G.R. No.

L-25966 December 28, 1979

FERMIN A. BAGADIONG, petitioner,

vs.
HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes,
CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents.

DE CASTRO, J.:

This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner to annul the
order 1 dated April 18, 1966 of respondent Judge of the Court of First Instance of Catanduanes in Civil
Case No. 546, entitled "Clemente Abundo and Rafael Villaluna, plaintiffs, versus Jorge V. Almojuela,
Dominador Monjardin, Fermin A. Bagadiong and Armando Ala, defendants, Francisco A. Perfecto,
intervenor." Alleged as ground for the petition is that the order was issued with grave abuse of discretion,
amounting to lack of jurisdiction.

The facts are as follows:

On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil Case No. 546 for
prohibition with preliminary prohibitory and mandatory injunction with the Court of First Instance of
Catanduanes against defendants Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong
(the herein petitioner) and Armando Ala who are the Governor, Vice Governor, Provincial Treasurer
and Provincial Auditor of the Province of Catanduanes, respectively. In the said petition, it is alleged
that defendants, including the herein petitioner, are authorizing, approving and effecting the
disbursements of public funds of the province for purposes stated in the alleged annual Provincial
Budget of the Province for the Fiscal Year 1965-1966 purporting on its face to have been approved
by the Provincial Board on August 23, 1965 under Resolution No. 62-A; that the aforesaid budget is
falsified document because the Provincial Board never approved the same, the alleged Provincial
Board Resolution No. 62-A which is claimed to have approved the said Budget does not exist; that
upon discovery of the anomaly, plaintiffs Clemente Abundo and Rafael Villaluna made
representations with the Secretary of Finance on November 17, 1965, to have the alleged Board
Resolution No. 62-A approving the budget, considered null and void because the said plaintiffs never
took part in the deliberation approving the said Resolution; that for the defendants to continue
making disbursements of public funds under the falsified budget, the people and the government of
the Province of Catanduanes will suffer irreparable damage and injury from which there is no other
plain, speedy and adequate remedy in the ordinary course of law except the instant petition.
Plaintiffs pray that pending resolution of the petition on the merits, a preliminary injunction be issued
restraining the defendants from authorizing, approving and effecting the disbursements of public
funds on the basis of the said budget. 2

On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge against
the defendants commanding them to desist from authorizing and making any further disbursements
of funds from the budget in question. On January 17, 1966, the defendants filed a motion for
reconsideration and to dissolve the writ of preliminary injunction. 3 A complaint in intervention 4 was
filed on January 21, 1966 by herein respondent Francisco A. Perfecto praying, among others, that the
annual budget of the Province of Catanduanes for the fiscal year 1965-1966 be declared null and void ab
initio, the same being falsification that all original parties to the case be ordered to refund the province all
moneys purportedly appropriated under the falsified budget and disbursed and collected by them,
respectively; and that all the said original parties be condemned, jointly and severally, to pay the Province
of Catanduanes an amount equal to all disbursements under the falsified budget, by way of exemplary
damages.
On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of
preliminary injunction in an order 5 dated January 31, 1966.

When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for plaintiffs called one of
the defendants, the herein petitioner, Fermin A. Bagadiong, to the witness stand as one of the
witnesses for the plaintiffs. Counsel for the defendants raised the objection that the said party cannot
be called as a witness for the plaintiffs because it would violate his constitutional right against self-
incrimination. On the other hand, counsel for the plaintiffs contended that this being purely a civil
action, the right against self-incrimination is not involved, and if any testimony elicited from the
herein petitioner would tend to incriminate himself, there would be ample time for the herein
petitioner to raise the proper objection.

The respondent Judge in his order 6 held that the position taken by the counsel for the plaintiffs is legally
correct, thereby, ruling that the petitioner may testify as a witness for the plaintiffs.

After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge, the
herein petitioner filed with this Court the instant petition, claiming as earlier stated, that the
respondent Judge acted in excess of his jurisdiction and/or with grave abuse of discretion in allowing
the herein petitioner to testify for the respondents in Civil Case No. 546, and that there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of law.

After the respondents have filed their answer to the instant petition, as required by this Court, both
parties submitted their respective memoranda in lieu of oral argument, after which the case was
considered submitted for decision.

The principal issue raised in the instant case is whether or not respondent Judge acted in excess of
his jurisdiction and with grave abuse of discretion in allowing the herein petitioner to testify as a
witness for the herein respondents, despite his claim of violating his right against self-incrimination.

The petitioner contends that the provision of the Rules of Court which authorizes a party to call the
adverse party to the witness stand applies only to purely civil actions where the defendant does not
run the risk of being prosecuted for any offense. Likewise, the petitioner assets that the right against
self-incrimination can only be claimed when the incriminatory question is being propounded and not
before, by a mere witness, but not by a party defendant, as in the case at bar. We find no merit to
these contentions.

There is no legal impediment for a party to call any of the adverse parties to be his witness, as
clearly provided in Section 6, Rule 132 of the Rules of Court which expressly provides:

A party may interrogate any unwilling or hostile witness by leading questions. A party
may call on adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party, and
interrogate him by leading questions and contradict and impeach him in all respects
as if he had been called by the adverse party, and the witness thus called may be
contradicted and impeached by or on behalf of the adverse party also, and may be
cross-examined by the adverse party only upon the subject-matter of his examination
in chief.

It is in a criminal case, when the accused may not be compelled to testify, or to so much as utter a
word, even for his own defense. 7 But while the constitutional guaranty against self-incrimination
protects a person in all types of cases, be they criminal, civil or administrative, 8 said privilege, in
proceedings other than a criminal case against him who invokes it, is considered an option to refuse to
answer incriminating question, and not a prohibition of inquiry.

As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al: 9

Except in criminal cases, there in no rule prohibiting a party litigant form utilizing his
adversary as a witness. As a matter of fact, Section 83 of Rule 123, Rules of Court,
expressly authorizes a party to call an adverse party to the witness stand and
interrogate him. This rule is, of course, subject to the constitutional injunction not to
compel any person to testify against himself. But it is established that the privilege
against self-incrimination must be invoked at the proper time, and the proper time to
invoke it is when a question calling for a criminating answer is propounded. This has
to be so, because before a question is asked there would be no way of telling
whether the information to be elicited from the witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify "cannot decline to appear, nor can he decline to be sworn as a
witness" and "no claim of privilege can be made until a question calling for a
criminating answer is asked; at that time, and generally speaking, at that time only,
the claim of privilege may properly be imposed." (Emphasis supplied).

In the instant case, petitioner invoked the privilege even prior to any question being propounded, and
simply declined to take the witness stand. In the above-cited Gonzales case, it will be noted that the
privilege against self-incrimination must be invoked when a question calling for an incriminating
answer is propounded, because before a question is asked, there would be no way of telling whether
the information to be elicited from the witness is self-incriminating or not. Moreover, the herein
petitioner was being directed to take the stand, not in a criminal case where he is an accused but in
civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of Court which authorizes
a party to call any adverse party as his witness.

In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated:

Here, petitioner invoked the privilege even prior to any question, and simply declined
to take the witness stand. Note that in the Gonzales case, above-cited, the adverse
party was directed to take the witness stand in proceedings to investigate an alleged
failure to pay overtime compensation, which, under corresponding special laws,
carries a penal sanction. Here, petitioner was being directed to take the stand, not in
a criminal case where he is an accused, but in an independent civil action which,
although arising from the same facts involved in a criminal case pending before the
same court, is still be regarded by law as an "entirely separate and distinct" action,
governed by a corresponding different set of rules (Civil Code of the Phil., Art. 2177).

The almost exact similarity of the instant case and the case just cited leaves no room for doubt, and
there is complete justification therefore that the same ruling must be applied here.

WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner to take
the witness stand and testify is denied, without prejudice to petitioner's properly invoking the
guaranty against self-incrimination when questions are propounded to him on the stand. Costs
against the petitioner.
G.R. No. L-5924 October 28, 1953

ISABELA SUGAR CO., INC. and ENRIQUE J. C. MONTILLA, petitioners,

vs.
JUDGE HIGINIO B. MACADAEG, ELIAS JEREOS, and heirs of Jose Yulo, namely, ALICIA
YULO DE LAUREL, HERMINIA YULO DE VILLA, CONCHITA YULO DE JALANDONI, and
MARIA FE VDA. DE YULO,respondents.

Roman Ozaeta, Francisco A. Delgado and Marcial P. Lichauco for petitioners.

Vicente J. Francisco and San Juan, Africa, Yniguez and Benedicto for respondents.

LABRADOR, J.:

This is a proceeding instituted by petitioners to annul an order of the Court of First Instance of
Manila. Hon. Higinio B. Macadaeg, presiding, compelling petitioner Enrique J. C. Montilla to answer
certain questions propounded to him by counsel for the respondents herein, in the course of the
taking of Montilla's deposition in civil case No. 15273 of the Court of First Instance of Manila, in
which the respondents herein are plaintiffs and the petitioners, defendants. In order to understand
the issue involved in this proceeding, it is necessary that a brief resume of the circumstances
constituting the background of the questions propounded be given.

Petitioner Enrique J. C. Montilla and his relatives own more than 95 per cent of the outstanding
shares of stock of the petitioner Isabela Sugar Co., Inc., and respondents Elias Jereos and the heirs
of Jose Yulo only about1/20 of 1 per cent thereof. At the outbreak of the last war the Isabela Sugar
Co., Inc. was indebted to the Philippine National Bank in the sum of P591,902.69. During the
occupation this amount was increased to P1,097,038.14. Late in the year 1944, Montilla paid this
obligation to the bank in Japanese military notes in a private capacity. After the liberation, the bank
agreed to recognize as valid the payment made by Montilla to the extent of 60 per cent or
P658,222.88. Thereupon, the stockholders resolved in a meeting to recognize this sum as an
obligation of the company in Montilla's favor. When the Supreme Court subsequently ruled that
payments made during the occupation with military notes were valid, the stockholders approved
another resolution recognizing the company's obligation to the full extent of the military notes paid,
namely P1,097,038.14.

On December 4, 1951 respondents herein filed the complaint in civil case No. 15273, alleging that
Montilla should be allowed to recover from the company only the actual value of the depreciated
currency with which he had paid the company's obligation to the bank, i.e., only P18, 283.97, and at
the same time asked for the taking of his deposition. In the course of the taking of the deposition,
two questions were propounded to him, thus:

1. Q. — Referring to this property in Pennsylvania, is it not fact that you bought that property
on December 7, 1943 from Alicia Ortiz de Arcega for the price of P65, 278.50 in Japanese
notes and you sold it on October 11, 1944, to Severo Capiral for P200,000 Japanese
money? In other words, you erred and made a profit?

2. Q. — Did you pay any war profit tax for the sale of those three properties mentioned by
you?

Upon the propounding of the above questions, counsel for Montilla objected. At first the objection
seemed to have been only on the ground that they are immaterial, irrelevant and impertinent, but in
the discussion that ensued between counsel for one and the other side, it became apparent that it
was objected to also on the ground that "there is nothing therein (complaint)that justifies or permits
opposing counsel to ask questions relating to profits that the witness may have made during the war"
Upon the submission of the questions for the consideration of the judge before whom the case was
pending, under the provisions of section 17, Rule 18 of the Rules of Court, respondent Judge
Macadaeg ruled that the first question could be asked because it was not immaterial or irrelevant,
but that the second one was incriminatory. Thereupon, counsel for Montilla moved to reconsider the
ruling, alleging that the principal objection to the question was that it had the principal objection to
the question was that it had a tendency to incriminate the deponent. Judge Macadaeg, However,
ruled that it is not incriminatory, and that even if it were so, it was too late for the witness to invoke
the constitutional privilege. It is against the two orders of Judge Macadaeg that this proceeding
by certiorari is being prosecuted.

When the deposition of a witness is being taken under the provisions of Rule 18 of the Rules of
Court, the party objecting to a question claimed to be immaterial or irrelevant may object thereto, but
such party can not prevent the witness from answering the question (section 17, Rule 18) because
the relevancy or materiality will only be decided upon the trial when the deposition is introduced as
evidence (section 29, Rule 18). An exception to this general rule obtains when the questions
propounded are annoying, embarrassing, or oppressive to the deponent (section 18, Rule 18, Rules
of Court), in which case the matter may be submitted t the trial judge for a ruling, or when the
constitutional privileges against self-incrimination is invoked by the deponent or by counsel on his
behalf, to enforce the constitutional privilege defined in section 79, Rule 123, Rules of Court, in
which latter case also the staying hand of the trial judge may also be demanded. It was under this
latter circumstances that the trial judge's orders were issued.

Under the allegation in respondent's answer that Montilla's payment to the bank should be
recognized by the company only to the extent of the value of the money paid, respondents' claim
that they had the right to ascertain the source of the money with which the payment was made might
appear to justify the asking of the first question. The real value of the payment may be gauged by
the actual value of the property from the proceeds of whose sale the payment was made.
Respondent's theory would therefore seem to be that if the real value of the property that Montilla
sold was only P60,000, for instance, even if the payment was actually P200,000, such payment
should be credited to him only to the extent of said actual value of P60,000. Under the above theory,
the price which Montilla paid for the Pennsylvania property might have some relevancy sufficient to
justify its admission as evidence. But as the relevancy of a subject is no ground for its exclusion in a
deposition, it is not here necessary to make a ruling thereon.

It is evident, however, that the question as to the price that Montilla paid for the property would have
a tendency to incriminate him, within the meaning of section 79 of Rule 123, Rules of Court, even if
the question did not contain how much it was sold for and was limited to how much he had bought it
for. In analyzing the import and application of the constitutional privilege now subject of the action,
Chief Justice Marshall explained that usually a crime or a criminal act may contain two or more
elements and that a question would have a tendency to incriminate, even if it tends to elicit only one
of said elements:

Many links frequently compose that chain of testimony which is necessary to convict any
individual of a crime. It appears to the Court to be the true sense of the rule that no witness is
compellable to furnish any one of them against himself. It is certainly not only a possible but
a probable case that a witness, by disclosing a single fact, may complete the testimony
against himself, and to every effectual purpose accuse himself as entirely as he would by
stating every circumstance which as entirely as he would by stating every circumstance
which would be required for his conviction. The fact of itself might be unvailing; but all other
facts without it would be insufficient. While that remains concealed within his bossom, he is
safe but draw it from thence, and he is exposed to a prosecution. The rule which declares
that no man is compelled to accused himself would most obviously be infringed by
 compelling a witness to disclose a fact of this description. . . . It would seem, then, that the
Court ought never to compel a witness to give an answer which discloses a fact that would
form a necessary and essential part of a crime which punishable by the laws. (Marshall is
Aaron Burr's Trial, Robertsons Rep, I, 208, 244, quoted in VIII Wigmore, p. 355)

In the case at bar, when the disputed question (No. 1) was propounded to the petitioner Montilla, he
had already declared that he had sold the property for P2000,000, so that if he would answer that
the purchased it for P65,278.50, he would be directly admitting having made a profit, which is one of
the elements of the offense defined in the War Profit Tax Law (Republic Act No. 55). It s claimed by
respondents that the witness is not incriminated because the War Profit Tax Law taxes the increase
in the net worth of an individual from December 8, 1941 to February 26, 1945 (section 1, Republic
Act No. 55). It is sufficient to state in answer to this contention that if an individual is shown to have
paid only P68,000 for property which he had sold for P200,000 and is credited to the full extent of
the P200,000(which in the case witness paid to the bank for his company), he must certainly have
been enriched to the extent of the difference or, in the words of the law, his net worth in 1945
resulted in an excess over his net worth in 1941.

It is also contended that even if the question as to the price paid for the Pennsylvania property were
incriminating, the privileges was waived when Montilla answered all the questions about the
purchase of the property the date thereof, the price paid, etc. with the answer "I do not remember" is
clearly a refusal to answer, and the privilege is not deemed waived thereby.

It is evident, therefore, that the respondent judge violated the constitutional privilege claimed in the
proceeding when he ordered the petitioner Enrique J. C. Montilla to answer the questions
propounded to him by counsel for the respondents. The writ must be granted and the orders
complained of annulled, and the writ of preliminary injunction issued made permanent. While costs
against respondents Elias Jereos and heirs of Jose Yulo. So ordered.

No. L-7013 GR July 26, 1954

ELISIO FERNANDO, appellant,

vs. HONORABLE ENRIQUE MAGLANOC, ETC. AND ANOTHER, appealed and Appellants.

D. Constancio Padilla on behalf of the appellant.

The Attorney General Mr. Juan R. Liwag and Attorney Mr. Pacifico P. de Castro, representing the
respondents.

PAUL J. :

The appellant is a Huk who had surrendered to authorities and was remanded in custody in the
provincial prison of Nueva Ecija when I received a summons sub-poena to testify inthe cause of the
People of the Philippines against Lopez Rays and another , No. 2672 of Court of First Instance of
the province, for robbery with homicide.In his testimony he stated that he had seen Manuel Jacinto
before and after being killed on the night of October 26, 1951; I knew who had killed him and also
knew that the "Commander" Joe had given the order to the executioners to kill Manuel Jacinto; and
that night orgnizacion member of the Hukbalahap ere event. To the question of fiscal Why were you
there? The witness refused to answer saying that serious reply inclupatoria, and asked for
permission not to utmost account , but appealed and the judge denied the request.

The lawyer of the witness today appellant asked the court to reconsider its decision. Such motion
also was denied. The appellant's lawyer asked that the hearing of the case be suspended so that he
could have the opportunity to present to the Court its contention that the witness could not be forced
to answer the question to him. Indeed present the application on the ground that, according to the
Constitution, the witness could not be forced to a apregunta utmost account could incriminate
him; what; if constestaba the inquiry, could cost you a large prison, or the death penalty and that, if
answered, he could be punished for contempt, and therefore requests that the judge's order revoked
resorted ordering him to reply. The prosecution maintains that the judge did not abuse his
discretion; although some American precedents granted to a witness the right to determine whether
to answer or not, "the modern rule Is That the trial court is first to determine Whether in law, under all
the Circumstances, the witness Should be accord the privilege, and Such determination is a matter
Within the discretion of the court, subject, however, to the rule That Where the court can discover
from the Circumstances That the giving of evidence on a Certain subject May Tend to incriminate
the witness, it has the right and duty to sustain the privilege and That the matter is not to be
determined to by the witness alone,, Although the witness must judge of the effect of His answer,
and, if it Appears to the court That an answer Might Tend to incriminate the witnesses, it is Then for
the witness to choose for himself Whether a truthful answer would Have That effect. "(Sec. 909, CJ
70, pp. 751-753).

It is not the judge of whether or not resorted abuse its discretion; The question raised is whether, on
the facts alleged, the applicant is obliged - under penalty of contempt - to answer the question the
prosecutor.

We just have to view the sworn application, the reply of the prosecution by admitting the facts in the
order of Judge resorted August 24, 1953 and a copy of the order. Sticking only to these data, it is
inevitable to conclude that the appellant's contention is well founded; that would reply inculpatroria. If
he had seen Manuel Jacinto before and after being killed on the night of October 26, 1951 and knew
who had killed and who had ordered his death, it will be because the appellant was one of those who
had been ordered to to kill. In this case, it would be as responsible for the death of Manuel Jacinto
and others. If by chance he was present before and after the murder and had nothing to do with the
death of Manuel Jacinto, it would have been easy to say I was there in passing or by accident. But if
he had learned by chance also the Commander of the order to kill, it would be much chance. As had
learned many things that had taken place in differentes times and taking into count that the appellant
was Huk when I was deprived of life Manuel Jacinto, is not unfounded conclusion that he had had
intervention in the crime and, therefore, indubablemente not want to answer the question so that
their participation is not discovered.

The same judge who ordered the witness to answer the question and denied the motion for
reconsideration, had no compunction to suspend the hearing of the case to give said he was not
sure of the legality of its decision. If in doubt - would have thought the judge - the question is
resolved in favor of the witness.

The privilege of a witness to decline to give evidence incriminating himself is not confined to
the right to refuse to answer a direct question as to the commission of a crime, but includeds
the right to refuse to testify to a fact Which would be a Necessary link in a chain of evidence
to prove the commission of a crime by the witness or Could be the source from Which
evidence of commission of a crime Might Be Obtained.(70 CJ, citing 726 cases Numerous).
 Whether an answer to a question would incriminate Tend to witness depends on Whether, if I
gave a true and responsive answer to the question Asked, That answer would form part of a
chain of evidence to convict Which Might Tend him. (In re Doyle, 42 F (2d) 686 (rev on other
grounds 47 F [2d] 1086) 458 Am. Jur., 54).

His answer would Where Have a tendency to incriminate the witness, I is protected in His
claim of privilege irrespective of His motive. (US v . Herron, 28 F [2d] 122, cited in 70 CJ,
729).

Sometimes it May be difficult to discern the dividing line, but in all cases the doubt Such
Should be solved in behalf of the witness. Certainly, Where the witness, on oath Declared
His belief That the answer to the question would criminate or Tend to criminate him, the court
can not compel him to answer, UNLESS it is perfectly clear, from a careful consideration of
all the Circumstances of the case That the witness is mistaken, or is acting in bad faith, and
That the answer can not possibly Have any such tendency. For the purpose of esta
discussion a question That criminates, or Tends to criminate, to witness May be defined as
one the answer to Which will show, or Tend to show him guilty of a crime for Which I is yet
liable to be punished. (58 Am. Jur., 70.71).

A waiver of the privilege self-incrimination Against must be made understandingly and

willingly, and, According to some Authorities, after being fully Warned by the court. There
can be no waiver by a defendant in a criminal prosecution if I does not know His rights. If the
trial judge is satisfied That a witness intending to insist upon His privilege gave incriminating
testimony ignorantly in misapprehension of His rights, May I advise the witness That I need
not answer further, and strike out the answers Already Given.(58 Am. Jur., 82).

It may happen that the appellant only wanted to save the accused, and because he could not explain
the reason for their presence, he came out with the excuse that his answer would be incriminating. It
can only be checked this with the imunucioso examination of all evidence related to the matter. If the
Court, after considering all the evidence, finds that that was the intention of the appellant, then you
can not consider your statement.

"In some cases it is ruled That Where a witness has Disclosed part of the facts and on cross-
examination His claim of privilege as to disclosure of the rest is allowed, it is proper to strike His
Entire testimony." (58 Am. Jur., 69, 147 ALR 270. citing)

order remedy is granted; but this does not prevent the Court disregard the statement of the appellant
if not deserve credit as a witness for the defendants.

US vs Tan Teng (1912)

Facts: The defendant herein raped Oliva Pacomio, a seven-year-old girl.

Tan Teng was gambling near the house of the victim and it was alleged that he
entered her home and threw the victim on the floor and place his private parts over
hers. Several days later, Pacomio was suffering from a disease called gonorrhea.
Pacomio told her sister about what had happened and reported it to the police.
Tan Teng was called to appear in a police line-up and the victim identified him. He
was then stripped of his clothing and was examined by a policeman. He was found
to have the same symptoms of gonorrhea. The policeman took a portion of the
substance emitting from the body of the defendant and turned it over to the Bureau
of Science. The results showed that the defendant was suffering from gonorrhea.

The lower court held that the results show that the disease that the victim had
acquired came from the defendant herein. Such disease was transferred by the
unlawful act of carnal knowledge by the latter. The defendant alleged that the said
evidence should be inadmissible because it was taken in violation of his right
against self-incrimination.

Issue: Whether or Not the physical examination conducted was a violation of the
defendant’s rights against self-incrimination.

Held: The court held that the taking of a substance from his body was not a
violation of the said right. He was neither compelled to make anyadmissions or to
answer any questions. The substance was taken from his body without
his objection and was examined by competent medical authority.

The prohibition of self-incrimination in the Bill of Rights is a prohibition of the use of

physical or moral compulsion to extort communications from him, and not an
exclusion of his body as evidence, when it may be material. It would be the same
as if the offender apprehended was a thief and the object stolen by him may be
used as evidence against him.

G.R. No. L-2154 April 26, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO OTADORA, ET AL., defendants.
HILARIA CARREON, appellant.

Victorino C. Teleron for appellant.

Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor General Guillermo E.
Torres for appellee.

BENGZON, J.:
In August, 1947 in the Court of First Instance of Leyte, Antonio Otadora and Hilaria Carreon were
charged with the murder of the spouses Leon Castro and Apolonia Carreon. Otadora pleaded guilty,
and was sentenced to life imprisonment. Denying her guilt, Hilaria Carreon was tried, found guilty
and sentenced to death and other accessory penalties. The court declared that with promises of
monetary reward, she had induced Antonio Otadora to do the killing. Motive for the instigation was
the grudge she bore against the deceased spouse on account of disputes with them over inherited
property. This woman convict appealed in due time.

Her attorney filed here a voluminous brief wherein he attempted painstakingly to break down the
position of the prosecution and to expound the theory that Antonio Otadora is the only person
responsible for the slaying, and that Hilaria Carreon is just "the unfortunate victim of a vicious frame-
up concocted against her." She necessarily had to offer a satisfactory explanation for the conduct of
Otadora, who has pleaded guilty and has declared for the prosecution against her, explaining the
circumstances under which she had promised to him compensation for liquidating the unfortunate
couple.

There is no question about these facts:

Early in the morning of June 16, 1947, Leon Castro and his wife Apolonia Carreon were shot dead in
their house in the City of Ormoc, Leyte. In the afternoon of June 21, 1947, Antonio Otadora was
arrested in Ormoc City while preparing to escape to Camotes Island, Cebu. The next day he
confessed in an extra-judicial statement (Exhibit 1) wherein he implicated the herein accused and
appellant Hilaria Carreon asserting that, with offers of pecuniary gain, the latter had induced him to
commit the crime. On June 25, 1947, a complaint for double murder was filed against both
defendants in the justice of the peace court of Ormoc, Leyte. Preliminary investigation was waived
and the record was forwarded to the court of first instance, where on September 3, 1947, Otadora
pleaded guilty with the assistance of counsel. Hilaria Carreon pleaded not guilty, and asked for a
separate trial, which was immediately held, with Otadora as the first witness for the prosecution.

The evidence presented on behalf of the People proved that:

(1) Apolonia Carreon was the sister of Hilaria. Due to a family quarrel, Apolonia filed in August,
1946, a criminal complaint for serious threats against Hilaria and her husband Francisco Galos
(Exhibit P-1). These were arrested and had to file a bond. The case was later withdrawn by Apolonia
upon the advice of friendly mediators.

In December of 1946, Leon Castro as guardian ad litem of some minors surnamed Carreon filed a
civil complaint for partition of real property and damages against Hilaria Carreon. This suit was set
for hearing on June 24, 1947.

(2) Antonio Otadora met Hilaria Carreon sometime in April, 1947, through Amando Garbo.
Thereafter they converse on several occasions. In the early part of May, 1947, she saw him going to
barrio Matica-a and then she told him that if he would liquidate the spouses Leon Castro and
Apolonia Carreon she would give him P3,000. He did not agree. In the last week of May he was
invited to Hilaria's house. The proposal was renewed, better conditions being offered. (1/3 of
P10,000 plus carabaos, plus P300.) He must have demurred alleging that he had no adequate
weapon, Hilaria is reported to have engaged to supply it.

(3) Around the first week of June, 1947, Hilaria Carreon sent for Otadora. She gave him the revolver
Exhibit A; but the revolver turned out to be defective so he handed it back to Hilaria. The latter
ordered it repaired by Benigno Baltonado who had previously sold it to her. Three days later,
Baltonado returned the gun in good condition with more than ten bullets, and appellant in turn
delivered the weapon to Otadora who was then in her house, advising him at the same time to carry
out soon their plan so that Leon Castro may not attend the hearing of the civil case. Appellant also
gave Otadora the bolo Exhibit B, a pair of trousers of her husband Francisco Galos (Exhibit C), a hat
Exhibit D and a flashlight Exhibit E.

(4) Otadora set out to do his part in the morning of June 16; but Apolonia was not in her residence.
He reported to appellant the next day and the latter urged him to execute it that day, giving him
P6.50 for transportation. That night, at about one o'clock, Antonio climbed up the house of the
Castros, passing through the window. He saw them sleeping side by side. He opened the door to the
kitchen to prepare his exit. Returning to the place where the couple lay, he stumbled on Leon
Castro, who exclaimed, "who are you?". Otadora replied, "I am" "I don't have any purpose except
you, get up and fight." As Castro was about to stand up, Otadora fired. Apolonia was awakened, and
embraced her husband who meantime had fallen. Otadora shot her too. The couple died
immediately of shock and hemorrhage.

(5) After committing the murders, Otadora returned to barrio Matica-a intending to go to Hilaria's
home; but as he was nearing the kitchen, Francisco Galos signalled him to go away. (He was seen,
crossing the cornfield near Hilaria Carreon's house by Juanita Garbo, who so testified in court.)
Otadora went to his home in Sitio Hubas. On June 20, at a dance, he received word from Hilaria
through her husband Galos, that he was wanted by the police, and that he should decamp. the next
morning he passed by the residence of Hilaria, and the latter gave him P5, plus two packages of
cigarettes, adding that he should not attempt to visit her further, because she was being watched.
The next day, she again sent him P45 through Amando Garbo, who delivered the money at the back
of the house of Menes Tahur in Canangca-an. After receiving the money, Otadora prepared to
escape to Camotes Islands. But he was caught before he could run away.

The above statement of principal facts is a condensation of the testimonies of Antonio Otadora,
Benigno Baltonado, Amando Garbo, Alejandro Bensig, Macario Bensig, Juanita Garbo, and others.
It is substantially in accord with the findings of His Honor, the trial judge. Of course it is founded
mainly upon the declarations of Antonio Otadora that necessarily are persuasive inasmuch as he
himself admits his direct participation and his assertions are fully corroborated by a series of
circumstances competently established.

Hilaria denied connection with the assassination. And naturally the defense exerted effort to discredit
Otadora's version, by submitting the following theory:

Antonio Otadora planned a revenge upon Castro because the latter as a spy caused the death of his
father Sergio Otadora at the hands of the Japanese. He, however, found himself in the necessity of
eliminating Apolonia Carreon because the latter was a witness to his deed. On the other hand,
Antonio Otadora (and the other witnesses who are his relatives) also desire to take revenge upon
Hilaria Carreon because the latter, during the Japanese occupation, saved Leon Castro from death
at the hands of the guerrillas. The defense says that to those who had been prejudiced by the
espionage activities of Leon Castro, Hilaria Carreon appears to be just as responsible as Leon
Castro.

The theory can not be lawfully accepted. Firstly, Otadora denies that his father died at the hands of
the Japanese. Secondly, the alleged "saving" of Leon Castro was not sufficiently established. Loreto
Micabel, the superior officer of the guerrillas, who ordered the release of Leon Castro, did not
mention Hilaria as one of those who interceded for the prisoner (p. 286, stenographic notes). Thirdly,
nobody in his right senses holds Pedro criminally responsible for the crime of Juan simply because a
few days before the crime Pedro saved Juan from drowning.
On the other hand, the grudge which Otadora supposedly held against Castro, readily explains why
for a consideration he undertook to kill. It is likewise probable that knowing such desire for
vengeance, Hilaria selected him to carry out the dangerous and delicate job. And if it is true that
Hilaria saved Leon Castro during the Japanese occupation, it is very likely that she hated her
"ungrateful" brother-in-law and sister, (who on two subsequent occasions brought her to court), so
much that she hired Otadora to eliminate them.

The assertions of Otadora are decisively ratified by Benigno Baltonado who swore that it was Hilaria
who had purchased the murderous gun from him for P55, and who ordered him to fix it; that on the
third day he returned the gun to her in her home with rounds of ammunition; and that Otadora was
there on that occasion. The remarks and arguments of counsel on pages 87-92 of his brief do not, in
our opinion, destroy Baltonado's credibility.

Then there is the witness Amando Garbo, whose brother Esteban is married to the sister of Hilaria,
and whose sister married a younger brother of Hilaria. Amando Garbo declared that he was on
friendly terms with Hilaria, taking care of her fighting cock; that in December, 1946 in the fiesta of
Palompon, she tried to persuade him to kill the spouses Castro; that he declined; that she asked him
to look for another for another whom she could hire; that he introduced Hilaria to Antonio Otadora;
that it was he who, at the request of Hilaria, secretly delivered P45 in paper bills of different
denominations to Antonio Otadora after the crime was committed.

And Juanita Garbo, niece of Hilaria Carreon, confirmed the various meetings of Otadora and Hilaria
in the latter's house. And there is the witness Macario Bensig who swore that in May, 1947, at
Tabogocon, Ormoc City, during the wedding of his brother Benito with Luisa Pilapil in May, 1947,
Hilaria Carreon told him that if he would kill Leon Castro and Apolonia Carreon he would be given
money as a reward.

Again there is the witness Sgt. Tomada who said that when the accused Hilaria Carreon was
arrested on June 25, 1947, she was committed to his custody because there was no adequate place
in the municipal jail for her; that she requested him confidentially to get a lock of hair of Antonio
Otadora explaining to him that if that hair is burned Otadora would become insane, and therefore
would not be able to declare against her.

Further corroboration of appellant's criminal connection with the bloody affair is the undisputed
possession by Otadora of the pants of Francisco Galos (Exhibit C) and his hat Exhibit D. It appears
that when Francisco Galos denied ownership of the pants he was ordered to put it on; and the judge
found that it fitted him perfectly. This incident gave the defense opportunity for extended argument
that the constitutional protection against self-incrimination had been erroneously disregarded. But we
discover in the record no timely objection upon that specific ground. And it is to be doubted whether
the accused could benefit from the error, if any. Furthermore, and this is conclusive, "measuring or
photographing the party is not within the privilege" (against self-incrimination). "Nor is the removal or
replacement of his garments or shoes. Nor is the requirement that the party move his body to enable
the foregoing things to be done." (Wigmore on Evidence, Vol. 4, p. 878, quoted in Beltran vs.
Samson and Jose, 53 Phil., 570, 576).

In conclusion, we are fully satisfied from a reading of the whole expediente that the appellant
induced Antonio Otadora to commit the double murder, and furnished him with the deadly firearm.
She is just as guilty as if she herself had perpetrated the murderous assaults. The slaying is qualified
by the circumstance of treachery. It is aggravated by evident premeditation; but for lack of sufficient
votes the appellant is sentenced to suffer life imprisonment for each murder, (not exceeding 40
years, art. 70, Rev. Penal Code), and to indemnify the heirs of the Castros in the sum of P4,000. The
appealed judgment will be thus modified.
G.R. No. 71092 September 30, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANACLETO Q. OLVIS, Acquitted, ROMULO VILLAROJO, LEONARDO CADEMAS and
DOMINADOR SORELA, accused-appellants.

SARMIENTO, J.:

This is an appeal from the decision of the Regional Trial Court to Zamboanga Del Norte sitting in
Dipolog City. 1The case was certified to this Court on January 19, 1985 following the death sentences imposed on each of the three
accused-appellants, Romulo Villarojo, Leonardo Cademas, and Dominador Sorela (the accused first-named, Anacleto Olvis, was acquitted),
over which, under the Constitution then in force, 2we exercised exclusive appellate jurisdiction. 3 With the
promulgation of the 1987 Charter, abolishing the death penalty and commuting death penalties already
imposed to reclusion perpetua 4 we, on May 14, 1987, issued a death penalty abolition
resolution requiring the three accused-appellants to file a statement, personally signed by them with the
assistance of counsel, stating whether or not they wished to continue with the case as an appealed
case. 5 We have since observed this procedure with respect to all pending capital cases.

In compliance with our resolution, the three accused-appellants, on May 28, 1987, filed a statement
informing us that they desire to continue with this case as an appealed case. 6

This appeal stemmed from an information dated November 11, 1976 charging all four accused with
the murder of Discredit Bagon. The same reads as follows:

xxx xxx xxx

The undersigned First Assistant Provincial Fiscal accuses ANACLETO Q. OLVIS, as

principal by inducement, ROMULO VILLAROJO, LEONARDO CADEMAS and
DOMINADOR SORELA, as principals by direct participation, of the crime of murder,
committed as follows:

That in the evening on or about the 7th day of September 1975, in title Municipality of
Polanco, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the
above-named accused, consprising and confederating with one another and acting
upon the direction and instruction of ANACLETO Q. OLVIS who mastermind the
bizarre plot and directly induced ROMULO VILLAROJO, LEONARDO CADEMAS
and DOMINADOR SORELA to execute the conspiracy and who, armed with boloes
and a hunting knife, with intent to kill by means of treachery and evident
premeditation, and for a consideration of a price or reward, did, then and there
willfully, unlawfully and feloniously attack, assault, hack and stab one DISCREDIT
BAGON, thereby inflicting upon him multiple inc. (hack) and stab wounds which
caused his instantaneous death.

CONTRARY TO LAW, with the qualifying circumstances of treachery and evident

premeditation and the generic aggravating circumstances of superior strength,
nighttime and in consideration of a price or reward. 7

xxx xxx xxx

The four accused entered Identical "not guilty" pleas.

After trial, the court a quo rendered the decision under appeal, the dispositive portion whereof reads
as follows:

FOREGOING CONSIDERED, and on the part of accused ANACLETO Q. OLVIS,

SR., there being no evidence, direct or indirect, whether testimonial, documentary or
physical evidence, that tend to establish his complicity in this case, said accused has
to be, as he hereby is, ACQUITTED.

On the part of the three (3) remaining accused ROMULO VILLAROJO, LEONARDO
CADEMAS, and DOMINADOR SORELA, the degree of moral, certainty establishing
their authorship of the crime is irreversibly positive. The three (3) accused conspired
and confederated with one another to successfully achieve their ghastly, evil ends.
Their guilt has been proved beyond reasonable doubt.

Treachery and evident premeditation are qualifying circumstances in this case of

MURDER. But said offense was attended by the aggravating circumstances of
superior strength and nighttime. No mitigating circumstance has been shown to
offset the two (2) aggravating circumstances, as a consequence of which, the Court
hereby renders judgment sentencing the accused ROMULO VILLAROJO,
LEONARDO CADEMAS, and DOMINADOR SORELA, to suffer the maximum
penalty of DEATH.

SO ORDERED. 8

We come to the facts.

On September 9, 1975, Alfredo and Estrella Bagon, brother and sister, arrived at the local Integrated
National Police station of Barrio Polanco, in Zamboanga del Norte, to report their brother, Deosdedit
Bagon, missing. The station commander, Captain Ruperto Encabo, received their report.

Bagon had been in fact missing since two days before. He was last seen by his wife in the afternoon
of September 7, 1975, on his way home to Sitio Sebaca where they resided. She did three probable
places, but her efforts were in vain.

It was Captain Encabo himself who led a search party to mount an inquiry. As a matter of police
procedure, the team headed off to Sitio Sebaca to question possible witnesses. There, Captain
Encabo's men chanced upon an unnamed volunteer, who informed them that Deosdedit Bagon was
last seen together with Dominador Sorela, one of the accused herein.

Encabo then instructed one of his patrolmen to pick up Sorela.

Sorela bore several scratches on his face, neck and arms when the police found him. According to
him, he sustained those wounds while clearing his ricefield. Apparently unconvinced. Captain
Encabo had Sorela take them to the ricefield where he sustained his injuries. But half way there,
Sorela illegally broke down, and, in what would apparently crack the case for the police, admitted
having participated in the killing of the missing Bagon. By then, the police of Polanco knew that they
had a murder case in their hands. Sorela allegedly confessed having been with Deosdedit Bagon, a
friend of his, in the evening of September 7, 1976 in Sitio Sebaca after some marketing. They were
met by Romulo Villarojo and Leonardo Cademas, Sorela's co-accused herein and likewise friends of
the deceased, who led them to a secluded place in the ricefields. It does not appear from the records
how the three were able to have the deceased join them.

It was then that Villarojo allegedly attacked Bagon with a bolo, hacking him at several parts of the
body until he, Bagon, was dead. Moments later, Sorela fled, running into thick cogon grasses where
he suffered facial and bodily scratches.

The police soon picked up Villarojo and Cademas. Together with Sorela, they were turned over to
the custody of Captain Encabo.

The police thereafter made the three re-enact the crime. Patrolman Dionisio Capito directed Sorela
to lead them to the grounds where Discredit Bagon was supposed to have been buried. But it was
Villarojo who escorted them to a watery spot somewhere in the ricefields, where the sack-covered,
decomposing cadaver of Bagon lay in a shallow grave.

The actual exhumation of the body of the victim was witnessed by Polanco policemen and Civilian
Home Defense Forces volunteers, numbering about thirty. The body was transported to the Polanco
municipal hand the following day, September 10, 1975. It was displayed, morbidly, in front of the
building where Mrs. Catalina Bagon, widow of the deceased, and her four children viewed it. The
exhumation, as well as the transfer of Bagon's cadaver, were captured by the lens of a
photographer. (Exhibits "I", "J", "K", its "L", "M", and "N").

The "ceremonies" continued in the parish church of the Polanco, where the body of the victim was
transferred. It was laid on the altar, in full public view. Again the proceedings were recorded by the
camera of a photographer. (Exhibits "R", "S".)

But it was only later on that the body itself was uncovered from the sack that had concealed it.
(Exhibits "T", "U", "VIP.) Thereupon, it was readied for autopsy.

The necropsy report prepared by the provincial health officer disclosed that the deceased suffered
twelve stab and hack wounds, six of which were determined to be fatal.

In the re-enactment, the suspects, the three accused herein, demonstrated how the victim was
boloed to death. Exhibit "Y," a photograph, shows the appellant Villarojo in the posture of raising a
bolo as if to strike another, while Solero and Cademas look on. Exhibit "X", another photograph,
portrays Villarojo in the act of concealing the murder weapon behind a banana tree, apparently after
having done the victim in.

The investigation yielded several effects of the offense: a twenty-inch long bolo, the shovel used to
inter the victim's remains, a nylon rope with which the dead body was tied, and the sack itself.

Initial findings of investigators disclosed that the threesome of Solero, Villarojo, and Cademas
executed Discredit Bagon on orders of Anacleto Olvis, then Polanco municipal mayor, for a reward
of P3,000.00 each.

While in custody, the three executed five separate written confessions each. The first confessions
were taken on September 9, 1975 in the local Philippine Constabulary headquarters. The second
were made before the Polanco police. On September 18, 1975, the three accused reiterated the
same confessions before the National Bureau of Investigation Dipolog City sub-office. On
September 21, 1975 and September 25, 1975, they executed two confessions more, again before
the Philippine Constabulary and the police of Polanco.
In their confessions of September 9, 1975, September 14, 1975, September 21, 1975, and
September 25, 1975, the said accused again pointed to the then accused Anacleto Olvis as principal
by inducement, who allegedly promised them a reward of P3,000.00 each.

In their confessions of September 18, 1975, sworn before agents of the National Bureau of
Investigation, however, they categorically denied Olvis' involvement in the knowing. We note that the
three were transported to the Dipolog City NBI sub-office following a request on September 10, 1975
by Mrs. Diolinda O. Adaro daughter of Olvis, and upon complaint by her of harassment against her
father by his supposed political enemies.

Based on these subsequent statements, the court a quo rendered separate verdicts on the three
accused on the one hand, and Anacleto Olvis on the other. As earlier stated Olvis was acquitted,
while the three were all sentenced to die for the crime of murder.

In acquitting Olvis, the trial court rejected the three accused's earlier confessions pointing to him as
the mastermind, and denied the admissibility thereof insofar as far as he was concerned. It rejected
claims of witnesses that the three accused-appellants would carry out Olvis' alleged order to kill
Bagon upon an offer of a reward when in fact no money changed hands. It likewise noted that Olvis
had, two days after the murder, been in Cebu City, and who, upon arriving in Dipolog City, was in
fact informed by the Philippine Constabulary that he was a "wanted" man, "to which said accused
(Olvis) meekly complied" 9 (that is, he assented, ambiguously, to the remark). According to the court, this
was inconsistent with a guilty mind.

The court repudiated claims that Olvis had motives to do away with the deceased arising from
alleged attempts on his (Olvis') part to eject the deceased from his landholding (the deceased having
been a tenant of his), the case in fact having reached the then Ministry of Agrarian Reform. It
dismissed insinuations that his children had a score to settle with the victim, who had earlier brought
a physical injuries suit against the former, that case having been dismissed. It observed,
furthermore, that he was not questioned by the police after the killing, notwithstanding efforts by the
three herein accused-appellants to implicate him. It relied, finally, on the retraction of the accused
themselves, absolving Olvis of any liability. It was satisfied, overall, that he had a "clean bill of
health" 10 in connection with the murder case.

With the acquittal of Olvis, we are left with the murder cases against the three accused-appellants.
The accused-appellants subsequently repudiated their alleged confessions in open court alleging
threats by the Polanco investigators of physical harm if they refused to "cooperate" in the solution of
the case. They likewise alleged that they were instructed by the Polanco police investigators to
implicate Anacieto Olvis in the case. They insisted on their innocence. The acused Romulo Villarojo
averred, specifically, that it was the deceased who had sought to kill him, for which he acted in self-
defense.

The murder of Deosdedit Bagon was witnessed by no other person. The police of Polanco had but
the three accused-appellants' statements to support its claiming. The fundamental issue then is
whether or not these statements, as any extrajudicial confession confronting us, can stand up in
court.

We hold that, based on the recorded evidence, the three accused-appellants' extrajudicial
confessions are inadmissible in evidence.

It was on May 7, 1987 that we promulgated People v. Decierdo.11 In that decision, we laid down the rule with
respect to extrajudicial confessions:
 xxx xxx xxx

... Prior to any questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The
defendant, may waive effectuation of indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before speaking, there can be no
questioning. Likewise, if the individual is alone and indicates in any manner that he
does not wish to be interrogated, the police may not question him The mere fact that
he may have answered some questions or volunteered some statements on his own
does not deprive him of the right to refrain from answering any further inquiries until
he has converted with an attorney and thereafter consent to be questioned.

xxx xxx xxx

In People v. Duero, we added:

xxx xxx xxx

At the outset, if a person in custody is to be subjected to interrogation, he must first

be informed in clear and unequivocal terms that he has the right to remain silent.

For those unaware of the privilege, the warning is needed simply to make them
aware of — the threshold requirement for an intelligent decision as to its exercise.

More important, such a warning is an absolute pre-requisite in overcoming the

inherent pressures of the interrogation atmosphere

Further, the warning will show the individual that his interrogators are prepared to
recognize his privilege should he choose to exercise it . . .

The warning of the right to remain silent must be accompanied by the explanation
that anything said can and WW be used against the individual in court. This warning
is needed in order to make him aware not only of the privilege, but also of the
consequences of foregoing it . . .

An individual need not make a pre-interrogation request for a lawyer. While such
request affirmatively secures his right to have one, his failure to ask for a lawyer does
not constitute a waiver. No effective waiver of the right to counsel during interrogation
can be recognized unless specifically made after the warnings we here delineate
have been given. The accused who does not know his rights and therefore does not
make a request may be the person who most needs Counsel

If an individual indicates that he wishes the assistance of counsel before any

interrogation occurs, the authorities cannot rationally ignore or deny his request on
the basis that the individual does not have or cannot afford a retained attorney . . .

In order fully to apprise a person interrogated of the extent of his rights under this
system then, it is necessary to warn him not only that he has the right to consult with
an attorney, but also that ff. he is indigent a lawyer will be appointed to represent him
...
 Once warnings have been given, the subsequent procedure is clear, If the individual
indicates in any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation impose cease. . . If the individual cannot obtain an
attorney and he indicates that he wants one before speaking to policy, they must
respect his decision to remain silent . . .

If the interrogation continues without the presence of an attorney and a statement is

taken, a heavy burden rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self-incriminate tion and his
right to retained or appointed counsel ... 12

xxx xxx xxx

Like the Decierdo confessions, the confessions in the case at bar suffer from a Constitutional
infirmity. In their supposed statements dated September 9, 14, and 21, 1975, the accused-appellants
were not assisted by counsel when they "waived" their rights to counsel. As we said in Decierdo, the
lack of counsel "makes [those] statement[s], in contemplation of law, 'involuntary,' even if it were
otherwise voluntary, technically." 13

With reset to the confessions of September 18, 197 5, while it is stated therein that this Office had
just requested the services of Atty. NARVARO VELAR NAVARRO of the Citizens Legal Assistance
Office, Department of Justice, Dipolog District Office, are you wining to accept the legal assistance
of Atty. NAVARRO to handle your case, 14 the same nonetheless call for a similar rejection. There is nothing there that
would show that Atty. Navarro was the accused-appellants' counsel of choice (specifically, the appellant Romulo Villarojo who admitted
therein having been the bolo-wielder). On the contrary, it is clear therefrom that Atty. Navarro was summoned by the NBI. He cannot
therefore be said to have been acting on behalf of the accused-appellants when he lent his presence at the confession proceedings. What
we said in People v. Galit, 15 applies with like force here:

No custodial investigation shall be conducted unless it be in the presence of counsel

engaged by the person arrested, by any person on his behalf, or appointed by the
court upon petition either of the dead 16 trainee himself or by anyone on his
behalf. 16

We cast aside, for the same reason, the confessions of September 25, 1975.

But the accused-appellants were denied their right to counsel not once, but twice. We refer to the
forced re-enactment of the crime the three accused were made to perform shortly after their
apprehension.

Forced re-enactments, like uncounselled and coerced confessions come within the ban against self-
incrimination. The 1973 Constitution, the Charter prevailing at the time of the proceedings below,
says:

No person shall be compelled to be a witness against himself. 17

This constitutional privilege has been defined as a protection against testimonial compulsion, 18 but this
has since been extended to any evidence "communicative in nature" 19 acquired under circumstances of duress. Essentially, the right is
meant to "avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of competing a person, in a criminal
or any other case, to furnish the missing evidence necessary for his conviction." 20 This was the lesson learned from the
ancient days of the inquisition in which accusation was equivalent to guilt. 21 Thus, an act, whether
testimonial or passive, that would amount to disclosure of incriminatory facts is covered by the inhibition
of the Constitution.
This should be distinguished, parenthetically, from mechanical acts the accused is made to execute
not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple
observation. This includes requiring the accused to submit to a test to extract virus from his
body, 22 or compelling him to expectorate morphine from his mouth 23 or making her submit to a
pregnancy test 24 or a footprinting test, 25 or requiring him to take part in a police lineup in certain cases."
In each case, the accused does not speak his guilt. It is not a prerequisite therefore that he be provided
with the guiding hand of counsel.

But a forced re-enactment is quite another thing. Here, the accused is not merely required to exhibit
some physical characteristics; by and large, he is made to admit criminal responsibility against his
will. It is a police procedure just as condemnable as an uncounselled confession.

Accordingly, we hold that all evidence based on such a re-enactment to be in violation of the
Constitution and hence, incompetent evidence.

It should be furthermore observed that the three accused-appellants were in police custody when
they took part in the re-enactment in question. It is under such circumstances that the Constitution
holds a strict application. As for the accused Dominador Sorela, we cannot accept the trial judge's
finding that he acted "with unexpected spontaneity" 27 when he allegedly "spilled the beans 28 before
the law enforcers on September 9, 1975. What is to be borne in mind is that Sorela was himself under
custody. Any statement he might have made thereafter is therefore subject to the Constitutional guaranty.

By custodial interrogation, we mean questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way. 29

We indeed doubt whether Sorela's admissions, under the circumstances, were truly his voluntary
statementsChavez v. Court of Appeals 30 tells us:

Compulsion as it is understood here does not necessarily connote the use of

violence; it may be the product of unintentional statements. Pressure which operates
to overbear his will disable him from making a free and rational choice, or impair his
capacity for rational judgment would in our opinion be sufficient. So is moral coercion
"tending to force testimony from the unwilling lips of the defendant. 31

In such a case, he should have been provided with counsel.

Indeed, the three accused-appellants had languished in jail for one year and two months before the
information was filed, and only after they had gone to court on an application for habeas corpus. For
if the authorities truly had a case in their hands, we are puzzled why they, the accused, had to be
made to suffer preventive imprisonment for quite an enormous length of time.

What is more, there are striking aspects in the case that we find distressing. For one, there was no
trace of grief upon the faces of the deceased's bereaved relatives, more so his widow and children,
upon witnessing his cadaver-wrapped in a sack and all — although it was supposedly the first time
that they saw his remains after two days of frantic search. 32 Exhibits "K", "L", "M", "N", and "R", for
another, depict the deceased's relatives in fixed poses, while the deceased's corpse lay in the
foreground. 33

Moreover, the victim was transferred to the municipal hand building and then subsequently, to the
parish church, again, for a photographing session — unusual procedure — when the perfunctory
police procedure should have been to bring the corpse to the health officer for autopsy.
It was in fact only on September 10, 1975 that Discredit Bagon's remains were unwrapped, at the
parish church at that, as if pursuant to a script or as part of some eerie ceremony.

To the mind of, this Court, the disposition of the case was characterized by unusual grandstanding,
for reasons as yet unclear to us. It leaves us with an uncomfortable impression that each scene was
an act in some contrived tragedy.

We likewise find the authorities' haste in securing the accused Anacleto Olvis' acquittal, at the
expense of the present three accused, quite disconcerting. It should be noted that the three
appellants had initially implicated Olvis as the mastermind. Yet, Olvis was never invited for the usual
questioning.

To us, there is more to Exhibit "20," the request to transfer Olvis' case to the jurisdiction of the
National Bureau of Investigation for reinvestigation, than meets the eye. As it happened, happily for
Olvis, the three accused-appellants while under NBI custody, retracted their earlier statements
indicting him as a co-conspirator. Why the NBI should intervene in the case when the Polanco police
had apparently "solved" it, is, in the first place, suspicious enough, but why the three appellants
should, in an instant, make a turn-about there leaves us even more disturbed.

While we do not challenge the verdict by acquittal rendered in favor of Olvis, for it is not within our
power to overturn acquittals, 34 what is our concern is the apparent design to use three ill-lettered
peasants, 35 the three herein accused, as fall guys in an evident network of political intrigue.

Still, we are not prepared to hand down a judgment of acquittal upon all the three accused-
appellants.

In his counter-affidavit, 36 marked as Exhibit "44-A" for the defense, the accused Romulo Villarojo
admitted hacking the victim to death with a bolo. He stressed, however, that he did so in self- defense. He
pulled out a hunting knife in order to stab me and in order also to defend my body, I hack[ed] him." 37 He
completely absolved his co-accused Dominador Sorela and Leonardo Cademas from any liability.

Villarojo's admission inflicting the fatal wounds upon the deceased is binding on him. 38 But it is still
our business to see whether his defense can stand scrutiny.

The records will disclose that the deceased suffered twelve assorted wounds caused by a sharp
instrument. The assault severed his right hand and left his head almost separated from his body.
This indicates a serious intent to kill, rather than self-defense. 39

In finding that Villarojo did take the life of the victim, we cannot, however, appreciate superior
strength or nocturnity. These qualifying circumstances were considered by the court a quo on the
basis of the extrajudicial statements executed by the accused, statements we reject for the reasons
earlier discussed. In the absence of any other proof, the severity and number of wounds sustained
by the deceased are not, by themselves, sufficient proof to warrant the appreciation of the generic
aggravating circumstance of abuse of superior strength. Hence, Villarojo should be liable for plain
homicide.

WHEREFORE, judgment is hereby rendered modifying the Decision dated November 30, 1984. The
accused-appellants Leonardo Cademas and Dominador Sorela are ACQUITTED on the ground of
reasonable doubt. The accused-appellant Romulo Villarojo is found guilty of homicide, and is
sentenced to suffer an indeterminate penalty of eight years and one day of prision mayor as
minimum, to fourteen years, eight months, and one day ofreclusion temporal, as maximum. He is
furthermore ordered to indemnify the heirs of Discredit Bagon in the sum of P30,000.00. No special
pronouncement as to costs.

G.R. No. 73008 July 23, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO BOHOLST Y AMADORE, accused-appellant.

GUTIERREZ, JR.,J.:

This is an appeal from the decision of the Regional Trial Court of Manila, Branch 8, finding accused-
appellant Rodolfo Boholst y Amadore guilty beyond reasonable doubt of the crime of violating Sec.
4, Art. 11 in relation to Sec. 21(b), Art. IV, R.A. 6425, as amended by P.D. No. 1675 and sentencing
him to suffer the penalty of reclusion perpetua and to pay a fine of P20,000.00 without subsidiary
imprisonment in case of insolvency.

Upon arraignment on January 28, 1985, the accused-appellant pleaded not guilty. Trial ensued. Not
satisfied with the decision of the trial court, the appellant interposes this appeal.

The information filed against the appellant alleged the following:

That on or about December 13, 1984, in the City of Manila, Philippines, the said accused, not
being authorized to sell, deliver, give away to another or distribute any prohibited drug, did
then and there wilfully and unlawfully sell, deliver and give away to a police undercover agent
poseur-buyer two (2) tea bags containing dried marijuana leaves and two (2) sticks of
marijuana cigarettes, which is a prohibited drug.

Contrary to law. (p. 9, Rollo)

The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable
doubt was summarized by said court as follows:

FRANCISCA M FRANCISCO, 32 years old Forensic Chemist, National Bureau of

Investigation, subjected to chemical examinations the "flowering-tops" brought and submitted
by Pat. Gaudencio Corbilla on December 22, 1984 the result of which is positive (Exh. A-1)
for marijuana (tsn, April 15, 1985); accordingly, she issued a certification on her findings
(Exh. A); the specimens submitted are inside the envelope (Exh. B) and in small packets
therein (Exh-B-l & B-2) are dried "flowering tops of marijuana." SGT ENRIQUE C. DAVID, 51
years old police Officer-In-Charge, Drug Enforcement Unit, Station 4, Sampaloc, Manila,
after having received several reports and denunciations from Barangay Officials and
residents of Gov. Forbes St., Sampaloc, on prohibited drug trafficking thereat, he headed a
team to arrest person/persons involved composed of Pfc. Martin Orolfo, Jr., Pat. Dennis
Corbilla, Pat. Fidel Geronimo and Pat. Bernardo Estamo; and as planned by him he
instructed Pfc. Corbilla dressed in the manner of a Metro Aide in uniform and with the use of
a P20.00-bill with markings to proceed to the hang-out of the "drug-pushing" activities and
once there to pretend to be a buyer; on their part each of them took strategic positions in
 order to have a clear view of the person engaged in the trading of prohibited drugs; at about
7:30 p.m. that evening on 3 December 1984, after Pat. Corbilla as "poseur buyer"
consummated (13-14 tsn, 23 April, 1985) the deal with the suspect, he lighted a cigarette-the
pre-arranged signal to close in, the team members did so and apprehended the accused; the
twenty-peso bill paid for the marijuana was recovered from the rightpants pocket (4-7 tsn., 23
April, 1985) including another two (2) sticks of marijuana cigarettes; they next made a
"follow-up search" for the suppliers (source) known as Herman and Marilou, but failed;
hence, they returned to their station headquarters and thereat had accused investigated,
while the seized prohibited drug was sent to the National Bureau of Investigation for
examination, the result of said examination turning to be "positive" per certification (Exh. A);
ON CROSS EXAMINATION; witness disclosed that the instant operation that led to the
apprehension of accused started in November, 1984 and within that span of time since it
begun, they have already apprehended, six (6) others, — four (4) of them as pushers and
now charged in court with one already sentenced to life imprisonment and that the other two
(2) pushers even made a "shoot-out" with them (8-9 tsn.. Ibid); PAT. MARTIN OROLFO, JR.,
30 years old, was one of those involved in the operation headed by Sgt. David, in the
evening of December 13, 1984, held at Gov. Forbes St., against suspected drug-traffickers;
that evening there was a "surveillance and buy-bust operation" concerning the pushers
known as Marilou, Henry and one Bogart at Lungga, Gov. Forbes St., Sampaloc, a place
where they made previous arrest; this place called "Lungga" is located on the right side of
Gov. Forbes St. if one is heading for Espana St., (or Geronimo St. known to the police in
"police parlance" as the area where drug-traffickers and criminal elements abound; the
accused is the runner of Marilou and Henry in the drug-pushing activities (4 tsn, May 20,
1985); confirming the narration of Sgt. David on the operation, they had accused
apprehended in the act of selling marijuana to the poseur-buyer, Pat. Corbilla the two (2)
small plastic bags of marijuana leaves with rolling papers and two (2) cigarettes of marijuana
plus the 20-peso bill (Exh. E, E-1, E-4); used in the operation (7 tsn., Ibid.); they brought
Rodolfo Boholst alias Bogart to their precinct for further investigation; on the right upper
corner number of Exh. E, inside the figure zero is written "M.O. Jr."written by witness before
the operation was undertaken in order to Identify said bill used in buying the marijuana in the
event that the accused have other bills in his possession, while the alphabets "R B. A" were
written by the accused on the upper left corner of Exh. E after his apprehension to show that
said peso-bill was recovered from him after the deal (10 tsn., Ibid); at the precinct, the
accused was subjected to routine questioning and next they prepared the Booking Sheet and
Arrest Report (Exh. F) reflecting therein under Marks and Scars: "Tattoo mark with initial
MKW (names of his friends and meaning makaw; 13 tsn, May 20, 1985) at the upper right
portion of the forehead" and a member of the dreaded Sputnik Gang found on the right thigh
when he was told to strip himself naked; Exh. F was based on actual facts; next he prepared
the Crime Report (Exh. H); the reason why accused was ordered to disrobe was to find out if
he has still prohibited drugs concealed in his body (15 tsn, Ibid) and while naked there were
tattoos on his legs and back as seen in the pictures taken by witness (Exhs. G, G-1); ON
CROSS-EXAMINATION, the seized articles from accused were itemized in Exh. C and
before it was signed by accused (Exh. C-1), it was first explained to him in Tagalog (2 tsn,
August 1985); he took pictures of accused naked showing his tattoo-marks signifying that he
is a notorious person and as a member of the Sigue-Sigue Sputnik: as required, witness
made a sketch indicating their respective positions immediately prior to apprehending the
accused (Exh. 2). (p. 19, Rollo).

Appellant assigns the following errors:

I
THE COURT A QUO ERRED IN FINDING APPELLANT GUILTY AS CHARGED FOR WANT OF
SUFFICIENT EVIDENCE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.

II

THE COURT A QUO ERRED IN ADMITTING THE DOCUMENTS SIGNED BY THE APPELLANT
SHOWING HIS ADMISSIONS IN EXHIBITS "C", "C-l", "E-2" and "F-2" CONSIDERING THAT THE
SAME WERE OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHT AS LAID DOWN BY
JURISPRUDENCE (p. 68, Rollo).

In the first assigned error, the appellant claims there was insufficient evidence to prove his guilt
beyond reasonable doubt. Firstly, he questions the fact that the poseur-buyer was not presented as
witness.

The matter of presentation of witnesses by the prosecution is not for the accused or the trial court to
control. Discretion belongs to the city/provincial fiscal as to show the prosecution should present its
case. He has the right to choose whom he should present as witnesses. (People v. Campana, 124
SCRA 271). Moreover, if the defense believes that there are other witnesses who could have
exculpated the accused, it should have called for them even by compulsory process (ibid). The
eyewitnesses presented by the prosecution sufficiently establish the facts which form the basis of
the court's judgment.

The defense likewise strives to establish the appellant's innocence by claiming that drug-trafficking
could not possibly be done on a busy street as Gov. Forbes and Espana inasmuch as activities such
as these are done clandestinely (tsn., April 23, 1985, p. 11).

This contention is negated by the fact that there were at least six previous arrests (tsn., Ibid. pp. 15-
16) made in the place in a little over one month's time. The place called "Lungga" on Gov. Forbes
St., is known to police as the area where drug traffickers and criminal elements abound. More
important, the appellant has been positively pinpointed and Identified while committing the crime
(tsn., pp. 13-14, Ibid.). He was caught in flagrante delicto. As established in earlier rulings, credence
should be given to the narration of an incident by prosecution witnesses who are police officers and
presumed to have performed their duties in a regular manner in the absence of evidence to the
contrary (People v. Gamayon, 121 SCRA 642; People v. Campana, 124 SCRA 271; People v.
Rosas, G.R. No. 72782, April 30, 1987).

There is nothing in the records to indicate that the witnesses for the prosecution were actuated by
improper motives. Their testimonies should therefore be entitled to full faith and credit.

Contrary to what the appellant claims, there is no variance in the evidence presented by the
prosecution. The two (2) tea bags of "dried marijuana leaves" and the "flowering tops" of marijuana
both refer to Exhibit "A" which was certified by the NBI Forensic Chemist as marijuana, a prohibited
drug under R.A. 6425.

As seen from the facts in the records, the defense has failed to present facts or arguments that
would justify the reversal of the trial court's findings of appellant's guilt beyond reasonable doubt.

The second assignment of error centers on the court's admission of documents, which, according to
the defense, were obtained in violation of the appellant's constitutional right. The same were
allegedly obtained through force, coercion, and intimidation, and that the accused was without a
counsel when he signed the statements.
Appellant's claim of maltreatment is untenable. The records show that he never requested for a
medical examination or treatment of his alleged injuries (tsn., pp. 62-65, Sept. 30, 1985). He never
mentioned this alleged manhandling to anyone, not even to his own mother (tsn., p. 64, Ibid.). There
is no confession or extrajudicial statement involved in this case. The accused-appellant did not give
any statement against his own interests. lawphil

The appellant's contention that the prosecution's evidence is inadmissible due to the absence of a
counsel is immaterial since the documents referred to are not confessions or extra-judicial
statements. They are receipts for property seized (Exh. C) with the specimen signature of the
accused, the marked P20.00 bill with conforme of the accused (Exh. E); and a signature on the
Booking and Arrest Sheet (Exh. F). The receipt and specimen signature are intended to show that
the items were indeed taken from the accused. The procedure is mandatory on the part of
apprehending and seizing police officers (People v. Rosas, G.R. No. 72782, April 30, 1987). But
even if the accused refused to sign the receipt, the marked bill, or the booking and arrest sheet, the
court can still evaluate the testimony of the apprehending officers to arrive at the facts of the case.
The conviction is not based on the appellant's signatures.

All things considered, there is more than enough evidence to sustain a judgment of conviction. The
positive evidence against the accused is strengthened and his self-serving assertions of innocence
are weakened in the face of notoriety as shown by tattoo marks of the Sigue-Sigue Sputnik Gang on
his body (Exh. "F", tsn., p. 37, May 20, 1985; Exh. "G", "G-1") and his previous conviction of
frustrated murder, robbery, hold-up and violation of R.A. 6425 as drug pusher (p. 21, Rollo, tsn., pp.
68-72, September 3, 1985). In the drug pusher case, he was detained at Welfareville but he escaped
according to his own testimony. As stated by the Solicitor General, the appellant has shown no
remorse over his past acts when he committed this crime.

In view of the foregoing facts and the serious implications of his crime on society, we hold that the
guilt of accused-appellant Boholst has been established beyond reasonable doubt and the proper
penalty under the law has been imposed.

WHEREFORE, the appealed judgment is hereby AFFIRMED.

G.R. No. 72782 April 30, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RONALDO ROSAS Y MILLIOMEDA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Benjamin S. Abalos & Associates for accused-appellant.

GUTIERREZ, JR., J.:

This is an appeal brought by the accused Ronaldo Rosas y Milliomeda from the decision of the
Regional Trial Court of Manila, Branch VI finding him and a Peter Javier guilty beyond reasonable
doubt of violating Section 4, Art. Il in relation to Sec. 2(i) Art. I, and Sec. 21(b) of Republic Act No.
6425 (Dangerous Drugs Act of 1972, as amended) and sentencing both to suffer the penalty
of reclusion perpetua to pay a fine of P20,000.00, and to pay the costs.

Peter Javier did not appeal the decision

The information filed against the accused alleged:

That on or about August 13, 1984, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and helping each other, not being
authorized by law to sell, deliver, give away to another, transport or distribute any
prohibited drug, did then and there wilfully and unlawfully sell and deliver for
monetary consideration two (2) tin foils containing dried marijuana leaves at P10.00
per tin foil, which is a prohibited drug.

Contrary to law.

The prosecution's evidence upon which the lower court based its finding of guilt beyond reasonable
doubt are summarized by the said court as follows:

It is very clear from the evidence adduced by the prosecution that these Peter Javier
and Ronaldo Rosas were friends and upon report made by Barangay Councilman
Pedro Capili to the authorities at Station 4, he noticed that there were Two (2)
persons selling marijuana at the compound at 429. Upon such information, Sgt.
Enrique David spared no time in responding to the call of Barangay Councilman
Pedro Capili. So he, together with Pfc. Martin Orolfo and Pedro Capili referred to the
premises referred to by Barangay Councilman Capili. They proceeded to Barangay
600, Zone 59 at Valenzuela Ext., Sta. Mesa, Manila and right then and there at No.
429 Int. 6, Valenzuela Ext., Sta. Mesa, Manila and they met Peter Javier alias "Peter"
and Ronaldo Rosas alias "Bondat." Before proceeding to that place, Sgt. Enrique
David had made a plan to catch the pushers of their nefarious acts. So, with the help
of Pedro Capili, Barangay Councilman, he made Pfc. Martin Orolfo to pose as a
buyer and when Pfc. Orolfo met Peter Javier alias 'Peter' and Ronaldo Rosas alias
"Bondat" in the compound above-mentioned, he approached Peter Javier. However,
accused Ronaldo Rosas alias 'Bondat' asked Pfc. Orolfo the following words "Pare,
ilan ang scoring mo?" to which Pfc. Orolfo informed him Two (2) foils and thereafter,
he gave 4 115.00 bills to Peter Javier, and it was at this process of the transaction
when Pfc. Orolfo made the proper signal of wiping his face with his handkerchief as a
result of which, Barangay Councilman Pedro Capili and Sgt. Enrique David
approached them. Sgt. David and Councilman Capili together with Pfc. Orolfo
arrested Pedro Javier and right in his pocket the 4 P5.00 bills were confiscated which
peso bills had been properly marked. The accused Ronaldo Rosas tried to run away,
however, he was apprehended by Pfc. Orolfo. When Pedro Javier was arrested, he
even directed Sgt. David, Pfc. Orolfo and Mr. Capili to his house and underneath his
bed Peter Javier, pointed the 16 foils of dried marijuana leaves hidden under his bed.
When Ronaldo Rosas was apprehended it was found on his possession Two 2) tin
foils containing marijuana. The same had been confiscated by Councilman Capili.
Likewise, there was another 4 sticks found in the possession of accused Ronaldo
Rosas inside his pocket.
 There is no doubt and it had been proven beyond reasonable doubt that Peter Javier
y Sangeles was selling marijuana leaves contained in tin foils which had been
examined by forensic chemist and found positive of marijuana, and so with the Two
(2) tin foils found in the possession of Ronaldo Rosas was likewise positive of
marijuana. This accused Ronaldo Rosas y Milliomeda tried to escape, however, he
was apprehended by Councilman Capili. The Two (2) accused Peter Javier y
Sangeles and Ronaldo Rosas y Milliomeda are compadres. As to how they became
compadres the Court was not able to determine. It should be taken into account that
at the time of the transaction, while Pfc. Orolfo was transacting with Peter Javier for
the purchase of tin foils of marijuana, accused Ronaldo Rosas informed Pfc. Orolfo
that the tin foils delivered to him were very strong or in other words quoting verbally
the statement of Ronaldo Rosas 'Malakas yan.' With these acts of Ronaldo Rosas
constitute a conspiracy of informing the supposed buyer that the tin foils of marijuana
delivered to the buyer were very strong which is an inducement on the part of the
buyer that the marijuana that they were selling was of a strong variety. (pp. 5-6,
Rollo)

Appellant Rosas raised the following assignments of errors in this appeal:

I. THE LOWER COURT ERRED IN HOLDING ACCUSED APPELLANT, RONALDO ROSAS

GUILTY OF THE CRIME CHARGED WHEN THERE WAS NO EVIDENCE OF DIRECT
PARTICIPATION AGAINST HIM.

II. THE LOWER COURT ERRED IN CONVICTING ACCUSED- APPELLANT, WHEN

PROSECUTION'S EVIDENCE IS TOTALLY BEREFT OF PROOF OF CONSPIRACY.

III. THE LOWER COURT ERRED IN CONVICTING ACCUSED- APPELLANT WHEN THERE IS NO
EVIDENCE THAT HE TOOK PART IN THE COMMISSION OF THE CRIME AS A PRINCIPAL BY
INDUCTION.

IV. THE LOWER COURT ERRED IN CONVICTING ACCUSED- APPELLANT WHEN EVIDENCE
SHOW THAT HIS RIGHTS UNDER SECTION 20, ARTICLE IV OF THE 1973 PHILIPPINE
CONSTITUTION WERE GROSSLY VIOLATED.

The first three assigned errors center on whether or not there was conspiracy between appellant
Rosas and his co-accused Peter Javier in the sale of marijuana.

Appellant Rosas contends that he was a mere passive on-looker in the drug sale considering that
Pat. Orolfo as poseur-buyer was transacting with Javier only and it was Javier who actually handed
the two tin foils of marijuana to the former with Rosas standing at a distance of some two to three
meters away.

This contention is without merit. We agree with the lower court's findings that conspiracy has been
clearly established.

The arguments of the appellant are premised on his contention that the sale of marijuana was
effected solely by his co-accused, Peter Javier, who decided not to appeal his conviction. accused,
Peter Javier, which

Appellant Rosas could not have been an innocent bystander in the marijuana deal transacted by his
co-accused Javier. Pat. Orolfo was introduced by an informer to Rosas alias "Bondat" who
immediately asked the former "Pare,' magkano bang iscore-in mo?" (How much are you buying?)
(tsn., p. 20, Dec. 17, 1984). Rosas assumed right away that Pat. Orolfo was a prospective buyer of
marijuana. Pat. Orolfo asked for two foils of marijuana which quantity Javier promptly handed to Pat.
Orolfo (tsn., p. 21, Dec. 17, 1984). While the change of money and marijuana was being done,
Rosas stated "Pare, yan" (tsn., p. 22, Dec. 17, 1984); showing that he knew the quality of the
marijuana Javier was

Furthermore, Rosas tried to flee while they were being arrested. However, he was apprehended by
Pat. Orolfo. Upon his apprehension, two tin foils of marijuana were found in his possession.

These circumstances were all aptly taken into consideration by the lower court in establishing
conspiracy between appellant Rosas and Javier.

For conspiracy to exist, the evidence need not establish the actual agreement which shows the pre-
conceived plan, motive, interest or purpose in the commission of the crime. It is enough that it is
shown that their concerted efforts were performed with closeness and coordination indicating their
common purpose to sell prohibited drugs. (People v. Natipravat, G.R. No. 69876, Nov. 13, 1986).

We find no reason to depart from the trial court's findings based on its appreciation of the evidence
of both the prosecution and the defense.

Moreover, we sustain the conclusions of the trial court which gave credence to the narration of the
incident by the prosecution witnesses, especially as they happen to be police officers who are
presumed to have performed their duties in a regular manner in the absence of evidence to the
contrary. (People v. Patog, G.R. No. 69620, Sept. 24, 1986; and People v. De Jesus, G.R. Nos.
71942-43, Nov. 13, 1986).

In the fourth assigned error, the appellant contends that he was not informed of his constitutional
rights to silence and to counsel during his apprehension and the investigation at Station 4 of the
Western Police District. So much so that he (Rosas) and Javier affixed their signatures on Exhibits
"G" and "H" and other related documents without the assistance of counsel nor were they given or
offered one. Without such compliance, there was no intelligent waiver of said rights. Therefore,
Rosas alleges that the entirety of the people's exhibits must necessarily be deemed inadmissible in
evidence. He argues that, consequently, proof beyond reasonable doubt for a conviction is wanting.

There is no merit in this contention.

Exhibits "G" and "H" are not confessions or extrajudicial statements. No confessions were introduced
in evidence. Exhibits "G-1" to "G-5" are the marked P 5.00 bills. Exhibit "G5" was signed by Peter
Javier to show that the marked bills were the very money bills used to pay for the marijuana and
later seized once the arrest was made. The signature of Javier was only a double precaution used
by the police to avoid any later charge of tampering with evidence or substituting new bills marked
only after the entire incident was over. Exhibit H " is a receipt for property seized by the police from
the accused while "H-1" is the signature of both Javier and Rosas on the receipt to show that the
receipted- for items were indeed taken from the accused.

There is no dispute that the marked bills or the receipts are indeed what the prosecution purported
or represented them to be. Receipts for seized items are mandatory on the part of apprehending and
seizing police officers. There is nothing in the decision to indicate that the questioned signature of
the appellant on the receipt played any role at all in the determination of his guilt.

Moreover, even assuming that we completely disregard or reject the exhibits consisting of the
signatures of the appellant and his co-accused on a certain money bill and a receipt, the other
exhibits are not automatically excluded along with the signatures, as the others dealt not only with
marked bins and a receipt but also with the arresting officers' report and the forensic chemist's
findings.

The evidence is more than enough to sustain a judgment of conviction. Pat. Orolfo who acted as
poseur-buyer clearly and positively testified that Rosas was the person who asked him how many
foils of marijuana he (Orolfo) wanted to buy. Also, he testified that it was Rosas who assured him of
the potency of the prohibited drug by saying, " Malakas yan. " The Identity and source of the
marijuana drug is sufficiently established. The positive testimony of the prosecution witness is given
greater weight than the accused's denial (People v. De Jesus, supra; and People v. Mostoles, Jr.,
124 SCRA 906).

WHEREFORE, the judgment appealed from is AFFIRMED.

G.R. No. 70287 July 31, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELICIANO RUALO Y BELLEN, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Manila, Branch 22 which found
Feliciano Rualo y Bellen guilty beyond reasonable doubt of violating Section 4, Article II of the
Dangerous Drugs Act as amended and, accordingly, sentenced him to suffer the penalty of life
imprisonment and to pay a fine of P20,000.00 and costs.

The factual findings of the trial court are recited in its decision as follows:

From the evidence presented during the trial, the Court finds that in the evening of November
14, 1983, Lt. Francisco M. Fausto, Chief of the Investigation Division of the Drugs
Enforcement Section, Western Police District, Manila acting upon previous information given
by an informer and by police officers who subsequently conducted a surveillance to the effect
that a certain person called Bong was engaged in the illegal sale of marijuana in the area of
Lepanto and Galicia Streets in Sampaloc, Manila, organized a group of five policemen led by
Sgt. Armando Inabangan to entrap and apprehend the suspect. Arriving at the appointed
place, the informer approached the accused, together with Patrolman Wilfredo S. Ortega
who disguised himself and posed as a buyer in need of marijuana for a party late that
evening. A sale was arranged for Patrolman Ortega to buy P20.00 worth of the drug. He
gave the accused two ten-peso bills which were previously marked with the initials of
Patrolman Jose Bataller, one of the men in the apprehending team. The other policemen
posted themselves in strategic places along Lepanto in readiness for the entrapment. After
receiving the marked money, the accused left in the direction of Sulucan St. in Sampaloc
where he lived. Presently he returned and gave Ortega 2 plastic tea bags containing dried
leaves. Thereupon, the policemen closed in and Sgt. Inabangan arrested the accused and
retrieved the two marked bills from the latter's pocket. The leaves were immediately
submitted to the NBI and upon laboratory analysis by a forensic expert were found to be
marijuana. The accused was forthwith charged under the present indictment. (Rollo, pp. 4-5).

The facts from the viewpoint of the accused appellant are:

 The accused testified that on November 14, 1982, he accompanied his visitors, Gener de
Guzman and Antonia Cunanan, to get a ride. On his way home, while walking along Lepanto
Street, a (policeman )approached him and invited him to the police headquarters. When he
asked the reason why he was being invited to the police headquarters, the policeman replied
that he (policeman) win explain it at the headquarters. At the headquarters, he was forced to
point to the police a person by the name of Al. When he refused, as he does not know the
person, he was detained in jail. Inquiring the reason why he was being detained, the
policeman told him that his refusal to point to that certain person named Al means that he
was in cahoots with the latter. During the custodial investigation, the accused was not
informed of his constitutional rights to remain silent and to counsel. Neither was the contents
of the Booking Sheet and Arrest Report (Exh. "B"for the Prosecution) interpreted to him. The
reason why he signed said document was that he was threatened. When he denied the
source of the two ten (10) pesos bills, he was brought back to the jail (TSN, pp. 2 to 7,
October 18, 1984).

Gener de Guzman second witness for the defense testified that he and Antonia Cunanan
were at the house of the accused on November 14, 1983 and that the latter accompanied
them on their way home. He further stated that he has no knowledge or information that
accused is a drug addict (TSN, pp. 3 to 6, October 30, 1984).

Antonia Cunanan third witness for the defense testified that she was at the house of the
accused together with Mr. de Guzman in the evening of November 14, 1983. She knows the
accused for quite sometime and that the former is not engaged in selling marijuana (TSN,
pp. 7 to 8, October 30, 1984). (Appellant's brief, pp. 4-5. Rollo, P. 19).

The accused-appellant raised a sole assignment of error, namely:

THE COURT A QUO ERRED IN NOT GIVING WEIGHT AND CREDENCE TO THE TESTIMONY
OF THE ACCUSED. (Appellant's brief, p. 1).

A review of the records of this case and a careful consideration of the arguments raised by the
accused-appellant in his brief indicate no reason why we should not accord the usual respect given
to factual findings of trial courts. As repeatedly stressed in the majority of appeals in criminal cases,
an appellate court gives great weight to the factual findings of trial courts and accords them respect
if not finality unless the accussed-appellant is able to show that the trial court overlooked or
disregarded matters of substance which, if considered, would very likely change the results. (People
vs.Egas, 137 SCRA 188 People v. Amoncio, 122 SCRA 686; People v. Rosario, 134 SCRA 496;
People v. Centeno, 1.30 SCRA 198; People v. Silfavan, G.R. No. 71510, June 30, 1987; and People
v. Legaspi, G.R. No. 74953, June 30, 1987.)

The only defense put up by the accused-appellant is that he was framed-up.

The prosecution evidence is both substantial and convincing. Lt. Francisco Fausto of the Drugs
Enforcement Section, Western Police District, Manila organized a group of five policemen to stop
drug trafficking at the corner of Lepanto and Galicia Streets in Sampaloc. The buy-bust operation
resulted in the apprehension of Feliciano Rualo. He accepted two ten pesos bills from the poseur-
buyer, went to his source of drugs, returned with the marijuana, and was forthwith arrested.
Rualo's contention that he was innocently walking home along Lepanto Street when arrested for
refusing to act as an informant is hollow and obviously self-serving. Stronger proof is needed to
overcome the findings of the trial court that the prosecution witnesses were telling the truth.

The trial court stated:

The court is not impressed by the defendant's testimony to the effect that he was at the time
walking along Lepanto Street accompanying two visiting friends when he was arrested, and
that he was framed up because of his refusal to cooperate and point out a certain "Al" to the
police. This is quite an improbable motive for officers of the law to incriminate him with this
serious offense. Admittedly, the accused had no previous misunderstanding or grudge with
any of the policemen composing the apprehending team. In fact, its leader Sgt. Armando
Inabangan was a previous acquaintance being a resident of the same area where accused
lived. Also, it turned out from the testimonies of his two supposed companion friends whom
accused called to testify to support his theory, that the latter learned of the accused's arrest
only on the following morning, which means that they were not with the accused at the time
of his apprehension and would not know of the cause of said arrest. (Rollo, p. 5).

The other argument of the accused-appellant in his brief refers to an alleged violation of his
constitutional right to remain silent and to counsel.

The argument is irrelevant and frivolous. Mr. Rualo did not give any confession or extrajudicial
statement. His conviction is based purely on the evidence adduced during trial. When an arrested
person signs a booking sheet and arrest report at a police station, he does not admit the commission
of an offense nor confess to any incriminating circumstance. The booking sheet is merely a
statement of the accused's being booked and of the data which accompanies the fact of an arrest. It
is a police report and may be useful in charges of arbitrary detention against the police themselves
but it is not an extrajudicial statement and cannot be the basis of a judgment of conviction.

The trial court was aware of the gravity of the penalty in cases involving prohibited drugs. It states:

It is well to state, in passing, that the law — Republic Act No. 6425, as amended — imposes
a heavy penalty for the offense charged in this case. It is therefore difficult to understand,
unless it be because of innate depravity, why persons like the accused herein would bargain
their freedom for a measly sum of P20.00, and in their pernicious trade cause so much
physical, mental and moral pain not only to the immediate victims of their greed, but also,
more especially, to the family of said victims. (Rollo, p. 5).

The penalty imposed by law is based on legislative policy. Its harshness calls for extra careful
attention to the evaluation of evidence either incriminating or exculpating an accused. We see no
reason from the records to show that the trial court did not give such solicitous attention.

WHEREFORE, the judgment appealed from is hereby AFFIRMED.

G.R. No. L-69844 February 23, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO POLICARPIO y MIRANDA, accused-appellant.

GANCAYCO, J.:

Convicted of violation of Section 4 Art. II of Republic Act No. 6425 as amended in a decision of the
Regional Trial Court of Rizal, the dispositive part of which reading as follows:

WHEREFORE, finding the accused guilty beyond a reasonable doubt for Violation of
Section 4. Article II of Republic Act 6425 as amended, the court hereby sentenced
the accused to suffer a penalty of CADENA PERPETUA and to pay a fine of
P30,000.00 without subsidiary imprisonment in case of insolvency with costs against
the accused.

The accused shall be entitled to the full term of his preventive imprisonment pursuant
to Article 29 of the Revised Penal Code as amended by Republic Act 6127, provided
he abides by the rules imposed upon convicted prisoners, otherwise, he shall only be
entitled to 4/5.

accused Romeo Policarpio y Miranda now interposed, this appeal to this Court alleging that the trial
court committed the following assigned errors:

THE LOWER COURT SERIOUSLY ERRED IN NOT FINDING THAT

CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT WERE VIOLATED
BY THE APPREHENDING NARCOTICS AGENTS.

II

THE LOWER COURT ERRED IN FINDING THAT ACCUSED-APPELLANT WAS

APPREHENDED IN THE ACT OF SELLING MARIJUANA, OR IMMEDIATELY
THEREAFTER, AND IN FAILING TO FIND THAT HE WAS CHASED AND CAUGHT
IN A RICEFIELD BETWEEN SITIOS BAGONG BAYAN AND SAN JUAN AT
DARANGAN, BINANGONAN, RIZAL.

III

THE LOWER COURT ERRED IN FAILING TO GIVE CREDENCE TO THE

TESTIMONY OF ACCUSED-APPELLANT AND HIS WITNESS ISIDRO
PARALEJAS.

IV
 THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF
VIOLATING THE PROVISIONS OF SECTION 4, ARTICLE II OF REPUBLIC ACT
6425 AS AMENDED.

The facts of the case as found by the court a quo are as follows:

On June 16,1984 at 2:00 o'clock in the afternoon, operatives of the Narcotics

Command, Camp Crame headed by P/Capt. Gabriel Paile swooped down at Bagong
Bayan, Kalawaan, Darangan, Binangonan, Rizal, after receiving an information that
the accused alias Dupong is engaged in the sale and distribution of marijuana and
other prohibited drugs and tagged as the main source at the area. The team was
organized earlier by Lt. Col. Manuel T. Raval, Commanding officer, 13th NRU
Narcotics Command and was dispatched to the target area to entrap the accused
Romeo Policarpio, accordingly, Pat. Mangila will pose as a buyer and was handed
the marked P20.00 bill (Exhibit "I" to "I-3") with which to buy the stuff before they
proceeded to the area of operation. At about 2:00 p.m. same date, the operatives
arrived at Bagong Bayan, Kalawaan, Darangan, Binangonan, Rizal. Leaving their
vehicle at a distance, they posted themselves at strategic places. The poseur buyer
Pat. Enrico Mangila, together with the informant, looked for the accused and at about
5:00 o'clock in the afternoon of same date Pat. Mangila and the informant were able
to locate the accused in front of his house. Thereafter, Pat. Mangila was introduced
by the informant to the accused as the person who needs some marijuana leaves,
and after they had talked with the accused for a while, the accused gave Pat.
Mangila two small plastic bags containing dried marijuana leaves and rolling paper
(Exhibit "B" to "B-4"). In turn Pat. Mangila gave to the accused the marked P20.00 bill
(Exhibit "I" to "I-3"). As previously arranged, Pat. Mangila scratched his head and his
companions, Pfc. Basco and Mendiola grabbed and arrested the accused. From the
accused was confiscated the marked P20.00 bill on his front pocket. After the arrest
of the accused, the latter led his captors to his house and the operatives seized
another six (6) small plastic bags of dried marijuana leaves together with rolling
papers contained in a bigger plastic bag marked Tie Tae Toe (Exhibit "C" to "C-6")
placed on a top of the refrigerator at the kitchen of their house. Arrested with the
accused is a certain person Rogelio Policarpio, who turned out to be his cousin and
who was earlier convicted by this Court for Possession of Dried Marijuana Leaves in
Criminal Case No. 273-B of this Court. The accused and the confiscated prohibited
drugs were brought to Camp Crame and the Marijuana leaves were turned over to
the PCCL for examination (Exhibit "D"). The PCCL conducted examination over the
evidence thus (sic) over, and rendered its Chemistry Report with the finding that the
evidence thus examined gave a positive result for the test for marijuana (Exhibit "A"
to "A-3"). At the PC Headquarters, the accused Romeo Policarpio signed a bond
paper acknowledging that the six (6) small plastic bags of marijuana leaves were
confiscated from him (Exhibit "G" to "G-2"). He likewise signed a document
acknowledging the fact that the marked P20.00 bill was confiscated from him (Exhibit
"F" to "F-1"). Similarly, accused signed a sworn statement where he opted not to give
statement until he is represented by a counsel (Exhibit "J" to "J-2").

Under the first assigned error appellant claims that Exhibit G which is a receipt signed by appellant
acknowledging that six (6) small plastic bags of marijuana leaves were confiscated from him and
Exhibit F a receipt signed by appellant acknowledging that the P20.00 bill involved in the purchase of
the marijuana leaves was confiscated from him are not admissible in evidence as they were taken in
violation of his constitutional right.
What the records show is that appellant was informed of his constitutional right to be silent and that
he may refuse to give a statement which maybe used against him, that is why he refused to give
such a written statement unless it is made in the presence of his lawyer as shown by the paper he
signed to this effect. 1 However, he was made to acknowledge that the six (6) small plastic bags of dried
marijuana leaves were confiscated from him by signing a receipt 2and to sign a receipt for the P 20.00 bill
as purchase price of the dried marijuana leaves he sold to Pat. Mangila. 3

Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts
which in effect are extra-judicial confessions of the commission of the offense. Indeed it is unusual
for appellant to be made to sign receipts for what were taken from him. It is the police officers who
confiscated the same who should have signed such receipts. No doubt this is a violation of the
constitutional right of appellant to remain silent whereby he was made to admit the commission of
the offense without informing him of his right. 4 Such a confession obtained in violation of the
Constitution is inadmissible in evidence.

The second, third, and fourth assigned errors are factual in nature wherein the appellant raises the
question of credibility of the witnesses and reiterates his defense denying that he had been
apprehended in the act of selling marijuana and receiving P 20.00 as payment thereof He alleges
that he was then at a mahjong session and that he was pursued by the police when they came.

The too-well known rule in this jurisdiction is that the findings of facts of the trial court are conclusive
in this proceeding and will not be disturbed unless some facts or circumstances may have been
overlooked that may otherwise affect the result of the case. The Court finds no reason to depart from
this rule in the present case.

While the Court now holds that the receipts for the six (6) plastic bags of marijuana and the P20.00
bill which appellant was made to sign 5 are not admissible in evidence against him, nevertheless there
is ample evidence in the record other than these receipts to establish the commission of the offense by
the appellant. Prosecution witnesses Pat. Enrico Mangila and Pfc. Jose Basco were present and
categorically attested to the fact that the appellant sold two (2) tea bags of dried marijuana leaves to
Mangila and received as consideration thereof P 20.00. 6

While the appellant attempts to discredit the testimony of said police officers, he has not shown any
improper motive why they should testify in the manner that they did. Thus their testimonies are
entitled to full faith and credence. 7 As a matter of fact courts give much credence to entrapping police
8
officers, as in this case, as they are presumed to be in the regular performance of official duties.

Drug addiction is one of the most pernicious evils that has ever crept into our society. More often
than not it is the young who constitute the greater majority of the citizenry who are the victims. It is of
common knowledge that drug addicts become useless if not dangerous members of society and in
some instances turn up to be among the living dead. This is the reason why the courts and law
enforcement agencies should continue in their relentless campaign not merely to minimize but to
totally eradicate the evil before it is too late. And everyone must be involved in this drive if we are to
succeed. The peddlers of drugs are actually agents of destruction. They deserve no less than the
maximum penalty.

WHEREFORE, the decision appealed from is AFFIRMED in toto with costs against accused-
appellant.
G.R. No. L-54016 October 1, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUCIO LUMAYOK, defendant-appellant.

ALAMPAY, J.:

In an information dated March 14, 1978, the accused-appelant herein Lucio Lumayok, was charged
with the crime of Rape with Murder, it being alleged that on or about November 11, 1977, in the
afternoon thereof, and in the Municipality of Hagonoy, Province of Davao del Sur, by means of force
and intimidation, he did then and there willfully, unlawfully and feloniously have carnal knowledge
with one Gloria Bemos, against the latter's will while the latter was on her way home from school;
and that to conceal the commission of said crime, the accused with abuse of superior strength and
evident premeditation strangled said Gloria Bemos, thereby causing her death. It was also alleged
that these offenses were committed in an uninhabited place which the accused purposely availed of
to facilitate the accomplishment of the said felonies.

After said accused entered a plea of not guilty, the case proceeded to trial. On April 11, 1980, the
trial court rendered its decision finding the accused guilty as charged with the dispositive portion
thereof reading as follows:

FOR ALL THE FOREGOING, the guilt of the accused LUCIO LUMAYOK for the
crime of rape and by reason or on the occasion of the rape he killed Gloria Bemos,
otherwise known also as Gloria Vimos within the purview of the last sentence of
Article 335 of the Revised Penal Code as amended by Republic Acts Nos. 2632 and
41 1 1, this Court is left with no alternative but to impose as it hereby imposes upon
the accused herein the supreme penalty of DEATH, to indemnify the heirs of the
deceased Gloria Bemos (Gloria Vimos) in the amount of P12,000.00 and to pay the
costs.

The present case is an appeal by way of automatic review, from the aforestated decision of the court
below. The facts of this case as presented to this Court in the Appellee's Brief, are substantially the
same matters related by the trial court in its decision, and these are the following:

In the evening of November 11, 1977, Mansueto Bemos went to the house of Edwin
Rico at Lapu-Labao Hagonoy, Davao del Sur. Bemos told Edwin Rico that his
(Bemos) daughter, Gloria Bemos, was lost (missing). Edwin Rico and neighbors
numbering 50 people all in all conducted a continuous search for the missing girl. At
quarter to 6:00 o'clock in the morning of November 12, searchers found the hand bag
of Gloria Bemos at a canal around 300 meters from Gloria's house at Lapu-Labao
Hagonoy (pp. 6-17, tsn., June 28, 1978). Inside the handbag were, among other
things, notebooks and a comb (Exhs. A, A-1, A-2, A-3, A-4 and A-5). Aside from the
comb inside the bag, another comb, colored black, was found some 100 meters
away from the bag
(Exh. A-7). The owner of the black comb was accused Lucio Lumayok (pp. 26-30,
tsn., Id.).

The searching group eventually found the body of Gloria Bemos at 3:00 o'clock in the
afternoon of November 12, 1977. The body was around two hundred meters from
where the black comb belonging to the accused was found. The body was on a hilly
portion of Lapu-Labao It was buried and covered with stones but with one foot
 protruding out of the ground. The search group accordingly informed Mansueto
Bemos and the police authorities in Hagonoy. The group also contacted Dr. Ramon
Dineros, Hagonoy Rural Health Officer, to examine the body, (pp. 30-35, tsn., Id.).

Dr. Dineros came to examine the dead body of Gloria Bemos. As per his
examination, cause of death was respiratory arrest due to manual strangulation (Exh.
C). Other significant conditions contributing to the death but not related to the
disease or condition causing death were: Physical injuries, rape (Exh. C-2).

Accused Lucio Lumayok was invited by the police authorities of Hagonoy to the
municipal building to shed light on what he knew of the crime (pp. 215-219, tsn., Nov.
15, 1979). Patrolman Andres Bajao, a childhood acquaintance of the accused made
a casual investigation. The accused admitted to the police officer that he raped
Gloria Bemos and after the sexual intercourse, he killed her by using his two hands
in choking the neck of the victim. On being asked by Pat. Bajao as to why he did the
offense, the accused replied that his bride-to-be had left her residence without
informing the accused (pp. 141-144, tsn., Oct. 24, 1978). The accused thereafter
gave a statement to the police wherein he admitted having committed the offense
(Exhs. F and F-1). When asked why he committed the offense, accused answered
thus: "During the incident I was under the influence (sic) of liquor and my girl friend
named Elizabeth Salipagan left their residence without my knowledge thereby
causing me to be in despair. (E Exh. F). (Appellee's Brief, pp. 3-5; Rollo, 64).

The foregoing allegations or statement of facts submitted by the prosecution are vigorously denied
by the accused-appellant, Lucio Lumayok.

His version of the said incident is that in the afternoon of November 11, 1977, he and Edwin Rico
and other companions played basketball at Lapu- Labao, Hagonoy, Davao del Sur. Thereafter he left
ahead of the group. On that occasion, his black comb was borrowed by Edwin Rico, one of the
prosecution witnesses. (Tsn., 209 November 15, 1979). Said comb was never returned by Edwin
Rico and it was this comb that was later said to have been 200 meters away from the scene of the
rape and murder incident. According to the accused, after playing basketball, he went directly to his
home and in the evening of the said day, Edwin Rico went to his house and asked herein accused to
help look for Gloria Bemos who was then reported to be missing. The accused helped to look for the
girl together with Edwin Rico and others but they were unable to find Gloria Bemos. (pp. 212-213,
Tsn November 19, 1979: Tsn., June 28, 1978). The search for the missing girl continued on the
following day. In the afternoon of November 12, 1977, the body of Gloria Bemos was found by Edwin
Rico, in company with others, buried inside a hole on a hilly portion covered by grass. It was Edwin
Rico's group that found the foot of the victim protruding from the stones covering the burial place.
(Tsn., pp. 31-32, June 28, 1978). About two hundred (200) meters away from the place where the
body of Gloria Bemos was discovered a black comb was found by Edwin Rico and his group.

Based upon the Identification made by Edwin Rico that the said comb belonged to the herein
accused, the local policemen on a pretext that they needed Lucio Lumayok to accompany them in
buying petroleum, invited him. The accused readily went with the policemen, but he was then taken
to the police station in the municipal hall of the town of Hagonoy at about 4:00 o'clock in the
afternoon of November 12, 1977, (Tsn., p. 216, November 15, 1979). At the municipal building the
policemen imputed to Lucio Lumayok the rape and killing of Gloria Bemos, which accusation said
accused denied outright. Because of his denial, the accused-appellant averred that he was
maltreated for about an hour by the policemen investigating him. The portion of the testimony
regarding the maltreatment and torture he received are hereunder reproduced:
Q. What happened in the municipal building or municipal hall in the
poblacion of Hagonoy when you were brought there by the
policemen?

A. They told me to tell them that I was the one who killed Gloria
Bemos.

Q. And what was your answer, if any to that?

A. I told them that I did not kill her.

Q. When you told them that you did not kill her. what happened next,
if any?

A. I was maltreated.

Q. How were you maltreated?

A. I was maltreated by the police by boxing me on my chest

Q. Who was this policeman who boxed you on your chest?

A. Sarona, Sir.

Q. How many times did he box you if can remember?

A. Many times by them. Not only one.

Q. You said "by them", why was there any other policeman who
boxed you?

A. Two policemen, Sir.

Q. Do you know their names?

A. Yes, Sir.

Q. Who were they?

A. Andit Mambajao, Perhaps Mambajao.

Court:

Both of them are policemen?

A. I don't know if they are policemen because I don't know how to

read their names.

Court:
What particular place in the municipal building, in the office of the
Mayor or police where in the building?

In the office of the police, Sir.

Court:

Proceed.

ATTY. APORTADERA (continuing):

Q. What happened since they repeatedly, according to you, boxed

you, what happened after that?

A. I felt the pain

Q. How long did they box you, if you remember?

A. May be around one (1) hour, Sir.

Q. Was that the only thing they were doing to you, boxing you only?

A. There was that another thing that they did to me.

Q. What was that another thing they did to you?

A. They got a gasoline and poured it on my penis and then they

lighted it.

Q. Do you know why they poured gasoline on your penis and then
lighted it• Do you know why they did it to you?

A. Yes, Sir, I know.

Q. Why?

A. Because they wanted, they said that if I will not tell them What
happened, they will kill me.

Q. What portion of your organ did they pour gasoline and lighted the
same?

A. On the hair.

Court:

Not the penis?

A. Including the penis.

ATTY. APORTADERA (Continuing):

Q. After that, what happened after they lighted the gasoline poured
on your organ?

A. After that I felt the pain and they did another thing to me.

Q. What happened to you next after that?

A. Because I did not tell them that I was the malefactor, after they
burned my penis, they shaved my hair.

Q. While they were shaving your head, did they say anything?

A. Yes, Sir.

Q. What was that?

A. They said that if I will not tell they will get the skin off my head,

Q. And when you heard that, what happened, if any?

A. I told them falsely.

Q. When you told them . . . what did you tell them falsely?

A. I told them that I will tell that I was the one who did it although the
truth is that I did not.

Q. When you told them that you were the one who did it, what
happened after that?

A. They stopped maltreating me.

Q. After they stopped maltreating you, what happened after that, if

you can remember?

A. They prepared, they typed something.

Q. And do you know what was being typed?

A. I don't know, Sir.

Q. And after that, after they typed, what happened, if you can
remember?

A. I was told to follow that.

Q. What do you mean to "follow that"?

 A. They said you will follow this because they win help me

Q. Did they tell you what help they will extend if you will follow what
was being typed?

A. Yes, they told me that they will help me as long as I will sign that.

Q. My question was: what help, if you can remember, did they tell you
they would extend if you would sign that thing they typewrote?

A. They promised to help me in court.

Q. The prosecution presented here a sworn statement of Lucio C.

Lumayok, thumbmarked, can you remember or can you recall having
thumbmarked any document before the police in connection with this
case?

A. I don't know whether this is the paper because I don't know

actually the contents but I signed in thumbmark in Hagonoy.

Q. Why did you not sign this in your usual signature, if you have any,
when they asked you to sign?

A. I don't know how to write.

Q. You said you don't know how to write, why, Mr. Lumayok, what is
your educational attainment, if any?

A. I have not gone to school, Sir.

Q. Can you understand English?

A. I don't know, Sir.

Q. What is your tribe, if you belong to any?

A. Calagan tribe, Sir.

Q. Do you know how to ... where did you ... according to you, you
thumbmarked something that was typewritten, where did you
thumbmarked that piece of paper that was typewritten?

A. That I don't know exactly because it was quite a long time. 1 don't
remember. ... (Tsn., Hearing of Nov. 15, 1979, pp. 219-229)
(Emphasis supplied).

It is a fact beyond question that the crime of rape with murder had been perpetrated against Gloria
Bemos. The severity of the death penalty imposed by the trial could would be commensurate with
the heinousness of the crime committed against the victim but precisely with the loss already of the
life of said victim, it is equally imperative that justice be done to her by punishing the person or
persons definitely established to be responsible for the dastardly crime and no other. To mete out
punishment to the wrong person would compound the wrongs already done. The governing rule is
for this tribunal to assess the totality of the evidence adduced against the accused herein and
judiciously consider whether such evidence constitute proof sufficient to establish the guilt of the
accused-appellant, Lucio Lumayok, beyond reasonable doubt. Otherwise, a hasty and rash
judgment could load to a miscarriage of justice. Another tragedy would then be added to that which
had happened to Gloria Bemos. Affirmance of a judgment condemning to death a person that might
have been falsely accused, would most probably close the door to further inquiry as to who is the
real perpetrator or perpetrators of the subject crimes and thus render the wrongs done against Gloria
Bemos without any vindication or proper retribution.

We are far from satisfied that it was the accused Lumayok who committed the rape against Gloria
Bemos, and that it was he who killed said girl. It is readily evident and accepted even by the
prosecution that there is no direct evidence that herein appellant committed the offense charged
(Appellee's Brief, pg. 11). In fact, this Court finds absent any direct evidence that the accused was
seen together with the victim or that he was even in the vicinity of the scene of the crime. As testified
by the accused, and even confirmed by prosecution witness, Edwin Rico, the accused herein was
playing basketball with other young men up to about five o'clock in the afternoon of November 11,
1977 and that afterwards he proceeded home.

By the evidence on record, it is clearly shown that in that same afternoon of November 11, the
prosecution witness Edwin Rico borrowed the comb of the accused. (Tsn., 29, 45, 46, Hearing of
June 28, 1978). In this regard, it is claimed by Edwin Rico that after borrowing said comb, he
returned the same to the accused-appellant. On the other hand, appellant denies that the comb was
ever returned by Edwin Rico to him.

After the accused had gone home that afternoon, it was Edwin Rico who went to the appellant's
house sometime in the evening thereof of that day, to inform and to invite the latter to help in the
search for the missing Gloria Bemos. The herein accused readily acceded to said request but their
search made that day, November 11, 1977, proved fruitless. It was only on the afternoon following
the day November 12, 1977 that the body of Gloria Bemos was discovered by Edwin Rico himself.

As already mentioned, there is no positive or direct evidence indicating the actual commission of the
crime of rape with murder by Lucio Lumayok. The initial and circumstantial evidence that prompted
the investigating officers to impute the crime to him constitutes only of the black comb which Edwin
Rico found about two-hundred (200) meters away from the mound in a hilly portion where the dead
body of Gloria Bemos was discovered in the afternoon of November 12, 1977. Only the information
supplied by Edwin Rico that the said comb belong to herein accused, gave rise to and directed
suspicion on the latter.

The consideration given by the trial court to this comb as incriminatory evidence against the
accused-appellant Lucio Lumayok, in our view, assumes no strong probative value. Said comb even
argues against the guilt of the herein accused for it is just as much compelling to also consider that
said comb was admittedly borrowed and used by Edwin Rico from Lucio Lumayok in the very
afternoon when Gloria Bemos was killed.

At the trial, Edwin Rico declared and admitted that he borrowed the black comb from the accused as
he used to borrow said comb before. (Tsn., 29, 45, 46; Hearing of June 28, 1978). He claims to have
returned the said comb to the accused on that same occasion. On the other hand, this allegation of
Edwin Rico that he had returned said comb is refuted and controverted by Lucio Lumayok who
testified that after the comb was borrowed from him by Edwin Rico, the same was no longer returned
by the latter to him. (Tsn., 210-211, November 15, 1979). Significantly, Edwin Rico did not testify or
offer rebuttal evidence to refute the declaration of the accused that said comb was not returned to
him by Edwin Rico that afternoon of November 11, 1977. There is no evidence of any kind or nature
whatsoever introduced by the prosecution to establish positively the return by Edwin Rico of said
comb to the accused. Nothing at all negates the emphatic assertion of the appellant Lucio Lumayok,
that said comb remained with Edwin Rico as it was not returned to him.

After Edwin Rico had admitted that he had borrowed said comb from the accused, then the burden
of proving the return thereof rests in Edwin Rico. He who alleges a fact has the burden of proving it
and a mere allegation is not evidence, (Legasca vs. Devesa 79 Phil. 376).

But even if the evidence as to who had actual possession of said comb, is inconclusive, due to the
contradicting claims of the accused and Edwin Rico regarding the supposed return thereof to the
accused, it will be easy to realize that the finger of suspicion can equally point to Edwin Rico,
enough to create the element of doubt and weaken the case against the herein accused.

The other circumstantial evidence considered by the trial court in declaring the accused guilty is
because the body of Gloria Bemos was found buried in a portion of a hilly land belonging to the
Lumayok family From this circumstance, the court below made an inference that Lucio Lumayok was
aware that Gloria Bemos would pass along that way when she returned home from school. We fail to
see how mere knowledge of the route the victim takes in returning from school necessarily serves
as indicia of appellant's guilt. Assuming appellant was aware of this fact, still it would not necessarily
follow that the accused is the author of the crime, imputed to him Edwin Rico as a matter of fact,
acknowledge while testifying at the trial that he personally knows where Gloria Bemos pass
everyday in going to and from her school (Tsn., 48, Hearing of June 28, 1978).It is a mistake for the
trial court to draw ill-informed inferences and direct this exclusively to the accused-appellant.

Although the deceased was discovered buried in a denuded portion of a hill in a land belonging to
the Lumayok family, such a circumstance cannot also served as proof of appellant's guilt. As to who
owns the land where the body was discovered may not properly be utilized as a premise to establish
the guilt of Lucio Lumayok That the body of the victim was purposely buried in that hilly portion was
only because it was the most convenient hiding place then where to put the corpse. It may even be
argued that the culprit would probably conceal the body of the victim in a place other than his own
land to dispel or divert suspicion from him .The circumstances which the trial court considered
against the accused are, therefore, of dubious value.

Discounting the circumstantial evidence relied upon by the trial court, tthe appealed judgment would
now rest only on the purported confession of the accused taken from him while he was under
custodial investigation by the police authorities. The first of these confessions is said to have been
given in the afternoon of November 12, 1977 after the appellant herein had been tricked into
acompanying Policeman arabo and CHDF Montefalcon to go to the police atation of Hagonoy,
Davao del sur. Accused is said to have acknowledged his guilt verbally to one Policeman Andres
Bajao. This first admission of guilt allegedly made by Lucio Lumayok was, however, rejected by the
trial court as inadmissible evidence. The trial court stated:—

It is true that the accused denied having committed the crime when he was
interviewed by Patrolman Arabo and Rojo when he was brought to the Police station
in Hagonoy in the evening of November 12, 1977. While the accused confessed to
Patrolman Andres Bajao about his having raped and killed Gloria Bemos, such a
confession is inadmissible because the accused was not only tricked into making the
confession but also the accused was not informed of his constitutional rights to
remain silent, not to testify aginst himself and to be assisted by counsel.
 xxx xxx xxx

Pradoxically, even with the observation of the trial court that the initial spontaneous reaction of the
accused was a denial of having raped and killed Gloria Bemos, said court, nevertheless, exteded full
faith and credit to a subsequent thumbmarked and unsubscibed extrajudicial confession wirtten in
English and supposedly given also that very same day to another policeman, Patrolman Sarona.
Said confession was obtained while the accused was detained and under custodial investigation
without him being afforded the benefit of counsel or even any form of assistance from any member
of his family.

To begin with, it is dubious that appellant was truly informed of his constitutional rights against self-
incrimination or that he was afforded opportunity to avail himself of assistance of a counsel. The
purported confession, typewritten as it is in the English language, could not have been understood
by the accused-declarant, a member of the Calagan cultural minority tribe, because he does not
even know how to read and write. Consequently, it would be rash and wrong for this Court to accept
as factually correct the preliminary statements typewritten in English in said Exh. "F", to the effect
that the said accused was duly informed of his rights under the constitution; that he had signified his
willingness to proceed with his investigation without the help of any counsel; and that the accused-
appellant fully knew and acknowledged willingly whatever answer he may give may be used against
him in any court or tribunal in the Philippines. That the stereotype preliminary questions or
statements with the corresponding answers all in English were understood at all by an illiterate
accused, is undeserving of belief. It is shallow and crude attempt to mask the absence of legality in
the taking of the alleged confession.

No where in the statements of the accused, Exh. "F", is there any mention that the question
propounded to and answered by the accused had been translated by anyone to a dialect or
language known to the accused. The attestation of Patrolman Domingo Sarona and Patrolman
Marilyn Putong that they were witnesses to the taking down of the said written confession and that
the accused-appellant voluntarily affixed his signature thereto in their presence is of dubious value
because Exhibit "F" was not actually signed by Lucio Lumayok but carries only his supposed
thumbmark. Again puzzling is the fact that the investigating policemen who prepared said document,
Exh. "F", never presented the same to Municipal Judge Lucio B. Martinez for ratification by the
accused as intended by these investigators. Patrolman Sarona claims that he gave said Exh. F to
the Station Commander and after that he did not know anymore." (Tsn., pp. 185-186, Hearing of
October 24, 1978). On the other hand, Station Commander, Lt. Alalong, testifying on the alleged
confession, Exh. "F", acknowledged that police investigators, Patrolmen Bajao and Sarona, reported
to him the outcome of their investigation after they have had finished the same and he was given
documents together with the investigation report and affidavits which he studied and forwarded to
the Municipal Court, but he did not see the unsworn affidavit of Lucio Lumayok, referring to Exh. "F",
(Tsn., pp. 358-378, Hearing of January 3, 1980).

Reflective of Lt. Alalong's awareness of the legal infirmities attaching to the alleged extrajudicial
confession, Exh. "F", is his own acknowledgment that he will not allow any statement not voluntarily
given by a declarant to be brought before the municipal judge because that will be against the
constitutional right of the accused. (Tsn., 370, 371, Ibid.) By this Lt. Alalong thus unwittingly supplied
the explanation why said Exh. "F" was not presented to the municipal judge. Asked why he did not
even inquire where such statements of Lucio Lumayok after when he learned about it, Lt. Alalong
replied that he was "not so interested because it was not submitted and I was afraid it will not be
admitted by the court." (Tsn., 379, lbid.) All the more is this Court, therefore, persuaded to uphold the
appellant's contention that the trial court erred in finding the alleged extrajudicial confession, "Exh.
"F", of the appellant herein to be voluntary in character and in admitting the same in evidence
against him.
Patrolman Andres Bajao, testifying for the prosecution declared that during the investigation of Lucio
Lumayok conducted by Patrolman Rojo and Arabo, no member of the family of the said accused nor
any lawyer was present and the accused was not apprised that his statements may be used against
him or of his right to remain silent and to have a lawyer. (Tsn., pp. 165-168, Oct. 24, 1978).

In the case of People versus Francisco Galit, G.R. No. L-51770, promulgated on March 20, 1985,
which cited the case of Morales vs. Ponce Enrile, 121 SCRA 538, this Court reiterated the correct
procedures for peace officers to follow when making arrest and in conducting a custodial
investigation. Therein We said:—

7. At the time a person is arrested, it shall be the duty of the arresting officer to
inform him of the reason for the arrest and he must be shown the warrant of arrest, ...
. He shall be informed of his constitutional rights to remain silent and to counsel and
that any statement he might make could be used against him. The person arrested
shall have the right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means-by telephone if possible- or by letter of messenger. It
shall be the responsibility of the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on his behalf. The
right to counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. any statement obtained in violation of the procedure herein
laid down, whether exculpatory or inculpatory in whole or in part shall be inadmissible
in evidence. (Emphasis supplied)

Considering the non-observance of the requisites above prescribed and the impairment of the basic
rights of the herein accused-appellanr, his alleged confession constitute inadmissible evidence.

But what most strongly militates against acceptance of the alleged confession, Exh. F, is the fact that
the same was obtained from the accused by means of torture and threats.

That Lucio Lumayok was maltreated and intimidated while under detention and confinement in the
municipal jail in order that he would confess to the crimes imputed to him is easily believable. Even
the trial court in its decision made mention that the private parts of the appellant had been indeed
burned. During his trial, there was even an ocular examination made by the court of the penis and
pubic hair of the accused Lucio Lumayok, and this was duly noted in the decision and in the
transcript of the proceedings. (Tsn., 232, Nov. 15, 1979). It will but provoke sadness to narrate again
the order horrible experiences suffered by the accused-appellant at the hands of the police
investigators which have been already quoted in the earlier part of this decision.

The error into which the trial court had fallen is in attributing the burnugn of the accused-appellant to
one Sanciano Satorre, a person implicated in amurder case, who was at that time also confined in
the Hagonoy Municipal Jail. He was presented as a prosecution rebuttal witness so he can
acknowledge that it was he who caused the burns of the accused and not the policemen. The
testimony of Sanciano Satorre, a cousin of Policeman Roberto Satorre (Tsn., 47-48, Hearing of Jan.
9, 1980) is certainly far from satisfactory. Nevertheless, it was given credit by the trial judge instead
of the declarations of the accused-appellant who steadfastly pointed to policemen as the ones who
coerced him into admitting his guilt and this was only because of the pains he suffered and the
further threats that the skin of his head would be peeled off after his hair had been shaved. (Tsn.,
224-225, Hearing of November 15, 1979).
It was clearly a mistake for the trial court to accept the testimony of Sanciano Satorre and arbitrarily
reject that of the accused. Firstly, Sanciano Satorre declared that when he met Lucio Lumayok in the
municipal jail, it was on November 9 or 10, 1979. (Tsn., 26, Hearing of January 9, 1980). All other
evidence uniformly establish however, that Lucio Lumayok was brought to the police station for
investigation only in the evening of November 12, 1977 at about 6:00 o'clock. (Tsn., 149-150.
October 24, 1978). Manifestly, Lucio Lumayok could not have been brought to the jail on November
9 or November 10, and become the cellmate of Sanciano Satorre when the crime for which the
accused had been charged occurred only on November 11, 1977. He could not have been brought
to jail on November 9, 1977 for a crime that was only committed on November 11, 1977. This
significant falsity testimony in Satorre's discredits complete this witness.

The explanation given by Satorre for his having burned the pubic hair and penis of herein accused
borders on the incredible. His fantastic testimony in this regard is as follows:

xxx xxx xxx

ATTY. APORTADERA: (On Cross Examination)

Q. And after you learned that Saturday evening could he, Lucio
Lumayok, was the perpetrator of the crime against your niece, you
slept together in the cell, is that correct

A. Yes, Sir.

Q. Why did you not burn his pubic hair immediately when you came
to know that he was the one who raped your niece in the evening of
Saturday ?

A. I just allowed him to sleep because he was tired and hungry, Your
Honor.

ATTY. APORTADERA:

Q. Why did you not burn his pubic hair that Sunday morning?

A. Because I allowed him first to take a bath.

Q. But you would not have burned his pubic hair had he not offered
you to burn it?

A. Yes, Sir.

Q. You want this Court to believe that Lucio Lumayok was the one
who offered to you that his pubic hair will be burned?

A. No. I told him, "Bay, I'm going to burn your pubic hair." He said,
"All right, burn it." So I burned it, Sir. (Tsn., pp. 55-57, Hearing of
January 9, 1980). (Parenthesis supplied).

Considering basic human instincts and the ordinary normal behavior of persons, We find difficulty to
conceive that anyone would willingly permit another to burn his pubic hair and penis or that Sanciano
Satorre allegedly affronted by the murder and rape of his niece would first allow the offender to rest,
sleep and take a bath before maltreating Lucio Lumayok. The version of Sanciano Satorre of said
incident becomes more incredulous for he maintained that while he was burning the pubic hair of the
accused, the latter did not even shout because of the pain. (Tsn., 50, Jan. 9, 1980).

The Court finds more plausible and closer to truth the averments of Lucio Lumayok that after being
boxed and maltreated, his pubic hair and penis were burned by persons and/or policemen (whose
names he could not ascertain as he doesn't know how to read), and that after his hair was shaved,
he was threatened that they will get the skin of his head (Tsn., p. 223-225, November 15, 1979) if he
would not confess to the wrongs imputed to him. Despicable practices and methods resorted to by
overzealous, malevolent investigators are not altogether rare in fact, the physical mark of such police
brutality was actually noted by the trial judge in his decision thereby strengthening appellant's
testimony in this regard. The trial judge, however, discounted the resulting scar simply because it
was already small at the time he inspected the same. Clear error was committed by him. He failed to
realize and take into account that the interval of fully two years from the time the accused suffered
those burns could naturally have reduced the visible size of such scar. That the hair of the appellant
was shaved off (Tsn., 31, Jan. 9, 1980) is accepted by the prosecution but against responsibility for
this indignity was again attributed to another prisoner, obviously to remove responsibility for the
brutality of the policemen investigators pointed to by appellant.

That the accused was gravely maltreated can be deduced again from the fact that when the
appellant's father, Angel Lumayok, tried to visit Lucio Lumayok three days after the latter's arrest, he
(Angel Lumayok) was advised to desist from visiting as the police were still "hot" or ill-tempered Thus
it was only after ten days had passed when Angel Lumayok was finally able to meet his son (Tsn.,
405-406, Jan. 16, 1980). Upon meeting his son, he, Angel Lumayok, found the herein accused weak
from maltreatment. Then, upon meeting each other, the accused described to his father the various
forms of punishment he received to compel him to confess his guilt. Because the appellant told his
father that he was placed in a barrel of water and a gun poked into his mouth by Patrolmen Bajao
and Sarona does not necessarily render false his other assertion that his penis and pubic hair was
burned. The harrowing forms of maltreatment mentioned by the accused to his father could be in
addition to the burning he suffered. What is significant is that each harm inflicted on the accused
remains sufficient to render his alleged extrajudicial confession worthless and inadmissible. The
totality of the coercion in this case would be beyond doubt, irresistible and lasting and more than
sufficient to compel the accused to falsely admit what he had from the very start persistently
disavowed.

We can find no logical basis for the trial court's pronouncement that the purported confession, Exh.
F, should be accepted because there are details mentioned therein which the accused knew but are
not known to others. The confession of the accused, Exh. F, was extracted and prepared on
November 13, 1985 after the body of the victim had already been found on November 12, 1977 by
others. The discovery of and the place where the victim was discovered cannot, therefore, be said to
be on account of the alleged extrajudicial confession of Lucio Lumayok. Similarly, the description of
the injuries of the body of the deceased mentioned in Exh. F, could easily have been supplied by the
investigators who already knew of these injuries even before they started investigating the accused.
The embellishments in the confession as to the alleged conversation by the accused with the
deceased have absolutely no corroboration whatsoever and all such matters stand denied by the
accused. What were placed by the investigators as to a supposed conversation that happened
between the accused and the deceased and the motive attributed to appellant could well be to
supply support to a theory they had conceived in the absence of any factual or direct evidence
linking the accused to the crime charged.

Aside from the two confessions of the accused abovementioned, one of which was rejected and the
other accepted by the trial court, mention is made of a verbal admission of guilt made by the
accused in the afternoon of December 6, 1977, to one Antonio Lopez, an employee of the Court of
First Instance of Davao, Branch V, Digos Branch, when the accused was brought to that court by the
policemen of Hagonoy. According to Antonio Lopez, he asked Lucio Lumayok why he killed the
victim and appellant said it was because he was desperate of his situation because his fiancee just
separated from him and that he will just plead guilty. (Tsn., 130, July 26, 1978).

It would be imprudent and reckless for this Court to affirm the conviction of the accused on the basis
of such brief conversation. Although the accused candidly admitted having had a conversation with
Antonio Lopez, significantly, he stated during his trial, the following:

Q. You said you were brought before this Honorable Court two
months after being detained in the Hagonoy Municipal jail, can you
remember or according to Mr. Antonio Lopez, when you were brought
here, you were asked by him whether you were the one who killed
Gloria Bemos and according to him, you answered "Yes" now, did
you remember having given such an answer to a person here in court
when you were brought here•

A. Yes, Sir, I remember.

Q. Why did you tell him that you were the one who killed Gloria
Bemos ?

A. Because I was afraid, Sir.

Q. You were afraid of what, Mr. Lucio Lumayok'?

A. Of the police.

Q. Why were you afraid of the police ?

A. Because the policeman told me that if I will not tell that I was the
one who was the malefactor, I will be brought back to 'he municipal
building?

Q. Why were you afraid to be brought back to the municipal building ?

A. They will again maltreat me there.

Q. Do you have a fiancee, Mr. Lucio Lumayok, before this incident of

November 11, 1917?

A. Yes, Sir, I have.

Q. And according to the statement which you allegedly volunteered,

the reason for killing this Gloria Bemos was because you were, your
girl friend left without your knowledge, that is why in desperation you
killed Gloria Bemos, What can you say about that?

A. That is not true Sir. (Tsn., pp. 233-237. Hearing of November 15,
1979: (Emphasis supplied).
After having been subjected to various forms of maltreatment and inhuman indignities while detained
at the Hagonoy Municipal Jail, the trauma of that experience understandably could compel the
accused to acknowledge whatever is asked of him to do so as to avoid a repetition of the acts done
to him. On that occasion, as admitted by Mr. Antonio Lopez himself, there were two policemen from
Hagonoy, one of whom was in uniform accompanying the accused. (Tsn., 131-132;Hearing of July
26, 1978).

It has been stated in the case of People vs. Alto, 26 SCRA 342, 364, that:

xxx xxx xxx

When the threat or promise was made by, or in the presence of, a person in
authority, who has, or is supposed by the accused to have power or authority to fulfill
the threat or promise, the confession of the accused will be presumed inadmissible.
A confession made under the influence of threat or promise of reward or leniency is
inadmissible.

What further beclouds this alleged confession is that subsequent actions taken by the accused
directly contradicts what the accused is claimed to have voluntarily told Antonio Lopez. At the trial,
the accused pleaded not guilty which is inconsistent with his alleged willingness and desire to plead
guilty, as said so by Antonio Lopez. Lucio Lumayok also denied at the trial that he even became
desperate when his girl friend left without his prior knowledge and for this reason he killed Gloria
Bemos. (Tsn., 237, Hearing of November 15, 1979). We find it rather unbelievable that after
continuously denying his guilt to the policemen-investigators, thus resulting in his torture and
maltreatment, the herein appellant would hastily acknowledge in a chance conversation his guilt to
Antonio Lopez, who was not even an investigator but a mere curious bystander and employee of the
Court with whom appellant had no previous familiarity with. It is far more believable that if appellant
did affirm his guilt to Antonio Lopez, it was because of the appellant's lasting fear of the threats
made on him by the policemen who brought him and who were then present, that he, Lucio
Lumayok, would be brought back to the municipal building and again maltreated if the latter will
disavow responsibility for the stated crimes.

Moreover, apart from the alleged statements attributed to the accused by the policemen that the
fiancee of the appellant had actually abandoned him, We find no actual evidence of this fact, or any
corroborative proof to overcome the denials made by the appellant of such matters. Likewise, there
is no independent proof nor any testimonial evidence of the herein accused regarding the alleged
drunkness. His alleged intoxication appears to be baseless considering that in the very evening of
November 11, 1977, he was even invited to join in the search for the missing Gloria Bemos and no
one ever declared that the accused manifested then any sign of drunkness or had any appearance
of having been earlier intoxicated.

But even assuming that appellant's fiancee left without first advising Lucio Lumayok, it is extremely
improbable that only because of this simple circumstance, the herein accused would suddenly go
berserk and commit murder and rape. There is no indication at all that the accused ever became
despondent or was in despair. The undisputed fact is that even in the afternoon of November 11,
1977, the accused was playing basketball with his other companions and behaving normally.
Nothing at all in the case records reflect that the accused had a disordered mind which brought
about the commission of the crimes imputed to him as theorized by the prosecution.

What restores our faith in the inmate goodness of simple ordinary folks is their instinctive desire to
help the poor and oppressed even if they themselves are weighted down with the same misfortune
being suffered by the accused. It is Lucio Lumayok's co-prisoners in the provincial jail who
manifested special concern for the plight of the herein appellant by urging a visiting missionary priest
from Davao City, Rev. Steven Morgan, to help and assist Lucio Lumayok. Said missionary priest,
after interviewing the accused, was convinced of the latter's innocence and Lucio Lumayok's
protestations that he was coerced into acknowledging his guilty for crimes he did not commit. (Tsn.,
300, Hearing of November 15, 1979). Father Morgan, faithful to his calling and desire to serve God
by helping the poor and the oppressed, thereupon contacted and obtained the services of the
Aportadera Law Office in Davao City which then very generously rendered legal services to the
accused without charging any fee (Tsn., 285-289, lbid). The Christian charity and kindness extended
to a member of a cultural minority tribe by a visiting missionary priest and by others who are all
strangers to the accused serve as a redeeming saving grace in this case.

It is also but proper and fitting that this Court commend the unfaltering and very able assistance
rendered to the accused, seen from the excellent presentation made of his case, particularly by his
defense counsel, Atty. Alfredo L. Aportadera of Davao City, who unstintedly and magnanimously
contributed his legal talents and efforts in the hope that justice may ultimately prevail.

To close, in the absence therefore of any evidence, direct or circumstantial, satisfactorily

establishing the guilt of the herein accused and considering that his involuntary confessions or
admissions can be attributed to the violence, torture and lingering threats inflicted on him and as the
recitals in the supposed admissions, tainted with dubiousness are attached to a weak and
improbable motivation, We conclude that the guilt of the herein accused has not been established
beyond reasonable doubt.

The palpable violation of human rights by the policemen who investigated the herein accused should
be dealt with by the Office of the Provincial Fiscal of Davao del Sur, as well as by the National Police
Commission and thereafter, the corresponding appropriate disciplinary action should be instituted
against all parties responsible therefor, if so warranted by the evidence found. The task of ferreting
out the facts relative to the death of Gloria Bemos now that the responsibility for the heinous crimes
committed against her remains a question mark, should once more receive the attention of the
proper agencies of the government, such as the Philippine Constabulary and the National Bureau of
Investigation.

Let a copy of this decision be also furnished the Minister of Justice, for whatever action he deem
proper to take on the matter.

WHEREFORE. the judgment appealed from is hereby set aside and another one entered acquitting
the accused Lucio Lumayok of the crimes charged against him. His immediate release from custody
is hereby ordered unless he is held on other charges. With costs de oficio.

G.R. No. L-19052, December 29, 1962

MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF
MANILA, respondents.

CONCEPCION, J.:
Col. Jose C. Maristela filed with the Secretary of National Defense a letter-complaint charging petitioner
Manuel Cabal, then Chief of Staff of the AFP, with "graft, corrupt practices, unexplained wealth, and other
equally reprehensible acts". The President of the Philippines created a committee to investigate the
charge of unexplained wealth. The Committee ordered petitioner herein to take the witness stand in
the administrative proceeding and be sworn to as witness for Maristela, in support of his aforementioned
charge of unexplained wealth. Petitioner objected to the order of the Committee, invoking his
constitutional right against self-incrimination. The Committee insisted that petitioner take the witness
stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory.
This notwithstanding, petitioner respectfully refused to be sworn to as a witness to take the witness stand.
The Committee referred the matter to the Fiscal of Manila, for such action as he may deem proper. The
City Fiscal filed with the Court of First Instance of Manila a "charge" of contempt for failing to obey the
order of the Committee to take the witness stand. The "charge" was assigned to the sala of respondent
judge Kapunan. Petitioner filed with respondent Judge a motion to quash, which was denied. Hence this
petition for certiorari and prohibition.
ISSUE: Whether or not the Committee's order requiring petitioner to take the witness stand violates his
constitutional right against self-incrimination.

HELD: Yes.
Although the said Committee was created to investigate the administrative charge of unexplained wealth,
it seems that the purpose of the charge against petitioner is to apply the provisions of the Anti-Graft Law,
which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly
out of proportion to his salary as such public officer or employee and his other lawful income and the
income from legitimately acquired property. However, such forfeiture has been held to partake of the
nature of a penalty. As a consequence, proceedings for forfeiture of property are deemed criminal or
penal, and, hence, the exemption of defendants in criminal case from the obligation to be witnesses
against themselves are applicable thereto.

No person shall be compelled in any criminal case to be a witness against himself. This prohibition
against compelling a person to take the stand as a witness against himself applies to criminal, quasi-
criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of
the commission of an offense, but not a proceeding in which the penalty recoverable is civil or remedial in
nature.

The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a
question which he refuses to answer. The privilege is simply an option of refusal, and not a prohibition of
inquiry. A question is not improper merely because the answer may tend to incriminate but, where a
witness exercises his constitutional right not to answer, a question by counsel as to whether the reason
for refusing to answer is because the answer may tend to incriminate the witness is improper.

The possibility that the examination of the witness will be pursued to the extent of requiring self-
incrimination will not justify the refusal to answer questions. However, where the position of the witness is
virtually that of an accused on trial, it would appear that he may invoke the privilege in support of a
blanket refusal to answer any and all questions.
Note: It is not disputed that the accused in a criminal case may refuse, not only to answer incriminatory
questions, but, also, to take the witness stand.