. Whereat? At the corner of Boulevard and Jacinto St., sir. How about the other items that you were able to recover? x x x.

inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search of a moving motor vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused himself waives his right against unreasonable searches and seizures.[111] The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that the warrants were not necessary because the arrest was made in "hot pursuit" and the search was an incident to her lawful arrest. To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise: "ATTY VALDEZ, Counsel for appellant Gaddao:

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. x x x."[99]

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were marked as Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams.[100] We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher.[101] Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant.[102] We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit: "Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. x x x."[103]

We submit at this juncture, your Honor, that there will be no basis for that question. Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom? A Q A Q It was given to me by suspect Jun, sir. Whereat? At the corner of Boulevard and Jacinto Street, sir. How about the other items that you were able to recover?

ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that question. COURT There is. Answer.

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir. Q A Q Whereat? At Daang Bakal near the crime scene at Shaw Boulevard, sir. And what happened upon arrival thereat?

A We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir. Q You mentioned "him?"

A Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir. Q And what happened?

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.[104] The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of marijuana and marked bills are different matters. Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is

A At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir. x x x."[112]

SPO1 Badua testified on cross-examination that: Q A What was your intention in going to the house of Aling Neneth? To arrest her, sir.

Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there? A Yes, sir.

COURT: Q A Q A Q A As far as you can see, she was just inside her house? Sustained. I saw her outside, sir. She was fetching water as a matter of fact? She was `sa bandang poso.' A Carrying a baby? No, sir. Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved the money from Aling Neneth, it was Manlangit maybe? A Q A No, sir. A The buy-bust money was recovered from the house of Aling Neneth, sir. Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to tell the Court? A No, sir. I am through with this witness, your Honor."[113] I saw it, sir. It was Manlangit who got the money from Aling Neneth? Yes, sir, the buy-bust money. Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount of P1,600.00 was recovered from the person of Aling Neneth. That's right?

Q At that particular time when you reached the house of Aling Neneth and saw her outside the house, she was not committing any crime, she was just outside the house?

Q She was not about to commit any crime because she was just outside the house doing her daily chores. Am I correct? A I just saw her outside, sir.

Q And at that point in time you already wanted to arrest her. That is correct, is it not? A Yes, sir.

ATTY. VALDEZ:

Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her? A PO3 Manlangit, sir.

Accused-appellant Gaddao was not caught red-handed during the buybust operation to give ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit."[114] In fact, she was going about her daily chores when the policemen pounced on her. Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion."[115] The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.[116] A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.[117] Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her coaccused in pushing drugs. Appellant Doria may have left the money in her house,[119] with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable.[120] Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. This brings us to the question of whether the trial court correctly found that the box of marijuana was in plain view, making its warrantless seizure valid. Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence.[121] The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular

Q You did not approach her because PO3 Manlangit approached her? A Yes, sir.

Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just in the side lines? A I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this buy-bust operation was as a back-up? A Yes, sir.

Q Who got the alleged marijuana from inside the house of Mrs. Neneth? A Q A Q A Q PO3 Manlangit, sir. Manlangit got the marijuana? Yes, sir. And the money from Aling Neneth? I don't know, sir. You did not even know who got the money from Aling Neneth?

PROSECUTOR: There is no basis for this question, your Honor. Money, there's no testimony on that. ATTY. VALDEZ: I was asking him precisely. PROSECUTOR: No basis.

area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.[122] The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area.[123] In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery inadvertent.[126] It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized.[127] In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view.[128] It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure.[129] PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows: "ATTY. VALDEZ: So here we are. When you and Badua arrived, Aling Neneth was inside the house? A Q A Q A Q A Q A Q A Yes, sir.

Noted. Q A Q A Q A At this juncture, you went inside the house? Yes, sir. And got hold of this carton? Yes, sir. Did you mention anything to Aling Neneth? I asked her, what's this...

Q No, no. no. did you mention anything to Aling Neneth before getting the carton? A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir. Q A Making reference to the marijuana that was given by alias Jun? Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]? A Q A I just don't know if she was frisked already by Badua, sir. Who got hold of this? I was the one, sir. You were the one who got this? Yes, sir.

Badua demanded from Aling Neneth the buy-bust money? Q Yes, sir. A At that particular instance, you saw the carton? Yes, sir. This carton, according to you was under a table? Yes, sir, dining table. I noticed that this carton has a cover? Yes, sir. I ask you were the flaps of the cover raised or closed? It was open, sir. Not like that. Q At that particular point in time, you did not know if the alleged buybust money was already retrieved by Badua? A Q A Q A Yes, sir. You went inside the house? Yes, sir. You did not have any search warrant? Yes, sir.

COURT Go down there. Show to the court.

Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in possession of the buy-bust money because according to you, you did not know whether Badua already retrieved the buy-bust money from her? A Yes, sir. How far was this from the door? Two and a half meters from the door, sir. It was in plain view. Under the table according to you? Yes, sir, dining table. Somewhere here? It's far, sir.

INTERPRETER Q Witness went down the witness stand and approached a carton box. A A Like this, sir. Q PROSECUTOR A Can we describe it? Q ATTY. VALDEZ A Yes. PROSECUTOR PROSECUTOR May we request the witness to place it, where he saw it? One flap is inside and the other flap is standing and with the contents visible. COURT A Q Here, sir. What you see is a carton?

A Q A Q A Q A

Yes, sir, with plastic. COURT Marked "Snow Time Ice Pop?" Continue. Next question. Yes, sir. x With a piece of plastic visible on top of the carton? Yes, sir. That is all that you saw? Yes, sir. PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria named her and led them to her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two and a half meters away was the dining table and underneath it was a carton box. The box was partially open and revealed something wrapped in plastic. In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself checked and marked the said contents.[132] On cross-examination, however, he admitted that he merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was individually wrapped in old newspaper and placed inside plastic bags-white, pink or blue in color.[133] PO3 Manlangit himself admitted on cross-examination that the contents of the box could be items other than marijuana. He did not know exactly what the box contained that he had to ask appellant Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant was in violation of the law and the Constitution.[135] It was fruit of the poisonous tree and should have been excluded and never considered by the trial court.[136] The fact that the box containing about six (6) kilos of marijuana[137] was found in the house of accused-appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.[138] Apropos is our ruling in People v. Aminnudin,[139] viz: "The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some criminals should escape than that the government should play an ignoble part.' It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself."[140] Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit: "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.-- The penalty of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. x x x." x x."[130]

PROSECUTOR For the record, your Honor... Q You were only able to verify according to you...

PROSECUTOR Panero, wait. Because I am objecting to the words a piece of plastic. By reading it... ATTY. VALDEZ That's a piece of plastic. PROSECUTOR By reading it, it will connote... this is not a piece of plastic. ATTY. VALDEZ What is that? What can you say, Fiscal? I'm asking you? PROSECUTOR With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one, for record purposes. COURT Leave that to the court. PROSECUTOR Leave that to the court. Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the Court, it could be "tikoy," is it not [sic]? A Q A Q A Q A Yes, sir. Siopao? Yes, sir. Canned goods? Yes, sir. It could be ice cream because it says Snow Pop, Ice Pop? I presumed it was also marijuana because it may ...

Q I am not asking you what your presumptions are. I'm asking you what it could possibly be. A It's the same plastic, sir.

ATTY. VALDEZ I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for you. In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place between the poseur-buyer and the seller thereof and the presentation of the drug,

i.e., the corpus delicti, as evidence in court.[141] The prosecution has clearly established the fact that in consideration of P1,600.00 which he received, accused-appellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be imposed.[142] IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is reversed and modified as follows: 1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five hundred thousand pesos (P500,000.00). 2. Accused-appellant Violeta Gaddao y Catama is acquitted. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Martinez, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur. Panganiban, J., please see concurring opinion.

passed by. His informer pointed to the motorcycle driver, accusedappellant Mula, as the pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the names and addresses of the accused-appellants came to the knowledge of SPO1 Paguidopon only after they were arrested.[8] At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the alleged pusher will be passing at NHA, Ma-a, Davao City any time that morning.[9] Consequently, at around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.[10] At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1 Paguidopon, a trisikad carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their vehicle and overtook the trisikad.[11] SPO1 Paguidopon was left in his house, thirty meters from where the accused-appellants were accosted.[12] The police officers then ordered the trisikad to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accused-appellant Molina to open the bag.[13] Molina replied, Boss, if possible we will settle this.[14] SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter, accusedappellants Mula and Molina were handcuffed by the police officers.[15] On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence, contending that the marijuana allegedly seized from them is inadmissible as evidence for having been obtained in violation of their constitutional right against unreasonable searches and seizures.[16] The demurrer was denied by the trial court.[17] A motion for reconsideration was filed by accused-appellants, but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a joint memorandum. On April 25, 1997, the trial court rendered the assailed decision,[18] the decretal portion of which reads: WHEREFORE, finding the evidence of the prosecution alone without any evidence from both accused who waived presentation of their own evidence through their counsels, more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to Sec. 24 of Rep. Act 7659. The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their case by the Supreme Court and its appropriate action as the case may be. SO ORDERED.[19] Pursuant to Article 47 of the Revised Penal Code and Rule 122, Section 10 of the Rules of Court, the case was elevated to this Court on automatic review. Accused-appellants contend: I. THAT THE MARIJUANA IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; II. THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND

EN BANC [G.R. No. 133917. February 19, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NASARIO MOLINA y MANAMAT @ BOBONG and GREGORIO MULA y MALAGURA @ BOBOY, accused-appellants. DECISION YNARES-SANTIAGO, J.: To sanction disrespect and disregard for the Constitution in the name of protecting the society from lawbreakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend.[1] For automatic review is the Decision[2] of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias Bobong and Gregorio Mula y Malagura alias Boboy, guilty beyond reasonable doubt of violation of Section 8,[3] of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,[4] and sentencing them to suffer the supreme penalty of death. The information against accused-appellants reads: That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in conspiracy with each other, did then and there willfully, unlawfully and feloniously was found in their possession 946.9 grams of dried marijuana which are prohibited. CONTRARY TO LAW.[5] Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation against them.[6] Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses. The antecedent facts are as follows: Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an alleged marijuana pusher in Davao City.[7] The first time he came to see the said marijuana pusher in person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a motorcycle

III. THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH.[20] The Solicitor General filed a Manifestation and Motion (In Lieu of Brief), wherein he prayed for the acquittal of both accused-appellants. The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause. The pertinent provision of the Constitution provides: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[21] Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and seizures.[22] Thus: Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Courts high regar d as a freedom implicit in the concept of ordered liberty.[23] The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures;[24] and (6) stop and frisk situations (Terry search).[25] The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be first a lawful arrest before a search can be made --- the process cannot be reversed.[26] As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (arrest in flagrante delicto); (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (arrest of escaped prisoners).[27] In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.[28] This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement.

In People v. Chua Ho San,[29] the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,[30] probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. As applied to in flagrante delicto arrests, it is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,[31] it was held that the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. Likewise, in People v. Mengote,[32] the Court did not consider eyes... darting from side to side ... [while] holding ... [ones] abdomen, in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, [b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in [the arresting officers] presence. So also, in People v. Encinada,[33] the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs. Then, too, in Malacat v. Court of Appeals,[34] the trial court concluded that petitioner was attempting to commit a crime as he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them.[35] In declaring the warrantless arrest therein illegal, the Court said: Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.[36] It went on to state that Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast - an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble... Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.[37] Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[38]

In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded Boss, if possible we will settle this to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the suspicion of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accusedappellants could not be the subject of any suspicion, reasonable or otherwise. While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mulas name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest. This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest, to wit Q- When you said that certain Mula handed a black bag to another person and how did you know that it was Mula who handed the black bag to another person? ABecause I have already information from Paguidopon, regarding Mula and Molina, when they pass by through the street near the residence of Paguidopon. He told that the one who is big one that is Gregorio Mula and the thin one is Nazario Molina[39] The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless. SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants name and address prior to the arrest. Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants identity, and were, from all indications, merely fishing for evidence at the time of the arrest. Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latters illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that [t]he prosecutions evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances.[40] Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.[41] Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left with no choice but to find in favor of accused-appellants.

While the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our lawenforcement officers towards this drive, all efforts for the achievement of a drug-free society must not encroach on the fundamental rights and liberties of individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of criminals. WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt, accused-appellants Nasario Molina y Manamat alias Bobong and Gregorio Mula y Malagura alias Boboy, are ACQUITTED and ordered RELEASED from confinement unless they are validly detained for other offenses. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. [1] Dissenting opinion of Justice Brennan in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067, 1105 [1976].