Republic of the Philippines

SUPREME COURT
Manila

EN BANC



G.R. Nos. L-32951-2 September 17, 1971

RICARDO DE LA CAMARA, petitioner,
vs.
HON. MANUEL LOPEZ ENAGE, Presiding Judge of the Court of First Instance of
Agusan del Norte and Butuan City (Branch II), respondents.

Demosthenes Mediante, Puro Velez, Francisco Fabe, Federico del Puerto and Pelaez,
Jalandoni & Jamir for petitioner.

Hon. Manuel Lopez Enage in his own behalf.

R E S O L U T I O N


FERNANDO, J.:

An order of respondent Judge Manuel Lopez Enage, fixing the bail of petitioner,
Ricardo de la Camara, in the sum of P1,195,200.00 is assailed in this petition for
certiorari as repugnant to the constitutional mandate prohibiting excessive bail. 1 The
merit of the petition on its face is thus apparent. Nonetheless, relief sought setting
aside the above order by reducing the amount of bail to P40,000.00 cannot be granted,
as in the meanwhile, petitioner had escaped from the provincial jail, thus rendering
this case moot and academic. It is deemed advisable, however, for the guidance of
lower court judges, to set forth anew the controlling and authoritative doctrines that
should be observed in fixing the amount of the bail sought in order that full respect be
accorded to such a constitutional right.

The facts are not in dispute. Petitioner, Ricardo, de la Camara, Municipal Mayor of
Magsaysay, Misamis Oriental, was arrested on November 7, 1968 and detained at the
Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and
the wounding of twelve other laborers of the Tirador Logging Co., at Nato, Esperanza,
Agusan del Sur, on August 21, 1968. Thereafter, on November 25, 1968, the
Provincial Fiscal of Agusan filed with the Court of First Instance a case for multiple
frustrated murder 2 and another for multiple murder 3 against petitioner, his co-
accused Nambinalot Tagunan and Fortunato Galgo, resulting from the aforesaid
occurrence. Then on January 14, 1969, came an application for bail filed by petitioner
with the lower court, premised on the assertion that there was no evidence to link him
with such fatal incident of August 21, 1968. He likewise mantained his innocence.
Respondent Judge started the trial of petitioner on February 24, 1969, the prosecution
resting its case on July 10, 1969. As of the time of the filing ofthe petition, the defense
had not presented its evidence.

Respondent Judge, on August 10, 1970, issued an order granting petitioner's
application for bail, admitting that there was a failure on the part of the prosecution to
prove that petitioner would flee even if he had the opportunity,but fixed the amount of
the bail bond at the excessive amount of P1,195,200.00,the sum of P840,000.00 for
the information charging multiple murder and P355,200.00 for the offense of multiple
frustrated murder. Then came the allegation that on August 12, 1970, the Secretary of
Justice, Vicente Abad Santos, upon being informed of such order, sent a telegram to
respondent Judgestating that the bond required "is excessive" and suggesting that a
P40,000.00bond, either in cash or property, would be reasonable. There was likewise
a motion for reconsideration to reduce the amount. Respondent Judge however
remained adamant. Hence this petition.

The answer filed by respondent Judge on March 5, 1971 set forth the circumstances
concerning the issuance of the above order and the other incidents of the case, which,
to his mind would disprove any charge that he wasguilty of grave abuse of discretion.
It stressed, moreover, that the challengedorder would find support in circulars of the
Department of Justice given sanction by this Court. He sought the dismissal of the
petition for lack of merit.

In the hearing of the case set for March 31, 1971, there was no appearance for both
the petitioner and respondents with the former, upon written motion, being given
thirty days within which to submit a memorandum in lieu of oral argument,
respondent Judge in turn having the same period from receipt thereofto file his reply.
Such a memorandum as duly submitted by petitioner on April 6, 1971.

Instead of a reply, respondent Judge submitted, on May 26, 1971, a supplemental
answer wherein he alleged that petitioner escaped from the provincial jail on April 28,
1971 and had since then remained at large. There was a reiteration then of the
dismissal of this petition for lack of merit, towhich petitioner countered in a pleading
dated June 7, 1971, and filed with this Court the next day with this plea: "The
undersigned counsel, therefore, vehemently interpose opposition, on behalf of
petitioner, to respondent's prayer for dismissal of the present petition for lack of merit.
For, the issue in this case is not alone the fate of petitioner Ricardo de la Camara. The
issue in the present petition that calls for the resolution of this Honorable Tribunal is
the fate of countless other Ricardo de la Camaras who maybe awaiting the clear-cut
definition and declaration of the power of trial courts in regard to the fixing of bail." 4

While under the circumstances a ruling on the merits of the petition for certiorari is
not warranted, still, as set forth at the opening of this opinion, the fact that this case is
moot and academic should not preclude thisTribunal from setting forth in language
clear and unmistakable, the obligationof fidelity on the part of lower court judges to
the unequivocal command of theConstitution that excessive bail shall not be required.

1. Before conviction, every person is bailable except if charged with capital
offenses when the evidence of guilt is strong. 5 Such a right flows from the
presumption of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt. Thereby a regimeof liberty is honored in the
observance and not in the breach. It is not beyondthe realm of probability, however,
that a person charged with a crime, especially so where his defense is weak, would
just simply make himself scarceand thus frustrate the hearing of his case. A bail is
intended as a guarantee that such an intent would be thwarted. It is, in the language of
Cooley, a "mode short of confinement which would, with reasonable certainty, insure
the attendance of the accused" for the subsequent trial. 6 Nor is there, anything
unreasonable in denying this right to one charged with a capital offense when
evidence of guilt is strong, as the likelihood is, rather than await the outcome of the
proceeding against him with a death sentence, an ever-present threat, temptation to
flee the jurisdiction would be too great to be resisted.

2. Where, however, the right to bail exists, it should not be rendered nugatory
by requiring a sum that is excessive. So the Constitution commands. It is
understandable why. If there were no such prohibition, the right to bail becomes
meaningless. It would have been more forthright if no mention of such a guarantee
were found in the fundamental law. It is not to be lost sight of that the United States
Constitution limits itself to a prohibition against excessive bail. 7 As construed in the
latest American decision, "the sole permissible function of money bail is to assure the
accused's presence at trial, and declared that "bail set at a higher figure than an
amount reasonablycalculated to fulfill thus purpose is "excessive" under the Eighth
Amendment." 8

Nothing can be clearer, therefore, than that the challenged order of August 10, 1970
fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the
sum of P840,000.00 for the information charging multiple murder, there being
fourteen victim, and the sum of P355,200 for the other offense of multiple frustrated
murder, there being twelve victims, is clearly violative of constitutional provision.
Under the circumstances, there being only two offenses charged, the amount required
as bail could not possibly exceed P50,000.00 for the information for murder and
P25,000.00 for the other information for frustrated murder. Nor should it be ignored
in this case that the Department of Justice did recomend the total sum of P40,000.00
for the twooffenses.

3. There is an attempt on the part of respondent Judge to justify what, on its
face, appears to be indefensible by the alleged reliance on Villaseor v. Abano. 9 The
guidelines in the fixing of bail was there summarized, in the opinion of Justice
Sanchez, as follows: "(1) ability of the accused to give bail; (2) nature of the offense;
(3) penalty for the offense charged; (4) character and reputation of the accused; (5)
health of the accused; (6) character and strength of the evidence; (7) probability of the
accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused wasa
fugitive from justice when arrested; and (10) if the accused is under bond for
appearance at trial in other cases." 10 Respondent Judge, however, did ignore this
decisive consideration appearing at the end of the above opinion: "Discretion, indeed,
is with the court called upon to rule on the question of bail. We must stress, however,
that where conditions imposed upon a defendant seeking bail would amount to a
refusal thereof and render nugatory the constitutional right to bail, we will not hesitate
to exercise our supervisorypowers to provide the required remedy." 11

No attempt at rationalization can therefore give a color of validity to the challenged
order. There is grim irony in an accused being told that he has a right to bail but at the
same time being required to post such an exorbitant sum. What aggravates the
situation is that the lower court judge would apparently yield to the command of the
fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of
the Constitution was on a purely verbal level. There is reason to believe that any
person in the position of petitioner would under the circumstances be unable to resists
thoughts of escaping from confinement, reduced as he must have been to a stateof
desperation. In the same breath that he was told he could be bailed out, the excessive
amount required could only mean that provisional liberty would bebeyond his reach.
It would have been more forthright if he were informed categorically that such a right
could not be availed of. There would have beenno disappointment of expectations
then. It does call to mind these words of Justice Jackson, "a promise to the ear to be
broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." 12
It is no wonder that the resulting frustration left resentment and bitterness in its
wake.Petitioner's subsequent escape cannot be condoned. That is why he is not
entitled to the relief prayed for. What respondent Judge did, however, does call for
repudiation from this Court.

Nor is there any justification then for imputing his inability to fix a lesser amount by
virtue of an alleged reliance on a decision of this Tribunal. Even if one were
charitably inclined, the mildest characterization of such a result is that there was a
clear reading of the Abano opinion when such a meaning was ascribed to it. No
doctrine refinement may elicit approval if to doso would be to reduce the right to bail
to a barren form of words. Not only isthe order complained of absolutely bereft of
support in law, but it flies in the face of common sense. It is not too much to say that
it is at war with thecommand of reason.

With petitioner, however, having escaped from the provincial jail, no ruling can be
had on his plea to nullify the above order.

WHEREFORE, this case is dismissed for being moot and academic. Without
pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, Barredo and
Villamor, JJ., concur.

Castro, J., concurs in the result.

Makasiar, J., took no part.





















































Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 141529 June 6, 2001

FRANCISCO YAP, JR., aka EDWIN YAP, petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

GONZAGA-REYES, J.:

The right against excessive bail, and the liberty of abode and travel, are being invoked
to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00
and imposed conditions on change of residence and travel abroad.

For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted
of estafa by the Regional Trial Court of Pasig City1 and was sentenced to four years
and two months of prision correctional, as minimum to eight years of prision mayor as
maximum, "in addition to one (1) year for each additional P10,000.00 in excess of
P22,000.00 but in no case shall it exceed twenty (20) years."2 He filed a notice of
appeal, and moved to be allowed provisional liberty under the cash bond he had filed
earlier in the proceedings. The motion was denied by the trial court in an order dated
February 17,1999.

After the records of the case were transmitted to the Court of Appeals, petitioner filed
with the said court a Motion to Fix Bail For the Provisional Liberty of Accused
Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the
1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General
opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and
be required to secure "a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be so until final
judgment is rendered or in case he transfers residence, it must be with prior notice to
the court and private complainant."3 Petitioner filed a Reply, contending that the
proposed bail ofP5,500,000.00 was violative of his right against excessive bail.

The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld
the recommendation of the Solicitor General; thus, its dispositive portion reads:

WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty
of Accused-Appellant Pending Appeal" is hereby GRANTED. Accused-appellant
Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the
amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the
following conditions, viz. :

(1) He (accused-appellant) secures a certification/guaranty from the Mayor of the
place of his residence that he is a resident of the area and that he will remain to be a
resident therein until final judgment is rendered or in case he transfers residence, it
must be with prior notice to the court;

(2) The Commission of lmmigration and Deportation (CID) is hereby directed to issue
a hold departure order against accused-appellant; and

(3) The accused-appellant shall forthwith surrender his passport to the Division Clerk
of Court for safekeeping until the court orders its return;

(4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-
appellant's bail bond, the dismissal of appeal and his immediate arrest and
confinement in jail.

SO ORDERED.5

A motion for reconsideration was filed, seeking the reduction of the amount of bail
fixed by respondent court, but was denied in a resolution issued on November 25,
1999. Hence, this petition.

Petitioner sets out the following assignments of error:

The respondent Court of Appeals committed grave abuse of discretion in fixing the
bail of the provisional liberty of petitioner pending appeal in the amount of P5 .5
million.

The respondent Court of Appeals committed grave abuse of discretion in basing the
bail for the provisional liberty of the petitioner on his civil liability.

The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of
abode and travel in imposing the other conditions for the grant of bail.

Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount,
effectively denied him his right to bail. He challenges the legal basis of respondent
court for fixing bail at P5,500,000.00, which is equivalent to the amount of his civil
liability to private complainant Manila Mahogany Marketing Corporation, and argues
that the Rules of Court never intended for the civil liability of the accused to be a
guideline or basis for determining the amount of bail. He prays that bail be reduced to
at least P40,000.00, citing the maximum amount of bail that can be posted for the
crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the
amount of bail he posted during the trial of the case.6

On the other hand, the Solicitor General maintains that no grave abuse of discretion
could be ascribed to the Court of Appeals for fixing the amount of bail at
P5,500,000.00 considering the severity of the penalty imposed, the weight of the
evidence against petitioner, and the gravity of the offense of which petitioner was
convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to
civil liability but also to the amount of fraud imputed to petitioner. The Solicitor
General further pointed out the probability of flight in case petitioner is released on
bail, it having been established that petitioner was in possession of a valid passport
and visa and had in fact left the country several times during the course of the
proceedings in the lower court. It was also shown that petitioner used different names
in his business transactions and had several abodes in different parts of the country.

As for the conditions imposed by the bail bond, the Solicitor General advanced that all
that the Court of Appeals requires is notice in case of change of address; it does not in
any way impair petitioner's right to change abode for as long as the court is apprised
of his change of residence during the pendency of the appeal.

Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules
of Court which states:

SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of
an offense not punishable by death, reclusion perpetua or life imprisonment, the court,
on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty
under the same bail bond during the period to appeal subject to the consent of the
bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years, but not more
than twenty (20) years, the accused shall be denied bail, or his bail previously granted
shall be cancelled, upon a showing by the prosecution, with notice to the accused, of
the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight
if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may
commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion
and with notice to the adverse party.7

There is no question that in the present case the Court of Appeals exercised its
discretion in favor of allowing bail to petitioner on appeal. Respondent court stated
that it was doing so for "humanitarian reasons", and despite a perceived high risk of
flight, as by petitioner's admission he went out of the country several times during the
pendency of the case, for which reason the court deemed it necessary to peg the
amount of bail at P5,500,000.00.

The prohibition against requiring excessive bail is enshrined in the Constitution.8 The
obvious rationale, as declared in the leading case of De la Camara vs. Enage,9 is that
imposing bail in an excessive amount could render meaningless the right to bail. Thus,
in Villaseor vs. Abano,10 this Court made the pronouncement that it will not hesitate
to exercise its supervisory powers over lower courts should the latter, after holding the
accused entitled to bail, effectively deny the same by imposing a prohibitory sum or
exacting unreasonable conditions.

xxx There is grim irony in an accused being told that he has a right to bail but at the
same time being required to post such an exorbitant sum. What aggravates the
situation is that the lower court judge would apparently yield to the command of the
fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of
the Constitution was on a purely verbal level. There is reason to believe that any
person in the position of petitioner would under the circumstances be unable to resist
thoughts of escaping from confinement, reduced as he must have been to a state of
desperation. In the same breath as he was told he could be bailed out, the excessive
amount required could only mean that provisional liberty would be beyond his reach.
It would have been more forthright if he were informed categorically that such a right
could not be availed of. There would have been no disappointment of expectations
then. It does call to mind these words of Justice Jackson, "a promise to the ear to be
broken to the hope, a teasing illusion like a munificent bequest in a pauper's will."
XXX11

At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure
advises courts to consider the following factors in the setting of the amount of bail:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the
accused may jump bail, it is certainly not precluded from installing devices to ensure
against the same. Options may include increasing the bail bond to an appropriate
level, or requiring the person to report periodically to the court and to make an
accounting of his movements.12 In the present case, where petitioner was found to
have left the country several times while the case was pending, the Court of Appeals
required the confiscation of his passport and the issuance of a hold-departure order
against him.

Under the circumstances of this case, we find that appropriate conditions have been
imposed in the bail bond to ensure against the risk of flight, particularly, the
combination of the hold-departure order and the requirement that petitioner inform the
court of any change of residence and of his whereabouts. Although an increase in the
amount of bail while the case is on appeal may be meritorious, we find that the setting
of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an
effective denial of petitioner's right to bail.

The purpose for bail is to guarantee the appearance of the accused at the trial,13 or
whenever so required by the Court14. The amount should be high enough to assure
the presence of the accused when required but no higher than is reasonably calculated
to fulfill this purpose.15 To fix bail at an amount equivalent to the civil liability of
which petitioner is charged (in this case, P5,500,000.00).is to permit the impression
that the amount paid as bail is an exaction of the civil liability that accused is charged
of; this we cannot allow because bail is not intended as a punishment, nor as a
satisfaction of civil liability which should necessarily await the judgment of the
appellate court.

At the same time, we cannot yield to petitioner's submission that bail in the instant
case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond
Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for
estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20
years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a
circular of the Department of Justice for the guidance of state prosecutors, although
technically not binding upon the courts, "merits attention, being in a sense an
expression of policy of the Executive Branch, through the Department of Justice, in
the enforcement of criminal laws."16 Thus, courts are advised that they must not only
be aware but should also consider the Bail Bond Guide due to its significance in the
administration of criminal justice.17 This notwithstanding, the Court is not precluded
from imposing in petitioner's case an amount higher than P40,000.00 (based on the
Bail Bond Guide) where it perceives that an appropriate increase is dictated by the
circumstances.

It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of
the Revised Rules of Criminal Procedure is clear that although the grant of bail on
appeal is non-capital offenses is discretionary, when the penalty imposed on the
convicted accused exceeds six years and circumstances exist that point to the
probability of flight if released on bail, then the accused must be denied bail, or his
bail previously granted should be cancelled.18 In the same vein, the Court has held
that the discretion to extend bail during the course of the appeal should be exercised
with grave caution and for strong reasons, considering that the accused had been in
fact convicted by the trial court.19 In an earlier case, the Court adopted Senator
Vicente J. Francisco's disquisition on why bail should be denied after judgment of
conviction as a matter of wise discretion; thus:

The importance attached to conviction is due to the underlying principle that bail
should be granted only where it is uncertain whether the accused is guilty or innocent,
and therefore, where that uncertainty is removed by conviction it would, generally
speaking, be absurd to admit to bail. After a person has been tried and convicted the
presumption of innocence which may be relied upon in prior applications is rebutted,
and the burden is upon the accused to show error in the conviction. From another
point of view it may be properly argued that the probability of ultimate punishment is
so enhanced by the conviction that the accused is much more likely to attempt to
escape if liberated on bail than before conviction.xxx20

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable
doubt by the RTC, and due to the serious amount of fraud involved, sentenced to
imprisonment for twenty years --the maximum penalty for estafa by false pretenses or
fraudulent acts allowed by the Revised Penal Code. Although it cannot be
controverted that the Court of Appeals, despite the foregoing considerations and the
possibility of flight still wielded its discretion to grant petitioner bail, the setting of
bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis.
Guided by the penalty imposed by the lower court and the weight of the evidence
against petitioner, we believe that the amount of P200,000.00 is more reasonable.

Petitioner also contests the condition imposed by the Court of Appeals that he secure
"a certification/guaranty from the Mayor of the place of his residence that he is a
resident of the area and that he will remain to be a resident therein until final
judgment is rendered or in case he transfers residence, it must be with prior notice to
the court", claiming that the same violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him
from leaving the Philippines unless expressly permitted by the court which issued the
order.21 In fact, the petition submits that "the hold-departure order against petitioner
is already sufficient guarantee that he will not escape. Thus, to require him to inform
the court every time he changed his residence is already unnecessary."22

The right to change abode and travel within the Philippines, being invoked by
petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution
states:

The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law.

The order of the Court of Appeals releasing petitioner on bail constitutes such lawful
order as contemplated by the above provision.23 The condition imposed by the Court
of Appeals is simply consistent with the nature and function of a bail bond, which is
to ensure that petitioner will make himself available at all times whenever the Court
requires his presence. Besides, a closer look at the questioned condition will show that
petitioner is not prevented from changing abode; he is merely required to inform the
court in case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending
appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects, the
resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999,
respectively, are AFFIRMED. No pronouncement as to costs.

SO ORDERED. 1wphi1.nt

























Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION



G.R. No. 114350 January 16, 1997

JOSE T. OBOSA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.



PANGANIBAN, J.:

The main issue in this case is whether petitioner Jose T. Obosa, who was charged with
two (2) counts of murder (a capital offense) 1 for the ambush slaying of former
Secretary of Interior and Local Governments Jaime N. Ferrer and his driver Jesus D.
Calderon, but who was convicted only of two (2) counts of homicide by the trial
court, may be granted bail after such conviction for homicide, a non-capital offense.
The Regional Trial Court of Makati answered in the affirmative but the Court of
Appeals ruled otherwise.

Petitioner thus asks this Court to resolve said issue in this petition under Rule 65
assailing the two Resolutions 2 of the respondent Court 3 promulgated on November
19, 1993 and March 9, 1994, respectively. The first Resolution 4 of November 19,
1993 disposed as follows: 5

WHEREFORE, the Court GRANTS the Solicitor General's motion to cancel accused-
appellant Jose T. Obosa's bailbond. The Court NULLIFIES the lower court's order
dated May 31, 1990, granting bail to accused Obosa.

Let warrant issue for the arrest of the accused-appellant Jose T. Obosa.

On the same date, November 19, 1993, an Order of Arrest against petitioner was
issued under signature of then Court of Appeals Associate Justice Bernardo P. Pardo.
6

On December 7, 1993, petitioner filed a Motion to Quash Warrant of Arrest and to Set
Aside and Reconsider Resolution of November 19,1993. 7 The second assailed
Resolution 8 promulgated on March 9, 1994 denied the motion as follows:

IN VIEW WHEREOF, the Court hereby DENIES accused Obosa's "Motion to quash
warrant of arrest and to set aside and reconsider the resolution of November 19, 1993"
dated December 4, 1993, for lack of merit.

Let a copy of this resolution be given to the Honorable, the Secretary of Justice,
Manila, so that he may issue the appropriate directive to the Director, Bureau of
Corrections, Muntinlupa, Metro Manila, for the rectification of the prison record of
accused Jose T. Obosa.

The Facts

Aside from the disagreement as to the date when notice of appeal was actually filed
with the trial court, 9 the facts precedent to this petition are undisputed as set out in
the first assailed Resolution, thus: 10

On December 4, 1987, Senior State Prosecutor Aurelio C. Trampe charged the
accused Jose T. Obosa and three others with murder on two counts, by separate
amended informations filed with the Regional Trial Court of Makati, Branch 56, for
the ambush-slaying of Secretary of Local Governments Jaime N. Ferrer and his driver
Jesus D. Calderon, which occurred on August 2, 1987, at about 6:30 in the evening, at
La Huerta, Para()aque, Metro Manila, as Secretary Ferrer was riding in his car, going
to the St. Andrew Church near the plaza of La Huerta, to hear Sunday mass.

Each information alleged that the killing was with the attendance of the following
qualifying/aggravating circumstances, to wit: treachery, evident premeditation, abuse
of superior strength, nighttime purposely sought, disregard of the respect due to the
victim on account of his rank and age (as to Secretary Ferrer), and by a band. The
Prosecutor recommended no bail, as the evidence of guilt was strong.

During the trial of the two cases, which were consolidated and tried jointly, the
accused Obosa was detained at Camp Bagong Diwa, Taguig, Metro Manila.

At the time of the commission of the two offenses, the accused Obosa was a virtual
"escapee" from the National Penitentiary at Muntinlupa, Metro Manila, particularly, at
the Sampaguita Detention Station, where he was serving a prison term for robbery as
a maximum security prisoner.

Indeed, by virtue of a subpoena illegally issued by a judge of the Municipal Trial
Court of Sariaya, Quezon, accused Obosa was escorted out of prison to appear before
said judge on the pretext that the judge needed his presence so that the judge could
inquire about the whereabouts of the accused therein. While accused Obosa was out
of prison, he was able to participate in the commission of the double murder now
charged against him as principal for the ambush-slaying of Secretary Ferrer and his
driver (Lorenzo vs. Marquez, 162 SCRA 546, 553).

Witnesses positively identified accused Jose T. Obosa as one of three assassins firing
at a car near the canteen at the corner of Victor Medina Street and Quirino Avenue,
Para()aque, Metro Manila. It was the car of Secretary Ferrer. He sustained eight
entrance gunshot wounds on the right side of his head, neck and body, while his driver
sustained three entrance wounds on the left temple, right side of the neck, right arm,
chest and right hip. They died on the spot.

In its decision dated May 25, 1990, the lower court found the accused Obosa guilty
beyond reasonable doubt of homicide on two
counts. 11 In ruling that the crime committed was homicide, not murder as charged in
the informations, the lower court declared that there was no qualifying circumstance
attendant. In fact, however, the lower court itself found that the accused shot the
victims while the latter were inside the car, unwary of any danger to their lives, for
unknown to them, were the assassins lurking in the dark, firing their guns from
behind, a circumstance indubitably showing treachery (People vs. Tachado, 170
SCRA 611, People vs. Juanga, 189 SCRA 226). There is treachery when the victims
were attacked without warning and their backs turned to the assailants, as in this case
(People vs. Tachado, supra). There is treachery when the unarmed and unsuspecting
victim was ambushed in the dark, without any risk to his assailants (People vs. Egaras,
163 SCRA 692). Moreover, the crimes could be qualified by taking advantage of
superior strength and aid of armed men (People vs. Baluyot, 170 SCRA 569). Where
the attackers cooperated in such a way to secure advantage of their combined strength,
there is present the qualifying circumstance of taking advantage of superior strength
(People vs. Baluyot, supra; People vs. Malinao, 184 SCRA 148).

On May 31, 1990, the lower court promulgated its decision and on the same occasion,
accused Obosa manifested his intention to appeal and asked the Court to allow him to
post bail for his provisional liberty. Immediately, the lower court granted accused
Obosa's motion and fixed bail at P20,000.00, in each case.

On June 1, 1990, accused Obosa filed a written notice of appeal, dated June 4, 1990,
thereby perfecting appeal from the decision (Alama vs. Abbas, 124 Phil. 1465). By
the perfection of the appeal, the lower court thereby lost jurisdiction over the case and
this means both the record and the person of the accused-appellant. The sentencing
court lost jurisdiction or power to do anything or any matter in relation to the person
of the accused-appellant (Director of Prisons vs. Teodoro, 97 Phil. 391, 395-396),
except to issue orders for the protection and preservation of the rights of the parties,
which do not involve any matter litigated by the appeal (People vs. Aranda, 106 Phil.
1008).

On June 4, 1990, accused Obosa filed a bailbond in the amount of P40,000.00,
through Plaridel Surety and Assurance Company, which the lower court approved. On
the same day, June 4, 1990, the lower court issued an order of release. The prison
authorities at the National Penitentiary released accused Obosa also on the same day
notwithstanding that, as hereinabove stated, at the time of the commission of the
double murder, accused Obosa was serving a prison term for robbery.

The respondent Court likewise discoursed on the service of sentence made by the
accused. Thus, it extensively discussed the following computation on the penalties
imposed upon the petitioner for his previous offenses, which all the more convinced
respondent Court that petitioner was not entitled to bail on the date he applied therefor
on May 31, 1990 and filed his bailbond on June 4, 1990, as follows: 12

At the time the accused committed the crimes charged, he was an inmate at the
National Penitentiary, New Bilibid Prisons, Muntinlupa, Metro Manila. He was in jail,
but was able to commit the Ferrer assassination. He was serving imprisonment by
final judgment in each of three (3) cases, namely, (a) theft, for which he was
sentenced to eleven (11) months and fifteen (15) days of prision correccional; (b)
robbery in band, for which he was sentenced to an indeterminate penalty of six (6)
months and one (1) day of prision correccional, as minimum, to four (4) years, two (2)
months and one (1) day of prision correccional, as maximum, and (c) evasion of
service of sentence, for which he was sentenced to six (6) months of arresto mayor.
These sentences are to be served successively not simultaneously (Article 70, Revised
Penal Code; People vs. Reyes, 52 Phil. 538; Gordon vs. Wolfe, 6 Phil. 76; People vs.
Medina, 59 Phil. 134; United States vs. Claravall, 31 Phil. 652; People vs. Olfindo, 47
Phil. 1; People vs. Tan, 50 Phil. 660). In successive service of sentences, the time of
the second sentence did not commence to run until the expiration of the first (Gordon
vs. Wolfe, supra).

He commenced service of sentence on October 11,1979 (with credit for preventive
imprisonment) and was admitted to the New Bilibid Prisons on January 5, 1980 (See
prison record attached to Supplement, dated January 31, 1994 of the Solicitor
General; Cf. prison record [incomplete] attached to Manifestation dated February 2,
1994 of the Accused Appellant).

On December 25, 1980, he escaped from detention at Fort Del Pilar, Baguio City,
where he was temporarily working on a prison project (See decision, Grim. Case No.
4159-R, Regional Trial Court, Baguio City, People vs. Jose Obosa y Tutaa). While a
fugitive from justice, he committed other crimes, in Quezon City, Makati, and
Muntinlupa, Metro Manila. The cases are pending (See prison record, supra).

He was recaptured on August 27, 1986. Under prison regulations, he forfeited his
allowance for good conduct prescribed by law (Article 97, Revised Penal Code; Act
2489 of the Philippine Legislature). In addition, he must serve the time spent at large
(TSAL) of five (5) years, eight (8) months and two (2) days, and the unserved portion
of his successive sentences for robbery in band, theft and evasion of service of
sentence aforementioned. In sum, he has to serve the balance of his sentence for
robbery in band of four (4) years, two (2) months and one (1) day of prision
correccional the sentence for theft of eleven (11) months and fifteen (15) days of
prision correccional; and the sentence for evasion of service of sentence of six (6)
months of arresto mayor, reaching a total of five (5) years, seven (7) months and
sixteen (16) days. Since his commitment to jail on October 11, 1979, to the time he
escaped on December 25, 1980, he had served one (1) year, two (2) months, and
fourteen (14) days, which, deducted from the totality of his prison term, would leave a
balance of four (4) years, five (5) months and two (2) days. Thus, he must still serve
this unserved portion of his sentences in addition to the time spent at large. Counting
the time from his re-arrest on August 27, 1986, and adding thereto five (5) years, eight
(8) months and two (2) days (time spent at large), the result is that he must serve up to
April 29, 1992. To this shall be added the remaining balance of his successive
sentences of four (4) years, five (5) months and two (2) day(s). Consequently, he has
to serve sentence and remain in confinement up to October 1, 1996. Of course, he
may be given allowance for good conduct. But good conduct time allowance can not
be computed in advance (Frank vs. Wolfe, 11 Phil. 466). This is counted only during
the time an accused actually served with good conduct and diligence (Frank vs.
Wolfe, supra; See Aquino, The Revised Penal Code, Vol. I, 1987 ed., pp. 803-804).
However, accused Obosa can not avail himself of this beneficent provision of the law
because, while he was at large, he committed infraction of prison rules (escaping) and
other crimes, including the Ferrer assassination, and for which he was placed under
preventive imprisonment commencing on December 4, 1987, the date the
informations at bar were filed against him. Because he was then under custody, no
warrant of arrest or commitment order need be issued (Asuncion vs. Peralejo, G.R.
No. 82915, June 22, 1988, minute resolution; Cf. People vs. Wilson, 4 Phil. 381; Umil
vs. Ramos, 187 SCRA 311). Allowance for good conduct does not apply to detention
prisoners (Baking vs. Director of Prisons, 28 SCRA 851). Consequently, by all
reckoning, accused Obosa could not be released from prison on June 4, 1990, when he
was admitted to bail. His release was illegal. He still has to serve the balance of his
unserved sentences until October 1, 1996.

On September 6, 1993, respondent People, through the Office of the Solicitor General
(OSG), filed with respondent Court an urgent motion, 13 praying for cancellation of
petitioner's bail bond.

Petitioner promptly filed an opposition, 14 to which respondent People submitted a
reply. 15 Thereupon, respondent Court issued its first questioned Resolution dated
November 19, 1993: 16 a) canceling petitioner's bail bond, b) nullifying the trial
court's order of May 31, 1990 which granted bail to petitioner, and c) issuing a
warrant for his immediate arrest.

Petitioner's twin motions for reconsideration 17 and quashal of warrant of arrest
proved futile as respondent Court, on March 9, 1994, after the parties' additional
pleadings were submitted and after hearing the parties' oral arguments, issued its
second questioned Resolution denying said motions for lack of merit.

The Issues

The petitioner worded the issue in this case as follows: 18

The principal constitutional and legal issues involved in this petition is (sic) whether
petitioner as accused-appellant before the respondent Honorable Court of Appeals is
entitled to bail as a matter of right and to enjoy the bail granted by the Regional Trial
Court, in Makati, Metro Manila, pending appeal from the judgment convicting him of
Homicide on two (2) counts though charged with Murder; and assuming that bail is a
matter of discretion, the trial court had already exercised sound discretion in granting
bail to accused-appellant, now petitioner in this case, and respondent Court of
Appeals is devoid of jurisdiction in cancelling said bailbond.

The Solicitor General stated the issues more clearly, thus: 19

I

Whether or not the trial court still have (sic) jurisdiction over the case when it
approved petitioner's bail bond on June 4, 1990.

II

Considering that the murder charge against petitioner still stands pending his appeal
and strong evidence of guilt actually exists based on respondent Court of Appeals'
own preliminary determination and the lower court's initial finding as well, is
petitioner entitled to bail as a matter of right pending review of his conviction for
homicide?

III

How does petitioner's prison record affect his alleged right to bail?

The Court's Ruling

First Issue: Trial Court's Jurisdiction

To decide the issue of whether the cancellation of bail bond by the respondent Court
was correct, we deem it necessary to determine first whether the trial court had
jurisdiction to grant bail under the circumstances of this case.

Petitioner contends that the trial court was correct in allowing him "to post bail for his
provisional liberty on the same day, May 31, 1990 when the judgment of conviction
of (sic) homicide was promulgated and the accused-appellant (petitioner) manifested
his intention to appeal the judgment of conviction. At the time, the lower court still
had jurisdiction over the case as to empower it to issue the order granting bail pending
appeal. Appellant filed his notice of appeal only on June 4, 1990, on which date his
appeal was deemed perfected and the lower court lost jurisdiction over the case.
Hence, the grant of bail on May 31, 1990 cannot be validly attacked on jurisdictional
grounds." 20

Through its counsel, the Solicitor General, respondent People admits that petitioner
manifested his intention to appeal on May 31, 1990 and filed his written notice of
appeal on June 1, 1990. But the Solicitor General nevertheless contends that ". . . it
was only on June 4, 1990, or three (3) days after perfecting his appeal that petitioner
posted his bail bond in the amount of P40,000.00 through Plaridel Surety and
Assurance Company. Clearly, when the lower court approved the bail bond on the
same day June 4, 1990), it no longer had Jurisdiction over the case." 21

The respondent Court found that "(o)n June 1, 1990, accused Obosa filed a written
notice of appeal, dated June 4, 1990, thereby perfecting appeal from the decision . . ."
22

We reviewed the page 23 cited by respondent Court, and found that indeed, the
written notice of appeal, although dated June 4, 1990, was made and actually served
upon the trial court on June 1, 1990. Such being the case, did the trial court correctly
approve the bail bond on June 4,1990? To answer this, there is a need to revisit
Section 3, Rule 122 of the Rules of Court:

Sec. 3. How appeal taken. (a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
original jurisdiction, shall be taken by filing a notice of appeal with the court which
rendered the judgment or order appealed from, and by serving a copy thereof upon the
adverse party.

xxx xxx xxx

Since petitioner did file the written notice of appeal on June 1, 1990, petitioner's
appeal was, perforce, perfected, without need of any further or other act, and
consequently and ineluctably, the trial court lost jurisdiction over the case, both over
the record and over the subject of the case. 24 As has been ruled: 25

The question presented for our resolution is: Did the Court of First Instance that
convicted respondent Lacson have the power and authority to issue the writ of
preliminary injunction, prohibiting the transfer of said Lacson from the provincial
hospital of Occidental Negros to the Insular Penitentiary at Muntinglupa, Rizal?
While there is no express provision on this point, it is contrary to the generally
accepted principles of procedure for said court to be invested with said power or
authority. A necessary regard for orderly procedure demands that once a case,
whether civil or criminal, has been appealed from a trial court to an appellate (sic)
court and the appeal therefrom perfected, the court a quo loses jurisdiction over the
case, both over the record and over the subject of the case. Thus in civil cases the rule
is that after the appeal has been perfected from a judgment of the Court of First
Instance, the trial court losses (sic) jurisdiction over the case, except to issue orders
for the protection and preservation of the rights of the parties which do not involve
any matter litigated by the appeal (Rule 41, Sec. 9). The jurisdiction of the court over
the matters involved in the case is lost by the perfected appeal, save in those cases
which the rules expressly except therefrom. (Emphasis supplied).

But it should be noted that the bail was granted on May 31, 1990 by the trial Court. 26
The validity and effectivity of the subsequent approval of the bail bond by the trial
court on June 4, 1990 is therefore the matter at issue. We agree with respondent Court
and respondent People that, while bail was granted by the trial court when it had
jurisdiction, the approval of the bail bond was done without authority, because by
then, the appeal had already been perfected and the trial court had lost jurisdiction.
Needless to say, the situation would have been different had bail been granted and
approval thereof given before the notice of appeal was filed.

As the approval was decreed by the trial court in excess of jurisdiction, then the
bailbond was never validly approved. On this basis alone, regardless of the outcome
of the other issues, it is indisputable that the instant petition should be dismissed.

Second Issue: Is Petitioner Entitled To Bail
As A Matter of Right?

The second issue, while no longer critical to the disposition of this case, will
nevertheless be tackled, in view of its importance. The Solicitor General argues that
"(f)or while petitioner was convicted of the lesser offense of homicide, the fact that he
has appealed resultantly throws the whole case open for review and reverts him back
to his original situation as a person charged with the capital offense of murder on two
(2) counts against whom a strong evidence of guilt exists as initially found by the trial
court during the bail proceedings a quo." 27

Petitioner answers by saying that "once the accused who is charged with a capital
offense is convicted not of the offense for which he is charged but for a lesser one
which is not capital or punished with reclusion perpetua, he is entitled to bail as a
matter of right because the fact that the evidence of his guilt of a capital offense is not
strong is necessarily to be inferred from his conviction of the lesser offense." 28

On this point, respondent Court ratiocinated: 29

In this case, although the accused is charged with murder on two counts, and evidence
of guilt is strong, the lower court found him guilty of homicide also on two (2) counts.
He has appealed. An appeal by the accused throws the whole case open for review
and this includes the penalty, the indemnity and the damages awarded by the trial
court which may be increased (Quemuel vs. Court of Appeals, 130 Phil. 33). The
appellate court may find the accused guilty of the original crime charged and impose
on him the proper penalty therefor (Linatoc vs. People, 74 Phil. 586). By virtue of the
appeal, the conviction for the lesser offense of homicide is stayed in the meantime.
Hence, the accused is back to the original situation as he was before judgment (Cf .
Peo vs. Bocar, 97 Phil. 398), that is, one charged with capital offenses where evidence
of guilt is strong. Bail must be denied.

To resolve this issue, we refer to Section 13, Article III of the 1987 Constitution
which provides:

Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas corpus
is suspended. Excessive bail shall not be required.

In the case of De la Camara vs. Enage, 30 we analyzed the purpose of bail and why it
should be denied to one charge with a capital offense when evidence of guilt is strong:

. . . Before conviction, every person is bailable except if charged with capital offenses
when the evidence of guilt is strong. Such a right flows from the presumption of
innocence in favor of every accused who should not be subjected to the loss of
freedom as thereafter he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt. Thereby a regime of liberty is honored in the observance
and not in the breach. It is not beyond the realm of probability, however, that a person
charged with a crime, especially so where his defense is weak, would just simply
make himself scarce and thus frustrate the hearing of his case. A bail is intended as a
guarantee that such an intent would be thwarted. It is, in the language of Cooley, a
"mode short of confinement which would, with reasonable certainty, insure the
attendance of the accused" for the subsequent trial. Nor is there anything unreasonable
in denying this right to one charged with a capital offense when evidence of guilt is
strong, as the likelihood is, rather than await the outcome of the proceeding against
him with a death sentence, an ever-present threat, temptation to flee the jurisdiction
would be too great to be resisted. (Emphasis supplied).

The aforequoted rationale applies with equal force to an appellant who, though
convicted of an offense not punishable by death, reclusion perpetua or life
imprisonment, was nevertheless originally charged with a capital offense. Such
appellant can hardly be unmindful of the fact that, in the ordinary course of things,
there is a substantial likelihood of his conviction (and the corresponding penalty)
being affirmed on appeal, or worse, the not insignificant possibility and infinitely
more unpleasant prospect of instead being found guilty of the capital offense
originally charged. In such an instance, the appellant cannot but be sorely tempted to
flee.

Our Rules of Court, following the mandate of our fundamental law, set the standard to
be observed in applications for bail. Section 3, Rule 114 of the 1985 Rules on
Criminal procedure, 31 as amended, provides:

Sec. 3. Bail, a matter of right; exception. All persons in custody shall, before final
conviction, be entitled to bail as a matter of right, except those charged with a capital
offense or an offense which, under the law at the time of its commission and at the
time of the application for bail, is punishable by reclusion perpetua, when evidence of
guilt is strong. (Emphasis supplied).

In Borinaga vs. Tamin, 32 which was promulgated in 1993, this Court laid down the
guidelines for the grant of bail:

The 1987 Constitution provides that all persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong shall, before
conviction, be bailable by sufficient sureties or be released on recognizance as may be
provided by law. Corollarily, the Rules of Court, under Section 3, Rule 114 thereof,
provides that all persons in custody shall, before final conviction, be entitled to bail as
a matter of right, except those charged with a capital offense or an offense which,
under the law at the time of its commission and at the time of the application for bail,
is punishable by reclusion perpetua, when evidence of guilt is strong.

As now revised in the 1985 Rules of Criminal Procedure and provided in Rule 114
thereof, the rules on availability of bail to an accused may be restated as follows:

1. Admission to bail is a matter of right at any stage of the action where the
charge is not for a capital offense or is not punishable by reclusion perpetua; [Sec. 3,
Rule 114, 1985 Rules on Crim. Procedure].

2. Regardless of the stage of the criminal prosecution, no bail shall be allowed
if the accused is charged with a capital offense or of an offense punishable by
reclusion perpetua and the evidence of guilt is strong; [Idem].

3. Even if a capital offense is charged and the evidence of guilt is strong, the
accused may still be admitted to bail in the discretion of the court if there are strong
grounds to apprehend that his continued confinement will endanger his life or result in
permanent impairment of health, [De la Rama vs. People's Court, 43 O.G. No. 10,
4107 (1947)] but only before judgment in the regional trial court; and

4. No bail shall be allowed after final judgment, unless the accused has applied
for probation and has not commenced to serve sentence, [Section 21, Rule 114, 1985
Rules of Court] the penalty and offense being within the purview of the probation law.

However, the above guidelines, along with Rule 114 itself, have since been modified
by Administrative Circular No. 12-94, which was issued by this Court and which
came into effect on October 1, 1994. Verily, had herein petitioner made application
for bail after the effectivity of said circular, this case would have been readily and
promptly resolved against petitioner. For, quite recently, in Robin Cario Padilla vs.
Court of Appeals, et al., 33 we held, making reference to said administrative circular:

Bail is either a matter of right, or of discretion. It is a matter of right when the offense
charged is not punishable by death, reclusion perpetua or life imprisonment. On the
other hand, upon conviction by the Regional Trial Court of an offense not punishable
by death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion.
Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years but
not more than twenty (20) years then bail is a matter of discretion, except when any of
the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present
then bail shall be denied. But when the accused is charged with a capital offense, or
an offense punishable by reclusion perpetua or life imprisonment, and evidence of
guilt is strong, bail shall be denied, as it is neither a matter of right nor a discretion. If
the evidence, however, is not strong bail becomes a matter of right. (Citation omitted;
emphasis supplied).

And, as above adverted to, the circumstances mentioned in paragraph 3 of Section 5,
Rule 114 of the 1994 Revised Rules on Criminal Procedure the presence of any of
which could preclude the grant of bail are as follows:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or
has committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his bail without valid
justification;

(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of
flight if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused
may commit another crime.

It will be readily noted that, pursuant to the foregoing amendments, not only does the
conviction of petitioner for two counts of homicide disqualify him from being
admitted to bail as a matter of right and subject his bail application to the sound
discretion of the court, but more significantly, the circumstances enumerated in
paragraphs a, b, d and e above, which are present in petitioner's situation, would have
justified and warranted the denial of bail, except that a retroactive application of the
said circular in the instant case is barred as it would obviously be unfavorable to
petitioner.

But be that as it may, the rules on bail at the time of petitioner's conviction (i.e., prior
to their amendment by Adm. Circular 12-94) do not favor petitioner's cause either. In
Quemuel vs. CA, et al., 34 this Court held that the appeal in a criminal case opens the
whole case for review and this includes the penalty, which may be increased. Thus, on
appeal, as the entire case is submitted for review, even factual questions may be
increased. Thus, on appeal, as the entire case is submitted for review, even factual
questions may once more be weighed and evaluated. That being the situation, the
possibility of conviction upon the original charge is ever present. Likewise, if the
prosecution had previously demonstrated that evidence of the accused's guilt is strong,
as it had done so in this case, such determination subsists even on appeal, despite
conviction for a lesser offense, since such determination is for the purpose of
resolving whether to grant or deny bail and does not have any bearing on whether
petitioner will ultimately be acquitted or convicted of the charge.

We have previously held that, while the accused, after conviction, may upon
application be bailed at the discretion of the court, that discretion particularly with
respect to extending the bail should be exercised not with laxity, but with caution
and only for strong reasons, with the end in view of upholding the majesty of the law
and the administration of justice. 35

And the grave caution that must attend the exercise of judicial discretion in granting
bail to a convicted accused is best illustrated and exemplified in Administrative
Circular No. 12-94 amending Rule 114, Section 5 which now specifically provides
that, although the grant of bail is discretionary in non-capital offenses, nevertheless,
when imprisonment has been imposed on the convicted accused in excess of six (6)
year and circumstances exist (inter alia, where the accused is found to have previously
escaped from legal confinement or evaded sentence, or there is an undue risk that the
accused may commit another crime while his appeal is pending) that point to a
considerable likelihood that the accused may flee if released on bail, then the accused
must be denied bail, or his bail previously granted should be cancelled.

But the same rationale obtained even under the old rules on bail (i.e., prior to their
amendment by Adm. Circular 12-94). Senator Vicente J. Francisco's 36 eloquent
explanation on why bail should be denied as a matter of wise discretion after
judgment of conviction reflects that thinking, which remains valid up to now:

The importance attached to conviction is due to the underlying principle that bail
should be granted only where it is uncertain whether the accused is guilty or innocent,
and therefore, where that uncertainty is removed by conviction it would, generally
speaking, be absurd to admit to bail. After a person has been tried and convicted the
presumption of innocence which may be relied upon in prior applications is rebutted,
and the burden is upon the accused to show error in the conviction. From another
point of view it may be properly argued that the probability of ultimate punishment is
so enhanced by the conviction that the accused is much more likely to attempt to
escape if liberated on bail than before conviction. . . .

Third Issue: Petitioner's Record

Petitioner claims that respondent Court of Appeals erred in concluding "that at the
time the bail was granted and approved by His Honor of the trial court, he has still to
serve sentence and remain in confinement up to October 1, 1996" and hence was not
entitled to bail. 37 Petitioner, citing Luis B. Reyes, 38 maintains that the Bureau of
Corrections properly released him from prison on July 18, 1990.

We find it unnecessary to address this issue in the resolution of the instant petition.
Having already determined that the bail bond was approved without jurisdiction and
that the Court of Appeals was correct in issuing the two questioned Resolutions, we
thus hold that, petitioner cannot be released from confinement. The determination of
whether or not petitioner should still be imprisoned up to October 1, 1996, and only
thereafter may possibly be released on bail is no longer material for the disposition of
this case. Thus, we shall longer burden ourselves with the resolution of this academic
issue.

EPILOGUE

In sum, we rule that bail cannot be granted as a matter of right even after an accused,
who is charged with a capital offense, appeals his conviction for a non-capital crime.
Courts must exercise utmost caution in deciding applications for bail considering that
the accused on appeal may still be convicted of the original capital offense charged
and that thus the risk attendant to jumping bail still subsists. In fact, trial courts would
be well advised to leave the matter of bail, after conviction for a lesser crime than the
capital offense originally charged, to the appellate court's sound discretion.

We also hold that the trial court had failed to exercise the degree of discretion and
caution required under and mandated by our statutes and rules, for, aside from being
too hasty in granting bail immediately after promulgation of judgment, and acting
without jurisdiction in approving the bailbond, it inexplicably ignored the undeniable
fact of petitioner's previous escape from legal confinement as well as his prior
convictions.

Upon the other hand, the respondent Court should be commended for its vigilance,
discretion and steadfastness. In ruling against bail, it even scoured the records and
found that treachery attended the killing thereby justifying its action. The trial court's
literal interpretation of the law on bail was forcefully debunked by the appellate
courts' excellent disquisition on the rationale of the applicable rules. Truly, law must
be understood not by "the letter that killeth but by the spirit that giveth life." Law
should not be read and interpreted in isolated academic abstraction nor even for the
sake of logical symmetry but always in context of pulsating social realities and
specific environmental facts. Truly, "the real essence of justice does not emanate from
quibblings over patchwork legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the ultimate development of the
social edifice." 39

WHEREFORE, for lack of merit, the instant petition is hereby DENIED and the two
assailed Resolutions AFFIRMED.

SO ORDERED.































































Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5371 March 26, 1953

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AQUINO MINGOA, defendant-appellant.

Marcelino Lontok for appellant.
Office of the First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor
Federico V. Sian for appellee.

REYES, J.:

Found short in his accounts as officer-in-charge of the office of the municipal
treasurer of Despujols, Romblon, and unable to produce the missing fund amounting
to P3,938 upon demand by the provincial auditor, the defendant Aquino Mingoa was
prosecuted for the crime of malversation of public funds in the Court of First Instance
of Romblon, and having been found guilty as charged and sentenced to the
corresponding penalty, he appealed to the Court of Appeals. But that court certified
the case here on the ground that it involved a constitutional question.

The evidence shows that it is not disputed that upon examination of his books and
accounts on September 1, 1949, defendants, as accountable officer, was found short in
the sum above-named and that, required to produce the missing fund, he was not able
to do so. He explained to the examining officer that some days before he had, by
mistake, put the money in a large envelope which he took with him to show and that
he forgot it on his seat and it was not there anymore when he returned. But he did not
testify in court and presented no evidence in his favor.

We agree with the trial judge that defendant's explanation is inherently unbelievable
and cannot overcome the presumption of guilt arising from his inability to produce the
fund which was found missing. As His Honor observes, if the money was really lost
without defendant's fault, the most natural thing for him to do would be to so inform
his superiors and apply for release from liability. But this he did not do. Instead, he
tried to borrow to cover the shortage. And on the flimsy excuse that he preferred to do
his own sleuthing, he even did not report the loss to the police. Considering further as
the prosecution points out in its brief, that defendant had at first tried to avoid meeting
the auditor who wanted to examine his accounts, and that for sometime before the
alleged loss many teachers and other employees of the town had not been paid their
salaries, there is good ground to believe that defendant had really malversed the fund
in question and that his story about its loss was pure invention.

It is now contended, however, that lacking direct evidence of actual misappropriation
the trial court convicted defendant on mere presumptions, that is, presumptions of
criminal intent in losing the money under the circumstances alleged and presumptions
of guilt from the mere fact that he failed, upon demand to produce the sum lacking.
The criticism as to the first presumption is irrelevant, for the fact is that trial court did
not believe defendant's explanation that the money was lost, considering it mere cloak
to cover actual misappropriation. That is why the court said that "whether or not he
(defendant) is guilty of malversation for negligence is of no moment . . . " And as to
the other presumption, the same is authorized by article 217 of the Revised Penal
Code, which provides:

The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal use.

The contention that this legal provision violates the constitutional right of the accused
to be presumed innocent until the contrary is proved cannot be sustained. The
question of the constitutionality of the statute not having been raised in the court
below, it may not be considered for the first time on appeal. (Robb vs. People, 68
Phil., 320.)

In many event, the validity of statutes establishing presumptions in criminal cases is
now settled matter, Cooley, in his work on constitutional limitations, 8th ed., Vo. I,
pp. 639-641says that "there is no constitutional objection to the passage of law
providing that the presumption of innocence may be overcome by contrary
presumption founded upon the experience of human conduct, and enacting what
evidence shall be sufficient to overcome such presumption of innocence." In line with
this view, it is generally held in the United States that the legislature may enact that
when certain facts have been proven they shall be prima facie evidence of the
existence of the guilt of the accused and shift the burden of proof provided there be
rational connection between that facts proved and the ultimate fact presumed so that
the inference of the one from proof of the others is not unreasonable and arbitrary
because of lack of connection between the two in common experience. (See
annotation on constitutionality of statutes or ordinances making one fact presumptive
or prima facie evidence of another, 162 A.L.R. 495-535; also, State vs. Brown, 182
S.E., 838, with reference to embezzlement.) The same view has been adopted here as
may be seen from the decisions of this court in the U.S. vs. Tria, 17 Phil., 303; U.S.
vs. Luling, 34 Phil., 725; and People vs. Merilo, G.R. No. L-3489, promulgated June
28, 1951.

The statute in the present case creates a presumption of guilt once certain facts are
proved. It makes the failure of public officer to have duly forthcoming, upon proper
demaand, any public funds or property with which he is chargeable prima facie
evidence that he has put such missing funds or property to personal use. The ultimate
fact presumed is that officer has malversed the funds or property entrusted to his
custody, and the presumption is made to arise from proof that he has received them
and yet he has failed to have them forthcoming upon proper demand. Clearly, the fact
presumed is but a natural inference from the fact proved, so that it cannot be said that
there is no rational connection between the two. Furthermore, the statute establishes
only a prima facie presumption, thus giving the accused an opportunity to present
evidence to rebut it. The presumption is reasonable and will stand the test of validity
laid down in the above citations.

There being no reversible error in the decision appealed from, the same is hereby
affirmed, with costs.




plea




Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-53586 January 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PONCIANO LUMAGUE, JR., MARIO LUMAGUE, ROLANDO LUMAGUE and
JUANITO LUMAGUE, accused whose death sentences are under review.



PER CURIAM:

This is a murder case. Early in the morning of July 25, 1977, Antonio A. Regalado,
39, a credit investigator of the Social Security System, was maliciously killed in the
Marikit Sub. division, Marikina, Rizal.

The postmortem examination revealed that he had fourteen incised wounds, two
lacerated wounds, ten punctured wounds and ten stab wounds, or thirty-six wounds in
all, eight of which were fatal because they affected his vital organs like his lungs,
liver, heart and intestines (Exh. A). The wounds were located in different parts of his
body: front and back, head, arms, legs, abdomen, knees, chest and shoulders (Exh. B).
Obviously, he had been assaulted by more than one person.

The incised and stab wounds were caused by a bladed weapon such as a kitchen knife.
The lacerated wounds were caused by a blunt instrument such as a piece of wood or
iron bar. The punctured wounds were caused by a pointed instrument such as an
icepick.

Elma Icater Regalado, a thirty-nine year-old businesswoman, the victim's widow,
testified that she spent P 25,000 for the funeral of her husband and for miscellaneous
obligations (Exh. J to J-8). Aside from his widow, the deceased was survived by his
two children, Ian, 4 and Shiela, 6. In her letter to General Romeo C. Espino, she said
(Exh. K):

In our own little world, my husband and I planned the future of our children.

Ma. Shiela was to be a nurse while L. Ian, ... was to be a doctor according to his wish.
We planned and rejoiced in our little hopes even when life was difficult, until last July
25, 1977 at about 0030 Hrs. when a gang of hoodlums pounced upon my husband and
his companions while they were on their way home and robbed him and brutally and
mercilessly murdered him, and with him, the beautiful dreams we had for our
children.

Even a mad dog or an abominable criminal did not deserve his manner of death! He,
who never harmed anybody nor spanked his children out of love, lay there in a muddy
street of the Marikit Subdivision, gasping for breath and calling our ... son even as his
assailants took turns in stabbing him and pummeling him with a garden hoe that broke
at the handle as it hit my helpless husband as he lay on the ground.

Our house that was once a happy home when he was around is no longer the same
since he has gone. Our little girl, Ma. Shiela, eats her breakfast silently with tears
streaming down her face; our son L. Ian keeps asking me when his father will wake
up, and I, will never get used to the emptiness and the void that he has left behind.

The Marikina police could not solve the crime. At the request of Mrs. Regalado,
General Espino referred the case to the Constabulary criminal investigation service
(CIS) at Camp Crame.

As a result of the investigation, the four Lumague brothers, Ponciano, Jr., 27,
Rolando, 25, Mario, 23, and Juanito 21, and their brother-in-law, Rodolfo de la Cruz,
were charged with murder for the killing of Regalado. Ponciano, Rolando and Mario
were arrest on August 20, 1977. Juanito was arrested on October 10, 1977 when the
prosecution had already finished the presentation of its evidence against his three
brothers. De la Cruz is at large.

The Lumague brothers came from a family of five boys and five girls. They grew up
in the slum area of Tondo, Manila. Their parents were natives of La Union. The
father, a convict, was killed by a member of the Oxo gang (p. 138, Record).

Even before the Lumague brothers were implicated in the killing of Regalado,
Rolando had been charged in the municipal court of San Fernando, La Union with
frustrated murder and slight physical injuries (Exh. L and M). In the same court,
Ponciano was charged with frustrated homicide (Exh. P). He was also charged in the
provincial fiscal's office of La Union with direct assault of an agent of a person in
authority and robbery (Exh. R and S).

Ponciano is married with four children. He used to be a shoe repairman. He finished
grade four. Rolando is married with three children. He finished grave five. He used to
be a tricycle driver. Mario is married with three children. He finished grade three. He
was jobless.

The probation officers found the Lumague brothers to have marked criminal
tendencies and to have a propensity for anti-social behavior (p. 139, Record).

Trial of Ponciano, Rolando and Mario Lumague. These three brothers were tried
first because the other two accused, Juanito Lumague and Rodolfo de la Cruz, were at
large. According to the prosecution, in July, 1977, the Lumague brothers, with their
mother, Morales, and their sister and brother-in-law, Rodolfo de la Cruz, were renting
from Walter Romero Gutierrez a shack or "barong-barong" in the Marikit Subdivision
in Marikina near the residence of Virgilio Pacunayen.

At about eleven o'clock in the evening of July 24, 1977, Regalado, with his friends,
Roberto Asuncion, Gerardo A. Ducha, Lorenzo Gravador and Rogelio Bautista, had a
drinking spree at the Havana Pub and Beerhouse located at Barrio Concepcion,
Marikina, Metro Manila. Each of the five drank three bottles of beer. They watched
the floor show.

Shortly after midnight, the group left that place and, as it was curfew time, they
decided to walk to Bautista's house in the subdivision about a kilometer away and
sleep there. (Regalado was a resident of 5-C Annapolis Street, Cubao, Quezon City, a
neighbor of Asuncion who resided at 5-D Annapolis Street.)

What happened while the group was walking was testified to by two eyewitnesses,
Asuncion, 30, and Pacunayen, 21, a high school graduate, who, as noted above, was
residing at a house near the shack where the Lumague family was staying and who
claimed to have been a victim of an assault perpetrated by the members of the
Lumague family in June, 1977.

Asuncion testified that he and Regalado were walking together. Gravador was ahead
of them. Bautista and Ducha followed Regalado and Asuncion. While walking on the
street in front of the shack occupied by the Lumague family and Pacunayen's house,
Asuncion heard Ducha shouting that Bautista had been stabbed. When Asuncion
looked behind, he noticed that Ducha and Bautista were running because they were
being pursued by two persons.

Asuncion's impulse was to follow Bautista and Ducha but after taking a few steps, he
turned around and looked at the place where he had left Regalado. He saw Mario
Lumague beating Regalado on the back with a hoe (Exh. D). Asuncion was about two
fathoms away. Regalado fell on the ground face down. Asuncion got a stone and
threw it at Mario.

Mario pulled Regalado to a dark grassy place near the lighted street. Four persons
approached Regalado. Asuncion Identified three of them as the brothers Ponciano,
Mario and Rolando Lumague. Ponciano hit Regalado many times with his fist and
struck him on the back with an adobe stone.

Rolando also threw an adobe stone at the head of Regalado and boxed him many
times. Juanito repeatedly stabbed Regalado. Rodolfo de la Cruz clobbered Regalado
with a club ("pamalo") about two feet long.

Then, Mario who was armed with a hoe turned his attention to Asuncion, Ducha and
Bautista who fled upon his approach. Mario pursued them. He did not overtake them.
Shortly thereafter, the five assailants left the place where they had assaulted Regalado.

Asuncion approached Regalado who was bloodied all over but was still breathing.
Asuncion directed Bautista to fetch a vehicle. Ducha went to the police station. "Then
a taxicab passed by, Asuncion hailed it and placed Regalado inside the taxicab. He
was brought to the E, Rodriguez Hospital but was already dead on arrival thereat.

Asuncion's testimony is a confirmation of his sworn statements dated August 8 and
22, 1977 before the Constabulary investigator of the CIS police intelligence section at
Camp Crame (Exh. C and C-2).

Pacunayen, the other prosecution witness, a neighbor of the Lumague family, who
was acquainted with the members thereof, testified that at past midnight on July 25,
1977 he was in the balcony of his house overlooking the lighted street.

He witnessed the assault on Regalado which was perpetrated by the four Lumague
brothers and their brother-in-law Rodolfo de la Cruz. Pacunayen, who was at a
distance of fifteen meters from the scene of the assault, corroborated the particulars
thereof as narrated by Asuncion. Pacunayen's testimony is a confirmation of his sworn
statement dated August 9, 1977 before the Constabulary investigator of the CIS police
intelligence section at Camp Crame (Exh. G).

Ducha, who, like Gravador and Bautista, did not testify, executed sworn statements
dated August 1 1 and 22, 197 7 before the Constabulary CIS investigator (Exh. E and
F). Ducha, 25, a high school graduate, narrated how he and Bautista encountered a
person who tried to stab Bautista. Then, Ducha saw another person beating Regalado
with a hoe. At a confrontation, Ducha Identified Mario as the wielder of the hoe
Ponciano as the one who assaulted Regalado with an adobe stone and Rolando as the
one who boxed Regalado (pp. 79-83, Record).

Another documentary evidence of the prosecution is the hardly legible sworn
statement of Mario Lumague taken by the same Constabulary investigator (Exh. H,
pp. 87-90, Record).

The investigator, before interrogating Mario, warned him that anything that he would
say regarding the death of Regalado would be used against him in court and that he
(Mario) had the rights (1) to remain silent and not to answer any question that would
be prejudicial to him, (2) to have counsel, (3) to be investigated in the presence of his
lawyer and (4) to have counsel de oficio if he could not afford to hire his own lawyer.

Then, the investigator asked Mario whether after being apprised of his constitutional
rights he was willing to give a voluntary statement and to sign an acknowledgment
that he understood his constitutional rights. Mario answered in the affirmative. He
then signed the following certification, amounting to a waiver of his constitutional
rights, which formed part of his statement:

Ito ay nagpapatunay na nauunawaan kong lahat ang aking mga karapatan na
napaliwanag sa akin ng inbestigador gaya ng pagbibigay ng salaysay na kusang loob,
at hindi na rin kukuha ng abogado dahil katotohanan lamang ang aking sasabihin.
(Exh. H-1 p. 87, Record.)

Mario's version in his statement is that he and Juanita were in the Havana Pub and
Beer Garden from seven to ten o'clock in the evening of July 25 (should be 24), 1977.
At around eleven o'clock, when Mario was already in his residence at the Marikit
Subdivision (where he lived with his brothers, mother and brother-in-law) he heard a
shout coming from the street in front of the house and the sound of an object hitting
the roof ("kalabog") and he saw Juanito going out of the house.

Then, later, Beth, the sister of his brother-in-law, informed Mario that some persons
had ganged up against Juanita. Mario came out of the house and allegedly saw Juanita
prostrate on the street in front of their house. Mario reentered the house, got a hoe and
helped Juanita in resisting his four assailants who were holding stones and assaulting
Juanita. Mario clubbed on the head the person holding Juanita. Juanito got a kitchen
knife from the house and repeatedly stabbed the person whom Mario had clubbed on
the head and who was sitting on the ground. The assaulted person fell on the ground.
Mario and Juanito ran away.

Mario in his statement disclosed that the persons staying in the house at the Marikit
Subdivision were Rodolfo de la Cruz and his wife Hermenegilda (Mario's sister),
Ildefonsa or Perlita Lumague, Reynaldo Lumague, Beth de la Cruz, Lita Lumague
(Mario's wife) and Juanito (No. 32, Exh. H).

Mario said that only he himself and Juanita assaulted Regalado but he (Mario) was
not sure whether he was the only one who killed Regalado (No. 40, Exh. H).

The version of the defense is that Juanita Lumague was the sole assaulted of
Regalado. Ponciano, Rolando and Mario presented as witnesses their mother
Emerenciana Morales and Angelita Ramos, Eleno Gomez and Winnie Camacho to
prove their defense of alibi.

Emerenciana, a sixty-nine year-old widow, testified that in July, 1977 she resided with
the spouses Hermenegilda Lumague and Rodolfo de la Cruz in the house which they
had been renting for three months in the Marikit Subdivision. In the evening of July
24, 1977 she went to bed at eleven o' clock. She was awakened because of the noise
caused by some persons who were passing near the house and who were challenging
the Ilocanos to a fight. She came out of the house and saw five men who were very
noisy.

She advised them to go home because it was already very late. They allegedly
answered that they did not observe the curfew and they cursed the President for
enforcing it. Emerenciana said that the five men pushed her towards the door of her
house and she fell on the ground. She was allegedly stoned by the five noisy
individuals. She was hit in the cheek, chest, left foot and front part of her body. A
woman named Marilou (Angelita) was also stoned and her foot was injured
("nipilay") (412).

Emerenciana admitted that when the incident happened she, her children and son-in-
law were staying in the house but when asked to clarify her answer she said that her
daughter Hermenegilda, son-in-law Rodolfo de la Cruz and her grandchildren were
staying in the house (398). She declared that she did not know who killed Regalado
and that when Regalado was killed her four sons "were not there" (399), meaning that
Rolando, Ponciano and Juanito were in the province, Mario was in Tondo and
Rodolfo was in the house (400-3). When pressed by counsel de oficio to clarify the
whereabouts of Juanito, Emerenciana answered that Juanita arrived in the house when
Emerenciana was pushed by the five persons (4069).

Emerenciana categorically declared that Ponciano never resided with her in Marikina
(410-11). She testified that when Juanita was boxed by the men, a fight ensued
between them and Juanita. She admitted that Juanita had previously been confined in
the Madrigal Rehabilitation Center for having been involved in a homicide case with
his brother-in-law, Maximino Dacanay.

Angelita Ramos, 20, a helper of Emerenciana, testified that Pacunayen used to go to
Emerenciana's house. In the afternoon of July 24, 1977, Ponciano was not in the house
in Marikina but was in Bauang, La Union, Mario was in Tondo and Rolando was in
Barrio Ambangonan, Pugo, La Union, but Juanita was in Emerenciana's house in the
Marikit Subdivision, Marikina.

Angelita corroborated Emerenciana's, testimony that at about midnight on July 24 five
persons passed by Emerenciana's house and challenged the Ilocanos to step out.
Emerenciana came out of the house and told the five persons to go home. She was
pushed by the five persons and she fell on the ground.

At that juncture, Juanita and Pacunayen arrived. Regalado allegedly boxed Juanita.
The five persons threw stones and the witness, Angelita, was hit in the ankle.
Pacunayen assaulted Regalado with a hoe Regalado fell on the ground face down.
Pacunayen repeatedly stabbed Regalado (461).

Because Angelita was not available for cross-examination, her testimony on direct
examination was stricken out of the record (506).

Eleno Gomez, 50, a farmer, a resident of Barrio Quinavite, Bauang, La Union, and a
first cousin of Julian Camacho, who in turn is a first cousin of the Lumague brothers,
testified that in the evening of July 24, 1977 he acted as guard at a dance held on the
occasion of a wedding in Barrio Quinavite and that Ponciano, Rolando and Mario
were present at that dance (475). Juanita and De la Cruz were not present at that
dance. A few moments later, Gomez testified that Rolando and Mario were not
present at the wedding party (489).

Winnie Camacho, a twenty-three year-old housewife, whose husband is a first cousin
of Rolando, testified that on July 24 and 25,1977 Rolando was at her house in Barrio
Ambangonan, Pugo. He planted rice on July 24. The next day he went fishing in the
river.

Decision in the case of Ponciano, Rolando and Mario Lumague.At the conclusion
of Winnie's testimony on January 31, 1978, defense counsel Galvan announced that
he would present the accused as witnesses at the next hearing scheduled on February
24. That hearing was not held. The case was reset for March 14. No hearing was held
on that date for reasons not shown in the record.

On that date, the trial court issued an order requiring the prosecution to present its
memorandum within ten days and giving defense counsel Galvan five days within
which to file a reply memorandum. It scheduled on April 18 the promulgation of its
sentence.

The prosecution in a motion dated March 20, 1978 offered its Exhibits L to S which
were marked during the cross-examination of the defense witnesses. Galvan
objectived to Exhibits L, M and N. He did not make not attached to the motion.

The prosecution filed its memorandum on April 5. Galvan was furnished with a copy
thereof. He did not submit his reply memorandum. As scheduled, the death sentence
against Pnciano, Rolando and Mario was "dictated and promulgated in open court" on
April 18, 1978.

The trial court convicted Ponciano, Rolando and Mario Lumague of murder,
sentenced each of them to death and ordered them to pay solidarily to the heirs of
Regalado an indemnity of thirty-two thousand pesos. Treachery and abuse of
superiority were considered qualiffying circumstances. Cruelty was appreciated as a
generic aggravating circumstances. Cruelty was appreciated as a generic aggravating
circumstances. The trial court did not give credence to the alibis of the accused.

The trial court in its decision explained that the defense waived its right to present
further evidence after it failed to present such evidence in spite of numerious
postponements and when defense counsel failed to appear in court despite due notice
(p. 286, Record).

Galvan filed on April 24 a motion for reconsideration. He complained that the
accused were denied due process of law because they were not given a chance to
testify in their behalf. The motion was denied. The trial court in its order of April 28,
1978 directed the clerk of court to forward the record of the case to this Court.

Separate trial and decision in Juanito Lumague's case. As priorly noted, Juanito
was arrested in Barrio ambangonan, on October 10, 1977 when the prosecution had
finished the presentation of its evidence against his brothers Ponciano, Roland and
Mario. When arraigned on October 19, Juanito pleaded not guilty. He was given a
separate trial.

At the hearing on June 28, 1978, when the medico-legol officer was testify for the
second time in the separate trial for Juanito, Benjamin Santos, Juanito's counsel,
interrupted the testimony of the medico-legal and manifested that Juanito was
withdrawing his plea of not guilty and changing it to a plea of guilty. The doctor's
testimony was suspended. Juanita was placed on the witness stand. He took his oath
and was interrogated as follows:

Court to Juanito Lumague: Do you confirm and affirm that you are changing your
plea of not guilty to that plea of guilty? A. Yes, sir. I was not able to talk.

Q. by Court: You were not able to talk because you were arrested. ...A. No,
your Honor. The reason at that time I was asking but I was not able to reason out that
I was the one who committed the crime.

Court: Why did you not tell the lawyer of your brother that you (are) the only one to
be presented by the defense lawyer? A. I stated so, your Honor.

Court: Did anybody intimidate, coerce you or promise you of (any) leniency for
changing that plea of not guilty to that plea of guilty?- A.No. your Honor. (550-552)

The trial court then ordered the resumption of the presentation of evidence against
Juanita. The medico-legal officer was cross-examined by Juanito's counsel Asuncion
and Elma 1. Regalado testified again. The prosecution formally offered in evidence
against Juanita the same Exhibits A to K which it had already presented during the
trial of Ponciano, Rolando and Mario Lumague.

Juanito's counsel did not present any evidence. On July 5, 1978, the trial court
rendered in Juanito's case a decision similar to its previous decision. It convicted him
of murder, sentenced him to death and ordered him to pay the same indemnity (p. 281,
Record).

Ruling.In this automatic review of the fear death sentences, counsel de oficio
contends that the trial court erred in not giving the four accused a chance to present
other witnesses and to testify in their behalf, in admitting the extrajudicial confession
of Mario Lumague, in giving credence to the testimonies of the prosecution witnesses
and in convicting the accused of murder.

With respect to Juanita Lumague, who withdrew his plea of not guilty, who was tried
separately and whose guilt was also established by means of the evidence presented
against him, we find that the counsel's contentions are devoid of merit. Juanito's guilt
was proven beyond reasonable doubt. His plea of guilty and the evidence introduced
by the prosecution destroyed the presumption of innocence in his favor.

There is conclusive evidence that he was the one who stabbed Regalado. In doing so,
he conspired with the other assailants of the victim particularly with the assailant who
treacherously struck Regalado on the back with a hoe Even Juanito's mother admitted
that he took part in the assault (408-9, 413-4). And, of course, the fact that Juanita was
a fugitive from justice for several months is an indication of his guilt.

The trial court correctly held that the killing was murder qualified by treachery and
abuse of superiority and aggravated by cruelty. Hence, death is the proper penalty.
Juanito's plea of guilty is not mitigating because it was made after the prosecution had
commenced the presentation of its evidence.

With respect to the other three accused, Ponciano, Mario and Rolando Lumague, who
pleaded not guilty and who were tried ahead of Juanito, there is merit in their
contention that they were denied due process of law because they were not given a
chance to testify in their behalf and to present additional evidence.

An accused has the constitutional right "to be heard by himself and counsel" and the
right "to testify as a witness in his own behalf ". The denial of such rights is a denial
of due process, as held in People vs. Santiago, 46 Phil. 734. See People vs. Abuda, L-
30009, February 27, 1971, 37 SCRA 789.

Due process of law in a criminal prosecution consists of a law creating or defining the
offense, an impartial tribunal of competent jurisdiction. accusation in due form. notice
and opportunity to defend, trial according to established procedure, and discharge
unless found guilty (16A C.J.S. 617).

The constitutional right of the accused to be heard in his defense is inviolate. "No
court of justice under our system of government has the power to deprive him of that
right." (Abriol vs. Homeres, 84 Phil. 525, 534).

Fundamental fairness, which is the essence of due process, requires that the three
accused should be allowed to testify on their defenses and to present additional
evidence to prove their innocence.

WHEREFORE, we affirm the trial court's separate decision dated July 5, 1978,
sentencing Juanito Lumague to death.

Its prior decision of April 18, 1978, sentencing to death Ponciano, Mario and
Rolando, all surnamed Lumague, is set aside. It is directed to receive the additional
evidence of the said accused, subject to the right of the prosecution to present rebuttal
evidence and the right of the accused to present surrebuttal evidence. The evidence
already presented subsists and should be taken into account in the rendition of another
decision. Costs de oficio.

SO ORDERED.






























Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-35707 May 31, 1979

CRISPINO FLORES, petitioner,
vs.
HON. G. JESUS B. RUIZ, Presiding Judge, Court of First Instance of Cagayan,
PROVINCIAL WARDEN of Cagayan and LEONARDO MANDAC, represented by
his Heirs, thru the Widow DOLORES VDA. DE MANDAC, respondents.

Eliseo M. Cruz for petitioner.

Laggui & Laggui for private respondents.



DE CASTRO, J:

This is a Petition for certiorari and/or Habeas Corpus filed by petitioner Crispin Flores
on October 24, 1972 after he has been allegedly arrested and detained illegally by
Order of the respondent Judge, dated June 20, 1972, finding him guilty of indirect
contempt. (Annex A, Petition, p.11, Rollo).

From the records of this case, it appears that petitioner was actually arrested on
August 28, 1972 and has since been detained in the Provincial Jail of Cagayan until
his release by virtue of a bond of P500.00 which he was allowed to file by this Court
in its Resolution dated October 31, 1972 (p. 33, Rollo), which he must have filed as
he had precisely asked to be bailed, pending his appeal from the Order of the
respondent judge dated August 10, 1972. (Annex E to Petition, p. 24, Rollo). The
reason for the delayed arrest is that petitioner was given a period up to August 1, 1972
"to inform the court whether or not he relinquishes his possession over the land in
question."

The land in question was levied upon and sold on execution on November 28, 1978 to
satisfy the award of damages in favor of Leonardo Mandac, plaintiff in Civil Case No.
1616 of the Court of First Instance of Cagayan against petitioner and his father,
Doroteo Flores, as defendants and the losing parties in said case. They failed to
redeem the property sold to the heirs of Leonardo Mandac in the auction sale. Hence,
the respondent court ordered petitioner to place in possession the heirs of Leonardo
Mandac who had in the meantime died. For his refusal to vacate the land in favor of
the heirs of Mandac, contempt proceedings were instituted against petitioner on
motion of Atty. Antonio N. Laggui as counsel of the aforementioned heirs. As
previously stated, these contempt proceedings led to his arrest and detention.

Petitioner, however, questions the legality of the proceedings for not having been
assisted by counsel during the hearing of the motion for contempt, and for not having
been duly informed of the contempt charge by being furnished a copy of the motion,
or properly "arraigned" before trial. Thus, petitioner claims to have been deprived due
process of law which voided the proceedings against him as for lack of jurisdiction of
the court to inflict the penalty imposed on him, citing Santiago vs. Alikpala, L-25133,
September 28, 1968, 25 SCRA 356.

Further, petitioner contends that his act of not surrendering possession of his levied
property does not constitute contempt, citing the case of Faustino Lagrimas vs- JP of
Camiling, et al., L-14345, July 20, 1961, 2 SCRA 793, and Chinese Commercial
Property Co. vs. Martinez, et al., L-8565, November 30, 1962, 6 SCRA 851.

1. On the issue of whether petitioner was denied due process as he claims,
both respondent judge and private respondents deny the claim of petitioner, of having
been so denied, private respondents even quoting from the transcript of the
stenographic notes the following:

COURT: Is the defendant Crispin Flores in Court?

(Interpreter calls out the name of Crispin Flores, and answered that he is present).

( The Court addresses Crispin Flores).

Q. Who is going to represent you in this case?

A. I have a lawyer but he was not able to come.

Q. Did you notify him?

A. Yes, sir, but he was not able to come today.

Q. Are you willing to go into trial in this case even in the absence of your
lawyer?

A. Yes, sir.

Q. Do you need the assistance of any lawyer?

A. No more, anyway I can answer.

(pp. 1 and 2, tsn Barias June 19, 1972).

The veracity of the alleged proceedings as indicated above is denied by petitioner,
alleging that no such proceedings took place, and that, in any event, the transcript was
not signed by the stenographer. What happened according to him, is that I when
respondent judge had learned that he was without counsel, he told him (petitioner) to
deliver possession of the premises to the private respondents, and for this purpose
gave him ten (10) days to carry out that mandate. In spite of the plan of petitioner that
the hearing on that date be postponed so that his counsel of record could appear for
him or that a new counsel would be hired to appear in his behalf, the respondent
judge, however, demurred, and with the assistance of a certain Atty. Joshua Pastores,
petitioner was made to sign an understanding to deliver up the premises within the
period indicated by the judge on pain of being imprisoned." (Petitioner's
Memorandum, pp. 79-80, Rollo).

The right of the accused to counsel in criminal proceedings has never been considered
subject to waiver. The practice has always been for the trial court to provide the
accused with a counsel de officio, if he has no counsel of his own choice, or cannot
afford one. This is because

The right to be heard would be of little avail if it does not include the right to be heard
by counsel. Even the most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may
be convicted not because he is guilty but because he does not know how to establish
his innocence and this can happen more easily to persons who are ignorant or
uneducated. It is for this reason that his right to be assisted by counsel is deemed so
important that it has become a constitutional right and it is so implemented that under
our rules of procedure it is not enough for the court to apprise an accused of his right
to have an attorney, it is not enough to ask him whether he desires the aid of an
attorney, but it is essential that the court should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure an attorney of his
own. (People vs. Holgado, 85 Phil. 752; See also Aguador vs. Enerio 37 SCRA 140).


On the basis of the aforequoted ruling, it cannot be disputed that the respondent court
failed in its duty designed to satisfy the constitutional right of an accused to counsel.
Petitioner, as the respondent in the contempt charge, a proceedings that partake of the
nature of a criminal prosecution, was thus denied due process. This is more so as
petitioner does not appear to have been duly notified of the contempt charge, nor was
properly "arraigned," since he was not assisted by counsel during the hearing
(Santiago vs. Alikpala, supra). Admittedly with a counsel of record, petitioner could
not have willingly submitted to go to trial when his counsel failed to appear. It is
certainly much easier to believe, that, as petitioner alleges, he asked for
postponement, because of the absence of his counsel, but that the respondent judge
denied the plea, a fact not expressly traversed in the respondent judge's comment (p.
56, Rollo). Neither has he denied the allegation in the petition that there was a denial
of petitioner's right to due process for not having been duly informed of the contempt
charge, nor was his counsel furnished a copy thereof, as he is entitled to one as a
matter of right and as a matter-of duty of the court. All that respondent judge said in
his comment is that "defendant Flores has been granted his day in court to defend
himself from the charges presented by reason of his contumacious acts." (p. 56,
Rollo).

We are, therefore, constrained to hold that the proceedings on the contempt charge has
been vitiated by lack of due process, entitling petitioner to the writ of habeas corpus
he seeks.

Habeas corpus is a high prerogative writ. It is traditionally considered as an
exceptional remedy to release a person whose liberty is illegally restrained such as
when the accused's constitutional rights are disregarded. Such defects results in the
absence or loss of 'jurisdiction and therefore invalidates the trial and the consequent
conviction of the accused whose fundamental right was violated. That void judgment
of conviction may be challenged by collateral attack, which precisely is the function
of habeas corpus. This writ may issue even if another remedy which is less effective
may be availed of by the defendant. In Harden vs. The Director of Prisons
(81:741/1948/), Justice Tuason, speaking for the Court, explicitly announced that
"deprivation of any fundamental or constitutional rights" justify a proceeding for
habeas corpus, on the ground of lack of jurisdiction. Abriol vs. Homeres (84 Phil.
525) is even more categorical. In that case, the action of a lower court, denying the
accused the opportunity to present proof for his defense, his motion for dismissal
failing, was held by this Court as a deprivation of his right to due process. As was
made clear by the opinion of Justice Ozaeta: 'No court of justice under our system of
government has the power to deprive him of that right. If the accused does not waive
his right to be heard but on the contrary invokes the right, and the court denies it to
him, that court no longer has jurisdiction to proceed; it has no power to sentence the
accused without hearing him in his defense; and the sentence thus pronounced is void
and may be conaterany attacked in a habeas corpus proceeding. (Santiago vs.
Alikpala, supra.)

2. We also find as not clearly established by the pleadings and annexes, the
legal basis for the pronouncement of guilt for contempt against petitioner. What
would constitute contempt is the re-entry of the defeated party into the premises after
possession thereof has been delivered to the prevailing party by the sheriff in
enforcement of the writ of execution (Rom vs. Cobadora, L-24764, July 17, 1969, 28
SCRA 758, 763; Chinese Commercial Property Co. vs. Martinez, et. al., L-18565,
November 30, 1962, 6 SCRA 848; Faustino Lagrimas vs. JP of Camiling, et. al., L-
14345, July 20,1961, 2 SCRA 793). Thus, in the order of the respondent judge, dated
September 28, 1972, (Annex G to Petition, pp. 30-31, Rollo), it was stated that:

By virtue of the writ of execution of the decision in this case the plaintiffs were placed
in possession over the parcel described in paragraph 3 of the complaint. Sometime in
March, 1969, defendants invaded the land and since then, they refused to vacate same.
Plaintiffs, on July 2, 1969, filed the first motion for contempt against the defendants.

The other properties of defendants were levied, foreclosed and sold to defendants on
November 28, 1968 in a public auction to satisfy the damages awarded in the same
judgment. The defendants failed to redeem the bidded properties within the one year
from the registration of the certificate of sale of the land, and yet defendants refused
to vacate same land for which plaintiffs filed the second motion for contempt on
December 17, 1971.

The Court did not pass upon the first motion for contempt but gave due course to the
second motion for contempt.

It is altogether clear that with respect to the parcel described in paragraph 3 of the
complaint, the Mandacs were placed in possession thereof but subsequently, the
petitioner herein invaded the land and had since refused to leave it. With respect,
however, to the land in question, petitioner never vacated the same; there was,
therefore, no re-entry to speak of. According to petitioner, the sheriff who tried to
enforce the writ of possession never succeeded in locating the specific land to be
delivered to the Mandacs to be able to claim having placed the latter in possession of
the land. (pp. 77- 78, Rollo). Where the defeated party asked to vacate the premises by
the judgment of the court, refuses to vacate the same on being ordered by the sheriff
enforcing a writ of execution or possession, no contempt is committed, as held in
Goyena de Quizon vs. Philippine National Bank, et al., G. R. No. L-2851, January 31,
1950, cited in Chinese Commercial Property Co. vs. Martinez, et al., supra. In the case
of Rom vs. Cobadora, L-24764, July 17, 1969, 28 SCRA 758, Justice Teehankee,
speaking for the court said:

The order of execution issued by the lower court is address solely and exclusively to
the sheriff, who under the above-cited rules is called upon to oust the defeated party
from the property and make the delivery or restitution by placing the prevailing party
in possession of the property, and mere refusal or unwillingness on the part of the
defeated party to relinquish the property, would not constitute contempt.

3. There is, likewise, an allegation in the petition that the Motion for Contempt
was filed by the counsel of Leonardo Mandac after the latter's death, and therefore,
the motion was unauthorized and without legal standing. From what has been said
above that petitioner is not guilty of contempt, the challenge against the legality of the
motion for contempt need not be inquired into. In fairness, however, to private
respondent from his allegation in his Answer that

7. Atty. Pedro N. Laggui had authority to file the motion for contempt against
the Petitioner on June 30, 1969; at that time, Leonardo Mandac was still alive. Atty.
Antonio N. Laggui likewise had authority to file the motion for contempt against the
Petitioner on December 17, 1971 no longer as counsel for the deceased Leonardo
Mandac for at that time he was already dead but as counsel for his wife and
children in whose favor the corresponding deed of sale of the parcels of land sold at
auction on November 28, 1968, was executed by the Sheriff on February 12, 1970,
pursuant to the Order dated January 21, 1970. (Answer, p. 69, Rollo).

We have no hesitation to say that the Motion for Contempt has been filed with proper
authority.

For all the foregoing, the present petition should be, as it is, hereby granted, thereby
setting aside the order of the respondent judge finding petitioner guilty of indirect
contempt. No pronouncement as to costs.

SO ORDERED.


























































































Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION



G.R. No. L-29015 April 29, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE MALUNSING, ET AL., defendants, MANUEL VILLEGAS, defendant-
appellant.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Isidro
C. Borromeo and Solicitor Dominador L. Quiroz for plaintiff-appellee.

Pablito Pielago for defendant-appellant.



FERNANDO, J.:+.wph!1

It was the failure of the lower court to respect the constitutional right to counsel, 1 so
it is alleged, that is the basis for seeking the reversal of a conviction for murder of
appellant Manuel Villegas. 2 There is more than ample support in the records for the
charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly
manifested in the opening of the trial that appellant intimated to him that he had his
own lawyer. 3 There was an admission that he did appear for him in the preliminary
investigation but only because there was no other counsel. 4 Parenthetically, it may be
observed that while in the original complaint there were two other accused with the
same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such
preliminary investigation, no doubt due to the efforts of this particular lawyer,
possibly a kinsman, they "were both discharged for lack of probable cause." 5 To
resume, the lower court at this stage then asked whether the appellant notified
Attorney Pajarito about his change of mind. When he answered in the negative, the
Court stated: "All right, you have a lawyer who is appearing for you." 6 It is to the
credit of such counsel that he had reservations about the matter, stating that as the
accused had manifested that he had dispensed with his services, his representation
might later on be questioned. 7 The court was not sufficiently impressed. Appellant
was informed that "the Court will give you a lawyer. Atty. Pajarito is appointed as
counsel de oficio for you. We will proceed with the trial." 8 After marking it of record
that he was appointed as such counsel de oficio, the attorney was asked whether he
wanted to confer with appellant. This was the answer: "I think I know the case." 9 The
Court then immediately proceeded with the hearing, having the first witness called. 10
In the decision itself, there is this meaningful admission by the court: "No evidence
was presented for and in behalf of Manuel Villegas." 11

This is how the matter was characterized in the brief of appellant: "The prosecution
during the trial presented its witnesses, and likewise all the defendants, ... except the
appellant Manuel Villegas, took the witness stand and testified for and in their
defense. The appellant is a very old man, ignorant and unlettered; during the entire
proceedings in the case, the appellant while present did not know what was going on;
the trial court never apprised the appellant of his fundamental right to be assisted by a
lawyer; the trial court did not even bother inquiring why the appellant Manuel
Villegas did not take the witness stand, [something out of the ordinary as] all
defendants, except the appellant, had testified; and the trial court went on throughout
the proceedings of the case without knowing why the appellant did not testify, that if
the appellant testified what would his testimony be like, what would be his demeanor
during his testimony, ..." 12 Hence, his insistence that no deference was shown to the
constitutional right to counsel. We are inclined to agree and we reverse. Considering,
however, the gravity of the offense charged, instead of an acquittal, there should be a
new trial with all the safeguards thrown around an accused.

1. That would be to vindicate a fundamental safeguard which in this case,
perhaps from a desire of the lower court to proceed with the trial and thus ease what
could be a congestion in its sala, was inadvertently disregarded. It is not enough that a
counsel de oficio was appointed, especially so as here, where the accused had
indicated that he wanted a lawyer of his choice, a decision prompted moreover by the
fact that he had lost confidence in the member of the bar thus designated. Nor is it to
manifest respect for this right if the counsel de oficio thus named, instead of
conferring with the accused, would just blithely inform the judge that he was already
fully prepared for his exacting responsibility. It was unintended, of course, but the
result could not rightly be distinguished from pure travesty. Appellant could then
rightfully invoke this constitutional guarantee. Inasmuch as it is intended to assure a
just and fair proceeding, he is entitled at the most to a new trial where he can be duly
represented either by a counsel of his choice or by one appointed de oficio, one who
would discharge his task in a much more diligent and conscientious manner and
would not readily assume that he need not bother himself unduly with familiarizing
himself further with all aspects of the case. For only in such a way may there be an
intelligent defense. If the matter be viewed thus, there is no unfairness to the state
either. It can still see to it that a person against whom a probable cause had been
found would have to stand trial, but, to repeat, with all the constitutional safeguards.

2. It would not be amiss to refer to the opinion of Chief Justice Moran in
People v. Holgado, 13 where the importance of this right was stressed. Thus: "In
criminal cases there can be no fair hearing unless the accused be given an opportunity
to be heard by counsel. The right to be heard would be of little avail if it does not
include the right to be heard by counsel. Even the most intelligent or educated man
may have no skill in the science of law, particularly in the rules of procedure, and,
without counsel, he may be convicted not because he is guilty but because he does not
know how to establish his innocence. And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason that the right to be assisted by counsel
is deemed so important that it has become a constitutional right and it is so
implemented that under our rules of procedure it is not enough for the Court to apprise
an accused of his right to have an attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that the court should assign one de
oficio for him if he so desires and he is poor or grant him a reasonable time to procure
an attorney of his own." 14 There are a number of American Supreme Court decisions
to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly
summed up the matter thus: "[The accused] needs the aid of counsel lest he be the
victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or
bewilderment." 15

What is more, it is one of the worthwhile innovations of the present Constitution that
even at the stage of custodial interrogation when the police agencies are investigating
a man's possible connection with a crime, he is already entitled to counsel. 16 In a true
sense, that is merely to underscore the historical fact that even under the organic acts
17 prior to the 1935 Constitution, there was an awareness of the importance of the
right to counsel. 18 This is not of course to assert that this Court in the past had
invariably accorded it an interpretation favorable to the stand of an accused. Thus in
United States v. Labial, 19 a 1914 decision, it was held that the failure of the record to
disclose affirmatively that the trial judge advised the accused of their right to counsel
is not sufficient ground for the reversal of a conviction. When Labial was affirmed in
United States v. Escalante, 20 decided in 1917, Justice Malcolm was moved to file a
vigorous dissent. It suffices to recall his conformity to the view of Cooley that this is
"perhaps the privilege most important to the person accused of crime. 21 It is in that
spirit, or something akin to it, that the framers of the 1935 Constitution approached
the subject. Of even greater relevance is the fact that the present fundamental law has,
as above indicated, vitalized still further its worth and significance.

WHEREFORE, the lower court decision of December 4, 1967 insofar as it found
Manuel Villegas guilty of the crime of murder is reversed and a new trial ordered
forthwith for such accused. This decision is immediately executory. No costs.

Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.1wph1.t


























































































Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION



G.R. No. L-29015 April 29, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE MALUNSING, ET AL., defendants, MANUEL VILLEGAS, defendant-
appellant.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Isidro
C. Borromeo and Solicitor Dominador L. Quiroz for plaintiff-appellee.

Pablito Pielago for defendant-appellant.



FERNANDO, J.:+.wph!1

It was the failure of the lower court to respect the constitutional right to counsel, 1 so
it is alleged, that is the basis for seeking the reversal of a conviction for murder of
appellant Manuel Villegas. 2 There is more than ample support in the records for the
charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly
manifested in the opening of the trial that appellant intimated to him that he had his
own lawyer. 3 There was an admission that he did appear for him in the preliminary
investigation but only because there was no other counsel. 4 Parenthetically, it may be
observed that while in the original complaint there were two other accused with the
same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such
preliminary investigation, no doubt due to the efforts of this particular lawyer,
possibly a kinsman, they "were both discharged for lack of probable cause." 5 To
resume, the lower court at this stage then asked whether the appellant notified
Attorney Pajarito about his change of mind. When he answered in the negative, the
Court stated: "All right, you have a lawyer who is appearing for you." 6 It is to the
credit of such counsel that he had reservations about the matter, stating that as the
accused had manifested that he had dispensed with his services, his representation
might later on be questioned. 7 The court was not sufficiently impressed. Appellant
was informed that "the Court will give you a lawyer. Atty. Pajarito is appointed as
counsel de oficio for you. We will proceed with the trial." 8 After marking it of record
that he was appointed as such counsel de oficio, the attorney was asked whether he
wanted to confer with appellant. This was the answer: "I think I know the case." 9 The
Court then immediately proceeded with the hearing, having the first witness called. 10
In the decision itself, there is this meaningful admission by the court: "No evidence
was presented for and in behalf of Manuel Villegas." 11

This is how the matter was characterized in the brief of appellant: "The prosecution
during the trial presented its witnesses, and likewise all the defendants, ... except the
appellant Manuel Villegas, took the witness stand and testified for and in their
defense. The appellant is a very old man, ignorant and unlettered; during the entire
proceedings in the case, the appellant while present did not know what was going on;
the trial court never apprised the appellant of his fundamental right to be assisted by a
lawyer; the trial court did not even bother inquiring why the appellant Manuel
Villegas did not take the witness stand, [something out of the ordinary as] all
defendants, except the appellant, had testified; and the trial court went on throughout
the proceedings of the case without knowing why the appellant did not testify, that if
the appellant testified what would his testimony be like, what would be his demeanor
during his testimony, ..." 12 Hence, his insistence that no deference was shown to the
constitutional right to counsel. We are inclined to agree and we reverse. Considering,
however, the gravity of the offense charged, instead of an acquittal, there should be a
new trial with all the safeguards thrown around an accused.

1. That would be to vindicate a fundamental safeguard which in this case,
perhaps from a desire of the lower court to proceed with the trial and thus ease what
could be a congestion in its sala, was inadvertently disregarded. It is not enough that a
counsel de oficio was appointed, especially so as here, where the accused had
indicated that he wanted a lawyer of his choice, a decision prompted moreover by the
fact that he had lost confidence in the member of the bar thus designated. Nor is it to
manifest respect for this right if the counsel de oficio thus named, instead of
conferring with the accused, would just blithely inform the judge that he was already
fully prepared for his exacting responsibility. It was unintended, of course, but the
result could not rightly be distinguished from pure travesty. Appellant could then
rightfully invoke this constitutional guarantee. Inasmuch as it is intended to assure a
just and fair proceeding, he is entitled at the most to a new trial where he can be duly
represented either by a counsel of his choice or by one appointed de oficio, one who
would discharge his task in a much more diligent and conscientious manner and
would not readily assume that he need not bother himself unduly with familiarizing
himself further with all aspects of the case. For only in such a way may there be an
intelligent defense. If the matter be viewed thus, there is no unfairness to the state
either. It can still see to it that a person against whom a probable cause had been
found would have to stand trial, but, to repeat, with all the constitutional safeguards.

2. It would not be amiss to refer to the opinion of Chief Justice Moran in
People v. Holgado, 13 where the importance of this right was stressed. Thus: "In
criminal cases there can be no fair hearing unless the accused be given an opportunity
to be heard by counsel. The right to be heard would be of little avail if it does not
include the right to be heard by counsel. Even the most intelligent or educated man
may have no skill in the science of law, particularly in the rules of procedure, and,
without counsel, he may be convicted not because he is guilty but because he does not
know how to establish his innocence. And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason that the right to be assisted by counsel
is deemed so important that it has become a constitutional right and it is so
implemented that under our rules of procedure it is not enough for the Court to apprise
an accused of his right to have an attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that the court should assign one de
oficio for him if he so desires and he is poor or grant him a reasonable time to procure
an attorney of his own." 14 There are a number of American Supreme Court decisions
to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly
summed up the matter thus: "[The accused] needs the aid of counsel lest he be the
victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or
bewilderment." 15

What is more, it is one of the worthwhile innovations of the present Constitution that
even at the stage of custodial interrogation when the police agencies are investigating
a man's possible connection with a crime, he is already entitled to counsel. 16 In a true
sense, that is merely to underscore the historical fact that even under the organic acts
17 prior to the 1935 Constitution, there was an awareness of the importance of the
right to counsel. 18 This is not of course to assert that this Court in the past had
invariably accorded it an interpretation favorable to the stand of an accused. Thus in
United States v. Labial, 19 a 1914 decision, it was held that the failure of the record to
disclose affirmatively that the trial judge advised the accused of their right to counsel
is not sufficient ground for the reversal of a conviction. When Labial was affirmed in
United States v. Escalante, 20 decided in 1917, Justice Malcolm was moved to file a
vigorous dissent. It suffices to recall his conformity to the view of Cooley that this is
"perhaps the privilege most important to the person accused of crime. 21 It is in that
spirit, or something akin to it, that the framers of the 1935 Constitution approached
the subject. Of even greater relevance is the fact that the present fundamental law has,
as above indicated, vitalized still further its worth and significance.

WHEREFORE, the lower court decision of December 4, 1967 insofar as it found
Manuel Villegas guilty of the crime of murder is reversed and a new trial ordered
forthwith for such accused. This decision is immediately executory. No costs.

Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.1wph1.t


























































































Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 137288 December 11, 2001

PEOPLE OF THE PHILIPPINES, appellee,
vs.
DANILO ABINO y ADVINCULA, appellant.

PANGANIBAN, J.:

Rape, particularly incestuous rape, is reprehensible and abominable. However, to
convict the accused and to sentence him to death requires proof beyond reasonable
doubt of the elements of the crime and the qualifying circumstances specifically
alleged in the information. Conviction always rests on the strength of the evidence of
the prosecution, never on the weakness or the absence of that of the defense.

The Case

For automatic review by this Court is the Decision1 dated January 20, 1999,
promulgated by the Regional Trial Court (RTC) of Calamba, Laguna (Branch 34) in
Criminal Case No. 5793-98-C, finding Danilo Abino y Advincula guilty of rape
beyond reasonable doubt. We quote the decretal portion of the Decision:

"ACCORDINGLY, this Court finds accused Danilo Abino y Advincula GUILTY
beyond reasonable doubt of the crime of rape as defined and penalized under Article
335 of the Revised Penal Code, as amended, and hereby sentences him to suffer the
penalty of death.

"Accused is further directed to indemnify the offended party, Daniela Abino, the sum
of FIFTY THOUSAND (P50,000.00) PESOS as and for moral damages.

"With costs against the accused."2

The Information3 against appellant reads as follows:

"That on or about April 6, 1996, in the Municipality of Los Baos, Province of
Laguna and within the jurisdiction of this Honorable Court, the above-named accused
did then and there have carnal knowledge of his daughter, the minor DANIELA
ABINO y MERCADO, who was then asleep and unconscious, against her will and
consent, to her damage and prejudice."

With the assistance of his counsel,4 appellant pleaded not guilty when arraigned on
July 10, 1998.5 In due course, the latter was tried and convicted of qualified rape.

The Facts
Version of the Prosecution

The Office of the Solicitor General summarized the evidence for the prosecution in
this wise:6

"1. Fourteen-year old Daniela Abino lived with her father, appellant Danilo
Abino, at Agua Santa, an old resort located in Bambang, Los Baos, Laguna.
Appellant was a member of the Los Baos task force on market security, assigned to
night shift duty at the market. Daniela's mother no longer lived with them as she had
another family.

"2. On the evening of April 6, 1996, appellant came home drunk. He took a
bath and told Daniela to prepare his things for the market. Daniela obeyed him and
went to the second floor of their house to fix her father's things. Appellant followed
Daniela clad only in his underwear with a towel wrapped around his waist. He
embraced Daniela and pressed his penis against her buttocks. Daniela pulled herself
away from appellant and went downstairs.

"3. When appellant went down, Daniela told him that she was no longer going
with him to his office. Appellant said nothing and left for work. Daniela stayed at the
first floor of their house until she decided to go to bed and went upstairs.

"4. Daniela was fast asleep in her bed when she felt somebody on top of her
and kissing her. She opened her eyes and saw appellant who was naked. Daniela
found herself naked too as she no longer had her panty and shorts on. When Daniela
woke up and moved, appellant stood up, dressed himself and then left. Daniela felt
intense pain in her vagina and cried.

"5. Daniela put on her panty and tried to sleep, but sleep escaped her and she
kept on crying. The following morning, she prepared herself for school and cooked
rice. Daniela, however, did not go to school that day and stayed at home.

"6. Daniela did not immediately tell anybody about what appellant did to her.
She stayed with him for about seventeen months more or until September 1997.
However, Daniela eventually decided to run away from home because she was afraid
that appellant might molest and hurt her again.

"7. Daniela stayed in a canteen near 'Star City' in Manila. After her stint at the
canteen, Daniela worked for one Mando Parr in Pasay City. She, however, left his
employ. In December of 1997, Daniela found herself in Baguio City where she met a
social worker who placed her in the custody of the Department of Social Welfare and
Development.

"8. On December 17, 1997, Daniela was brought by one Aileen Edades of the
Commission on Human Rights to the City Health Office in San Pablo City. There she
was examined by Dr. Azucena I. Bandoy, the Assistant City Health Officer of San
Pablo City.

"9. Dr. Bandoy found that Daniela's sex organ bore a '3rd and 9 o'clock old
healed laceration scar' and that the scar was caused by the insertion of a foreign body,
specifically, 'the penis or a male organ,' into Daniela's vagina. According to Dr.
Bandoy, the laceration might have been inflicted 'a year ago'."

Version of the Defense

On the other hand, the Public Attorney's Office presents appellant's version of the
incident simply as follows:7

"Danilo Abio y Advincula testified that the allegation in the complaint is not true.
The only reason why the complainant filed the rape charge against him is that he is a
very strict father, that's the reason why the complainant is angry with him."

Ruling of the Trial Court

The court a quo found complainant's testimony "strong, credible and competent." It
"could not fathom any justifiable reason why she at so young an age would accuse her
own father and portray the latter as a beast who deflowered her if the same be not
true." Finding carnal knowledge to have taken place between them, it sentenced
appellant to death.

Hence, this automatic review before us.8

Assignment of Errors

In his Brief, appellant faults the court a quo with the following alleged errors:9

"The lower court erred in convicting the accused based on the incredible and
inconsistent testimony of Daniela Abio.

"The lower court gravely erred in convicting the accused despite failure of the
prosecution to prove his guilt beyond reasonable doubt."

Basically, the assigned errors boil down to the sole issue of whether the prosecution
evidence proves appellant's guilt beyond reasonable doubt of the crime charged.

The Court's Ruling

The appeal is meritorious.

Main Issue:
Sufficiency of Evidence

At the time of the alleged commission of the acts stated in the Information, the
Revised Penal Code, as amended by Section 11 of RA 7659, specifies how rape may
be committed, as follows:

"Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

"The crime of rape shall be punished by reclusion perpetua.

"Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.

"When the rape is attempted or frustrated and a homicide is committed by reason or
on the occasion thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

"The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law-spouse of the parent of the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the
children of other relatives within the third degree of consanguinity.

4. when the victim is a religious or a child below seven (7) years old.

5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or
the Philippine National Police or any law enforcement agency.

7. when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation."

Insofar as it is relevant to the present case, the law states that once the crime of rape is
proven, the circumstance of father-daughter relationship between the victim and the
offender raises the penalty to death. Such relationship, which must be both alleged in
the information and proven by the evidence, does not by itself operate to convert
carnal knowledge to rape. It bears emphasizing that the law requires that the elements
of rape be proven first before the circumstance of relationship can be appreciated to
increase the penalty.

In the present case, the Information alleges that the crime of rape was committed
under paragraph number two of Article 335 of the Revised Penal Code. Hence, before
appellant can be convicted thereof, two elements must concur: (1) he had carnal
knowledge of complainant, Daniela; and (2) she was unconscious when it happened.

The prosecution sought to prove the element of unconsciousness through the
testimony of Daniela that on the night of April 6, 1996, she was asleep. As to the
element of carnal knowledge, it presented only the following circumstantial evidence:

1. On the night of April 6, 1996, Daniela woke up to find her father on top of
her, but he promptly got off when she "opened her eyes."

2. Thereafter she felt pain in her vagina.

3. After seventeen months, she left home and wandered from place to place for
several more months, until she met a social worker in Baguio.

4. She was then examined and found to have old healed hymenal lacerations at
the 3 and the 9 o'clock positions and a yellowish white discharge, which indicated
infection due to coitus several times with an infected male.10

An examination of Daniela's entire testimony compels us to reverse the RTC's hasty
conclusion of rape based only on its circumstantial finding of carnal knowledge
between appellant and Daniela. Contrary to the court a quo's pronouncement, Daniela
was not convincing on very material points.

Q Tell us on the night of April 6, 1996 where were you then?

A I was in our house at Agua Santa.

Q Where is this Agua Santa where you said you were then?

A In Bambang sir.

FISCAL:

Q: Los Baos, Laguna?

A Yes, sir.

Q Were you alone in your house or did you have companions at that time?

A None, sir.

Q What time did you go to sleep that night of April 6, 1996?

A I do not know the time sir.

Q When asked if you ha[d] any companions on that night of April 6, 1996 you
said you ha[d] no companions, tell us why were you alone on that night in your
house?

A Becaus[e] my father left.

Q How about your mother, do you have any mother?

A Yes, sir.

Q Where was she on that night of April 6, 1996?

A She already has another family.

Q What time did you wake up that night of April 6, 1996?

A I do not know.

Q Were you able to continuously sleep the whole night of April 6, 1996?

A No, sir.

Q Why?

A Because that night, my father who was dr[u]nk took his bath and after that he
told me to fix his things in going to the office. So I went upstairs to fix his things and
he followed me.

ATTY. PADERAYON:

Before the next question, we object to the answer, your honor, considering that is not
responsive to the question.

FISCAL:

Q Where did he follow you?

A To the second floor of our house.

Q After your father followed you [o]n the second floor of your house, what did
he do? if any?

A He told me it was cold.

Q After he embraced you, what happened?

A "Yong ari niya idinikit sa puwet ko."

Q After he did that to you, what did he do next?

A "Umalis ako sa harap niya at bumaba [ako] ng hagdan."
(Witness is crying)

Q After you said you left and went down, what did your father do?

A He dressed up and when he was already on the first floor, I told him that I will
not go with him anymore [to] the office.

Q Why? Did he ask you to go with him [to] the office?

A Yes, sir, we are always together in his office and I am sleeping in his office.

Q By the way, where [is] this office where you said your father is working?

A Near the market sir.

Q What is his work in the market?

A Tax collector sir.

Q After you told your father that you will not go with him anymore what did he
tell you?

A Nothing, he just left.

Q On your part, what did you do after your father left?

A I just stayed in the first floor of our house, up to . . . nigh[t] time and when . . .
night time came I went to sleep.

FISCAL:

Q: Did your father come back that night?

A Yes, sir.

ATTY. PADERAYON:

Leading, your honor.

FISCAL:

Q: Why did you know that your father went back that night?

A I saw him that night.

Q At what time did you see him and what was he doing at the time you saw him?

A When I saw him that night I don't know what time was that[.] I returned to
sleep and I was awakened and felt that someone was on my top.

Q Were you able to recognize who was that somebody who was on your top?

A Yes, sir.

Q Who?

A My father sir.

Q What was your father doing at the time you said he was on top of you?

A When I opened my eyes he left me.

Q Can you tell us what your father was wearing when you said he was on top of
you?

A Pants and white t-shirt and [he] was wearing a vest.

Q And when your father you said left what did you notice on your self?

A My private part was painful.

FISCAL:

Q: Aside from the pain that you felt what else did you [notice] from your private
part?

A "Mahapdi" whenever I am urinating.

Q When you said you felt pain after your father left, what were you wearing?

A I was wearing my uniform.

Q At the time your father left at the time you saw him, what were you wearing?

A I was wearing skirt and shorts.

Q So when you said you felt pain after you said your father was on top of [you]
and then you left, what did you do?

A I noticed my panty was yellowish and was hot "mainit ng konti".

Q And when you noticed these things, what did you do?

A I just cried.

Q Where was your father at the time you said you were crying?

A He returned to the market.

Q Finally, what time did you wake up that morning?

A I was not able to sleep then.

Q The following morning, what did you do?

A I cooked rice and prepared myself [for] school.

Q Did you go to school the following day?

A No, sir.

FISCAL:

Q: Why?

A I felt lazy.

Q What did you do that day of April 7 when you said you did not go to school?

A Nothing sir. I just stayed in the house.11

Then, on redirect examination, she testified:

Q: Now you said that you woke up, your father was on top of you, what was he
doing at that time when he was on your top?

A: He was kissing me, sir.

Q: And aside from kissing, what else x x x did [he do] to you?

A: Nothing more, sir."12

In attempting to clarify and consolidate its case against appellant, the prosecution
succeeded only in destroying the testimony of its star witness. In the process, it further
strengthened the premise that, other than lying on top of Daniela and kissing her,
appellant did "nothing more" on April 6, 1996.

The circumstantial evidence in the present case admits of the possibility that appellant
could have had carnal knowledge of complainant. But we cannot affirm his death
sentence on the basis alone of a mere possibility. Settled jurisprudence13 requires
proof beyond reasonable doubt, not mere possibility of the presence of all the
elements of the crime charged.

Here, the prosecution's contention that the element of carnal knowledge concurred
with the element of unconsciousness is neither believable nor supported by evidence.
There is no evidence to show that Daniela was knocked out, drugged, intoxicated,
tired and worn out or in any similar condition that would induce such a heavy sleep.
There was therefore nothing that would account for her insensitivity to appellant's
supposed act of inserting his penis into her vagina, if this really happened on April 6,
1996.


The prosecution claims that the painful vagina and the lacerated hymen are
circumstantial evidence of carnal knowledge that occurred while Daniela was asleep
on the night of April 6, 1996. If this were so, it follows that the purported penile
penetration must have been deep enough to reach and lacerate her hymen at the 3 and
the 9 o'clock positions. It is simply incredible that the pain that can reasonably be
expected from such insertion of a penis into her young, virginal vaginal canal would
fail to wake her up. How could she have slept through the entry of her father's penis
into her vagina and its exit therefrom from beginning to end and awakened only
after the alleged completion of the crime, as the prosecution would have us believe? It
may have been possible if she had been drugged, but a case must rest on evidence, not
on mere possibility.

"It is a legal truism that evidence, to be believed, must not only proceed from the
mouth of a credible witness, but must be credible in itself."14 "We have no test of the
truth of human testimony, except in conformity with our knowledge, observation, and
experience and whatever is repugnant to these belongs to the miraculous and is
outside of judicial cognizance."15 In the present case, the circumstances surrounding
the prosecution's allegations are not in accord with human experience. "The proof
against the accused must overcome not only "the test of reason and logic, but above
all, that of experience."16 It is more reasonable to believe, that, as Daniela herself
testified, appellant kissed her on the night of April 6, 1996 but did nothing more;
or, as can reasonably be inferred from the records, he had carnal knowledge of her,
but she was conscious and willing.

Doctrinally, where "the inculpatory facts and circumstances are capable of two or
more explanations one of which is consistent with the innocence of the accused and
the other consistent with his guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction."17

It is claimed that appellant had carnal knowledge of his daughter on a day other than
on April 6, 1996, and under some circumstance other than while she was asleep.
Aside from speculation and conjecture, this argument finds no factual support. And
even if true, such circumstance cannot convict him of the rape charged in the
Information.

Neither can we, in these proceedings, convict appellant of rape committed through
intimidation as a result of his moral ascendancy, even if it were proven beyond
reasonable doubt. He was charged and tried on an Information alleging rape of a
woman who was "asleep and unconscious." Convicting him of rape done by
intimidation would violate his constitutional right "to be informed of the nature and
cause of the accusation against him."18

Rape, particularly incestuous rape, is reprehensible and abominable. However, to
convict the accused and to sentence him to death requires that (1) the prosecution's
evidence for the elements of the crime and (2) the qualifying circumstances
specifically alleged in the Information must pass the test of moral certainty. Absent
the satisfaction of this stringent requirement, we must uphold appellant's
constitutional right to be presumed innocent.

WHEREFORE, the appeal is GRANTED and the assailed Decision is hereby
REVERSED and SET ASIDE. Appellant Danilo Abino y Advincula is ACQUITTED
on reasonable doubt. The director of the Bureau of Corrections is ordered to cause the
immediate release of appellant, unless the latter is being lawfully held for another
cause; and to inform the Court of the date of appellant's release, or the reasons for his
continued confinement, within ten days from notice. No pronouncement as to costs.

SO ORDERED.


























Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION



G.R. No. 116736 July 24, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused,

BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-
appellants.



PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more serious than
that intended. Hence, an accused who originally intended to conceal and to bury what
he thought was the lifeless body of the victim can be held liable as a principal, not
simply as an accessory, where it is proven that the said victim was actually alive but
subsequently died as a direct result of such concealment and burial. Nonetheless, in
the present case, Appellant Garcia cannot be held liable as a principal because the
prosecution failed to allege such death through drowning in the Information. Neither
may said appellant be held liable as an accessory due to his relationship with the
principal killer, Appellant Ortega, who is his brother-in-law.

Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr.
and Manuel Garcia from the Decision, 1 dated February 9, 1994 written by Judge
Adriano R. Osorio, 2 finding them guilty of murder.

Appellants were charged by State Prosecutor Bernardo S. Razon in an Information 3
dated October 19, 1992, as follows:

That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and mutually helping one another, without any justifiable cause, with
treachery and evident premeditation and with abuse of superior strenght (sic) and with
deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack,
assault and stab repeatedly with a pointed weapon on the different parts of the body
one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter
serious physical injuries which directly caused his death.

During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio, 4
pleaded not guilty to the charge. 5 Accused "John Doe" was then at large. 6 After trial
in due course, the court a quo promulgated the questioned Decision. The dispositive
portion reads: 7

WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y
Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby
sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the
costs of suit.

Accused are hereby ordered to pay the offended party the sum of P35,000.00 for
funeral expenses of deceased Andre Mar Masangkay and death indemnity of
P50,000.00.

The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P.
Velicaria 8 who took over from the Public Attorney's Office as counsel for the
accused.

The Facts

Evidence for the Prosecution

The trial court summarized the testimonies of the prosecution witnesses as follows: 9

Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the
afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega,
Roberto San Andres were having a drinking spree in the compound near the house of
Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That
while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were
[already] drunk arrived and joined them. That victim Andre Mar Masangkay
answered the call of nature and went to the back portion of the house. That accused
Benjamin Ortega, Jr. followed him and later they [referring to the participants in the
drinking session] heard the victim Andre Mar shouted, "Don't, help me!" (Huwag,
tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion of the
house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay
who was lying down in a canal with his face up and stabbing the latter with a long
bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of
accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where
they were having the drinking session [for the latter] to pacify his brother Benjamin,
Jr. That Romeo Ortega went to the place of the stabbing and together with Benjamin
Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and
brought Andre Mar to the well and dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to
12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of Andre
Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell
anybody of what he saw. That he answered in the affirmative and he was allowed to
go home. That his house is about 200 meters from Romeo Ortega's house. That upon
reaching home, his conscience bothered him and he told his mother what he
witnessed. That he went to the residence of Col. Leonardo Orig and reported the
matter. That Col. Orig accompanied him to the Valenzuela Police Station and some
police officers went with them to the crime scene. That accused Benjamin Ortega, Jr.
and Manuel Garcia were apprehended and were brought to the police station.

On cross-examination, he said that he did not talk to the lawyer before he was
presented as witness in this case. That he narrated the incident to his mother on the
night he witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30
in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega,
Serafin and one Boyet were already having [a] drinking spree and he joined them.
That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That
the stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin
with finger foods such as pork and shell fish. That he met the victim Andre Mar
Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel
Garcia joined them at about 11:00 p.m. That there was no altercation between
Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay,
during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay
answered the call of nature and went to the back portion of the house. That he cannot
see Andre Mar Masangkay from the place they were having the drinking session. That
he did not see what happened to Andre Mar Masangkay. That he only heard
Masangkay asking for help. That accused Manuel Garcia was still in the drinking
session when he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and
Manuel Garcia are his friends and neighbors. That when he heard Andre Mar
Masangkay was asking for help, he and Ariel Caranto ran to the back portion of the
house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the
latter. That Andre Mar Masangkay was lying down with his back in the canal and
Benjamin Ortega, Jr. on top stabbing the former. That he did not see any injuries on
Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr.
That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he
knows that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega
asked permission from Andre Mar Masangkay when she left between 8:00 and 9:00
p.m. That there was no trouble that occurred during the drinking session.

PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is
his neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he
was summoned by Diosdado Quitlong and reported to him the stabbing incident that
occurred at Daangbakal near the subdivision he is living. That he relayed the
information to the Valenzuela Police Station and a police team under police officer
Param accompanied them to the place. That he asked the police officers to verify if
there is a body of person inside the well. That the well was covered with stones and he
asked the police officers to seek the help of theneighbors (sic) to remove the stones
inside the well. That after the stones were removed, the body of the victim was found
inside the well. That the lifeless body was pulled out from the well. That the body has
several stab wounds. That he came to know the victim as Andre Mar Masangkay.
That two men were arrested by the police officers.

On cross-examination, he said that he saw the body when taken out of the well with
several stab wounds. That Diosdado Quitlong told him that he was drinking with the
victim and the assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed
the victim while the latter was answering the call of nature.

NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992
at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared
the autopsy report and the sketch of human head and body indicating the location of
the stab wounds. That the cause of death is multiple stab wounds, contributory,
[a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were
on the frontal part of the body, 2 at the back and there were contused abrasions around
the neck and on the left arm. There was stab wound at the left side of the neck. That
the contused abrasion could be produced by cord or wire or rope. That there is (an)
incised wound on the left forearm. That the stab wounds which were backward
downward of the body involved the lungs. That the victim was in front of the
assailant. That the stab wound on the upper left shoulder was caused when the
assailant was in front of the victim. That the assailant was in front of the victim when
the stab wound near the upper left armpit was inflicted as well as the stab wound on
the left chest wall. That the stab wound on the back left side of the body and the stab
wound on the back right portion of the body may be produced when the assailant was
at the back of the victim. That the assailant was in front of the victim when the stab
wound[s] on the left elbow and left arm were inflicted. That the large airway is filled
with muddy particles indicating that the victim was alive when the victim inhaled the
muddy particles. The heart is filled with multiple hemorrhage, loss of blood or
decreased of blood. The lungs is filled with water or muddy particles. The brain is
pale due to loss of blood. The stomach is one half filled with muddy particles which
could [have been] taken in when submerged in water.

On cross-examination, he said that he found 13 stab wounds on the body of the
victim. That he cannot tell if the assailant or the victim were standing. That it is
possible that the stab wounds was (sic) inflicted when both [referring to participants]
were standing or the victim was lying down and the assailant was on top. That he
cannot tell the number of the assailants.

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he
and his wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo
Emergency Hospital. He left the hospital at seven o'clock in the morning, went home,
changed his clothes and went to work. 10 After office hours, he and Benjamin Ortega,
Jr. passed by the canteen at their place of work. After drinking beer, they left at eight
o'clock in the evening and headed home. En route, they chanced on Diosdado
Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their
own drinking spree. Thereupon, Appellant Garcia's wife came and asked him to go
home because their daughter was still sick. To alleviate his daughter's illness, he
fetched his mother-in-law who performed a ritual called "tawas." After the ritual, he
remained at home and attended to his sick daughter. He then fell asleep but was
awakened by police officers at six o'clock in the morning of the following day.

Maritess Garcia substantially corroborated the testimony of her husband. She however
added two other participants in the drinking session aside from Diosdado Quitlong
alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet
Santos. 11

Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant
Manuel Garcia. 12 According to him, between eleven and twelve o'clock in the
evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay
left, he also left the drinking place to urinate. 13 He went behind the house where he
saw Masangkay peeping through the room of his sister Raquel. He ignored
Masangkay and continued urinating. 14 After he was through, Masangkay approached
him and asked where his sister was. He answered that he did not know. Without
warning, Masangkay allegedly boxed him in the mouth, an attack that induced
bleeding and caused him to fall on his back. When he was about to stand up,
Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby
immobilizing him. Masangkay then gripped his neck with his left arm and threatened
to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid
being stabbed, grabbed Masangkay's right hand which was holding the knife. Quitlong
was able to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten
(10) times successively, in the left chest and in the middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit. 15
Quitlong chased Masangkay who ran towards the direction of the well. Thereafter,
Ortega went home and treated his injured left armpit and lips. Then, he slept.

When he woke up at six o'clock the following morning, he saw police officers in front
of his house. Taking him with them, the lawmen proceeded to the well. From the
railroad tracks where he was asked to sit, he saw the police officers lift the body of a
dead person from the well. He came to know the identity of the dead person only after
the body was taken to the police headquarters. 16

The Trial Court's Discussion

The trial court explained its basis for appellants' conviction as follows: 17

The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr.,
Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim
Andre Mar Masangkay who was still alive and breathing inside the deep well filled
with water, head first and threw big stones/rocks inside the well to cover the victim is
a clear indication of the community of design to finish/kill victim Andre Mar
Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position
to flee and/or defend himself against the three malefactors. Conspiracy and the taking
advantage of superior strength were in attendance. The crime committed by the
accused is Murder.

Concert of action at the moment of consummating the crime and the form and manner
in which assistance is rendered to the person inflicting the fatal wound may determine
complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382
(1977)).

Every person criminally liable for a felony is also civilly liable. Accused (m)ust
reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the
funeral expenses of the deceased.

The Issues

In their ten-page brief, appellants fault the trial court with the
following: 18

I. The trial court erred in holding that there is conspiracy on the basis of the
prosecution's evidence that at the time both accused and one Romeo Ortega lifted the
body of Andrew Masangkay from where he succumbed due to stab wounds and
brought and drop said body of Andrew Masangkay to the well to commit murder;

II. The trial court erred in finding and holding that Andrew Masangkay was
still alive at the time his body was dropped in the well;

III. The trial court erred in convicting Manuel Garcia and in not acquitting the
latter of the crime charged; and

IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty
only of homicide alone.

On the basis of the records and the arguments raised by the appellants and the People,
we believe that the question to be resolved could be simplified thus: What are the
criminal liabilities, if any, of Appellants Ortega and Garcia?

The Court's Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide.
Appellant Garcia deserves acquittal.

First Issue: Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting narrations. The
prosecution witnesses described the commission of the crime and positively identified
appellants as the perpetrators. The witnesses for the defense, on the other hand,
attempted to prove denial and alibi. As to which of the two contending versions
speaks the truth primarily rests on a critical evaluation of the credibility of the
witnesses and their stories. In this regard, the trial court held: 19

The Court has listened intently to the narration of the accused and their witnesses and
the prosecution witnesses and has keenly observed their behavior and demeanor on
the witness stand and is convinced that the story of the prosecution is the more
believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded
credible and his credibility is reinforced by the fact that he has no reason to testify
falsely against the accused. It was Diosdado Quitlong who reported the stabbing
incident to the police authorities. If Quitlong stabbed and killed the victim
Masangkay, he will keep away from the police authorities and will go in hiding. . . .

Because the trial court had the opportunity to observe the witnesses' demeanor and
deportment on the stand as they rendered their testimonies, its evaluation of the
credibility of witnesses is entitled to the highest respect. Therefore, unless the trial
judge plainly overlooked certain facts of substance and value which, if considered,
might affect the result of the case, his assessment of credibility must be respected. 20

In the instant case, we have meticulously scoured the records and found no reason to
reverse the trial court's assessment of the credibility of the witnesses and their
testimonies 21 insofar as Appellant Ortega is concerned. The narration of Eyewitness
Diosdado Quitlong appears to be spontaneous and consistent. It is straightforward,
detailed, vivid and logical. Thus, it clearly deserves full credence.

On the other hand, in asserting alibi and denial, the defense bordered on the
unbelievable. Appellant Ortega claimed that after he was able to free himself from
Masangkay's grip, he went home, treated his injuries and slept. 22 This is not the
ordinary reaction of a person assaulted. If Ortega's version of the assault was true, he
should have immediately reported the matter to the police authorities, if only out of
gratitude to Quitlong who came to his rescue. Likewise, it is difficult to believe that a
man would just sleep after someone was stabbed in his own backyard. Further, we
deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times
successively, completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that Masangkay
persisted in choking him instead of defending himself from the alleged successive
stabbing of Quitlong. 23 The natural tendency of a person under attack is to defend
himself and not to persist in choking a defenseless third person.

Murder or Homicide?

Although treachery, evident premeditation and abuse of superior strength were alleged
in the information, the trial court found the presence only of abuse of superior
strength.

We disagree with the trial court's finding. Abuse of superior strength requires
deliberate intent on the part of the accused to take advantage of such superiority. It
must be shown that the accused purposely used excessive force that was manifestly
out of proportion to the means available to the victim's defense. 24 In this light, it is
necessary to evaluate not only the physical condition and weapon of the protagonists
but also the various incidents of the event. 25

In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant
Ortega's availment of force excessively out of proportion to the means of defense
available to the victim to defend himself. Quitlong described the assault made by
Appellant Ortega as follows: 26

ATTY. ALTUNA:

Q Will you please tell me the place and date wherein you have a drinking
spree with Andrew Masangkay and where you witnessed a stabbing incident?

A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were
drinking in the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin
Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other.

xxx xxx xxx

Q Mr. Witness, who were the companions of said persons, Benjamin Ortega,
Jr., Manuel Garcia, you (sic) in drinking in said place?

A The other companions in the drinking session were Ariel Caranto y Ducay,
Roberto San Andres and Romeo Ortega.

Q What about this victim, Andrew Masangkay, where was he at that time?

A Also the victim, Andrew Masangkay, he was also there.

Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr.
arrived drunk and joined the group?

A Yes, sir.

Q What happened next?

A While we were there together and we were drinking ... (interrupted by Atty.
Altuna)

Q Who is that "we"?

A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo
Ortega, Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay
answer to a call of nature and went to the back portion of the house, and Benjamin
Ortega, Jr. followed him where he was.

Q What happened next?

A And afterwards we heard a shout and the shout said "Huwag, tulungan n'yo
ako".

Q From whom did you hear this utterance?

A The shout came from Andrew Masangkay.

Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of
nature and after you heard "huwag, tulungan n'yo ako" coming from the mouth of the
late Andrew Masangkay, what happened next?

A Ariel Caranto and I ran towards the back portion of the house.

Q And what did you see?

A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and
he was stabbing Masangkay.

Q Will you please demonstrate to the Honorable Court how the stabbing was
done telling us the particular position of the late Andrew Masangkay and how
Benjamin Ortega, Jr. proceeded with the stabbing against the late victim, Andrew
Masangkay?

INTERPRETER:

(At this juncture, the witness demonstrating.)

Andrew Masangkay was lying down on a canal with his face up, then Benjamin
Ortega, Jr. was "nakakabayo" and with his right hand with closed fist holding the
weapon, he was thrusting this weapon on the body of the victim, he was making
downward and upward motion thrust.

ATTY. ALTUNA: (To the witness)

Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?

A I cannot count the number of times.

It should be noted that Victim Masangkay was a six-footer, whereas Appellant
Ortega, Jr. was only five feet and five inches tall. 27 There was no testimony as to
how the attack was initiated. The accused and the victim were already grappling when
Quitlong arrived. Nothing in the foregoing testimony and circumstances can be
interpreted as abuse of superior strength. Hence, Ortega is liable only for homicide,
not murder.

Second Issue: Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court "is based on mere
assumption and conjecture . . ." 28 Allegedly, the medico-legal finding that the large
airway was "filled with muddy particles indicating that the victim was alive when the
victim inhaled the muddy particles" did not necessarily mean that such muddy
particles entered the body of the victim while he was still alive. The Sinumpaang
Salaysay of Quitlong stated, "Nilubayan lang nang saksak nang mapatay na si Andrew
ni Benjamin Ortega, Jr." Thus, the prosecution evidence shows Masangkay was
already "dead" when he was lifted and dumped into the well. Hence, Garcia could be
held liable only as an accessory. 29

We do not agree with the above contention. Article 4, par. 1, of the Revised Penal
Code states that criminal liability shall be incurred by "any person committing a
felony (delito) although the wrongful act done be different from that which he
intended." The essential requisites for the application of this provision are that (a) the
intended act is felonious; (b) the resulting act is likewise a felony; and (c) the
unintended albeit graver wrong was primarily caused by the actor's wrongful acts. In
assisting Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant
Garcia was committing a felony. The offense was that of concealing the body of the
crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide.
30 Although Appellant Garcia may have been unaware that the victim was still alive
when he assisted Ortega in throwing the body into the well, he is still liable for the
direct and natural consequence of his felonious act, even if the resulting offense is
worse than that intended.

True, Appellant Garcia merely assisted in concealing the body of the victim. But the
autopsy conducted by the NBI medico-legal officer showed that the victim at that time
was still alive, and that he died subsequently of drowning. 31 That drowning was the
immediate cause of death was medically demonstrated by the muddy particles found
in the victim's airway, lungs and stomach. 32 This is evident from the expert
testimony given by the medico-legal officer, quoted below: 33

ATTY. ALTUNA:

Q Will you please explain this in simple language the last portion of Exhibit
N, beginning with "tracheo-bronchial tree", that is sentence immediately after
paragraph 10, 2.5 cms. Will you please explain this?

A The trancheo-bronchial tree is filled with muddy particles.

Q I ask you a question on this. Could the victim have possibly get this
particular material?

A No, sir.

Q What do you mean by no?

A A person should be alive so that the muddy particles could be inhaled.

Q So, in short, you are telling or saying to us that if there is no inhaling or the
taking or receiving of muddy particles at that time, the person is still alive?

A Yes, sir.

Q Second point?

A The heart is pale with some multiple petechial hemorrhages at the anterior
surface.

Q And this may [be] due to stab wounds or asphyxia?

A These are the effects or due to asphyxia or decreased amount of blood going
to the heart.

Q This asphyxia are you referring to is the drowning?

A Yes, sir.

Q Next point is the lungs?

A The lungs is also filled with multiple petechial hemorrhages.

Q What could have caused this injury of the lungs?

A This is due to asphyxia or the loss of blood.

Q Are you saying that the lungs have been filled with water or muddy
particles?

A Yes, sir.

Q And, precisely, you are now testifying that due to stab wounds or asphyxia,
the lungs have been damaged per your Report?

A Yes, sir.

Q Continuing this brain and other visceral organs, pale. What is this?

A The paleness of the brain and other visceral organs is due to loss of blood.

Q And, of course, loss of blood could be attributed to the stab wound which is
number 13?

A Yes, sir.

Q And the last one, under the particular point "hemothorax"?

A It indicates at the right side. There are around 1,400 cc of blood that
accumulate at the thoraxic cavity and this was admixed with granular materials?

Q And what cause the admixing with granular materials on said particular
portion of the body?

A Could be muddy particles.

Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I
correct?

A It's due to stab wounds those muddy particles which set-in thru the stab
wounds.

Q So, because of the opening of the stab wounds, the muddy particles now
came in, in that particular portion of the body and caused admixing of granular
materials?

A Yes, sir.

Q Continuing with your report, particularly, the last two portions, will you
please explain the same?

A The hemoperitoneum there are 900 cc of blood that accumulated inside the
abdomen.

Q And what could have cause the same?

A [T]he stab wound of the abdomen.

Q The last one, stomach 1/2 filled with muddy particles. Please explain the
same?

A The victim could have taken these when he was submerged in water.

Q What is the take in?

A Muddy particles.

Q And he was still alive at that time?

A Yes, sir. (Emphasis supplied)

A Filipino authority on forensic medicine opines that any of the following medical
findings may show that drowning is the cause of death: 34

1. The presence of materials or foreign bodies in the hands of the victim. The
clenching of the hands is a manifestation of cadaveric spasm in the effort of the victim
to save himself from drowning.

2. Increase in volume (emphysema aquosum) and edema of the lungs (edema
aquosum).

3. Presence of water and fluid in the stomach contents corresponding to the
medium where the body was recovered.

4. Presence of froth, foam or foreign bodies in the air passage found in the
medium where the victim was found.

5. Presence of water in the middle ear.

The third and fourth findings were present in the case of Victim Masangkay. It was
proven that his airpassage, or specifically his tracheo-bronchial tree, was filled with
muddy particles which were residues at the bottom of the well. Even his stomach was
half-filled with such muddy particles. The unrebutted testimony of the medico-legal
officer that all these muddy particles were ingested when the victim was still alive
proved that the victim died of drowning inside the well.

The drowning was the direct, natural and logical consequence of the felony that.
Appellant Garcia had intended to commit; it exemplifies praeter intentionem covered
by Article 4, par. 1, of the Revised Penal Code. Under this paragraph, a person may be
convicted of homicide although he had no original intent to kill. 35

In spite of the evidence showing that Appellant Garcia could be held liable as
principal in the crime of homicide, there are, however, two legal obstacles barring his
conviction, even as an accessory as prayed for by appellants' counsel himself.

First. The Information accused Appellant Garcia (and Appellant Ortega) of
"attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on the
different parts of the body one ANDRE MAR MASANGKAY y ABLOLA." The
prosecution's evidence itself shows that Garcia had nothing to do with the stabbing
which was solely perpetrated by Appellant Ortega. His responsibility relates only to
the attempted concealment of the crime and the resulting drowning of Victim
Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be
convicted of an offense, unless it is clearly charged in the complaint or information.
Constitutionally, he has a right to be informed of the nature and cause of the
accusation against him. To convict him of an offense other than that charged in the
complaint or information would be a violation of this constitutional right. 36 Section
14, par. 2, of the 1987 Constitution explicitly guarantees the following:

(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to
be informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is
unjustifiable. (Emphasis supplied)

In People vs. Pailano, 37 this Court ruled that there can be no conviction for rape on a
woman "deprived of reason or otherwise unconscious" where the information charged
the accused of sexual assault "by using force or intimidation," thus:

The criminal complaint in this case alleged the commission of the crime through the
first method although the prosecution sought to establish at the trial that the
complainant was a mental retardate. Its purpose in doing so is not clear. But whatever
it was, it has not succeeded.

If the prosecution was seeking to convict the accused-appellant on the ground that he
violated Anita while she was deprived of reason or unconscious, such conviction
could not have been possible under the criminal complaint as worded. This described
the offense as having been committed by "Antonio Pailano, being then provided with
a scythe, by means of violence and intimidation, (who) did, then and there, wilfully,
unlawfully and feloniously have carnal knowledge of the complainant, Anita Ibaez,
15 years of age, against her will'. No mention was made of the second circumstance.

Conviction of the accused-appellant on the finding that he had raped Anita while she
was unconscious or otherwise deprived of reason and not through force and
intimidation, which was the method alleged would have violated his right to be
informed of the nature and cause of the accusation against him. [Article IV, Sec. 19,
Constitution of 1973; now Article III, Sec. 14(2)] This right is safeguarded by the
Constitution to every accused so he can prepare an adequate defense against the
charge against him. Convicting him of a ground not alleged while he is concentrating
his defense against the ground alleged would plainly be unfair and underhanded. This
right was, of course, available to the herein accused-appellant.

In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape
could not be found guilty of qualified seduction, which had not been alleged in the
criminal complaint against him. In the case of People vs. Montes, [fn: 122 SCRA 409]
the Court did not permit the conviction for homicide of a person held responsible for
the suicide of the woman he was supposed to have raped, as the crime he was accused
of and acquitted was not homicide but rape. More to the point is Tubb v. People
of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the
misappropriation of funds held by him in trust with the obligation to return the same
under Article 315, paragraph l(b) of the Revised Penal Code, but was convicted of
swindling by means of false pretenses, under paragraph 2(b) of the said Article, which
was not alleged in the information. The Court said such conviction would violate the
Bill of Rights.

By parity of reasoning, Appellant Garcia cannot be convicted of homicide through
drowning in an information that charges murder by means of stabbing.

Second. Although the prosecution was able to prove that Appellant Garcia assisted
in "concealing . . . the body of the crime, . . . in order to prevent its discovery," he can
neither be convicted as an accessory after the fact defined under Article 19, par. 2, of
the Revised Penal Code. The records show that Appellant Garcia is a brother-in-law
of Appellant Ortega, 38 the latter's sister, Maritess, being his wife. 39 Such
relationship exempts Appellant Garcia from criminal liability as provided by Article
20 of the Revised Penal Code:

Art. 20. Accessories who are exempt from criminal liability. The penalties
prescribed for accessories shall not be imposed upon those who are such with respect
to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers
and sisters, or relatives by affinity within the same degrees with the single exception
of accessories falling within the provisions of paragraph 1 of the next preceding
article.

On the other hand, "the next preceding article" provides:

Art. 19. Accessories. Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as principals
or accomplices, take part subsequent to its commission in any of the following
manners:

1. By profiting themselves or assisting the offender to profit by the effects of
the crime.

2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.

3. By harboring, concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public functions or whenever the
author of the crime is guilty of treason, parricide, murder, or an attempt to take the life
of the Chief Executive, or is known to be habitually guilty of some other crime.

Appellant Garcia, being a covered relative by affinity of the principal accused,
Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting provision of the
Revised Penal Code. This Court is thus mandated by law to acquit him.

Penalty and Damages

The award of actual damages should be reduced to P31,790.00 from P35,000.00. The
former amount was proven both by documentary evidence and by the testimony of
Melba Lozano, a sister of the victim. 38 Of the expenses alleged to have been
incurred, the Court can give credence only to those that are supported by receipts and
appear to have been genuinely incurred in connection with the death of the victim. 39
However, in line with current jurisprudence, 40 Appellant Ortega shall also indemnify
the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other
than the fact of death and appellant's responsibility therefor. 43

The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal
Code, which is imposable in its medium period, absent any aggravating or mitigating
circumstance, as in the case of Appellant Ortega. Because he is entitled to the benefits
of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that
is, prision mayor.

WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED.
Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten
(10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal medium, as maximum. Appellant
Ortega, Jr. is also ORDERED to pay the heirs of the victim P50,000.00 as indemnity
and P31,790.00 as actual damages. Appellant Manuel Garcia is ACQUITTED. His
immediate release from confinement is ORDERED unless he is detained for some
other valid cause.

SO ORDERED.

















































Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21741 January 25, 1924

AURELIA CONDE, petitioner,
vs.
PABLO RIVERA, acting provincial fiscal of Tayabas, and
FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents.

Godofredo Reyes for petitioner.
Attorney-General Villa-Real for respondents.

MALCOLM, J.:

Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to
respond to no less than five informations for various crimes and misdemeanors, has
appeared with her witnesses and counsel at hearings no less than on eight different
occasions only to see the cause postponed, has twice been required to come to the
Supreme Court for protection, and now, after the passage of more than one year from
the time when the first information was filed, seems as far away from a definite
resolution of her troubles as she was when originally charged.

Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde,
like all other accused persons, has a right to a speedy trial in order that if innocent she
may go free, and she has been deprived of that right in defiance of law. Dismissed
from her humble position, and compelled to dance attendance on courts while
investigations and trials are arbitrarily postponed without her consent, is palpably and
openly unjust to her and a detriment to the public. By the use of reasonable diligence,
the prosecution could have settled upon the appropriate information, could have
attended to the formal preliminary examination, and could have prepared the case for
a trial free from vexatious, capricious, and oppressive delays.

Once before, as intimidated, the petitioner had to come to us for redress of her
grievances. We thought then we had pointed out the way for the parties. But it seems
not. Once again therefore and finally, we hope, we propose to do all in our power to
assist this poor woman to obtain justice. On the one hand has been the petitioner, of
humble station, without resources, but fortunately assisted by a persistent lawyer,
while on the other hand has been the Government of the Philippine Islands which
should be the last to set an example of delay and oppression in the administration of
justice. The Court is thus under a moral and legal obligation to see that these
proceedings come to an end and that the accused is discharged from the custody of the
law.

We lay down the legal proposition that, where a prosecuting officer, without good
cause, secures postponements of the trial of a defendant against his protest beyond a
reasonable period of time, as in this instance for more than a year, the accused is
entitled to relief by a proceeding in mandamus to compel a dismissal of the
information, or if he be restrained of his liberty, by habeas corpus to obtain his
freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal., 334; U.S. vs.
Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of
First Instance, Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No.
21236.1

The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from
further attempts to prosecute the accused pursuant to informations growing out of the
facts set forth in previous informations, and the charges now pending before the
justice of the peace of Lucena, Tayabas, are ordered dismissed, with cost against the
respondent fiscal. We append to our order the observation that, without doubt, the
Attorney-General, being fully cognizant of the facts of record, will take such
administrative action as to him seems proper to the end that incidents of this character
may not recur. So ordered.











































Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-62810 July 25, 1983

EULALIA MARTIN, petitioner,
vs.
GEN. FABIAN VER, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES and GEN. HAMILTON DIMAYA, JUDGE ADVOCATE
GENERAL, respondents.

Arturo V. Romero for petitioner.

The Solicitor General for respondents.



PLANA, J.:

This is a petition for habeas corpus filed by Eulalia Martin on behalf of her husband,
Pvt. Francisco Martin.

Pvt. Martin was an enlisted man in the Philippine Army. On or about April 14, 1981,
when he was still in the service, he allegedly sold two grenades to one Rogelio Cruz at
P50.00 each, one of which exploded during a picnic in Laoag City on April 17, 1981
causing the death of three persons, including Rogelio Cruz, and injuries to three
others.

According to respondents, Pvt. Martin has admitted to Cpl. Lucio Tuppal, Philippine
Army, having sold the grenades to Rogelio Cruz in Laoag City, although this is
denied by Pvt. Martin.

After an initial investigation conducted by the Laoag City PC and INP authorities, a
report was submitted to the Ministry of National Defense which referred the matter to
the Chief of Staff, AFP, who in turn directed the Inspector General to conduct another
investigation.

On May 5, 1981, Pvt. Martin was arrested and confined (restricted to barracks) at Fort
Bonifacio pursuant to Article 70 of the Articles of War, infra. The following year, he
was discharged from the service effective as of May 5, 1982. On November 17, 1982
the instant petition was filed. The following month, i.e., December 3, 1982, Pvt.
Martin was charged for violation of the 85th and 97th Articles of War, which read:

ART. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers.
Any soldier who sells or wrongfully disposes of or willfully or through neglect injures
or losses any horse, arms, ammunition, accouterments, equipment, clothing, or other
property issued for use in the military service, shall be punished as a court-martial
may direct.

ART. 97. General Article.Though not mentioned in these articles, all disorders and
neglects to the prejudice of good order and military discipline and all conduct of a
nature to bring discredit upon the military service shall be taken cognizance of by a
general or special or summary court-martial according to the nature and degree of the
offense, and punished at the discretion of such court.

The charge sheet stipulates the following charges:

CHARGE I: Violation of the 85th Article of War.

Specification: In that Private Martin assigned with the Headquarters and Headquarters
Service Battalion, First Infantry Division, Philippine Army on or about 14 April 1981
at Laoag City wrongly disposed of by sale to Rogelio Cruz two (2) grenades.

CHARGE II: Violation of the 97th Article of War.

Specification: In that Private Francisco Martin, ... on or about the month of April 1981
at Laoag City, unlawfully and without authority had in his possession two (2) hand
grenades thus committing an act prejudicial to good order and military discipline and
of a nature that will bring discredit to the military establishment.

The petitioner contends that having been discharged from the military service, he is
no longer subject to court-martial even if the offenses of which he is charged were
committed while he was still subject to military law. He therefore, concludes that his
continued detention pursuant to Article 70 of the Articles of War (which authorizes
the arrest/confinement of any person subject to military law who is charged with an
offense under the Articles of War) is illegal and he, accordingly, should be released.
This posture has no merit.

Generally, court-martial jurisdiction over persons in the military service of the
Philippines ceases upon discharge or other separation from such service. This
however, is but a general rule. The Articles of War in terms prescribe some
exceptions designed to enhance discipline and good order within the military
organization. Thus, court-martial jurisdiction as to certain cases of fraud and
misappropriation of military hardware and other government property is not
extinguished by discharge or dismissal pursuant to the 95th Article of War.

ART. 95. Frauds Against the Government.Any person subject to military law ...

Who steals, embezzles, knowingly and willingly misappropriates, applies to his own
use or benefit or wrongfully or knowingly sells or disposes of any ordnance, arms,
equipment, ammunition, clothing, subsistence, stores, money, or other property of the
Government furnished or intended for the military service thereof ...

Shall, on conviction thereof, be punished by fine or imprisonment, or by such other
punishment as a court-martial may adjudge, or by any or all of said penalties. And if
any person, being guilty of any of the offenses aforesaid while in the service of the
Armed Forces of the Philippines or of the Philippine Constabulary receives his
discharge or is dismissed from the service, he shall continue to be liable to be arrested
and held for trial and sentence by a court-martial in the same manner and to the same
extent as if he had not received such discharge nor been dismissed. (Emphasis
supplied.)

It was on the basis of the foregoing legal provision, among others, that this Court
sustained the court-martial of the petitioner in De la Cruz vs. Alcaraz, et al. after his
reversion to inactive status, for misappropriation of public funds committed while he
was still in the active military service. The Court, thru Mr. Justice J. B. L. Reyes, said:

There is no question that although appellant had been reverted to inactive (civilian)
status in the reserve force of the Philippine Army, he is still amenable to investigation
and court-martial under the Artitles of War by the Philippine Navy for alleged acts of
misappropriation of government funds committed while he was still in the active
military service. As correctly held by the Court below, appellant's case falls within the
provisions of Article 95 of the Articles of War (Commonwealth Act No. 408, as
amended), which provides as follows: ...

The lower Court did not, therefore, err in refusing to enjoin appellant's investigation
by the naval authorities on charges that he had misappropriated public property while
he was still in the service of the Philippine Navy, specially since petitioner admits that
he is still a member of the Reserve Force." (99 Phil. 130 at 131-132.).

We conclude that despite his discharge from the military service, the petitioner is still
subject to military law for the purpose of prosecuting him for illegal disposal of
military property, and his preventive detention thereunder pending trial and
punishment for the said offense committed when he was in the military service is
lawful.

Alternatively, petitioner maintains that even assuming that the jurisdiction of the
military authorities to try and punish him was not abated by his discharge from
military service, the denial to him of his constitutional right to speedy trial (he having
been confined from the date of his arrest on May 5, 1981 up to December 3, 1982
when he was formally charged a period of I year and 7 months) entitles him to be
released on habeas corpus.

The fundamental rights guaranteed in the Constitution apply to all persons, including
those subject to military law, (Aquino vs. Military Commission No. 2, 63 SCRA 546;
Cayaga vs. Tangonan, 66 SCRA 216; Go vs. Olivas, 74 SCRA 230; Romero vs.
Ponce Enrile, 75 SCRA 429.) To quote Ex Parte Milligan, 4 Wall. 2:

The Constitution is a law for rulers and for people equally in war and in peace and
covers with the shield of its protection all classes of men at all times and under all
circumstances.

It would indeed be parodoxical if military men who are called upon in times of the
gravest national crises to lay down their lives in defense of peace and freedom would
be the very people to be singled out for denial of the fundamental rights for which
they risk their lives.

For denial of a constitutional right to the accused, the hearing tribunal may lose its
jurisdiction to conduct further proceedings. In such a case, habeas corpus would lie to
obtain the release of the accused. (Gumabon vs. Director, 37 SCRA 420; Acevedo vs.
Sarmiento, 36 SCRA 247; Aquino vs. Ponce Enrile, 59 SCRA 183; Flores vs. People,
61 SCRA 331; Dacuyan vs. Ramos, 85 SCRA 487, Ventura vs. People, 86 SCRA
188; Romero vs. Ponce Enrile, 75 SCRA 429; Aquino vs. Ponce Enrile, supra; Go vs.
Olivas, supra.)

In the case at bar, the petitioner claims that he has been denied his constitutional right
of speedy trial because the charges against him were filed only about 1 year and 7
months after his arrest.

There was no such denial. As stated by this Court in a per curiam decision: "x... the
test of violation of the right to speedy trial has always been to begin counting the
delay from the time the information is filed, not before the filing. The delay in the
filing of the information, which in the instant case has not been without reasonable
cause, is therefore not to be reckoned with in determining whether there has been a
denial of the right to speedy trial." (People vs. Orsal, 113 SCRA 226 at 236.)

At any rate, whether or not one has been denied speedy trial is not susceptible to
precise quantification. At best, the constitutional right of speedy trial is relative,
consistent with reasonable delays, taking into account the circumstances of each case.
As expressed in Barker vs. Wingo, 33 L. Ed 2d 101:

... the right to a speedy trial is a more vague and generically different concept than
other constitutional rights guaranteed to accused persons and cannot be quantified into
a specified number of days or months, and it is impossible to pinpoint a precise time
in the judicial process when the right must be asserted or considered waived ...

... a claim that a defendant has been denied his right to a speedy trial is subject to a
balancing test, in which the conduct of both the prosecution and the defendant are
weighed, and courts should consider such factors as length of the delay, reason for the
delay, the defendant's assertion or non-assertion of his right, and prejudice to the
defendant resulting from the delay, in determining whether defendant's right to a
speedy trial has been denied ...

Returning to the case at hand, the criminal act imputed to the petitioner unfortunately
resulted in the death of three persons (including Rogelio Cruz who allegedly bought
the handgrenades from the petitioner) and very serious injuries to three others whose
testimony is vital to the preferment of charges and prosecution of the petitioner. It is
therefore not unreasonable to heed the claim of respondents that the delay complained
of was occasioned by the unavailability of witnesses, a claim which has not at all been
challenged or denied by the petitioner.

WHEREFORE, the petition for habeas corpus is dismissed, without prejudice to the
petitioner seeking his provisional release on bail from the military authorities or the
Ministry of National Defense. No costs.

SO ORDERED.




















Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 159098 October 27, 2006

SPS. HENRY and ROSARIO UY, petitioners,
vs.
HON. JUDGE ARSENIO P. ADRIANO, in his capacity as Pairing Judge of RTC, Br.
64, Tarlac City, CITY PROSECUTOR ALIPIO C. YUMUL and
PIAKAMASARAP CORP., respondents.


D E C I S I O N


CALLEJO, SR., J.:

Challenged in this instant Petition for Review on Certiorari is the Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 62103 which affirmed the Orders of the
Regional Trial Court (RTC) of Tarlac City2 denying the motion to quash the
Information in Criminal Case Nos. 6512-94.

Based on a confidential information that petitioner Henry Uy had been engaged in
manufacturing, delivering, and selling "fake" Marca Pia soy sauce,3 Orlando S.
Bundoc, Intelligence Officer II of the Economic Intelligence and Investigation Bureau
(EIIB), applied for a search warrant4 for unfair competition which was granted on
February 14, 1994. When the search warrant was implemented on even date, Atty.
Francisco R. Estavillo, agent of the National Bureau of Investigation (NBI) in Tarlac,
seized fifty-five (55) bottles of label Marca Pia soy sauce.5

Consequently, a criminal complaint was filed in the Municipal Trial Court (MTC) of
Tarlac City on March 23, 1994, charging petitioner Henry Uy with violation of Article
189 (Unfair Competition) of the Revised Penal Code.6

On November 8, 1994, private respondent Piakamasarap Corporation moved to
amend the criminal charge by including Henry's spouse, petitioner Rosario Uy.7 The
court granted the motion in its Order dated November 15, 1994 and admitted the
amended criminal complaint which reads:

The undersigned, LUIS E. GONZALES, Comptroller of PIAKAMASARAP
CORPORATION of 583 Sta. Veronica St., Novaliches, Quezon City, and by authority
of the said corporation, under oath accuses HENRY UY, ROSARIO GUTIERREZ
UY and a certain JOHN DOE of Violation of Article 189 of the Revised Penal Code,
committed as follows:

That on or about February 14, 1994, and for sometimes (sic) prior thereto, in
Municipality of Tarlac, Tarlac, Philippines, the said Rosario G. Uy accused, being
then the owner of a business establishment with principal address at Phase I, Northern
Hills Subdivision, San Vicente, Tarlac, Tarlac, and her co-accused, husband, HENRY
UY, and a certain John Doe, did then and there, willfully, unlawfully and feloniously
conspire and confederate together and help one another engaged in unfair competition
with the intention of deceiving and defrauding the public in general and the
consuming public in general and PIAKAMASARAP Corporation, the manufacturer
and bottler of soy sauce under the name "MARCA PIA," a [trademark] duly
registered with the Philippine Patent Office and sell or offer for sale soy sauce
manufactured by them with the brand name "Marca Pia" which is a bastard version
of the trademark, and using the bottles of Piakamasarap Corporation and substituted
the contents thereof with those manufactured by the accused and passing to the public
that said products to be the products of Piakamasarap Corporation which is not true,
thereby inducing the public to believe that the above-mentioned soy sauce sold or
offered for sale by said accused are genuine "MARCA PIA" soy sauce
manufactured by PIAKAMASARAP CORPORATION, and of inferior quality to
the damage and prejudice of the Piakamasarap Corporation.

Contrary to law.

Tarlac, Tarlac, November 8, 1994.8

After preliminary examination of the prosecution witnesses, the court found probable
cause to indict petitioners.9 On January 30, 1995, the court issued a warrant of arrest
against petitioners.10 They were released after posting a cash bond on February 1,
1995.11 On July 10, 1995, petitioners were arraigned, assisted by counsel, and
pleaded not guilty to the charge.12 Petitioners, through counsel, waived the pre-trial
conference on October 25, 1995. The initial trial was set on November 27, 1995.13

However, it was only on February 26, 1996 that the first witness of the prosecution,
Atty. Estavillo of the NBI, testified. In the meantime, in October 1996, this Court
issued Administrative Order (A.O.) No. 104-96 providing, inter alia, that the RTC
shall have exclusive jurisdiction over violations of Articles 188 and 189 of the
Revised Penal Code and Republic Act (R.A.) No. 166, as amended, thus:

VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS SUCH AS, BUT NOT
LIMITED TO, VIOLATIONS OF ART. 188 OF THE REVISED PENAL CODE
(SUBSTITUTING AND ALTERING TRADEMARKS, TRADE NAMES, OR
SERVICE MARKS), ART. 189 OF THE REVISED PENAL CODE (UNFAIR
COMPETITION, FRAUDULENT REGISTRATION OF TRADEMARKS, TRADE
NAMES, OR SERVICE MARKS, FRAUDULENT DESIGNATION OF ORIGIN,
AND FALSE DESCRIPTION), P.D. NO. 49 (PROTECTION OF INTELLECTUAL
PROPERTY RIGHTS), P.D. NO. 87 (AN ACT CREATING THE VIDEOGRAM
REGULATORY BOARD), R.A. NO. 165, AS AMENDED (THE PATENT LAW),
AND R.A. NO. 166, AS AMENDED (THE TRADEMARK LAW) SHALL BE
TRIED EXCLUSIVELY BY THE REGIONAL TRIAL COURTS IN
ACCORDANCE WITH THE ESTABLISHED RAFFLE SCHEME EXCEPT
THOSE COVERED BY ADMINISTRATIVE ORDER NO. 113-95 DATED 2
OCTOBER 1995, IN WHICH CASE, THE DESIGNATED REGIONAL TRIAL
COURTS SHALL CONTINUE TO OBSERVE THE PROVISIONS THEREIN.

CONSIDERING THAT JURISDICTION FOR VIOLATIONS OF INTELLECTUAL
PROPERTY RIGHTS HEREINBEFORE MENTIONED IS NOW CONFINED
EXCLUSIVELY TO THE REGIONAL TRIAL COURTS, THE DESIGNATION OF
METROPOLITAN TRIAL COURTS AND MUNICIPAL TRIAL COURTS IN
CITIES UNDER ADMINISTRATIVE ORDER NO. 113-95 IS DELETED AND
WITHDRAWN.

Despite the administrative order of the Court, the MTC continued with the trial.
Gloria P. Tomboc, Analyst of the Bureau of Food and Drugs Administration (BFAD),
testified on August 25, 1997. In the meantime, Articles 188 and 189 of the Revised
Penal Code were amended by R.A. No. 8293, otherwise known as the Intellectual
Property Code. Two years thereafter, Alfredo Lomboy, supervisor of Piakamasarap
Corporation, testified on August 30, 1999.

On December 12, 1999, the prosecution filed its formal offer of evidence.14 In the
meantime, on October 22, 1999, Atty. Joselito L. Lim had moved to withdraw his
appearance as counsel for petitioners;15 the court had granted the motion on October
25, 1999;16 and the new counsel of petitioners, Balbastro and Associates, had entered
its appearance on November 24, 1999.17

On February 15, 2000, the court resolved to admit the documentary evidence of the
prosecution except Exhibit "E" which was rejected by the court, and Exhibits "I" and
"J" which were withdrawn.18 The prosecution rested its case.

On March 10, 2000, petitioners, through their new counsel, filed a Motion for Leave
to File Demurrer to Evidence.19 The court granted the motion. In their demurrer,20
petitioners argued that a judgment of acquittal is proper since no sufficient evidence
was presented to prove beyond reasonable doubt that they are guilty of the offense
charged. The prosecution was not able to establish that they gave their goods the
general appearance of another manufacturer or dealer and that they had the intent to
defraud the public or Piakamasarap Corporation. Moreover, under both R.A. No.
166, as amended, and its repealing law, R.A. No. 8293, the RTC had jurisdiction over
the crime charged; hence, the amended complaint should be quashed.

The prosecution opposed the demurrer to evidence, contending that it had presented
proof beyond reasonable doubt of the guilt of petitioners for the crime charged. The
prosecution maintained that, under Batas Pambansa (B.P.) Blg. 129, the MTC had
jurisdiction over the crime charged in the light of the imposable penalty for unfair
competition under Article 189 of the Revised Penal Code.21

In its Resolution dated May 16, 2000,22 the court held that there was prima facie
evidence which, if unrebutted or not contradicted, would be sufficient to warrant the
conviction of petitioners. However, the court ruled that the RTC was vested by law
with the exclusive and original jurisdiction to try and decide charges for violation of
R.A. No. 166 as amended by R.A. No. 8293. Accordingly, the court denied the
demurrer to evidence and ordered the records of the case forwarded to the Office of
the Provincial Prosecutor for appropriate action.

The City Prosecutor forwarded the case records to the Clerk of Court of RTC, Br. 63,
Tarlac City.23 On June 19, 2000, the RTC ordered the City Prosecutor to conduct the
requisite preliminary investigation and to file the necessary Information if he found
probable cause against petitioners.

The City Prosecutor found probable cause based on the findings of the MTC in its
May 16, 2000 Resolution that there was a prima facie case against petitioners.24 He
filed an Information in the RTC on July 18, 2000 for violation of Article 189 of the
Revised Penal Code.25 The Information reads:

That on or about February 14, 1994 and sometime prior thereto, at Tarlac City, and
within the jurisdiction of this Honorable Court, the accused, being the owner of a
business establishment with principal address at Phase I, Northern Hills Subd., San
Vicente, Tarlac City, the accused, conspiring, confederating and helping one another
did then and there willfully, unlawfully and feloniously, in unfair competition with the
intention of deceiving and defrauding the public in general and the
PIAKAMASARAP CORPORATION, the name "MARCA PIA," and sell or offer
for sale soy sauce manufactured by them with the brand name "Marca Pia," which is
a version of the trademark, and using the bottles of Piakamasarap Corporation and
substituted the contents thereof with those manufactured by the accused and passing
to the public the products, thereby inducing the public to believe that the soy sauce
sold or offered for sale by the accused are genuine "MARCA PIA" soy sauce, to the
damage and prejudice of PIAKAMASARAP CORPORATION.

CONTRARY TO LAW.26

Petitioners filed a Motion to Quash the Information,27 alleging that their rights to due
process and speedy trial had been violated. Other than the notice of hearing sent by
the court, they never received a subpoena which required them to submit their
evidence during a preliminary investigation. Petitioners further averred that certain
delays in the trial are permissible, especially when such delays are due to
uncontrollable circumstances or by accident. In this case, the inordinate delay was
obviously brought by the lackadaisical attitude taken by the prosecutor in prosecuting
the case. Petitioners pointed out that there was already a delay of six (6) long years
from the time the initial complaint was filed, and that they had already been
prejudiced. Their life, liberty and property, not to mention their reputation, have been
at risk as there has been no determination of the issue of whether or not to indict them.
Thus, the case should be dismissed in order to free them from further capricious and
oppressive dilatory tactics of the prosecution. Indeed, their right to a speedy trial is
part of due process, both of which are guaranteed by no less than the fundamental law
itself. They insisted that they should not be made to unjustly await the prosecution of
the charges against them.

In opposition, the City Prosecutor clarified that subpoenas were sent to the parties
during the preliminary investigation. In fact, petitioner Henry Uy appeared and
submitted the case for resolution without submitting additional evidence. Also, the
proceedings in the MTC were not part of preliminary investigation but the trial on the
merits.28

On September 8, 2000, the court issued an Order denying the motion to quash.29 The
court ruled that:

While there must have been a protracted trial since the case was originally filed before
the Municipal Trial Court, a period of about six (6) years, as the accused contends,
nevertheless the delay if any, is partly attributable to the accused. [They] allowed the
prosecution to rest the evidence in chief before raising the issue of lack of jurisdiction.
Had the accused immediately raised the issue of lack of jurisdiction, this case could
have been filed anew before the RTC. The accused allowed themselves to be
arraigned without raising the issue of jurisdiction. In fact, the prosecution [had] rested
its evidence in chief.

The parties may[,] however[,] stipulate in the pre-trial that all the proceedings taken
before the Municipal Trial Court are automatically reproduced and are considered part
of the prosecution's evidence, so that the trial will now be with respect to the reception
of defense evidence.30

Petitioners filed a motion for reconsideration of the Order31 which the trial court
denied.32 At the same time, the court granted the oral motion of the prosecution to
amend the Information to reflect in its caption that the law violated by the accused is
R.A. No. 8293 and not Article 189 of the Revised Penal Code. On October 12, 2000,
the City Prosecutor filed an amended Information. The inculpatory portion reads:

That on or about February 14, 1994 and sometimes prior thereto, at Tarlac City, and
within the jurisdiction of this Honorable Court, the accused, being the owner of a
business establishment with principal address at Phase I, Northern Hills Subd., San
Vicente, Tarlac City, the accused, conspiring, confederating and helping one another
did then and there willfully, unlawfully and feloniously, in Violation of Sec. 168 of
R.A. No. 8293 with the intention of deceiving and defrauding the public in general
and the PIAKAMASARAP CORPORATION, the name "MARCA PIA," and sell
or offer for sale soy sauce manufactured by them with the brand name "Marca Pia,"
which is a version of the trademark, and using the bottles of Piakamasarap
Corporation and substituted the contents thereof with those manufactured by the
accused and passing to the public the products, thereby inducing the public to believe
that the soy sauce sold or offered for sale by the accused are genuine "MARCA
PIA" soy sauce, to the damage and prejudice of PIAKAMASARAP
CORPORATION.

CONTRARY TO LAW.33

Petitioners then filed before the CA a petition for certiorari with prayer for temporary
restraining order and preliminary injunction,34 on the sole ground that respondent
judge committed grave abuse of discretion in denying their motion to quash based on
violation of their right to a speedy trial. They claimed that there was no active effort
on their part to delay the case as they merely attended the scheduled hearings and
participated in the preliminary investigation. On the contrary, it is the prosecution that
has the unmitigated obligation to immediately file the Information with the proper
court. The public prosecutor is supposedly knowledgeable of the existing laws and
jurisprudence since his office has the delicate task of prosecuting cases in behalf of
the State. Under the Rules on Criminal Procedure, he is the officer responsible for the
direction and control of criminal prosecutions. In the case at bar, the public prosecutor
failed in his bounden duty by neglecting to file the case in the court of competent
jurisdiction. The prosecution could not advance a single reason to justify the
procedural error and instead pointed its accusing finger to petitioners who are just
ordinary citizens. Their failure to call the attention of the prosecution is neither
acquiescence nor consent on their part. While their former lawyer was obviously
lackluster in their defense, the act of the counsel should not deprive them of their
constitutional right to a speedy trial. For petitioners, the prosecution's blunder in
procedure and ignorance of existing laws and jurisprudence far outweigh whatever
minimal participation, if any, they had in the protracted proceedings.

On March 21, 2003, the CA dismissed the petition.35 The fallo of the decision reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for
lack of merit. The Orders dated September 8, 2000 and October 9, 2000 of the public
respondent are hereby DISMISSED.36

In dismissing the petition, the appellate court ratiocinated that:

[T]he right to a speedy disposition of a case, like the right to speedy trial, is deemed
violated only when the proceeding is attended by vexatious, capricious and oppressive
delays" (Castillo v. Sandiganbayan, 328 SCRA 69, 76); "or when unjustified
postponements of the trial are asked for and secured, or when without cause or
justifiable motive a long period of time is allowed to elapse without the party having
his case tried." (Binay v. Sandiganbayan, 316 SCRA 65, 93)

In the instant case, aside from the fact that it took almost six years for the prosecution
to complete the presentation of its evidence, petitioners failed to show that the delay,
if ever there is any, was caused solely by the prosecution. Neither did the petitioners
show that the proceedings before the Municipal Trial Court was attended by
vexatious, capricious and oppressive delays attributable to the prosecution or that
unjustified postponements of the trial were asked for and secured by the prosecution
to the prejudice of the petitioners. The fact alone that the prosecution had consumed
six (6) years to complete its presentation of evidence, without any allegation or proof
that the prosecution has caused unreasonable delays or that the proceeding was
attended by vexatious, capricious and oppressive delays, to Our minds is not sufficient
for the application upon the petitioners of their Constitutional right to speedy trial. "A
mere mathematical reckoning of the time involved, therefore, would not be sufficient.
In the application of the Constitutional guarantee of the right to speedy disposition of
cases, particular regard must also be taken of the facts and circumstances peculiar to
each case." (Binay v. Sandiganbayan, supra, p. 93). In the case at bar, petitioners
failed to present, for Our perusal, the circumstances attending the trial of their case
before the Municipal Trial Court.

The only controversy of the instant case lies in the fact that the Municipal Trial Court
which heard the case has no jurisdiction over the said case. While it may be conceded
that the prosecution erred in not filing the information against the petitioners to a
proper court, still, petitioners are not blameless in this regard. Petitioners, through
their counsel, had actively participated in the proceedings before the Municipal Trial
Court. Petitioners had to wait for almost six (6) years to elapse before they brought to
the attention of the Municipal Trial Court that it had no jurisdiction to hear the case
against the petitioners. Petitioners have, by reason of their participation in the
proceedings before the Municipal Trial Court and also by reason of their silence and
inaction, allowed the Municipal Trial Court to proceed with a case for six (6) years
despite absence of jurisdiction of such court to hear the case. We cannot allow the
petitioners to reap from their acts or omissions. "A litigation is not a game of
technicalities in which one, more deeply schooled and skilled in the subtle art of
movement and position, entraps and destroys the other." (Fortune Corporation v.
Court of Appeals, 229 SCRA 355, 364)

"The constitutional privilege was never intended as furnishing a technical means for
escaping trial." (Esguerra v. Court of First Instance of Manila, et al., 95 Phil. 609,
611-612) "The right of an accused to a speedy trial is guaranteed to him by the
Constitution, but the same shall not be utilized to deprive the State of a reasonable
opportunity of fairly indicting criminals. It secures rights to an accused, but it does not
preclude the rights of public justice. (Domingo v. Sandiganbayan, 322 SCRA 655,
667)37

Petitioners filed a motion for reconsideration, which the appellate court denied.38

Petitioners sought relief from this Court on a petition for review, alleging that:

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN
IT AFFIRMED THE COURT A QUO'S DENIAL OF PETITIONERS' MOTION TO
QUASH, BASED ON VIOLATION OF THEIR RIGHT TO SPEEDY TRIAL (SEC.
16, ART. 3, 1987 CONSTITUTION).39

Petitioners reiterate their arguments in the CA to support the present petition. They
aver that:

In this case, the prosecution took six (6) long and grueling years before it filed an
Information with a competent court, despite the fact that jurisdiction of the Regional
Trial Courts over trademark cases remained unchanged since the birth of the
Trademark Law. Surely, this inordinate delay can be considered a "vexatious,
capricious and oppressive delay" which is constitutionally impermissible in this
jurisdiction pursuant to the right of the accused to speedy trial.

Indeed, petitioners have been prejudiced. Their lives, liberty and property, not to
mention their reputation have all been put at risk for so long.

The public prosecutor failed to explain the reason for the delay. Truth to tell, even at
this last stage, the public prosecutor chooses to remain silent why it had unjustifiably
taken him too long to file this case before a competent court. Unfortunately, the Court
of Appeals deliberately ignored this glaring flaw committed by the public prosecutor
and instead focused on petitioners' alleged negligence in not raising the issue of
jurisdiction earlier. It further ruled that due to this fact, petitioners are thus not entirely
blameless for the delay of the trial.

Truth to tell, these findings of the Court of Appeals are palpably erroneous.

Firstly, it is elementary that jurisdiction over the subject matter may be raised at any
stage of the proceedings. This is because no amount of waiver can confer jurisdiction
on a court over an offense for which such jurisdiction has not been conferred by law
in the first place.

Secondly, even assuming that petitioners failed to raise the issue of jurisdiction
earlier, still, they could not be estopped from invoking their right to speedy trial. The
delay to be considered "partly attributable" to the accused (which could work against
him in invoking the right to speedy trial) presupposes an active effort of the defendant
to delay the case (Manabat v. Timbang, 74 Phil. 295). There is no violation of the
right to speedy trial where the delay is imputable to the accused (Solis v. Agloro, 63
SCRA 370). Here, it was the prosecution that had the unmitigated obligation to file
the Information with the correct court, within a reasonable time. It did not. Such
blunder was fatal to its cause.

To emphasize, petitioners need not even call the attention of the prosecution that it
had failed to file the case with the proper court, contrary to the opinion of the Court of
Appeals. x x x40

x x x x

Although petitioners agree with the Court of Appeals that mere mathematical
reckoning of time would not be sufficient for the application of the right to speedy
trial, still, the public prosecutor's blunder should already be considered "vexatious,
capricious and oppressive" warranting the dismissal of the case.

Indeed, to condone the public prosecutor's manner of having directed this case, just
like what the Court of Appeals did, might give rise to a disturbing precedent where
the constitutional right of the accused could very well be set aside to justify the
mishandling of the prosecution by officers of the State.41

Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides that the
accused is entitled to a speedy, impartial and public trial. Section 2, Rule 119 of the
said Rules provides that trial, once commenced, shall be continuous until terminated:

Sec. 2. Continuous trial until terminated; postponements. Trial, once commenced,
shall continue from day to day as far as practicable until terminated. It may be
postponed for a reasonable period of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the
case for continuous trial on a weekly or other short-term trial calendar at the earliest
possible time so as to ensure speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the first day of trial, except as otherwise
authorized by the Supreme Court.

The time limitations provided under this section and the preceding section shall not
apply where special laws or circulars of the Supreme Court provide for a shorter
period of trial.

However, any period of delay resulting from a continuance granted by the court motu
proprio, or on motion of either the accused or his counsel, or the prosecution, if the
court granted the continuance on the basis of its findings set forth in the order that the
ends of justice is served by taking such action outweigh the best interest of the public
and the accused on a speedy trial, shall be deducted.

The trial court may grant continuance, taking into account the following factors:

(a) Whether or not the failure to grant a continuance in the proceeding would likely
make a continuation of such proceeding impossible or result in a miscarriage of
justice; and

(b) Whether or not the case taken as a whole is so novel, unusual and complex, due to
the number of accused or the nature of the prosecution, or that it is unreasonable to
expect adequate preparation within the periods of time established therein.

In addition, no continuance under section 3(f) of this Rule shall be granted because of
congestion of the court's calendar or lack of diligent preparation or failure to obtain
available witnesses on the part of the prosecutor.42

Under the Constitution and Section 1(7) of Rule 115 of the Revised Rules of Criminal
Procedure, the accused shall be entitled to have a speedy and impartial trial. "Speedy
trial" is a relative term and necessarily a flexible concept.43 In determining whether
the right of the accused to a speedy trial was violated, the delay should be considered,
in view of the entirety of the proceedings.44 Indeed, mere mathematical reckoning of
the time involved would not suffice45 as the realities of everyday life must be
regarded in judicial proceedings which, after all, do not exist in a vacuum.46

Apart from the constitutional provision and Section 115, Section 1(i) of the Rules of
Criminal Procedure, A.O. No. 113-95 of the Court provides that:

The trial of cases for violation of Intellectual Property Rights covered by this
Administrative Order shall be immediately commenced and shall continue from day
to day to be terminated as far as practicable within sixty (60) days from initial trial.
Judgment thereon shall be rendered within thirty (30) days from date of submission
for decision.

More than a decade after the 1972 leading U.S. case of Barker v. Wingo47 was
promulgated, this Court, in Martin v. Ver,48 began adopting the "balancing test" to
determine whether a defendant's right to a speedy trial has been violated. As this test
necessarily compels the courts to approach speedy trial cases on an ad hoc basis, the
conduct of both the prosecution and defendant are weighed apropos the four-fold
factors, to wit: (1) length of the delay; (2) reason for the delay; (3) defendant's
assertion or non-assertion of his right; and (4) prejudice to defendant resulting from
the delay.49 None of these elements, however, is either a necessary or sufficient
condition; they are related and must be considered together with other relevant
circumstances. These factors have no talismanic qualities as courts must still engage
in a difficult and sensitive balancing process.50

A. Length of the Delay

The length of delay is to some extent a "triggering mechanism." Until there is some
delay, which is presumptively prejudicial, there is no necessity to inquire into the
other three factors. Nevertheless, due to the imprecision of the right to a speedy trial,
the length of delay that will provoke such an inquiry is necessarily dependent upon
the peculiar circumstances of the case.51

B. Reason for the Delay

Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the accused
have the burden to prove the factual basis of the motion to quash the Information on
the ground of denial of their right to a speedy trial.52 They must demonstrate that the
delay in the proceedings is vexatious, capricious, and oppressive; or is caused by
unjustified postponements that were asked for and secured; or that without cause or
justifiable motive, a long period of time is allowed to elapse without the case being
tried.53 On the other hand, the prosecution is required to present evidence
establishing that the delay was reasonably attributed to the ordinary processes of
justice, and that petitioners suffered no serious prejudice beyond that which ensued
after an inevitable and ordinary delay.54

The records bear out the contention of petitioners that there had been a considerable
delay in the trial in the MTC. Upon motion/agreement of petitioners and the
prosecution, or because of the joint absences, the trial of the case was delayed for
more than 11 months.55 In its own instance, the MTC also reset some of the trial
dates in order to correct mistakes in scheduling or because the witnesses were not
duly notified,56 thus, delaying the trial of the case for an additional seven months.
Even petitioners contributed to the delay of more than five months they or their
former counsel were either absent or moved for postponements to attend another
pending case or due to health concerns.57 The delay of about 21 months, covering 15
re-settings, can be attributed to the prosecution. However, except in five instances,
when the trial was reset because the private prosecutor had to attend to some
professional58 and personal matters,59 the delays were brought about because of the
recent engagement of legal service,60 absence of the public prosecutor,61 and
unavailability of documents62 and witnesses.63

Not only the petitioners but the State as well were prejudiced by the inordinate delay
in the trial of the case. It took the prosecution more than four years to rest its case
after presenting only three witnesses. Had the prosecution, petitioner and the trial
court been assiduous in avoiding any inordinate delay in the trial, the prosecution
could have rested its case much earlier. The court even failed to order the absent
counsel/prosecutor/witnesses to explain/justify their absences or cite them for
contempt. The speedy trial mandated by the Constitution and the Revised Rules of
Criminal Procedure is as much the responsibility of the prosecution, the trial court and
petitioners to the extent that the trial is inordinately delayed, and to that extent the
interest of justice is prejudiced.

The case before the RTC should not be dismissed simply because the public
prosecution did not move for the dismissal of the case in the MTC based on A.O. No.
104-96 declaring that the RTC has exclusive jurisdiction over cases under Articles
188 and 189 of the Revised Penal Code; or for failure of the MTC to motu proprio
dismiss the case on that ground. The City Prosecutor then believed in good faith,
albeit erroneously, that under R.A. No. 7691 which amended B.P. Blg. 129, the MTC
had jurisdiction over the crime charged.

The mistake of the City Prosecutor and the failure of the MTC to dismiss the case
motu proprio should not prejudice the interest of the State to prosecute criminal
offenses and, more importantly, defeat the right of the offended party to redress for its
grievance. Significantly, petitioners do not attribute to the prosecution or to the MTC
any malice aforethought or conscious disregard of their right to a speedy trial; nor
have substantially proven the same by clear and convincing evidence. Hence, absent
showing of bad faith or gross negligence, delay caused by the lapse of the prosecution
is not in itself violative of the right to a speedy trial.

Different weights should be assigned to various reasons by which the prosecution
justifies the delay. A deliberate attempt to delay the trial in order to hamper the
defense should be weighed heavily against the prosecution. A more neutral reason
such as negligence or overcrowded courts should be weighed less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with defendant.64

In Corpuz v. Sandiganbayan,65 the Court had carefully balanced the societal interest
in the case, which involved the so-called "tax credit certificates scam," and the need to
give substance to the defendants' constitutional rights. In said suit, we upheld the
decision of the Sandiganbayan (Special Fourth Division) that the dismissal of the
cases was too drastic, precipitate and unwarranted. While the Court recognized that
defendants were prejudiced by the delay in the reinvestigation of the cases and the
submission of a complete report by the Ombudsman/Special Prosecutor to the
Sandiganbayan, we underscored that the State should not be prejudiced and deprived
of its right to prosecute cases simply because of the ineptitude or nonchalance of the
Ombudsman/Special Prosecutor. "An overzealous or precipitate dismissal of a case
may enable defendant, who may be guilty, to go free without having been tried,
thereby infringing the societal interest in trying people accused of crimes by granting
them immunization because of legal error."66

The same observation was made in Valencia v. Sandiganbayan.67 Here, the Court
noted the haphazard manner by which the prosecutor handled the litigation for the
State when he rested the case without adducing evidence for the prosecution and
simply relying on the Joint Stipulation of Facts, which the accused did not even sign
before its submission to the Sandiganbayan. In allowing the prosecution to present
additional evidence and in dismissing the claim of the accused that his constitutional
right to a speedy trial had been violated, we ruled:

As significant as the right of an accused to a speedy trial is the right of the State to
prosecute people who violate its penal laws. The right to a speedy trial is deemed
violated only when the proceeding is attended by vexatious, capricious and oppressive
delays x x x [T]o erroneously put premium on the right to speedy trial in the instant
case and deny the prosecution's prayer to adduce additional evidence would logically
result in the dismissal of the case for the State. There is no difference between an
order outrightly dismissing the case and an order allowing the eventual dismissal
thereof. Both would set a dangerous precedent which enables the accused, who may
be guilty, to go free without having been validly tried, thereby infringing the interest
of the society.68

Certainly, the right to speedy trial cannot be invoked where to sustain the same would
result in a clear denial of due process to the prosecution. It should not operate in
depriving the State of its inherent prerogative to prosecute criminal cases or generally
in seeing to it that all those who approach the bar of justice is afforded fair
opportunity to present their side.69 For it is not only the State; more so, the offended
party who is entitled to due process in criminal cases.70 In essence, the right to a
speedy trial does not preclude the people's equally important right to public justice.71
Thus, as succinctly decreed in State v. McTague:72

The constitutional and statutory provisions for a speedy trial are for the protection of
the defendant, but that does not mean that the state is the only one that may initiate
action. There is really no reason for the courts to free an accused simply because a
dilatory prosecutor has 'gone to sleep at the switch' while the defendant and his
counsel rest in silence. These solicitous provisions are not to be used as offensive
weapons, but are for the benefit of defendants who claim their protection. They are a
shield, and they 'must not be left hanging on the wall of the armory.' It is for the
protection of personal rights, not to embarrass the administration of the criminal law
nor to defeat public justice.

Be that as it may, the conduct of the City Prosecutor and the MTC must not pass
without admonition. This Court must emphasize that the State, through the court and
the public prosecutor, has the absolute duty to insure that the criminal justice system
is consistent with due process and the constitutional rights of the accused. Society has
a particular interest in bringing swift prosecutions, and the society's representatives
are the ones who should protect that interest. The trial court and the prosecution are
not without responsibility for the expeditious trial of criminal cases. The burden for
trial promptness is not solely upon the defense. The right to a speedy trial is
constitutionally guaranteed and, as such, is not to be honored only for the vigilant and
the knowledgeable.73

C. Petitioners' Assertion of the Right

The assertion of the right to a speedy trial is entitled to strong evidentiary weight in
determining whether defendant is being deprived thereof. Failure to claim the right
will make it difficult to prove that there was a denial of a speedy trial.74

Except in only one instance in this case,75 the records are bereft of any evidence that
petitioners, through counsel, have bothered to raise their objection to the several re-
setting of the trial dates. This is not unexpected since, as already shown, the reasons
for the delay are not in themselves totally inexcusable or unreasonable. Moreover,
petitioners actively participated in the trial when the prosecution presented its
evidence, as they scrutinized the documentary evidence and cross-examined the
witnesses. Until the filing of the motion to quash in the RTC, they never contested the
prosecutorial proceedings nor timely challenged the pendency of the case in the MTC.

While it is true that lack of jurisdiction may be assailed at any stage of the
proceedings, such defense must be seasonably raised at the earliest possible
opportunity. Otherwise, active participation in the trial would estop a party from later
challenging such want of jurisdiction.76

In the same vein, one's failure to timely question the delay in the trial of a case would
be an implied acceptance of such delay and a waiver of the right to question the same.
Except when otherwise expressly so provided, the speedy trial right, like any other
right conferred by the Constitution or statute, may be waived when not positively
asserted.77 A party's silence may amount to laches.78 The right to a speedy trial is a
privilege of the accused. If he does not claim it, he should not complain. R.A. No.
8493 (Speedy Trial Act of 1998) is a means of enforcing Section 14(2), Article III of
the Constitution.79 The spirit of the law is that the accused must go on record in the
attitude of demanding a trial or resisting delay. If he does not do this, he must be held,
in law, to have waived the privilege.

This Court cannot subscribe to petitioners' untiring argument that, being "ordinary
citizens," they should not be made to suffer from the "lackluster" performance of their
former counsel who failed to recognize the MTC's want of jurisdiction. Too often we
have held that a client is bound by the acts, mistakes or negligence of his counsel.80
This is, as it should be, since a counsel has the implied authority to do all acts which
are necessary or, at least, incidental to the prosecution and management of the suit in
behalf of his client. Any act performed within the scope of his general and implied
authority is, in the eyes of the law, regarded as the act of the client.81 If the rule were
otherwise, there would be no end to litigation so long as a new counsel could be
employed who would allege and show that the prior counsel had not been sufficiently
diligent, experienced, or learned.82 It would enable every party to render inutile an
adverse order or decision through the simple expedient of alleging gross negligence
on the part of the counsel.83 Every shortcoming of a counsel could be the subject of
challenge by his client through another counsel who, if he is also found wanting,
would likewise be disowned by the same client through another counsel, and so on ad
infinitum.84 Proceedings would then be indefinite, tentative and at times, subject to
reopening by the simple subterfuge of replacing counsel.85

While the rule admits of certain exceptions,86 we find none present in this case. Other
than his obvious failure to assert lack of jurisdiction, Atty. Lim undeniably
represented the cause of his clients in the MTC proceedings. Interestingly, their new
counsel, wittingly or unwittingly, raised the issue of jurisdiction only four months
after it entered its appearance,87 thus, adding to the delay.

D. Prejudice to the Petitioners

In the Barker case,88 the different interests of a defendant which may be affected by
the violation of the right to a speedy trial were identified. It was held that prejudice
should be assessed in the light of the interests of a defendant which the speedy trial
right was designed to protect, namely: (1) to prevent oppressive pretrial incarceration;
(2) to minimize anxiety and concern of the accused; and (3) to limit the possibility
that the defense will be impaired. Of these, the most serious is the last, because the
inability of a defendant to adequately prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall accurately events of the distant
past. Loss of memory, however, is not always reflected in the record because what has
been forgotten can rarely be shown. Even if an accused is not incarcerated prior to
trial, he is still disadvantaged by restraints on his liberty and by living under a cloud
of anxiety, suspicion, and often hostility.89 After all, arrest is a public act that may
seriously interfere with the defendant's liberty, whether he is free on bail or not, and
that may disrupt his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in him, his family and
friends.90

Again, a perusal of the records failed to reveal that the delay in bringing petitioners to
trial in a court of competent jurisdiction caused them any prejudice tantamount to
deprivation of their right to a speedy trial. Petitioners in this case were not subjected
to pretrial incarceration, oppressive or otherwise, thus eliminating the first Barker
consideration bearing on prejudice.

As to the minimization of anxiety and concern of the accused, there is no showing that
petitioners suffered undue pressures in this respect. Mere reference to a general
asseveration that their "life, liberty and property, not to mention reputation" have been
prejudiced is not enough. There must be conclusive factual basis, as this Court cannot
rely on pure speculation or guesswork. Surely, a pending criminal case may cause
trepidation but, as stressed in Barker, the standard here is minimization, not
necessarily elimination of the natural consequences of an indictment. While this is not
to be brushed off lightly, it is not by itself sufficient to support a claim of denial of the
right to a speedy trial.

There is no factual basis for the claim of petitioners that we are not supplied with any
specific allegation in the record, nor witnesses or evidence may become unavailable
because of the delays in this case. To repeat, the claim of impairment of defense
because of delay must be specific and not by mere conjecture. Vague assertions of
faded memory will not suffice. Failure to claim that particular evidence had been lost
or had disappeared defeats speedy trial claim.

As neither the specific types of prejudice mentioned in Barker nor any others have
been brought to the Court's attention, we are constrained to dismiss petitioners' claim.
The passage of time alone, without a significant deprivation of liberty or impairment
of the ability to properly defend oneself, is not absolute evidence of prejudice. The
right to a speedy trial is not primarily intended to prevent prejudice to the defense
caused by the passage of time; that interest is protected primarily by the due process
clause and the statutes of limitations.91

In several cases where it is manifest that due process of law or other rights guaranteed
by the Constitution or statutes has been denied, this Court has not faltered to accord
the so-called "radical relief" to keep accused from enduring the rigors and expense of
a full-blown trial.92 In this case, however, there appears no persuasive, much less
compelling, ground to allow the same relief for absence of clear and convincing
showing that the delay was unreasonable or arbitrary and was seasonably objected to
by petitioners.

IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED for lack of
merit. The March 21, 2003 Decision and July 17, 2003 Resolution of the Court of
Appeals are AFFIRMED. The Regional Trial Court, Branch 64, Tarlac City, is
directed to proceed with the trial on the merits of the criminal case with all reasonable
and judicious dispatch consistent with the right of petitioners to a speedy trial. No
costs.

SO ORDERED.
















































































Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 109271 March 14, 2000

RICARDO CASTILLO, DEMETRIO CABISON JR., and RODOLFO AGDEPPA,
petitioners,
vs.
HONORABLE SANDIGANBAYAN (SECOND DIVISION), and PEOPLE OF THE
PHILIPPINES, represented by HONORABLE CONRADO VASQUEZ,
OMBUDSMAN, respondents.

YNARES-SANTIAGO, J.:

Before this Court is a Petition for Certiorari assailing two Orders dated February 18,
19931 and March 8, 19932 of the Sandiganbayan's Second Division denying
petitioners' Motion to Dismiss and Motion for Reconsideration.

On August 25, 1986, concerned employees of the Commission on Audit (COA) filed
a Complaint before the Tanodbayan,3 against Ricardo Castillo, Rodolfo Agdeppa and
Demetrio Cabison Jr., COA Auditor VIII, COA Auditor II, and COA Auditor III,
respectively, all assigned at the National Housing Authority (NHA), for alleged
"submittal of initial very derogatory reports which became the basis for the filing of
cases with the Tanodbayan and the reversals of their initial recommendations for
contractors." Petitioners were notified of the Complaint on September 22, 1986 when
they were directed by the Tanodbayan to file their counter-affidavits, which they did
on September 30, 1986.

In a resolution dated October 30, 1987, the Tanodbayan found prima facie case
against petitioners and accordingly recommended the filing of an Information against
them for violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act (RA
3019).4

On November 27, 1987, petitioners promptly filed a Motion for Reinvestigation.5 On
March 21, 1988, they filed a Motion to Resolve their Motion for Reinvestigation.6

Without acting upon the Motion for Reinvestigation and Motion to Resolve Motion
for Reinvestigation, an Information was filed on November 5, 1990, before the
Sandiganbayan, which reads:

That on or about August 5, 1986 or prior and subsequent thereto, in Quezon City,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
accused namely, Ricardo R. Castillo, Rodolfo M. Agdeppa and Demetrio M. Cabison
Jr., all public officers being then COA Auditor VIII, COA Auditor II and COA
Auditor III, respectively, taking advantage of their official positions, while in the
performance or discharge of their administrative official functions, with evident bad
faith and manifest partiality, conspiring, confederating and confabulating with each
other, did then and there willfully, unlawfully and fraudulently cause undue injury,
damage and prejudice to the Government of the Republic of the Philippines, to wit:
that two contracts were entered into by the NHA management with two private
contractors relative to the complete development of Phase V-A Packages 3 & 4 which
is being constructed by Sarmiento Construction Co., and likewise Phase IX Packages
7 & 7-A which is being constructed by the Supra Construction Co., both constructions
are located at the Tala Estate Sites & Services, by causing to prepare, submit, issue
and sign in the different inventory reports/recommendation on various occasions that
Sarmiento Construction had an overpayment in the amount of P362,591.98 for Phase
V-A Packages 3 & 4 but later on said accused changed their inventory
reports/recommendation and subsequently readjusted this as overpayment on physical
work thereby prejudicing the government on account of accused's constant
changes/reversals in the inventory reports prepared, signed and submitted by them;
whereas in the second contract with Supra Construction, accused issued an inventory
report by stating thereon that said contractor had a work deficiency in the amount of
P788,806.94 but refraining from taking appropriate action on account of
P1,873,091.40 withheld on Tala to pay a refund order on a Tondo contract issued by
the COA main office. The said accused raised the deficiency in the amount of
P855,281.50. Later on, another inventory report was issued and prepared by a Tri-
Partite Team Committee composed of COA, NHA and the contractors stating a work
deficiency in the amount of P352,121.40 only. Despite previous inventory
reports/recommendation by the accused citing different amounts and another amount
by the Tri-Partite Team Committee said accused later stated that the final deficiencies
of Supra Construction is no longer P855,281.58 but was reduced only to P70,596.37,
which reductions in the contractors' final deficiencies were not justified thereby giving
unwarranted benefits, preference and advantage to the above-mentioned contractor to
the damage and prejudice of the government in the amount of P231,523.00 and to the
Sarmiento Construction for inventoried accomplishment were not duly credited by the
said accused.7

Trial on the merits thereafter ensued. After the prosecution rested its case, petitioners
filed a Demurrer to Evidence but the same was denied by the Sandiganbayan in a
Resolution dated December 11, 1992.8 Petitioners' Motion for Reconsideration was
likewise denied in a Resolution dated January 20, 1993.9

Thereafter, petitioners filed a Motion to Dismiss 10 dated February 15, 1993 citing
lack of jurisdiction and violation of due process, but the same was denied by the
Sandiganbayan. Petitioners' Motion Reconsideration 11 was also denied.

Hence, this petition for certiorari and prohibition, raising the following grounds:

The Honorable Respondent Sandiganbayan committed grave abuse of discretion in
not dismissing the Information notwithstanding that there was a violation of
petitioners' constitutional rights of "due process" and "speedy disposition of cases"
and there was use of the strong arm of the law in an oppressive and vindictive manner
against the petitioners.

1. Unexplained and unjustified delay of three (3) years before an Information is filed
before the Honorable Respondent Sandiganbayan counting from the date of the
resolution of the Ombudsman recommending the prosecution of the petitioners for
violation of Rep. Act No. 3019 (or a total of four (4) years from initial investigation
up to filing of information);

2. Motion for Reinvestigation and Motion to Resolve the Motion for Reinvestigation
filed by the petitioners before the Office of the Honorable Respondent Ombudsman
were not acted upon;

3. No reason or explanation was made by the prosecution on the delay in the filing of
Information;

4. With no plausible explanation on hand, the petitioners are thus inclined to reason
out, or even suspect, that there is connection between such delay and their past and
contemporaneous official acts;

5. The lapse of three (3) years or a total of four (4) years from start of investigation up
to filing of Information may result in the destruction of affirmative evidence tending
to establish the innocence of the petitioners and that the passage of time may have
produced an unfavorable effect on their defense;

6. Violation of constitutional rights divests the court of jurisdiction;

7. Lack of jurisdiction of the court may be raised at any time;

8. Criminal prosecution may be enjoined in order to afford adequate protection to
constitutional rights and to prevent the use of the strong arm of the law in an
oppressive and vindictive manner;

9. Subject of instant petition are the Orders of the Honorable of Respondent
Sandiganbayan denying the Motion to Dismiss of petitioners for violation of their
constitutional rights and the use against them of the strong arm of the law in an
oppressive and vindictive manner.

Petitioners submit that the Ombudsman oppressed and discriminated against them by
not issuing any notice, reply or order denying their Motion or Reinvestigation as well
as their Motion to Resolve their Motion for Reconsideration. They argue that the
Ombudsman should have granted outright their Motion for Reinvestigation in view of
the ruling in Zaldivar v. Sandiganbayan 12 wherein this Court held, thus:

Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent
Tanodbayan) is charged with the duty to:

Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient." (emphasis omitted)

x x x x x x x x x

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the
incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and
who is supposed to retain the powers and duties NOT GIVEN to the Ombudsman) is
clearly without authority to conduct preliminary investigations and to direct the filing
of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman.
This right to do so was lost effective February 2, 1987. From that time, he has been
divested of such authority.

Petitioners' contention is misleading. In the aforecited case, this Court clearly held
that the authority of the Tanodbayan to conduct preliminary investigations and to
direct the filing of criminal cases was lost effective February 2, 1987. The inference,
therefore, of such holding is that the Tanodbayan had such authority prior to February
2, 1987. In this case, the Tanodbayan issued petitioners a subpoena on September 22,
1986 directing them to file their counter-affidavits, which the latter complied with on
September 30, 1986. In short, the preliminary investigation was conducted by the
Tanodbayan before he lost his authority to do so.

Hence, there was no need for the Ombudsman to conduct another preliminary
investigation as the one conducted by the former Tanodbayan was valid and legal.
Presumably, the new Ombudsman recognized the results of the preliminary
investigation conducted by the then Tanodbayan and adopted the conclusions reached
therein when he ordered the filing of an Information against petitioners.

Consequently, there was no need for the Ombudsman to act on the petitioners' Motion
for Reinvestigation. As stated, there was no need for the Ombudsman to conduct
another preliminary investigation.

Petitioners also submit that they were deprived of their constitutional right to a speedy
trial by reason of the delay in the filing of the Information by the Ombudsman. They
contend that the Sandiganbayan abused its discretion in not dismissing the
Information filed against them on the ground that "there was unexplained and
unjustified delay of more than three (3) years before an information was filed against
them from the filing of the complaint on August 25, 1986 up to the filing of the
Information on November 5, 1990." In fine, they point out that considering that the
preliminary investigation was concluded as early as October 30, 1987, the first
Ombudsman constituted under the 1987 Constitution should have filed the
Information as soon as he was appointed on June 6, 1988. Instead, it took more than
two years and 3,386 cases before Criminal Case No. 16240 was filed against them on
November 5, 1990. In other words, petitioners argue that since the Resolution of the
Ombudsman recommending the filing of the Information was issued on October 30,
1987, then the Information should have been filed immediately thereafter, considering
that even before the promulgation of the Zaldivar case on April 27, 1988, thousands
of Informations had been filed. 13

Petitioners' contention is without merit.

In Cojuangco Jr. v. Sandiganbayan, 14 this Court has held that the constitutional
guarantee set forth in Section 16, Article III of the 1987 Constitution, 15 of "(t)he
right to a speedy disposition of a case, like the right to speedy trial, is deemed violated
only when the proceeding is attended by vexatious, capricious, and oppressive
delays." ". . . (T)he concept of speedy disposition of cases is a relative term and must
necessarily be a flexible concept. Hence, the doctrinal rule is that in the determination
of whether that right has been violated, the factors that may be considered and
balanced are the length of delay, the reason for such delay and the assertion or failure
to assert such right by the accused, and the prejudice caused by the delay." 16

As pointed out by petitioners, the complaint was filed before the Tanobayan on
August 25, 1986. On October 30, 1987, a Resolution was issued finding a prima facie
case against petitioners and recommending the filing of an Information with the
Sandiganbayan. However, it was only on November 5, 1990 when the Information
was filed. Admittedly, it took three (3) years for the Ombudsman to file the
Information against petitioners from the date of the Resolution recommending the
filing thereof.

In explaining the delay in the filing of the Information, however, the Office of the
Solicitor General averred, as follows:

It will be noted that the normal operations of the Office of the Special Prosecutor was
affected by the Decision of this Honorable Court in Zaldivar v. Sandiganbayan and
Zaldivar v. Gonzalez, 160 SCRA 843 dated April 27, 1988, where it was ruled that the
incumbent Tanodbayan lost his right to conduct preliminary investigation and to
direct the filing of criminal cases with the Sandiganbayan effective February 2, 1987.
As a result, complaints (including that involved in the present petition), resolutions
and other legal papers awaiting action during that period remained pending the
appointment of an Ombudsman.

When the Ombudsman was appointed in 1988, it took some time still before his
Office could become fully constituted and operational. Because of the unavoidable
delay caused by the aforementioned circumstances, the corresponding Information in
the criminal case involved was filed and approved only in 1990.

Prescinding from the foregoing, this Court finds no violation of petitioners' right to a
speedy disposition of their case. The delay was not vexatious, capricious, nor
oppressive, considering the factual milieu of this case, namely the structural
reorganizations and procedural changes brought about by frequent amendments of
procedural laws in the initial stages of this case. The complaint was filed on August
25, 1986. On October 30, 1987, the Ombudsman issued a Resolution finding a prima
facie case and recommending the filing of an Information. Meanwhile, on April 27,
1988, the Zaldivar case was promulgated holding that the Tanodbayan lost his
authority to conduct preliminary investigations and to direct the filing of Informations
with the Sandiganbayan effective February 2, 1987. Then on November 5, 1990, the
Information against petitioners was filed.

In the case Binay v. Sandiganbayan and Magsaysay v. Sandiganbayan, 17 this Court
has held that:

A mere mathematical reckoning of the time involved, therefore, would not be
sufficient. In the application of the constitutional guarantee of the right to speedy
disposition of cases, particular regard must also be taken of the facts and
circumstances peculiar to each case.

In Alvizo v. Sandiganbayan, 18 this Court has reiterated that it has taken judicial
cognizance of the frequent amendments of procedural laws by presidential decrees,
the structural reorganizations in existing prosecutorial agencies and the creation of
new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction,
functions and powers of prosecuting agencies.

In addition, it is clearly apparent from the figures cited by petitioners that the
Sandiganbayan was burdened with a heavy caseload.1wphi1 Parenthetically, this
Court has taken judicial cognizance of the fact that the ever increasing caseload of
courts has affected the speedy disposition of cases pending before the Sandiganbayan.
19

While petitioners certainly have the right to a speedy disposition of their case, the
structural reorganization of the prosecutorial agencies, the procedural changes brought
about by the Zaldivar case as well as the Sandiganbayan's heavy caseload certainly are
valid reasons for the delay in the disposition of petitioners' case. For those reasons, the
delay certainly cannot be considered as vexatious, capricious and oppressive. Neither
is it unreasonable nor inordinate.

WHEREFORE, in view of the foregoing, the instant petition is DENIED and the two
Orders dated February 18, 1993 and March 8, 1993 of the Sandiganbayan's Second
Division in Criminal Case No. 16240 are AFFIRMED. The Sandiganbayan is
DIRECTED to proceed with dispatch in the disposition of this case.1wphi1.nt

No costs.

SO ORDERED.

























































Republic of the Philippines
SUPREME COURT
Manila

EN BANC



G.R. No. L-30104 July 25, 1973

HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and
FRANCISCO LORENZANA, petitioners,
vs.
HON. FELIX DOMINGO, Judge of the Court of First Instance of Manila,
EDGARDO CALO and SIMEON CARBONNEL, respondents.

Andres R. Narvasa, Manuel V. Chico and Felipe B. Pagkanlungan for petitioners.

Rafael S. Consengco for respondent Calo, et al.

Respondent Judge in his own behalf.



FERNANDO, J.:

The pivotal question in this petition for certiorari and prohibition, one which thus far
has remained unresolved, is the meaning to be accorded the constitutional right to
public trial. 1 More specifically, did respondent Judge commit a grave abuse of
discretion in stigmatizing as violative of such a guarantee the holding of the trial of
the other respondents 2 inside the chambers of city court Judge Gregorio Garcia
named as the petitioner. 3 That was done in the order now impugned in this suit,
although such a procedure had been agreed to beforehand by the other respondents as
defendants, the hearings have been thus conducted on fourteen separate occasions
without objection on their part, and without an iota of evidence to substantiate any
claim as to any other person so minded being excluded from the premises. It is thus
evident that what took place in the chambers of the city court judge was devoid of
haste or intentional secrecy. For reasons to be more fully explained in the light of the
facts ascertained the unique aspect of this case having arisen from what turned out
to be an unseemly altercation, force likewise being employed, due to the mode in
which the arrest of private petitioner for a traffic violation was sought to be effected
by the two respondent policemen thus resulting in charges and counter-charges with
eight criminal cases being tried jointly by city court Judge in the above manner we
rule that there was no transgression of the right to a public trial, and grant the petition.

It was alleged and admitted in the petition: "In Branch I the City Court of Manila
presided over by petitioner Judge, there were commenced, by appropriate
informations all dated January 16, 1968, eight (8) criminal actions against respondent
Edgardo Calo, and Simeon Carbonnel and Petitioner Francisco Lorenzana, as follows:
a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1) Criminal Case
No. F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192,
alsofor slight physical injuries; and (3) Criminal Case No. F-109193, for
maltreatment; b. Against Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for
maltreatment; (2) Criminal Case No. F-109196, for slight physical injuries; and (3)
Criminal Case No. F-109198, for light threats; (c) Against Francisco Lorenzana (on
complaint of Calo and Carbonnel) (1) Criminal Case No. F-109201, for violation of
Sec. 887 of the Revised Ordinances of Manila (resisting an officer); and (2) Criminal
Case No. F-109200, for slander." 4 The above was followed by this recital: "The trial
of the aforementioned cases was jointly held on March 4, 1968, March 18, 1968,
March 23, 1968, March 30, 1968, April 17, 1968, April 20, 1968, May 4,1968, May
11, 1968, June 1, 1968, June 15, 1968, June 22, 1968, June 29, 1968, August 3, 1968
and August 10, 1968. All the fourteen (14) trial dates except March 4 and 18, and
April 17, 1968 fell on a Saturday. This was arranged by the parties and the Court
upon the insistence of respondents Calo and Carbonnel who, as police officers under
suspension because of the cases, desired the same to be terminated as soon as possible
and as there were many cases scheduled for trial on the usual criminal trial days
(Monday, Wednesday and Friday), Saturday was agreed upon as the invariable trial
day for said eight (8) criminal cases." 5 Also this: "The trial of the cases in question
was held, with the conformity of the accused and their counsel, in the chambers of
Judge Garcia." 6 Then came these allegations in the petition: "During all the fourteen
(14) days of trial, spanning a period of several months (from March to August, 1968),
the accused were at all times represented by their respective counsel, who acted not
only in defense of their clients, but as prosecutors of the accusations filed at their
clients' instance. There was only one (1) day when Atty. Consengco, representing
respondent Calo and Carbonnel, was absent. This was on April 20, 1968. But at the
insistence of Pat. Carbonnel, the trial proceeded, and said respondent cross-examined
one of the witnesses presented by the adverse party. In any case, no pretense has been
made by the respondents that this constituted an irregularity correctible on certiorari.
At the conclusion of the hearings the accused, thru counsel, asked for and were
granted time to submit memoranda. Respondents Calo and Carbonnel, thru counsel,
Atty. Rafael Consengco, submitted a 14-page memorandum with not less than 35
citations of relevant portions of the transcript of stenographic notes in support of their
prayer for exoneration, and conviction of petitioner Lorenzana in respect of their
countercharges against the latter. It is worthy of note that up to this late date, said
respondents Calo and Carbonnel had not objected to or pointed out any
supposed irregularity in the proceedings thus far; the memorandum submitted in their
behalf is confined to a discussion of the evidence adduced in, and the merits of the
cases." 7 It was stated in the next petition:

"The promulgation of judgment was first scheduled on September 23, 1968. This was
postponed to September 28, 1968 at the instance of Atty. Rafael Consengco, as
counsel respondents Calo and Carbonnel, and again to October 1, 1968 at 11 o'clock
in the morning, this time at the instance of Atty. Consengco and Atty. Francisco Koh
who had, in the meantime, also entered his appearance as counsel for respondents
Calo and Carbonnel. The applications for postponement were not grounded upon any
supposed defect or irregularity of the proceedings." 8

Mention was then made of when a petition for certiorari was filed with respondent
Judge: "Early in the morning of October 1, 1968, Edgardo Calo and Simeon
Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the Court of First
Instance a petition for certiorari and prohibition, with application for preliminary
prohibitory and mandatory injunction ... [alleging jurisdictional defects]." 9
Respondent Judge acting on such petition forthwith issued a restraining order thus
causing the deferment of the promulgation of the judgment. After proceedings duly
had, there was an order from him "declaring that 'the constitutional and statutory
rights of the accused' had been violated, adversely affecting their 'right to a free and
impartial trial' [noting] 'that the trial of these cases lasting several weeks held
exclusively in chambers and not in the court room open the public';" and ordering the
city court Judge, now petitioner, "to desist from reading or causing to be read or
promulgated the decisions he may have rendered already in the criminal cases (in
question) ... pending in his Court, until further orders of this Court.'" 10

A motion for reconsideration proving unavailing, petition on January 28, 1969,
elevated the matter to this Tribunal by means of the present suit for certiorari and
prohibition. In its resolution of February 3, 1969, respondents were required to
answer, with a preliminary injunction likewise being issued. As was to be expected
the answer filed by respondent Judge on March 11, 1969 and that by the other
respondents on March 19, 1969 did attempt to justify the validity of the finding that
there was a failure to respect the right to a public trial of accused persons. Neither in
such pleadings nor in the memorandum filed, although the diligence displayed by
counsel was quite evident, was there any persuasive showing of a violation of
constitutional guarantee of a public trial, the basic issue to be resolved. Rather it was
the mode of approach followed by counsel Andres R. Narvasa for petitioners that did
manifest a deeper understanding of its implications and ramifications. Accordingly, as
previously stated, it is for us to grant the merits prayed for.

1. The 1935 Constitution which was in force at the time of the antecedents of
this petition, as set forth at the outset, explicitly enumerated the right to a public trial
to which an accused was entitled. So it is, as likewise made clear, under present
dispensation. As a matter of fact, that was one constitutional provision that needed
only a single, terse summation from the Chairman of the Committee on the Bill of
Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As was stressed by
him: "Trial should also be public in order to offset any danger of conducting it in an
illegal and unjust manner." 11 It would have been surprising if its proposed inclusion
in the Bill of Rights had provoked any discussion, much less a debate. It was merely a
reiteration what appeared in the Philippine Autonomy Act of 1916, popularly known
as the Jones Law. 12 Earlier, such a right found expression in the Philippine Bill of
1902, likewise an organic act of the then government of this country as an
unincorporated territory of the United States. 13 Historically as was pointed out by
Justice Black, speaking for the United States Supreme Court in the leading case of In
re Oliver: 14 "This nation's accepted practice of guaranteeing a public trial to an
accused has its roots in [the] English common law heritage. 15 He then observed that
the exact date of its origin is obscure, "but it likely evolved long before the settlement
of the [United States] as an accompaniment of the ancient institution of jury trial." 16
It was then noted by him that there, "the guarantee to an accused of the right to a
public trial appeared in a state constitution in 1776." 17 Later it was embodied in the
Sixth Amendment of the Federal Constitution ratified in 1791. 18 He could conclude
his historical survey "Today almost without exception every state by constitution,
statute, or judicial decision, requires that all criminal trials be open to the public." 19
Such is the venerable, historical lineage of the right to a public trial.

2. The crucial question of the meaning to be attached this provision remains.
The Constitution guarantees an accused the right to a public trial. What does it
signify? Offhand it does seem fairly obvious that here is an instance where language
is to be given a literal application. There is no ambiguity in the words employed. The
trial must be public. It possesses that character when anyone interested in observing
the manner a judge conducts the proceedings in his courtroom may do so. There is to
be no ban on such attendance. His being a stranger to the litigants is of no moment.
No relationship to the parties need be shown. The thought that lies behind this
safeguard is the belief that thereby the accused is afforded further protection, that his
trial is likely to be conducted with regularity and not tainted with any impropriety. It
is not amiss to recall that Delegate Laurel in his terse summation the importance of
this right singled out its being a deterrence to arbitrariness. It is thus understandable
why such a right is deemed embraced in procedural due process. 20 Where a trial
takes place, as is quite usual, in the courtroom and a calendar of what cases are to be
heard is posted, no problem arises. It the usual course of events that individuals
desirous of being present are free to do so. There is the well recognized exception
though that warrants the exclusion of the public where the evidence may be
characterized as "offensive to decency or public morals." 21

What did occasion difficulty in this suit was that for the convenience of the parties,
and of the city court Judge, it was in the latter's air-conditioned chambers that the trial
was held. Did that suffice to investigate the proceedings as violative of this right? The
answer must be in the negative. There is no showing that the public was thereby
excluded. It is to be admitted that the size of the room allotted the Judge would reduce
the number of those who could be our present. Such a fact though is not indicative of
any transgression of this right. Courtrooms are not of uniform dimensions. Some are
smaller than others. Moreover, as admitted by Justice Black in his masterly In re
Oliver opinion, it suffices to satisfy the requirement of a trial being public if the
accused could "have his friends, relatives and counsel present, no matter with what
offense he may be charged." 22

Then, too, reference may also be made to the undisputed fact at least fourteen
hearings had been held in chambers of the city court Judge, without objection on the
part of respondent policemen. What was said by former Chief Justice Moran should
erase any doubt as to the weight to be accorded, more appropriately the lack of
weight, to any such objection raised. Thus: "In one case, the trial of the accused was
held in Bilibid prison. The accused, invoking his right to a public trial, assigned the
procedure thus taken as error. The Supreme Court held that as it affirmatively appears
on the record that the accused offered no objection to the trial of his case in the place
where it was held, his right is deemed waived." 23 The decision referred to, United
States v. Mercado, 24 was handed down sixty-eight years ago in 1905.

It does seem that the challenged order of respondent is far from being invulnerable.

3. That is all that need be said as to the obvious merit of this petition. One
other objection to the conduct of the proceedings by the city court Judge may be
briefly disposed of. Respondent Judge would seek to lend support to an order at war
with obvious meaning of a constitutional provision by harping on the alleged
abdication by an assistant fiscal of his control over the prosecution. Again here there
was a failure to abide by settled law. If any party could complain at all, it is the People
of the Philippines for whom the fiscal speaks and acts. The accused cannot in law be
termed an offended party for such an alleged failure to comply with official duty.
Moreover, even assuming that respondent policemen could be heard to raise such a
grievance, respondent Judge ought to have been aware that thereby no jurisdictional
defect was incurred by the city court Judge. As was so emphatically declared by
Justice J.B.L. Reyes in Cariaga v. Justo-Guerrero: 25 "The case below was
commenced and prosecuted without the intervention, mediation or participation of the
fiscal or any of his deputies. This, notwithstanding, the jurisdiction of the court was
not affected ... but the court should have cited the public prosecutor to intervene ... ."
26

4. There is much to be said of course for the concern displayed by respondent
Judge to assure the reality as against the mere possibility of a trial being truly public.
If it were otherwise, such a right could be reduced to a barren form of words. To the
extent then that the conclusion reached by him was motivated by an apprehension that
there was an evasion of a constitutional command, he certainly lived up to what is
expected of a man of the robe. Further reflection ought to have convinced him though
that such a fear was unjustified. An objective appraisal of conditions in municipal or
city courts would have gone far in dispelling such misgivings. The crowded daily
calendar, the nature of the cases handled, civil as well as criminal, the relaxed attitude
on procedural rules not being strictly adhered to all make for a less tense atmosphere.
As a result the attendance of the general public is much more in evidence; nor is its
presence unwelcome. When it is remembered further that the occupants of such courts
are not chosen primarily for their legal acumen, but taken from that portion of the bar
more considerably attuned to the pulse of public life, it is not to be rationally expected
that an accused would be denied whatever solace and comfort may come from the
knowledge that a judge, with the eyes of the alert court alert to his demeanor and his
rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it change
matters, just because, as did happen here, it was in the air-conditioned chambers of a
city court judge rather than in the usual place that the trial took place.

WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside,
and declaring bereft of any legal force or effect the order of respondent Judge Felix
Domingo November 29, 1968 for being issued with grave abuse of discretion. The
writ of prohibition sought by petitioner is likewise granted, commanding respondent
Judge or any one acting in his place to desist from any further action in Criminal Case
No. 74830 of the Court of First Instance of Manila other than that of dismissing the
same. The preliminary writ of injunction issued by this Court in its resolution of
February 3, 1969 against the actuation of respondent Judge is made permanent. With
costs against respondent policemen Edgardo Calo and Simeon Carbonnel.

Makalintal, Actg. C.J., Teehankee, Makasiar, Antonio, Esguerra, JJ., concur.

Castro, J., did not take part.

Zaldivar and Barredo, JJ., are on leave.


















































































Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-66469 July 29, 1986

PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners,
vs.
HON. BERNARDO SALAS (In his capacity as Presiding Judge of RTC, Cebu,
Branch VIII), MARIO ABONG, ALFREDO DE LEON, ERIWADWIN
MONTEBON, ROMEO DE GUZMAN, & EDUARDO MABUHAY, respondents.

Basilio E. Duaban for accused.



CRUZ, J.:

Mario Abong was originally charged with homicide in the Court of First Instance of
Cebu but before he could be arraigned the case was reinvestigated on motion of the
prosecution. 1 As a result of the reinvestigation, an amended information was filed,
with no bail recommended, to which he pleaded not guilty. 2 Trial commenced, but
while it was in progress, the prisoner, taking advantage of the first information for
homicide, succeeded in deceiving the city court of Cebu into granting him bail and
ordering his release; and so he escaped. 3 The respondent judge, learning later of the
trickery, cancelled the illegal bail bond and ordered Abong's re-arrest. 4 But he was
gone. Nonetheless, the prosecution moved that the hearing continue in accordance
with the constitutional provision authorizing trial in absentia under certain
circumstances. 5 The respondent judge denied the motion, however, and suspended all
proceedings until the return of the accused. 6 The order of the trial court is now before
us on certiorari and mandamus. 7

The judge erred. He did not see the woods for the trees. He mistakenly allowed
himself to be tethered by the literal reading of the rule when he should have viewed it
from the broader perspective of its intendment.

The rule is found in the last sentence of Article IV, Section 19, of the 1973
Constitution, reading in full as follows:

Section 19. In all criminal prosecution, the accused shall be presumed
innocent until the contrary is proved and shall enjoy the right to be heard by himself
and counsel, to he informed of the nature and cause of the accusation against him, to
have a speedy, impartial, and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been duly notified and his failure to
appear is unjustified.

The purpose of this rule is to speed up the disposition of criminal cases, trial of which
could in the past be indefinitely deferred, and many times completely abandoned,
because of the defendant's escape. The old case of People v. Avancea 8 required his
presence at certain stages of the trial which as a result, had to be discontinued as long
as the defendant had not re-appeared or remained at large. As his right to be present at
these stages was then held not waivable even by his escape, such escape thus operated
to the fugitive's advantage, and in mockery of the authorities, insofar as the trial could
not proceed as long as he had not been recaptured.

The doctrine laid down in that case has been modified by Section 19, which now
allows trial in absentia, Now, the prisoner cannot by simply escaping thwart his
continued prosecution and possibly eventual conviction provided only that: a) he has
been arraigned; b) he has been duly notified of the trial; and c) his failure to appear is
unjustified.

The respondent judge was probably still thinking of the old doctrine when he ruled
that trial in absentia of the escapee could not be held because he could not be duly
notified under Section 19. He forgets that the fugitive is now deemed to have waived
such notice precisely because he has escaped, and it is also this escape that makes his
failure to appear at his trial unjustified. Escape can never be a legal justification. In
the past, his escape "rewarded" him by postponing all further proceedings against him
and in effect ultimately absolving him of the charge he was facing. Under the present
rule, his escape will, legally speaking, operate to Ms disadvantage by preventing him
from attending his trial, which will continue even in his absence and most likely result
in his conviction.

The right to be present at one's trial may now be waived except only at that stage
where the prosecution intends to present witnesses who will Identify the accused. 9
Under Section 19, the defendant's escape will be considered a waiver of this right and
the inability of the court to notify him of the subsequent hearings will not prevent it
from continuing with his trial. He will be deemed to have received due notice. The
same fact of his escape will make his failure to appear unjustified because he has, by
escaping, placed himself beyond the pale, and protection, of the law.

Trial in absentia was not allowed in Borja v. Mendoza 10 because it was held
notwithstanding that the accused had not been previously arraigned. His subsequent
conviction was properly set aside. But in the instant case, since all the requisites are
present, there is absolutely no reason why the respondent judge should refuse to try
the accused, who had already been arraigned at the time he was released on the illegal
bail bond. Abong should be prepared to bear the consequences of his escape,
including forfeiture of the right to be notified of the subsequent proceedings and of
the right to adduce evidence on his behalf and refute the evidence of the prosecution,
not to mention a possible or even probable conviction.

We admonish against a too-literal reading of the law as this is apt to constrict rather
than fulfill its purpose and defeat the intention of its authors. That intention is usually
found not in "the letter that killeth but in the spirit that vivifieth," which is not really
that evanescent or elusive. As judges, we must look beyond and not be bound by the
language of the law, seeking to discover, by our own lights, the reason and the rhyme
for its enactment. That we may properly apply it according to its ends, we need and
must use not only learning but also vision.

The trial judge is directed to investigate the lawyer who assisted Mario Abong in
securing bail from the city court of Cebu on the basis of the withdrawn information
for homicide and to report to us the result of his investigation within sixty days.

WHEREFORE, the order of the trial court dated December 22, 1983, denying the
motion for the trial in absentia of the accused is set aside. The respondent judge is
directed to continue hearing the case against the respondent Mario Abong in absentia
as long as he has not reappeared, until it is terminated. No costs.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera and Paras, JJ., concur.


































































































Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-45667 June 20, 1977

MANUEL BORJA, petitioner,
vs.
HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of Cebu (Branch
VI) and HON. ROMULO R. SENINING, Judge of the City Court of Cebu (Branch I),
respondents.

Hermis I. Mopntecillo for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F. Racela, Jr. and
Solicitor Carlos N. Ortega for respondents.

FERNANDO, J.:

The jurisdictional infirmity imputer to respondent Judge Romulo R. Senining of the
City of Cebu which was not remedied by respondent Judge Rafael T. Mendoza of the
Court of First Instance of Cebu in this certionrari proceeding was the absence of an
arrainment of petitioner Manuel Borja, who was accused of slight physical injuries.
This notwithstanding respondent Judge Senining proceeded with the trial in abssentia
and thereafter, in a decision promulgated on August 18, 1976, found him guilty of
such offense and sentenced him to suffer imprisonment for a period of twenty days of
arresto menor. 1 Thereafter, an appeal was duly elevated to the Court of First Instance
of Cebu presided by respondent Judge Mendoza. 2 It was then alleged that without
any notice to petitioner and without requiring him to submit his memorandum, a
decision on the appealed case was rendered on November 16, 1976 petitioner that the
failure to arraign him is violative of his constitutional right to procedural due process,
3 more specifically of his right to be informed of the nature and cause of the
accusation against him and of his right to be heard by himself and counsel. 4 Ther was
thus, at the very least, a graveabuse of discretion. The Solicitor General, 5 when asked
to comment, agreed that the procedural defect was of such gravity as to render void
the decision of the City Court affirmed by the Court of First Instance. The comment
was considered as answer, with the case being submitted for decision.

Respect for the constitutional rights of an accused as authoritatively construed by this
Court, duly taken note of in the comment of the Solicitor General, thus calls for the
grant of the writ of certiorari prayed for.

1. The plea of petitioner to nullify the proceedings had in the criminal case
against him finds support in the procedural due process mandate of the Constitution. It
requires that the accused be arraigned so that he may be informed as to why he was
indicted and what penal offense he has to face, to be convicted only on a showing that
his guilt is shown beyond reasonable doubt with full opportunity to disprove the
evidence against him. Moreover, the sentence to be imposed in such a case is to be in
accordance with a valid law. 6 This Court, in People v. Castillo, 7 speaking through
Justice De Joya and following the language of the American Supreme Court,
Identified due process with the accused having "been heard in a court of competent
jurisdiction, and proceeded against under the orderly processes of law, and only
punished after inquiry and investigation, upon notice to him, with an opportunity to be
heard, and a judgment awarded with the authority of a constitutional law, ..." 8 An
arraignment thus becomes indispensable as the means "for bringing the accused into
court and notifying him of the cause he is required to meet ... " 9 Its importance was
stressed by Justice Moreland as early as 1916 in the leading case of United States v.
Binayoh. 10 He pointed out that upon the accused being arraigned, "there is a duty
laid by the Code [now the Rules of Court] upon the court to inform [him] of certain
rights and to extend to him, on his demand, certain others. This duty is an affirmative
one which the court, on its own motion, must perform, unless waived." 11 To
emphasize its importance, he added: "No such duty, however, is laid on the court with
regard to the rights of the accused which he may be entitled to exercise during the
trial. Those are rights which he must assert himself and the benefits of which he
himself must demand. In other words, in the arraignment the court must act of its own
volition, ..." 12 In the terse and apt language of the Solicitor General: "Arraignment is
an indispensable requirement in any criminal prosecution." 13 Procedural due process
demands no less.

2. Nor is it only the due process guarantee that calls for the accused being duly
arraigned. As noted, it is at that stage where in the mode and manner required by the
Rules, an accused, for the first time, is granted the opportunity to know the precise
charge that confronts him. It is imperative that he is thus made fully aware of Possible
loss of freedom, even of his life, depending on the nature of the crime imputed to him.
At the very least then, he must be fully informed of why the prosecuting arm of the
state is mobilized against him. An arraignment serves that purpose. Thereafter he is no
longer in the dark. It is true, the complaint or information may not be worded with
sufficient clarity. He would be in a much worse position though if he does not even
have such an opportunity to plead to the charge. With his counsel by his side, he is
thus in a position to enter his plea with full knowledge of the consequences. He is not
even required to do so immediately. He may move to quash. What is thus evident is
that an arraignment assures that he be fully acquainted with the nature of the crime
imputed to him and the circumstances under which it is allegedly committed. It is thus
a vital aspect of the constitutional rights guaranteed him. It is not useless formality,
much less an Idle ceremony.

3. An equally fatal defect in the proceeding had before respondent Judge
Senining was that notwithstanding its being conducted in the absence of petitioner, he
was convicted. It was shown that after one postponement due to his failure to appear,
the case was reset for hearing. When that date came, December 14, 1973, without
petitioner being present, although his bondsmen were notified, respondent Judge, as
set forth in the comment of the Solicitor General, "allowed the prosecution to present
its evidence invoking Letter of Instruction No. 40. Only one witness testified, the
offended party herself, and three documents were offered in evidence after which the
prosecution rested its case. Thereupon, respondent City Court set the promulgation of
the decision on December 28, 1973." 14 It could then conclude: :Verily the records
clearly show that petitioner was not arraigned at all and was not represented by
counsel throughout the whole proceedings in the respondent City Court." 15 It is
indisputable then that there was a denial of petitioner's constitutional right to be heard
by himself and counsel. As categorically affirmed by Justice Ozaeta for this Court in
the leading case of Abriol v. Homeres: 16 "It is the constitutional right of the accused
to be heard in his defense before sentence is pronounced on him." 17 He added further
that such "constitutional right is inviolate." 18 There is no doubt that it could be
waived, but here there was no such waiver, whether express or implied. It suffices to
refer to another leading case, People v. Holgado, 19 where the then Chief Justice
Moran emphatically took note of the importance of the right to counsel: "In criminal
cases there can be no fair hearing unless the accused be given an opportunity to be
heard by counsel. The right to be heard would be of little avail if it does not include
the right to be heard by counsel. Even the most intelligent or educated man may have
no skill in the science of the law, particularly in the rules of procedure, and, without
counsel, he may be convicted not because he is guilty but because he does not know
how to establish his innocence." 20 With the violation of the constitutional right to be
heard by himself and counsel being thus manifest, it is easily understandable why the
Solicitor General agreed with petitioner that the sentence imposed on him should be
set aside for being null.

4. The provision in the present Constitution allowing trial to be held in
absentia is unavailing. It cannot justify the actuation of respondent Judge Senining. Its
language is clear and explicit. What is more, it is mandatory. Thus: "However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is unjustified." 21 As pointed
out then by the Solicitor General, the indispensable requisite for trial in absentia is
that it should come "after arraignment." The express mention in the present
Constitution of the need for such a step emphasizes its importance in the procedural
scheme to accord an accused due process. Without the accused having been arraigned,
it becomes academic to discuss the applicability of this exception to the basic
constitutional right that the accused should be heard by himself and counsel.

5. Nor did the appeal to the Court of First Instance presided by respondent
Judge Mendoza possess any curative aspect. To quote anew from the comment of the
Solicitor General: "Respondent Court of First Instance ... considered the appeal taken
by the petitioner as waiver of the defects in the proceedings in the respondent City
Court. Precisely, the appeal itself is tantamount to questioning those defects. In fact,
the Memorandum in support of the appeal unmistakably raised as error the absence of
petitioner at the arraignment and cited jurisprudence, commentaries and the rules to
bolster his position. Specifically, the absence of an arraignment can be invoked at
anytime in view of the requirements of due process to ensure a fair and impartial
trial." 22

WHEREFORE, the petition for certiorari is granted. The decision of respondent Judge
Romulo R. Senining dated December 28, 1973, finding the accused guilty of the
crime of slight physical injuries, is nullified and set aside. Likewise, the decision of
respondent Judge Rafael T. Mendoza dated November 16, 1976, affirming the
aforesaid decision of Judge Senining, is nullified and set aside. The case is remanded
to the City Court of Cebu for the prosecution of the offense of slight physical injuries,
with due respect and observance of the provisions of the Rules of Court, starting with
the arraignment of petitioner.

Barredo, Antonio, Aquino and Fernandez, JJ, concur.

Concepcion Jr., J, is on leave.


































































Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-48883 August 6, 1980

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance, Branch II,
Sixteenth Judicial District, Zamboanga City and PILAR ANGELES DE PIMENTEL,
respondents.

MAKASIAR, J.:

The legal issue posed in this special civil action for certiorari, with prayer for a writ of
preliminary injunction, spawned by the August 4, 1978 order of respondent judge in
Criminal Case No. 750 for parricide against therein accused Pilar Angeles de
Pimentel, hereinafter referred to as private respondent, is the admissibility in evidence
of the testimony of a prosecution witness in the said criminal case who dies before
completion of his cross-examination. That issue is crucial to the fate of private
respondent, considering that the deceased prosecution witness "... is the most vital and
the only eyewitness available to the prosecution against respondent Pilar Angeles de
Pimentel for the commission of the gruesome crime of parricide ..." (p. 10, rec.).

The factual background of the action is undisputed.

On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was then on
official detail with the office of the City Fiscal, Zamboanga City, filed with the Court
of First Instance, Sixteenth Judicial District, Zamboanga City, an amended
information for parricide in Criminal Case No. 1742, charging herein private
respondent as principal by inducement, Mario Nemenio y delos Santos and Salim Doe
as principals by direct participation and Moises Andaya y Julkanain, as accomplice, in
the fatal stabbing on September 6, 1977 in Zamboanga City of Eduardo Pimentel y
Orario, the lawful husband of private respondent. The amended information reads:

That on or about September 6, 1977, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Court, the above-named accused Pilar Angeles de
Pimentel, with deliberate intent to kill her husband, Eduardo Pimentel y Orario, with
whom she was united in lawful wedlock, did then and there, willfully, unlawfully and
feloniously, induce and offer a sum of money as consideration or prize to said accused
Mario Nemenio y delos Santos and Salim Doe to kill her said lawfully wedded
husband Eduardo Pimentel y Orario, and because and on account of said promised
consideration or prize which was accepted, the said accused Mario Nemenio y delos
Santos and Salim Doe, did then and there, willfully and feloniously assault, attack and
stab with a knife with which they were conveniently provided, the person of said
Eduardo Pimentel y Orario, thereby inflicting upon the latter mortal wound which
directly caused his death; that the above-named accused Moises Andaya y Julkanain
although without having participated directly in the commission of the offense above-
described, took part prior to its commission by then and there acting as the contact
man in the execution of their plot to kill said Eduardo Pimentel y Orario.

Contrary to law (p. 13, rec.)

On January 17, 1978, private respondent, assisted by her counsel, moved and was
granted a separate trial (p. 16, rec.).

On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted by his
counsel de oficio, entered on arraignment a plea of guilty. Respondent judge
thereafter rendered judgment convicting accused Mario Nemenio y delos Santos of
murder qualified by the circumstance of prize and reward-and not of parricide as
charged in the information; because he "... had no relation whatsoever to the deceased
Eduardo Pimentel ..." and appreciating the mitigating circumstances of voluntary plea
of guilty and lack of instruction and education, imposed on him the indeterminate
penalty of eight (8) years of prision mayor as the minimum, to fourteen (14) years and
eight (8) months of reclusion temporal as the maximum; to indemnify the heirs of the
deceased Eduardo Pimentel the amount of P12,000.00 and to pay one-fourth () of
the costs of the proceedings (pp. 15-19, rec.).

Immediately after promulgation of judgment, accused Mario Nemenio y delos Santos
offered to testify against his co-accused, herein private respondent, in her separate
trial earlier granted by the respondent judge in the same criminal case, now numbered
750. Allowed, he testified as prosecution witness on February 28, March 6, and March
22, 1978 and as summarized by the petitioner, his testimony on direct examination
contained in seventy-six (76) pages of transcripts of stenographic notes (pp. 21-44,
57-64, rec.), is to the effect "...that he and Salim Doe were hired by respondent Pilar
Angeles de Pimentel, for the consideration of P3,000.00 to kill Eduardo Pimentel,
husband of respondent Pilar Angeles de Pimentel, in the evening of September 6,
1977, in the latter's residence in Zamboanga City, and that it was respondent Pilar
Angeles de Pimentel herself who actually pointed out the victim Eduardo Pimentel to
the witness, who then stabbed the said victim to death...That he did not know the
Identity of the victim Eduardo Pimentel at the time of the stabbing in the evening of
September 6, 1977. He was guided solely by respondent Pilar Angeles de Pimentel,
who pointed out her victim spouse to him ..." (allegation No. 4, petition, pp. 4-5, rec.).

After the prosecution had terminated on March 22, 1978 the direct examination of its
witness Mario Nemenio y delos Santos, counsel for private respondent moved for the
holding in abeyance of the cross-examination of the said prosecution witness until
after he (counsel) shall have been furnished with the transcripts of the stenographic
notes of the direct examination of said prosecution witness (p. 47, TSN, March 22,
1978, p. 64, rec.); allegation No. 5, petition, p. 5, rec.). The same was granted by the
respondent judge who ordered the resumption of the hearing on April 19, 1978 (pp.
64, 94, 108, rec.).

But on April 19, 1978, aforesaid prosecution witness failed to appear because he was
not served with a subpoena (p. 108, rec.). Consequently, the hearing was reset for
June 7, 1978 (ibid.)

On June 7, 1978, counsel for private respondent commenced his cross- examination of
prosecution witness Mario Nemenio y delos Santos, which cross-examination
however was not completed on that session for lack of material time, thus:

ATTY. CALVENTO:

I reserve my right to cross-examine the witness further.

COURT

Reservation to continue the cross-examination is granted.

ORDER: For lack of material time, as prayed for and upon agreement of the parties
today's hearing is hereby adjourned and to be resumed on July 3, 1978 at 8:30 o'clock
in the morning (p. 84, rec.).

According to the petition, the uncompleted cross-examination reduced in fifty-three
(53) pages of transcripts of stenographic notes (pp. 65-84, rec.) had already "...
touched on the conspiracy existing among Salim Doe, witness Mario Nemenio and
respondent Pilar Angeles de Pimentel to kill Eduardo Pimentel, in the latter's
residence in Zamboanga City in the evening of September 6, 1977, and also on the
actual stabbing by witness Mario Nemenio of the victim Eduardo Pimentel who was
pointed out to the witness-killer by his wife, respondent Pilar Angeles de Pimentel ..."
(p. 7, rec.). This is not disputed by private respondent.

Continuation of the cross-examination was, as aforestated, set for July 3, 1978 at 8:30
o'clock in the morning.

However, prosecution witness Mario Nemenio y delos Santos was shot dead by the
Integrated National Police patrols on June 21, 1978 while allegedly escaping from the
San Ramon Prison and Penal Farm, Zamboanga City, where he was then serving his
sentence. Consequently, the completion of his cross-examination became an
impossibility.

On July 20, 1978, petitioner, without any motion on the part of the defense for the
striking out of the deceased witness's testimony, filed with the respondent court a
motion praying for a ruling on the admissibility of the testimony of deceased witness
Mario Nemenio y delos Santos.

On August 4, 1978, respondent judge issued an order declaring as inadmissible the
entire testimony of the deceased witness Mario Nemenio y delos Santos on the
principal ground "... that the defense was not able to complete its cross-examination of
said witness ...", relying on the case of Ortigas, Jr. vs. Lufthansa, etc., L-28773, June
30, 1975, 64 SCRA, pp. 610,636-37).

Hence, this action, to which WE gave due course on December 4, 1978, after
considering private respondent's comment as well as those of the Solicitor General
and of the respondent judge who was required to file one. On even date, WE likewise
issued a temporary restraining order "... effective immediately and until further orders
from this Court enjoining respondent District Judge from continuing with the trial of
Criminal Case No. 750 (1742) entitled People of the Philippines, plaintiff, versus Pilar
Angeles de Pimentel, accused, in the Court of First Instance of Zamboanga City,
Branch II."

Petitioner contends that respondent judge gravely abused his discretion in ruling as
inadmissible the testimony of prosecution witness Mario Nemenio y delos Santos.

WE agree.

I

1. The constitutional right of confrontation, which guarantees to the accused
the right to cross-examine the witnesses for the prosecution, is one of the most basic
rights of an accused person under our system of justice. It is a fundamental right
which is part of due process not only in criminal proceedings but also in civil
proceedings as well as in proceedings in administrative tribunals with quasi-judicial
powers (Savory Luncheonette vs. Lakas Manggagawang Pilipino, et al., 62 SCRA 258
[1975]).

In almost exactly the same language, both the 1935 and 1973 Constitutions secured it,
thus: "In all criminal prosecutions, the accused ... shall enjoy the right ... to meet the
witnesses face to face ..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution;
Section 17, Art. III, 1935 Constitution). Echoing the same guarantee, Section I (f) of
Rule 115 of the Revised Rules of Court provides that in all criminal proceedings the
defendant shall have the right to be confronted at the trial by, and to cross- examine
the witnesses against him. Constitutional confrontation requirements apply
specifically to criminal proceedings and have been held to have two purposes; first
and primarily, to secure the opportunity of cross-examination, and secondarily, to
obtain the benefit of the moral impact of the courtroom atmosphere as it affects the
witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures that the witness
will give his testimony under oath, thus deterring lying by the threat of perjury charge;
it forces the witness to submit to cross-examination, a valuable instrument in exposing
falsehood and bringing out the truth; and it enables the court to observe the demeanor
of the witness and assess his credibility (California v. Green, 339 U.S. 157 [1970]).

2. But while the right to confrontation and cross-examination is a fundamental
right, WE have ruled that the same can be waived expressly or implied by conduct
amounting to a renunciation of the right of cross-examination (Savory Luncheonettee
vs. Lakas ng Manggagawang Pilipino, et al., supra, p. 259, citing U.S. v. Atanacio, 6
Phil. 413 [1906]; People vs. dela Cruz, 56 SCRA 84, 91 [19741). The conduct of a
party which may be construed as a implied waiver of the right to cross-examine may
take various forms. But the common basic principles underlying the application of the
rule on implied waiver is that the party was given the opportunity to confront and
cross-examination an opposing witness but failed to take advantage of it for reasons
attributable to himself alone. Thus, where a party has had the opportunity to cross-
examine an opposing witness but failed to avail himself of it, he necessarily forfeits
the right to cross-examine and the testimony given on direct examination of the
witness will be received or allowed to remain in the record (Savory Luncheonette vs.
Lakas ng Maggagawang Pilipino, et al., supra, citing Francisco, Revised Rules of
Court, Vol. on Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-512 and
Bradley vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).

On the other hand, when the cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, as was the
situation in the Lufthansa German Airlines case (64 SCRA 610 [1975]) relied upon by
respondent judge, the uncompleted testimony is thereby rendered incompetent and
inadmissible in evidence. WE emphasized in the said case that "[T]he right of a party
to cross-examine the witness of his adversary is invaluable as it is inviolable in civil
cases, no less than the right of the accused in criminal cases. The express recognition
of such right of the accused in the Constitution does not render the right of parties in
civil cases less constitutionally based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate supervision by the judge in
order to avoid unnecessary delays on account of its being unduly protracted and to
needed injunctions protective of the right of the witness against self-incrimination and
oppressive and unwarranted harassment and embarrassment, a party is absolutely
entitled to a full cross-examination as prescribed in Section 8 of Rule 132 ... Until
such cross-examination has been finished, the testimony of the witness cannot be
considered as complete and may not, therefore be allowed to form part of the evidence
to be considered by the court in deciding the case" (p. 637). However, WE likewise
therein emphasized that where the right to cross examine is lost wholly or in part
through the fault of the cross-examiner, then the testimony on direct examination may
be taken into account; but when cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent (p. 636)

3. The effects of absence of and incomplete cross-examination of witness on
the admissibility in evidence of his testimony on direct examination has been
extensively discussed thus: "As a general rule, the testimony of a witness, given on
direct examination, should be stricken where there is not an adequate opportunity for
cross-examination, as where the witness by reason of his death, illness, or absence
cannot be subjected to cross-examination. Although the contrary has been held (Scott
v. McCann, 24 A. 536, 76 Md. 47), the testimony of a witness, given on direct
examination, should be stricken where there is not an adequate opportunity for cross-
examination (Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party
against whom he testified is, through no fault of his own, deprived of the right to
cross-examine him by reason of his death (Henderson v. Twin Falls County 80 P. 2d
801, 59 Idaho 97; Twin Falls County, State of Idaho v. Henderson, 59 S. Ct. 149, 305
U.S. 568, 83 L. Ed. 358), or as a result of the illness of the witness or absence, or a
mistrial ordered. The direct testimony of a witness who dies before conclusion of the
cross-examination can be stricken only insofar as not covered by the cross-
examination (Curtice v. West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121
N.Y. 696), and absence of a witness is not enough to warrant striking his testimony
for failure to appear for further cross-examination where the witness has already been
sufficiently cross-examined (Lew Choy v. Lim Sing 216 P. 888, 125 Wash 631), or
the matter on which further cross-examination is sought is not in controversy (supra).
It has been held that a referee has no power to strike the examination of a witness on
his failure to appear for cross-examination where a good excuse is given (In re
Crooks, 23 Hun 696)" [98 CJS 126-127, Emphasis supplied].

Moreover, "[I]f one is deprived of the opportunity of a cross-examination without
fault upon his part, as in the case of the illness or death of a witness after direct
examination, it is generally held that he is entitled to have the direct testimony
stricken from the record. This doctrine rests on the common law rule that no evidence
should be admitted but what was or might be under the examination of both parties,
and that exparte statements are too uncertain and unreliable to be considered in the
investigation of controverted facts (Wray vs. State, 154 Ala 36, 45 So 697; People vs.
Manchetti, 29 Cal. 2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del
304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank &
Trust Co. vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held, however,
that the trial court did not abuse its discretion in refusing to discharge the jury where
the state witness collapsed before cross- examination was completed, it being shown
that no motion to strike the testimony was made, that it was not indicated what further
information was sought to be produced by further cross-examination, and that the
witness' testimony was largely cumulative (Banks vs, Commonwealth, 312 Ky 297,
227 SW 2d 426)" [81 Am Jur 2d 474].

4. Wigmore, eminent authority on evidence, opined that:

xxx xxx xxx

... where the death or illness prevents cross-examination under such circumstances
that no responsibility of any sort can be attributed to either the witness of his party, it
seems harsh measure to strike out all that has been obtained on the direct examination.
Principle requires in strictness nothing less. But the true solution would be to avoid
any inflexible rule, and to leave it to the trial judge to admit the direct examination so
far as the loss of cross-examination can be shown to him to be not in that instance a
material loss. Courts differ in their treatment of this difficult situation; except that by
general concession a cross-examination begun but unfinished sufices if its purposes
have been substantially accomplished

xxx xxx xxx

(Vol. II, P. 108, Emphasis supplied).

II

1. Respondent judge's full reliance on the Lufthansa German Airlines case
cannot be sustained. To be sure, while the cross-examination of the witness in the
aforesaid Lufthansa case and that of the witness in the present action were both
uncompleted, the causes thereof were different in that while in the present case it was
the death of the witness, in the Lufthansa case, it was the unjustified and unexplained
failure of Lufthansa to present its witness on the scheduled date for his cross-
examination which had already been preceded by several postponements initiated by
Lufthansa itself, thus depriving the other party the opportunity to complete the cross-
examination of said witness. Consequently, this Court therein correctly ruled as
inadmissible the testimony of the said witness on the principle that "... when cross-
examination is not and cannot be done or completed due to causes attributable to the
party offering the witness, the uncompleted testimony is thereby rendered
incompetent ..." (supra, at p. 636). As clear as day, the Lufthansa ruling therefore
applies only if there is a finding that the cause for non-completion of the cross-
examination of a witness was attributable to the very party offering the said witness.
Consequently, the same is inapplicable to the instant action as the cause for the non-
completion of the cross-examination of petitioner's witness was a fortuitous event as
he was killed, as per the pleadings submitted in this action, by the law enforcers
(Integrated National Police Patrols) after his escape from prison. As a matter of fact,
respondent judge, in his questioned order, did not lay any basis for the application of
the Lufthansa ruling as he failed to make any finding that the non-completion was due
to petitioner, the party offering the witness, whose testimony he declared as
inadmissible in evidence. A reading of the questioned order reveals that respondent
judge ruled as inadmissible said questioned testimony mainly because private
respondent can no longer finish her cross-examination; hence incomplete. However,
private respondent advanced in this action the cavalier theory that the failure of her
counsel to complete his cross-examination of petitioner's witness was due to the fault
of or was attributable to the petitioner, People of the Philippines, because it was the
very agents of State who killed its own witness; hence, making the questioned
testimony of petitioner's witness inadmissible, per the Lufthansa ruling.

The contention does not deserve serious consideration. There was no finding nor any
showing as the same is farfetched or inconceivable that the killing of the witness of
petitioner by its own agents was ill-motivated. The prosecution did not order the
shooting of the government witness. He was shot while escaping from prison. It is
petitioner's cause which will possibly suffer from said death; not the cause of private
respondent. It may be true that the escape of the said witness and his consequent death
may be attributable to the negligence of petitioner's agents; but such negligence may
not bind the petitioner as to pre-judicially affect its cause and interest the
prosecution of criminal offenses by reason of the generally accepted principle that
the State is not bound by the negligence or tortious acts of its agents. As the cause of
non-completion was, as aforesaid, beyond the control of the prosecution, respondent
judge's questioned order cannot be sustained on the basis of the Lufthansa ruling
which, as aforestated, was principally anchored on the finding that the cause of the
non-completion of the cross-examination of the therein witness was attributable to the
very party offering him as a witness.

2. On the other hand, WE find no merit in petitioner's contention that the
testimony of its deceased witness is admissible on the ground that private respondent
had waived her right to cross-examine the witness and that the cause of non-
completion was attributable to said private respondent. As correctly pointed out by
private respondent and sustained by respondent judge, petitioner is not justified in
attributing fault to her (private respondent) and in contending that she is deemed to
have partly lost already the right of cross-examination by not availing of the right to
cross-examine the witness Mario Nemenio on March 22, 1978 or right after his direct
examination was closed and delaying until the lapse of two and a half (2) months
thereafter before making such cross-examination; because while it is true that her
counsel did not immediately start with his cross-examination of the deceased witness
on March 22, 1978, he did avail, however, of such right on the same day by initially
obtaining an opportunity to make preparations for an effective exercise thereof
considering the nature of the case a capital one and the length of the direct
examination; three sittings on three different dates or on February 28, 1978, March 6,
1978 and March 22, 1978. Hence, there was no waiver of her right of cross-
examination. Moreover, the deferment of the cross-examination of the witness
requested by private respondent on March 22, 1978 was approved by respondent
judge without any objection on the part of petitioner (pp. 45, 46, 64, rec.). And on the
date for the cross-examination of the witness Mario Nemenio or on April 19, 1978,
counsel for private respondent failed to cross-examine the said witness not of his own
design but because said witness failed to appear on that date for the reason that due to
the oversight of the court's personnel the subpoena for said witness was not served on
him at the San Ramon Prison and Penal Farm (pp. 90, 108, rec.). And respondent
judge had to re-set the hearing for the cross-examination of the witness by the private
respondent only to June 7, 1978 because of the fact that respondent judge took, with
the approval of the Supreme Court, his summer vacation the whole month of May,
1978.

It is thus apparent that no fault can be imputed to the private respondent for the length
of time that elapsed before her counsel was able to commence his cross-examination
of the witness. And private respondent's counsel was not able to complete his cross-
examination of the witness on June 7, 1978 for lack of material time by reason of
which and upon agreement of the parties the hearing was adjourned and ordered
resumed on July 3, 1978 (p. 84, rec.).

It appears, therefore, that the situation is one whereby the cause of non-completion of
the cross-examination of the deceased witness was attributed neither to the fault of
petitioner nor the private respondent. Consequently, the admissibility or
inadmissibility of the testimony of the said witness cannot be resolved on the basis of
the rule enunciated in the Lufthansa case.

III

There is merit in the contention of the petitioner that the questioned testimony of its
deceased witness is admissible in evidence because private respondent's counsel had
already "... rigorously and extensively cross-examined witness Mario Nemenio on all
essential elements of the crime charged (parricide), all of which have been testified
upon by said witness in his direct examination-in-chief, and consequently, the cross-
examination-in- chief, has already been concluded."

The cross-examination was completed insofar as the essential elements of the crime
charged parricide, fact of killing-is concerned. What remained was merely the
cross-examination regarding the price or reward, which is not an element of parricide,
but only an aggravating circumstance (par. 11, Art. 14, Revised Penal Code).

As elaborated by petitioner in its memorandum:

The crime charged in the case at bar is Parricide under Article 246 of the Revised
Penal Code.

The elements of the crime of Parricide are that a person was killed; that the killing
was intentionally caused by the accused; and that the victim is a parent or child,
whether legitimate or illegitimate, or the lawful spouse, or legitimate ascendant or
descendant of the accused. Once these facts are established beyond reasonable doubt,
conviction is warranted (See Aquino, The Revised Penal Code, 1961 Ed., Vol. II, p.
1171).

The deceased Eduardo Pimentel has been sufficiently shown to be the lawful husband
of private respondent Pilar Pimentel by means of the marriage contract executed
between them on May 18, 1971 ... marked as Exhibit 'R' for the prosecution ...

The cross-examination of witness Mario Nemenio by the counsel for private
respondent on June 7, 1978 touched on the conspiracy, and agreement, existing
among Salim Doe, witness Mario Nemenio and private respondent Pilar Pimentel to
kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the evening of
September 6, 1977, and also on the actual stabbing by witness Mario Nemenio of the
victim Eduardo Pimentel who was pointed out to the witness-killer by his wife, the
private respondent Pilar Pimentel herself... The matter of consideration or price of
P3,000.00, which both the public and private respondents maintain was not touched in
the cross-examination of witness Mario Nemenio, is not an essential element of the
crime of parricide. Price or consideration is merely an aggravating circumstance of the
crime charged, not an essential element thereof. The failure to touch the same in the
cross-examination would not at all affect the existence of the crime of parricide.
Furthermore, there is no showing or even the slightest indication that the witness or
his testimony would be discredited if he was cross-examined on the promised
consideration. The probability is rather very great that the witness would only have
confirmed the existence of the promised consideration were he cross-examined on the
same.

From the foregoing discussion, it is submitted that the rigorous and searching cross-
examination of witness Mario Nemenio on June 7, 1978, practically concluded
already the cross-examination-in-chief, or has already substantially accomplished the
purpose of the cross-examination, and therefore, the failure to pursue the privilege of
further cross-examination, would not adversely affect the admissibility of the direct
testimony of said witness anymore (pp. 159162, rec.).

Private respondent did not dwell on the aforesaid points in her memorandum.

Because the cross-examination made by the counsel of private respondent of the
deceased witness was extensive and already covered the subject matter of his direct
testimony as state witness relating to the essential elements of the crime of parricide,
and what remained for further cross-examination is the matter of price or reward
allegedly paid by private respondent for the commission of the crime, which is merely
an aggravating circumstance and does not affect the existence of the offense charged,
the respondent judge gravely abused his discretion in declaring as entirely
inadmissible the testimony of the state witness who died through no fault of any of the
parties before his cross-examination could be finished.

WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT JUDGE IS
HEREBY SET ASIDE; THE RESTRAINING ORDER OF DECEMBER 4, 1978
ISSUED BY THIS COURT IS HEREBY LIFTED; AND RESPONDENT JUDGE
OR HIS SUCCESSOR IS ACCORDINGLY ORDERED TO PROCEED WITH THE
TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO ADMIT AND CONSIDER
IN DECIDING THE CASE THE TESTIMONY OF THE DECEASED WITNESS
MARIO NEMENIO y DELOS SANTOS EXCLUDING ONLY THE PORTION
THEREOF CONCERNING THE AGGRAVATING CIRCUMSTANCE OF PRICE
OR REWARD WHICH WAS NOT COVERED BY THE CROSS-EXAMINATION.
NO COSTS.




Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-51513 May 15, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.

The Solicitor General for plaintiff-appellee.

Francisco S. Pagaduan, Sr. for accused-appellants.



ABAD SANTOS, J.:

In a verified complaint filed on October 8, 1974, with the Municipal Court of Pulilan,
Bulacan, ANASTACIA DE JESUS accused GERARDO FAJARDO, RUFINO
BULANADI and FELICIANO GOROSPE of the crime of forcible abduction with
rape. (Expediente, p. 1.) The crime was said to have been committed on September
30, 1974, starting in Plaridel, Bulacan, thru Pulilan, and thence to Talavera, Nueva
Ecija.

Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan received the
complaint and conducted a preliminary investigation, first stage.

On October 25, 1974, the Complaint was amended. Rufino Bulanadi and Feliciano
Gorospe were again named but Gerardo Fajardo was dropped and OSCAR
ALVARAN was named instead. The date when the crime was said to have been
committed was changed from September 30, 1974, to September 25, 1974. (Id, p. 41.)

Again Judge Granados conducted a preliminary investigation and on November 18,
1974, he issued an order for the arrest of Bulanadi, Gorospe and Alvaran and fixed
their bail at P15,000.00 each. (Id, p. 70.)

Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.

The second stage of the preliminary investigation was set on February 5, 1975, but on
that day neither Bulanadi or Gorospe appeared for which reason Judge Granados
declared that they had waived their right thereto and elevated the case to the Court of
First Instance of Bulacan, (Id, p. 87.)

On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI of
Bulacan an information for forcible abduction with rape against Gorospe and
Bulanadi. It was docketed as Criminal Case No. 1293-M. (Id., p. 88.) But on July 25,
1975, Fiscal Kliatchko filed an amended information which reads:

That on or about the 25th day of September, 1974, in the municipality of Plaridel
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the said accused Feliciano Gorospe and Rufino Bulanadi, together with one Oscar
Alvaran who is still at large, conspiring and confederating together and helping one
another, did then and there wilfully, unlawfully, and feloniously, by means of force,
violence and intimidation, and with lewd design abduct the complaining witness
Anastacia de Jesus, an unmarried woman, 14 years of age, by then and there taking
and carrying her to Talavera, Nueva Ecija, against her will and with-out her consent,
and upon arrival there, the said accused by means of violence, force and intimidation
have carnal knowledge of the said Anastacia de Jesus against her will and consent.
(Id, p. 100.)

Judge Nelly L. Romero Valdellon started the trial of the case on October 15, 1975.
The accused and their counsel de parte had long been notified that the case was to be
tried on that day but they did not appear so the former were tried in absentia, After
hearing part of the testimony of Anastacia de Jesus, the complainant, Judge Valdellon
was transferred to Metro Manila and she was replaced by Judge Fidel P. Purisima who
finished the trial. But Judge Purisima issued an order on March 10, 1976, wherein he
inhibited himself from deciding the case. He said, "Considering that Judge Alfredo V.
Granados is a first cousin by affinity of the undersigned Presiding Judge and if only to
make sure that the decision to be rendered in this case shall be above suspicion and
considering further the gravity of the offense charged, the undersigned Presiding
Judge hereby inhibits himself from deciding this case." (Id, pp. 386-387.) So it was
Judge Jesus R. de Vega who decided the case and rendered the following judgment:

PREMISES CONSIDERED, the Court finds both the herein accused Gorospe and
Bulanadi guilty beyond reasonable doubt of rape committed against Anastacia de
Jesus as charged in the information. Considering the legal principle that each of the
herein accused is responsible not only for the act of rape committed personally by him
but also for the rape committed by his other co-accused on account of the finding of
conspiracy or cooperation in the commission of the said crime charged against them,
the Court accordingly sentences each of the herein accused Gorospe and Bulanadi to
suffer two (2) perpetual penalties of reclusion perpetua to be served in accordance
with Art. 70 of the Revised Penal Code, with all the accessory penalty of the law.

Both accused are further ordered to indemnify Anastacia de Jesus in the amount of
P40,000.00 for actual exemplary and moral damages; and to pay the costs. (Id, p.
419.)

The case is now before Us on appeal.

The People's version of the facts is as follows:

Complainant Anastacia de Jesus, a 14 year-old girl at the tune of the incident, single,
student at the Calumpit Institute, Bulacan, and resident of Pugo, Calumpit, Bulacan,
was, at about 10:00 and of September 25, 1974, at Plaridel, Bulacan, in front of the
Caltex Station, intending to cross the street to buy a book. She was looking for a book,
entitled "Diwang Guinto" (pp. 2-5, t.s.n., Dec. 15, 1975; pp. 17-18, t.s.n., March 10,
1976; p. 4, t.s.n., March 11, 1976). Two persons passed by, one of whom was
appellant Rufino Bulanadi who waived a handkerchief across her face, which affected
her consciousness and she felt dizzy but felt that she was being held and boarded into
a motor vehicle (pp. 5-11, t.s.n., Dec. 15, 1975; p. 18, t.s.n., March 10, 1976).

Complainant regained her fun consciousness at about 8:00 o'clock in the evening of
September 25, 1974, in a nipa hut near the irrigation pump, of Gerardo Fajardo, at
Calipahan, Talavera, Nueva Ecija, Inside she saw appellants, Feliciano Gorospe,
Rufino Bulanadi, and Gerardo Fajardo (pp. 11-14, 17, 21, t.s.n., Dec. 15, 1975). They
were arguing why she (complainant) had to be taken by appellants Rufino Bulanadi
and Feliciano Gorospe (p. 16, t.s.n., Dec. 15, 1975).

That evening, at the said nipa hut, complainant was forced to drink a strange tasting
royal soft drink by appellant Feliciano Gorospe and appellant Rufino Bulanadi, who
held her hands (pp. 21-23, t.s.n., Dec. 15, 1975). After drinking the soft drink
complainant lost consciousness. She woke up only the next morning with aches and
pains all over her body especially her private part. She found herself naked.
Appellants, Rufino Bulanadi and Feliciano Gorospe, were there by her side standing
when she woke up (pp. 23-26, t.s.n., Dec. 15, 1975; p. 22, t.s.n., Jan. 12, 1976).
Gerardo Fajardo was also there. All the three of them were naked. Evidently,
appellants and Gerardo Fajardo sexually abused her (p. 27, t.s.n., Dec. 15, 1975; p. 15,
t.s.n., March 10, 1976).

Appellants and Gerardo Fajardo forcibly kept Anastacia de Jesus for nine (9) days in
the hut, with appellants, and Gerardo Fajardo taking turns in sexually abusing her
during the night. During the day she was guarded by Oscar Alvaran.

After her nine-day ordeal, Gerardo Fajardo brought her to the house of Cirilo
Balanagay at Bancal Talavera, Nueva Ecija (pp. 20-23, t.s.n., March 12, 1976). When
Gerardo Fajardo left the house, Anastacia de Jesus related to Cirilo Balanagay what
the appellants and Fajardo did to her. Cirilo Balanagay, therefore, wired Anastacia's
parents and then brought her to the Talavera Municipal Building where she executed
an affidavit about her ordeal. She also told the PC of her harrowing experience (pp.
23-25, t.s.n., March 12, 1976).

When complainant was brought home, her friends readily noticed that she was not her
usual self anymore as "she cannot answer and she just kept on shouting and crying
and trembling", saying "keep away from me, have pity on me." (pp. 14-15, t.s.n., Oct.
14,1975).

Complainant Anastacia de Jesus was physically examined on October 6, 1974, by
Dra. Norma V. Gungon who issued a medical certificate on her findings, as follows:

Patient examined with the presence of a ward Nurse. She is conscious, coherent
answers to questions intelligently.

Physical Examination

Breast symetrical conical in shape, areola pigmented.

Mons pubis pubic hair scanty in amount.

Internal Examination:

Hymen presence of healed lacerations, at 11, 5, 3 o'clock.

Vaginal introctus admits 2 fingers w/ difficulty.

Cervix small, closed

SMEAR FOR SPERMATOZOA NEGATIVE' (Exh. G-1, P. 6, rec.) (Brief, pp. 3-
6.)

The appellants make the following assignment of errors:

I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY
OF THE CRIME OF RAPE WHICH THE PROSECUTION ALLEGES TO HAVE
BEEN COMMITTED IN TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT
IN THE PROVINCE OF BULACAN.

II. THE HONORABLE JUDGE JESUS R. DE VEGA, PRESIDING JUDGE
OF THE COURT OF FIRST INSTANCE OF BULACAN, BRANCH II ERRED IN
RENDERING THE DECISION APPEALED FROM WHEN HE HAS NO
AUTHORITY TO DO SO BECAUSE THIS CASE WAS ENTIRELY TRIED IN
THE COURT OF FIRST INSTANCE OF BULACAN, BRANCH I, PRESIDED
OVER BY HONORABLE JUDGE FIDEL P. PURISIMA.

III. THE LOWER COURT ERRED IN ADMITTING THE TESTIMONY OF
GERARDO FAJARDO WHOSE CROSS-EXAMINATION WAS NOT FINISHED
DUE TO HIS FAILURE TO APPEAR INSPITE OF A WARRANT FOR HIS
ARREST.

IV. THE LOWER COURT ERRED IN FINDING THE ACCUSED
FELICIANO GOROSPE AND RUFINO BULANADI GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF RAPE. (Brief, pp. 21-22.)

The first assignment of error raises the following questions: (1) Why was the
complaint not filed in Plaridel, Bulacan or Talavera, Nueva Ecija but in Pulilan,
Bulacan? (2) Since the rape was committed in Talavera, why was the case tried by the
CFI of Bulacan and not by the CFI of Nueva Ecija?

The above questions are easily answered. Abduction is a persistent and continuing
offense. (U.S. vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be "tried in the court of
the municipality or province wherein the offense was committed or any one of the
essential ingredients thereof took place." (Rules of Court, Rule 110, Sec. 14[a].) The
Municipal Court of Pulilan had jurisdiction because the abductors and their captive
passed Pulilan on their way from Plaridel to Talavera. And the CFI of Bulacan (as
well as the CFI of Nueva Ecija) had jurisdiction because essential elements of the
offense took place in Bulacan (and also in Nueva Ecija).

The second assignment of error asserts that Judge de Vega had no authority to render
the decision in the case.

Judge Purisima in the order wherein he inhibited himself from deciding the case also
"ordered to have the same re-raffled off and assigned to another branch. " The case
was presumably re-raffled to Judge de Vega who issued an order on June 23, 1978,
which states, inter alia:

Considering the foregoing, and in order to be properly guided in the further
disposition of this case, and to obviate possible objections and criticisms which may
come from any or both parties in the final disposition thereof, the Court resolves to
require the parties to submit their respective written comments within fifteen (15)
days from receipt hereof on the propriety and advisability of the decision in this case
to be rendered by the Presiding Judge of this Court; and to call a conference to hear
further the views and arguments of the parties on this question, which is hereby set on
July 18, 1978, at 1:30 p.m. Let notices be sent accordingly, to all parties concerned.
(Expediente, p. 390.)

Neither the comments nor the memorial of the conference are in the expediente but on
March 28, 1979, counsel for the accused filed a motion stating:

2. That the above promulgation was held in abeyance, and then the accused
received the order dated June 13, 1978 where the Court, called the parties to a
conference on July 18, 1978;

3. That the parties appeared before this Court on July 18, 1978;

4. That up to the present a Decision in the above entitled case has not yet been
promulgated.

WHEREFORE, it is respectfully prayed of this Honorable Court that the above
entitled case be resolved. (Id., p. 401.)

And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)

We hold that Judge de Vega had the power to decide the case. "Where a court of first
instance is divided into several branches each of the branches is not a court distinct
and separate from the others. Jurisdiction is vested in the court, not in the judges, so
that when a complaint or information is filed before one branch or judge, jurisdiction
does not attach to said branch of judge alone, to the exclusion of the others. Trial may
be had or proceedings may continue by and before another branch or judge."
(Lumpay, et al. vs. Moscoso, 105 Phil. 968 [1959].)

It is to be recalled Chat in the original complaint filed by Anastacia de Jesus before
the Municipal Court of Pulilan, Gerardo Fajardo was one of the accused. In the
amended complaint, Fajardo's name was dropped and Oscar Alvaran was named
instead. Nonetheless, when Anastacia testified she said that she was brought to the
house of Gerardo Fajardo in Talavera, Nueva Ecija; that when she woke up after she
was forced to drink something, Fajardo was there with Gorospe and Bulanadi, and all
three were naked; that Fajardo was one of those who raped her; and that it was
Fajardo who brought her to Cirilo Balanagay.

Why was Fajardo dropped from the complaint? The record does not yield an answer
but perhaps he decided to cooperate with the complainant because soon after she
finished her testimony the prosecution presented Fajardo as its next witness.

Fajardo testified, among other things, that he was given a lift from the monument in
Caloocan City to Nueva Ecija by Gorospe and Bulanadi; that in Plaridel, between the
market and the bridge, the two forced Anastacia to go with them; that Anastacia was
brought to his house and later transferred to a nipa hut near an irrigation pump; that in
the nipa hut Anastacia was undressed by Gorospe; that Gorospe, Bulanadi and
Alvaran took turns in spending 20 to 30 minutes inside the hut with Anastacia; and
that he did not have sex with her.

It can thus be seen that Fajardo was a key witness. His testimony corroborated that of
Anastacia in material matters.

His direct examination took place on June 23 and 24, 1976. His cross-examination
commenced on August 4, 1976 (whole day), and was continued on August 9, 1976.
The cross-examination is recorded on pages 112 to 230 of the transcript. But the
defense did not indicate that it was through with Fajardo.

On August 9, 1976, the trial court continued the hearing to August 11, 1976.
(Expediente, p. 204.) On the latter date, Fajardo failed to appear and the case was re-
scheduled to be heard on September 13, 1976. (Id. p. 208.) On September 13, 1976,
Fajardo again failed to appear and the case was re-set to September 29, 1976. (Id. p.
222.) Fajardo did not appear on September 29, 1976, so he was ordered arrested. (Id,
p. 223-226.) Fajardo was not arrested but despite such fact the prosecution rested its
case.

In their third assignment of error the appellants bewail the fact that the trial court
decided the case even though they had not finished cross-examining Fajardo.

The trial court committed no error in admitting the testimony of Fajardo although the
defense had not finished its cross-examination. An examination of the transcript of
Fajardo's testimony shows that he was subjected to detailed cross-examination on
material points. In fact, the cross-examination was lengthier than the direct
examination. We adopt with approval the statement of the court a quo on this point:

The records show that the counsel for the accused has extensively cross examined
Fajardo. The Court could not help but wonder what other matters not yet touched
during the cross-examination of Fajardo could still be elicited from him that would
probably destroy or affect his testimony in-chief. If the counsel for the accused
expected Fajardo to testify further on material matters favorable to the cause of the
defense, he should have proffered such further testimony and entered into the records
how the absent witness would have testified if he were available for further cross-
examination. The failure of the said counsel to do so indicates that every material
point has been asked from Fajardo during the time he was under examination.

While cross-examination is a right available to the adverse party, it is not absolute in
the sense that a cross-examiner could determine for himself the length and scope of
his cross-examination of a witness. The court has always the discretion to limit the
cross examination and to consider it terminated donated if it would serve the ends of
justice.

The Court, therefore, hereby resolves to admit the testimony of Fajardo. This
resolution finds support, though indirectly, from Section 6, Rule 133 of the Rules of
Court, which empowers the court to stop the introduction of further testimony upon a
particular point when the evidence upon it is already so full that more to the same
point cannot reasonably be expected to be additionally persuasive. The position herein
taken by the Court in brushing aside technicalities is in accordance with a
fundamental rule that the provisions of the Rules of Court shall be liberally construed
in order to promote their object and assist the parties in obtaining a just, speedy and
inexpensive determination of every action or proceeding. (Section 2, Rule 1, Rules of
Court)." (Id, p. 418.)

Moreover, even if Fajardo's testimony be disregarded the accused may nonetheless be
convicted in the light of other evidence.

The fourth assignment of error raises the issue of credibility of witnesses those of
the prosecution versus those of the defense.

The prosecution's version has already been stated above. We now have to consider the
version of the appellants which is as follows:

On September 30, 1974 at 4: 00 O'clock in the afternoon, accused Feliciano Gorospe,
Barangay Captain of Andal Alinio district, Talavera, Nueva Ecija, since 1972 up to
the present and at the same time a member of the Sangguniang Bayan of Talavera,
Nueva Ecija, representing tha Barangay Group, went to the house of his friend,
Reynaldo Matias at Calipahan, Talavera, Nueva Ecija, to attend a birthday party (pp.
36 & 37, T.s.n., February 7, 1977, CFI). Accused Rufino Bulanadi, who was a former
councilman of Calipahan, Talavera, Nueva Ecija, also attended said party as he was
also invited (p. 12, T.s.n., February 28, 1977, CFI.). At about 7:00 o'clock in the
evening, several teenagers were shouting in front of the house of Gerardo Fajardo
which is ONE HUNDRED (100) METERS away from the house where the birthday
party was being held (p. 38, T.s.n., February 7, 1977 CFI). The house of Fajardo being
within his jurisdiction (pp. 39 & 40 Ibid ), accused Barangay Captain Gorospe
proceeded to the place where the shouts were coming from, followed by other guests
in the birthday party, among whom was Councilman Rufino Bulanadi (p. 39, Ibid).
there were 2 groups of teenagers who were at odds with each other. One was the
group of Gil Nocum and the other, the group of Isagani Castro. Barrio Captain
Gorospe talked with the two (2) groups of teenagers and he was informed that Fajardo
who promised to give a woman to one group made the same commitment with respect
to the same woman to the other group (pp. 41 & 42, Ibid). That woman was
complainant Anastacia de Jesus, as there were previous occasions that Gerardo
Fajardo brought women of Ill-repute to his house, Gorospe called him and asked him
why he brought again another woman of ill-repute to that place. He even asked
Gerardo's wife, Della Fajardo, why she tolerated Gerardo to bring that kind of woman
in their house when they are already married. She answered that she could not stop
him because he would cause her bodily harm. Gorospe also called Anastacia and
askeed her why she went with Grardo who is a married man (pp. 44 to 47, Ibid).
Thereafter he told her to leave the place. Gerardo pleaded that Anastacia be allowed to
stay only for that night and he would take her out of the place the next day.

The following morning, October 1,1974 while accused Rufino Bulanadi was tying the
rope of his carabao to graze in the subdivision at Calipahan, Talavera, Nueva Ecija,
Gerardo approached him and said, "Konsehal maaari bang itira ko and babaing dala-
dala ko sa bahay sa balong-balong ng kalabaw mo" ( Councilman, may I be allowed
to let the girl who is with me in my house to live or stay in the shade of you carabao).
He pleaded with Bulanadi because according to him his wife was quarrelling with him
because of that woman (pp. 21-23, T.s.n., February 28, 1977, CFI). Bulanadi
vehemently refused and reminded Gerardo about the warning of Barrio Captain
Gorospe to get that woman out of the place. Gerardo left, angry and was murmuring
(p. 23, Ibid). Bulanadi left his carabao to graze and proceeded to his field to see the
laborers who were pulling grasses there, The farmers in Talavera are organized into
groups of Twenty (20) for the systematic distribution of irrigation water, each with a
chairman. Bulanadi was the chairman of his group. Because there was shortage of
water he started the engine of his irrigation pump. lie had his lunch in the field. At
3:00 o'clock in the afternoon, a son of an owner of a neighboring field informed him
that water was already being released from the Sapang Baca Dam. Upon verifying
that water was really coming, he stopped the motor of his litigation pump. (pp. 22-26,
Ibid), He cleaned the passage of water to his field for two (2) hours. At 5:00 o'clock in
the afternoon, he went home to eat because he was hungry. He left the pump house
open because he intended to go bad after supper. When he came back, he saw that
there was light inside his pump house. As he was approaching, Gerardo met him and
pleaded that he and the woman be allowed to sleep there. Bulanadi refused saying, I
just bought this pump recently, "Sasalahulain mo ba ito? Hindi pwede yon Gerardo,
kamalasan yon." (Are you going to tarnish this? That cannot be Gerardo, that will
bring me bad luck) (26-29, Ibid). Bulanadi saw Anastacia playing with the water. He
told her not to make the water dirty as it is being used as drinking water and Anastacia
said, "suya naman kayo kay selan-selan mong matanda." (You are very touchy old
man). When Bulanadi told them that he would report them to the Barrio Captain, they
pleaded to him not to do so, but just the same, he went to the Barrio Captain to report.

When Bulanadi arrived in the house of Barrio Captain Feliciano Gorospe, the latter
was conversing with Oscar Alvaran (p. 31, Ibid & p. 49, t.s.n., February 7, 1977).
Upon receiving the report, the 3, Rufino Bulanadi, Feliciano Gorospe and Oscar
Alvaran, went to the pump house. Barrio Captain Gorospe talked to Gerardo Fajardo
and Anastacia de Jesus saying. "Talaga palang matitigas ang ulo ninyo,
pinaalalahanan ko na kayo, ayaw pa ninyong lumayo dito!" (You are really hard
headed, I have already warned you but still you did not leave this place). Bulanadi and
Gorospe were very angry and Anastacia got angry too and said that it is none of their
business what she and Gerardo do. She rushed towards the two as if to strike them but
Gerardo stopped her and pleaded with the two to allow them to stay there just for that
night because he said, "aabutan na kami ng curfew" (we will be curfewed). Gorospe
and Bulanadi relented and left warning them that if they would still be there the next
morning they will report the matter to the P.C. (pp. 31-35, Ibid & pp. 2-6, February
24, 1977, CFI).

The next morning, October 2, 1977, Wednesday, Gerardo Fajardo and Anastacia de
Jesus left the pump house of Bulanadi. Gerardo brought Anastacia to the house of his
cousin Floring at Munoz, Nueva Ecija, where they stayed that night. The following
morning, October 3, 1977 he brought her to the house of his uncle Cirilo Balanagay at
Bakal I, Talavera, Nueva Ecija (Exhibit I). He told his uncle that Anastacia is a
student, and he requested Balanagay to devise ways and means to return her to her
parents because he might be placed in trouble (p. 7, T.s.n., October 12, 1974,
Municipal Court of Pulilan).

After Gerardo left, Balanagay went to the room where Anastacia was and volunteered
to take her to her parents, but she said she would think it over. That night, October 3,
1974, Balanagay brought her to the house of Barrio Captain Andres Nazar of Bakal I,
Talavera, Nueva Ecija, to inform him of Anastacia's presence in that house, and also
so that she could relate everything to the Barrio Captain (p. 10, T.s.n., October 12,
1974, Municipal Court of Pulilan). There was a regulation in Bakal I, Talavera, Nueva
Ecija, that a stranger who arrives there should submit a statement as to the reason of
his presence in the barrio. Barrio Captain Andres Nazar took the statement of
Anastacia de Jesus (p. 4, T.s.n., February 7, 1977, CFI) which was in the form of
question and answer. This was reduced in writing by Councilman Aniceto Damian
who was summoned for that occasion, in the presence of the barrio captain himself,
Cirilo Balanagay, and his wife. The statement of Anastacia de Jesus marked as
Exhibit "1" was signed by Councilman Aniceto Damian and Cirilo Balanagay as
witnesses (pp. 7 to 14, T.s.n., February 7, 1977 CFI). To protect the interest of
Anastacia, Barrio Captain Nazar asked Balanagay to notify her parents (p. 13, Ibid).

On October 4, 1974, Cirilo Balanagay accompanied Anastacia to the Police
Department of Talavera, Nueva Ecija, where she made a report (Exhibit 13). Then he
wired the family of Anastacia at Pungo, Calumpit, Bulacan. On October 6, 1974
Anastacia's relatives arrived, composed of her uncle, Enrique de Jesus, brother of
Victoriano de Jesus, sister Lolita de Jesus and brother-in-law Adriano Nicolas. They
accompanied her to the Police Department of Talavera, where she made a statement,
Exhibit 5 which is also Exhibit C (p. 3, T.s.n., June 16, 1976, CFI). That same date,
October 6, 1974 she was examined by Dr. Norma Gongon at the Dr. Paulino J. Garcia
Memorial Research and Medical Center upon request of the Police Department of
Talavera, Nueva Ecija and a Medical Certificate was issued to her (Exhs. "G", "G-1",
"G-2", "H" and "H-1").

In the meantime, on October 4, 1974, accused Barrio Captain Feliciano Gorospe and
his wife, with Mayor and Mrs. Bonifacio de Jesus of Talavera, Nueva Ecija, Engineer
and Mrs. Bacani and 3 other couples went to Baguio City to attend the convention of
the Luzon Area Community Christian Family Movement at St. Louise University.
They rented a house and stayed there for THREE (3) days, October 4, 1974 to
October 6, 1974. At 5:00 o'clock in the afternoon on October 6, 1974, when the
convention ended, they went home to Talavera, Nueva Ecija (pp. 10-12, T.s.n.,
February 24, 1977, CFI).

On October 6, 1974, at about 8:00 o'clock in the morning, accused Rufino Bulanadi
on his way to the field to cut grasses for his carabao, passed by a store to buy
cigarette. To his surprise he saw Gerardo there and he asked him where his "alaga"
was (the girl he is taking care of) and Gerardo answered, "Pinagpapahinga ko siya sa
Bakal at pinakawalan ko na" (I let her rest in Bakal and I have already let her go).
Gerardo further said that the girl was intending to file a case against him, and
Bulanadi told him, "Mabuti nga sa iyo, ayaw mo kasing tumigil sa masamang
negosyo mo". (That's good for you because you don't want to stop your bad business).
When Bulanadi proceeded on his way to the field, a jeep suddenly stopped beside
him. On the jeep were PC Sgt. Jimenez, several policemen and Anastacia de Jesus.
Sgt. Jimenez immediately got off the jeep, tied Rufino's hand with his own rope that
he brought with him to be used in tying the grasses that he would cut, and brought
him to the Municipal Building of Talavera, Nueva Ecija, where he was locked in jail.
When asked about Gerardo, he informed the P.C. that he saw him in the store.
Gerardo was likewise arrested. Bulanadi was asked about the case and he said he did
not know anything about it (pp. 37 to 40, T.s.n., February 28, 1977, CFI).

When accused Barrio Captain Gorospe arrived with his wife from Baguio in the
evening of October 6, 1974, his mother informed him that a policeman was looking
for him. He told his mother that he would just go to the Municipal Building the
following day because he was tired. The next day, October 7, 1974 at 8:30 o'clock in
the morning, he went to the Municipal Building. Upon his arrival, Gerardo met him,
put his arms on his shoulders and said that the case can be settled in the amount of
P200.00. Gorospe said "tarantado ka pala" (You son of a bitch). "I will not give even a
single centavo because you are the one responsible for this. I have nothing to do with
this case." Gorospe proceeded to see Sgt. Jimenez who told him that the case was
transferred to Cabanatuan City. The 3 of them, Bulanadi, Gorospe and Fajardo were
brought to the PC headquarters where they were interviewed one after the other, after
which Gorospe and Bulanadi were sent home.

The complainant filed the case in the Municipal Court of Pulilan, Bulacan, on October
8, 1974, two (2) days after she had gone home in Pungo, Calumpit, Bulacan (Exhibit
8). Gerardo Fajardo who was in the custody of the Police Department of Talavera,
Nueva Ecija was taken by the Policemen of Pulilan, Bulacan.

On October 22, 1974 while the case was being investigated by Municipal Judge
Alfredo Granados where Anastacia had already testified on October 9, 1974,
Anastacia again executed another affidavit because that was what her lawyer, Atty.
Santos wanted (p. 26, t.s.n., March 12, 1976, CFI). On the same date Gerardo Fajardo
executed another statement in the Police Department of Pulilan Bulacan. Thereafter,
complainant filed an Amended Complaint wherein Gerardo, against whom she was
originally complaining against, was excluded as one of the accused to be utilized as
her witness, and Oscar Alvaran was included for the first time. The alleged date of the
incident was changed from September 30, 1974 to September 25, 1974. Subsequently
the case was elevated to the Court of First Instance of Bulacan, Branch I. (Brief, pp.
12-21.)

The version of the appellants does net inspire belief because it appears to have been
contrived. The appellants portray Anastacia as wanton and unchaste woman a
prostitute. But one's credulity has to be unduly stretched in order to buy the line that a
girl of 14 years who was still going to school was a prostitute who went far away from
her home in order to peddle her body. The appellant's version is simply too crude to
be convincing.

Opposed to the appellants' version is the affirmative narration of events made by
Anastacia which were corroborated by Gerardo Fajardo. The story winch she
unfolded could have been inspired only by her thirst for justice. In her quest she had
to live her ordeal all over again for a lengthy period because she was on the witness
stand on December 15, 1975; January 12, March 10, March 11, May 3 and June 16,
1976. During all those days she had to bare in public her shame and humiliation.

To be sure there were inconsistencies in the testimony of Anastacia but they were in
details rather than in the highlights of her terrible experience and could very well be
attributed to her tender age and confused state of mind caused by her private hell.

The Solicitor General states that Gerardo Fajardo, the discharged state witness, also
committed rape hence the appellants should each be found guilty of three (3) rapes
because in a conspiracy the act of one is the act of all. We cannot agree in respect of
the participation of Fajardo. Since Fajardo was dropped from the complaint his guilt
had not been established. However, We agree with the Solicitor General's observation
"that a motor vehicle was used to bring her [Anastacia de Jesus] from Plaridel,
Bulacan, where she was first deceived and drugged, and then taken to an isolated
uninhabited place at a nipa hut, near an irrigation pump at Calipahan, Talavera, Nueva
Ecija, where she was abused, two (2) aggravating circumstances are present, namely
use of motor vehicle and uninhabited place (Art. 14, R.P.C.)," so that death is the
proper penalty. (Brief, pp. 14-15.) However, for lack of the necessary number of votes
the death penalty cannot be imposed.

WHEREFORE, the judgment of the court a quo is hereby affirmed in all respects.
Costs against the appellants.

SO ORDERED.


























Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION



G.R. Nos. 115338-39 September 16, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LANIE ORTIZ-MIYAKE, accused-appellant.



REGALADO, J.:

Accused-appellant Lanie Ortiz-Miyake was charged with illegal recruitment in large
scale in the Regional Trial Court of Makati on a complaint initiated by Elenita
Marasigan, Imelda Generillo and Rosamar del Rosario. In addition, she was indicted
for estafa by means of false pretenses in the same court, the offended party being
Elenita Marasigan alone.

The information in the charge of illegal recruitment in large scale in Criminal Case
No. 92-6153 reads as follows:

That in or about the period comprised from June 1992 to August 1992, in the
Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, falsely representing herself to have
the capacity and power to contract, enlist and recruit workers for employment abroad
did then and there willfully, unlawfully, and feloniously collect for a fee, recruit and
promise employment/job placement abroad to the following persons, to wit: 1)
Rosamar del Rosario; 2) Elenita Marasigan; 3) Imelda Generillo, without first
securing the required license or authority from the Department of Labor and
Employment, thus amounting to illegal recruitment in large scale, in violation of the
aforecited law. 1

The information in the charge for estafa in Criminal Case No. 92-6154 alleges:

That in or about or sometime in the month of August, 1992, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, by means of false pretenses executed prior to or
simultaneously with the commission of the fraud, falsely pretending to have the
capacity and power to send complainant Elenita Marasigan to work abroad, succeeded
in inducing the latter to give and deliver to her the total sum of P23,000.00, the
accused knowing fully well that the said manifestations and representation are false
and fraudulent and calculated only to deceive the said complainant to part with her
money, and, once in possession thereof, the said accused did then and there willfully,
unlawfully and feloniously appropriate, apply and convert the same to her own
personal use and benefit, to the damage and prejudice of the said Elenita Marasigan,
in the aforementioned amount of P23,000.00. 2

Upon arraignment, appellant pleaded not guilty to the charges and the cases were tried
jointly in Branch 145 of the Regional Trial Court of Makati.

Of the three complainants in the case for illegal recruitment in large scale, Marasigan
was the only one who testified at the trial. The two other complainants, Generillo and
Del Rosario, were unable to testify as they were then abroad.

Marasigan testified that she was a 32 year-old unmarried sales representative in 1992
when she was introduced to appellant by her co-complainants. 3 Appellant promised
Marasigan a job as a factory worker in Taiwan for a P5,000.00 fee. At that time,
Marasigan had a pending application for overseas employment pending in a
recruitment agency. Realizing that the fee charged by appellant was much lower than
that of the agency, Marasigan withdrew her money from the agency and gave it to
appellant. 4

Marasigan paid appellant P5,000.00, but she was later required to make additional
payments. By the middle of the year, she had paid a total of P23,000.00 on installment
basis. 5 Save for two receipts, 6 Marasigan was not issued receipts for the foregoing
payments despite her persistence in requesting for the same.

Marasigan was assured by appellant that obtaining a Taiwanese visa would not be a
problem. 7 She was also shown a plane ticket to Taiwan, allegedly issued in her name.
8 Appellant issued Marasigan a photocopy of her plane ticket, 9 the original of which
was promised to be given to her before her departure. 10

Marasigan was never issued a visa. 11 Neither was she given the promised plane
ticket. Unable to depart for Taiwan, she went to the travel agency which issued the
ticket and was informed that not only was she not booked by appellant for the alleged
flight, but that the staff in the agency did not even know appellant.

Later, Marasigan proceeded to the supposed residence of appellant and was informed
that appellant did not live there. 12 Upon verification with the Philippine Overseas
Employment Administration (POEA), it was revealed that appellant was not
authorized to recruit workers for overseas employment. 13 Marasigan wanted to
recover her money but, by then, appellant could no longer be located.

The prosecution sought to prove that Generillo and Del Rosario, the two other
complainants in the illegal recruitment case, were also victimized by appellant. In lieu
of their testimonies, the prosecution presented as witnesses Lilia Generillo, the mother
of Imelda Generillo, and Victoria Amin, the sister of Del Rosario.

Lilia Generillo claimed that she gave her daughter P8,000.00 to cover her application
for placement abroad which was made through appellant. 14 Twice, she accompanied
her daughter to the residence of appellant so that she could meet her; however, she
was not involved in the transactions between her daughter and appellant. 15 Neither
was she around when payments were made to appellant. Imelda Generillo was unable
to leave for abroad and Lilia Generillo concluded that she had become a victim of
illegal recruitment.

The prosecution presented Victoria Amin, the sister of Rosamar Del Rosario, to show
that the latter was also a victim of illegal recruitment. Victoria Amin testified that
appellant was supposed to provide her sister a job abroad. She claimed that she gave
her sister a total of P10,000.00 which was intended to cover the latter's processing fee.
16

Victoria Amin never met appellant and was not around when her sister made
payments. She assumed that the money was paid to appellant based on receipts,
allegedly issued by appellant, which her sister showed her. 17 Del Rosario was unable
to leave for abroad despite the representations of appellant. Victoria Amin claimed
that her sister, like Marasigan and Generillo, was a victim of illegal recruitment.

The final witness for the prosecution was Riza Balberte, 18 a representative of the
POEA, who testified that appellant was neither licensed nor authorized to recruit
workers for overseas employment, POEA certificate certification. 19

Upon the foregoing evidence, the prosecution sought to prove that although two of the
three complainants in the illegal recruitment case were unable to testify, appellant was
guilty of committing the offense against all three complainants and, therefore, should
be convicted as charged.

On the other hand, appellant, who was the sole witness for the defense, denied that
she recruited the complainants for overseas employment and claimed that the
payments made to her were solely for purchasing plane tickets at a discounted rate as
she had connections with a travel agency. 20

She denied that she was paid by Marasigan the amount of P23,000.00, claiming that
she was paid only P8,000.00, as shown by a receipt. She further insisted that, through
the travel agency, 21 she was able to purchase discounted plane tickets for the
complainants upon partial payment of the ticket prices, the balance of which she
guaranteed. According to her, the complainants were supposed to pay her the balance
but because they failed to do so, she was obliged to pay the entire cost of each ticket.

The evidence presented by the parties were thus contradictory but the trial court found
the prosecution's evidence more credible. On December 17, 1993, judgment was
rendered by said court convicting appellant of both crimes as charged. 22

In convicting appellant of illegal recruitment in large scale, the lower court adopted a
previous decision of Branch 78 of the Metropolitan Trial Court of Paraaque as a
basis for the judgment. Said previous decision was a conviction for estafa
promulgated on July 26, 1993, 23 rendered in Criminal Cases Nos. 74852-53,
involving the same circumstances in the instant case, wherein complainants Generillo
and Del Rosario charged appellant with two counts of estafa. This decision was not
appealed and had become final and executory.

In thus convicting appellant in the illegal recruitment case, the decision therein of the
Regional Trial Court stated that the facts in the foregoing estafa cases were the same
as those in the illegal recruitment case before it. It, therefore, adopted the facts and
conclusions established in the earlier decision as its own findings of facts and as its
retionale for the conviction in the case before it. 24

In Criminal Case No. 92-6153, the Makati court sentenced appellant to serve the
penalty of life imprisonment for illegal recruitment in large scale, as well as to pay a
fine of P100,000.00. Appellant was also ordered to reimburse the complainants the
following payments made to her, viz.: (a) Marasigan, P23,000.00; (b) Generillo,
P2,500.00; and (c) Del Rosario, P2,500.00.

In the same judgment and for the estafa charged in Criminal Case No. 92-6154, the
Makati court sentenced appellant to suffer imprisonment of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years of prision mayor, as
maximum, and to pay the costs.

In the instant petition, appellant seeks the reversal of the foregoing judgment of the
Regional Trial Court of Makati convicting her of illegal recruitment in large scale and
estafa. Specifically, she insists that the trial court erred in convicting her of illegal
recruitment in large scale as the evidence presented was insufficient.

Moreover, appellant claims that she is not guilty of acts constituting illegal
recruitment, in large scale or otherwise, because contrary to the findings of the trial
court, she did not recruit the complainants but merely purchased plane tickets for
them. Finally, she contends that in convicting her of estafa, the lower court erred as
she did not misappropriate the money paid to her by Marasigan, hence there was no
damage to the complainants which would substantiate the conviction.

We uphold the finding that appellant is guilty but we are, compelled to modify the
judgment for the offenses she should be convicted of and the corresponding penalties
therefor.

Appellant maintains that her conviction for illegal recruitment in large scale is
erroneous. It is her view that in the prosecution of a case for such offense, at least
three complainants are required to appear as witnesses in the trial and, since
Marasigan was the only complainant presented as a witness, the conviction was
groundless.

The Solicitor General also advocates the conviction of appellant for simple illegal
recruitment which provides a lower penalty. The Court finds the arguments of the
Solicitor General meritorious and adopts his position.

The Labor Code defines recruitment and placement as ". . . any act of canvassing,
enlisting, contracting transporting, utilizing, hiring or procuring workers and includes
referrals, contract services, promising or advertising for employment, locally or
abroad, whether for profit or not . . . ." 25

Illegal recruitment is likewise defined and made punishable under the Labor Code,
thus:

Art. 38. Illegal Recruitment.

(a) Any recruitment activities, including the prohibited practices enumerated
under Article 34 of this Code, to be undertaken by non-licensees or non-holders of
authority shall be deemed illegal and punishable under Article 39 of this Code. . . .

(b) Illegal recruitment when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.

. . . Illegal recruitment is deemed committed in large scale if committed against three
(3) or more persons individually or as a group.

Art. 39. Penalties.

(a) The penalty of life imprisonment and a fine of One Hundred Thousand
Pesos (P100,000.00) shall be imposed if Illegal Recruitment constitutes economic
sabotage as defined herein;

xxx xxx xxx

(c) Any person who is neither a licensee nor a holder of authority under this
Title found violating any provision thereof or its implementing rules and regulations
shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four
(4) years nor more than eight (8) years or a fine of not less than P20,000.00 nor more
than P100,000.00, or both such imprisonment and fine, at the discretion of the court. .
. . 26

During the pendency of this case, Republic Act No. 8042, otherwise known as the
"Migrant Workers and Overseas Filipinos Act of 1995," was passed increasing the
penalty for illegal recruitment. This new law, however, does not apply to the instant
case because the offense charged herein was committed in 1992, before the effectivity
of said Republic Act No. 8042. Hence, what are applicable are the aforecited Labor
Code provisions.

It is evident that in illegal recruitment cases, the number of persons victimized is
determinative. Where illegal recruitment is committed against a lone victim, the
accused may be convicted of simple illegal recruitment which is punishable with a
lower penalty under Article 39(c) of the Labor Code. Corollarily, where the offense is
committed against three or more persons, it is qualified to illegal recruitment in large
scale which provides a higher penalty under Article 39(a) of the same Code.

The position of the Solicitor General is that the conviction of appellant should be
merely for the lesser offense of simple illegal recruitment. He submits that the
Regional Trial Court of Makati erred in convicting appellant of illegal recruitment in
large scale because the conviction was based on an earlier decision of the
Metropolitan Trial Court of Paraaque where appellant was found guilty of estafa
committed against Generillo and Del Rosario.

It is argued that the Makati court could not validly adopt the facts embodied in the
decision of the Paraaque court to show that illegal recruitment was committed
against Generillo and Del Rosario as well. Illegal recruitment was allegedly proven to
have been committed against only one person, particularly, Elenita Marasigan.
Appellant, therefore, may only be held guilty of simple illegal recruitment and not of
such offense in large scale.

He further submits that the adoption by the Makati court of the facts in the decision of
the Paraaque court for estafa to constitute the basis of the subsequent conviction for
illegal recruitment is erroneous as it is a violation of the right of appellant to confront
the witnesses, that is, complainants Generillo and Del Rosario, during trial before it.
He cites the pertinent provision of Rule 115 of the Rules of Court, to wit:

Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall
be entitled:

xxx xxx xxx

(f) To confront and cross-examine the witnesses against him at the trial. Either
party may utilize as part of its evidence the testimony of a witness who is deceased,
out of or cannot, with due diligence be found in the Philippines, unavailable or
otherwise unable testify, given in another case or proceeding, judicial or
administrative, involving the same parties and subject matter, the adverse party having
had the opportunity to cross-examine him.

xxx xxx xxx

It will be noted that the principle embodied in the foregoing rule is likewise found in
the following provision of Rule 130:

Sec. 47. Testimony or deposition at a former proceeding. The testimony or
deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-
examine him.

Under the aforecited rules, the accused in a criminal case is guaranteed the right of
confrontation. Such right has two purposes: first, to secure the opportunity of cross-
examination; and, second, to allow the judge to observe the deportment and
appearance of the witness while testifying. 27

This right, however, is not absolute as it is recognized that it is sometimes impossible
to recall or produce a witness who has already testified in a previous proceeding, in
which event his previous testimony is made admissible as a distinct piece of evidence,
by way of exception to the hearsay rule. 28 The previous testimony is made
admissible because it makes the administration of justice orderly and expeditious. 29

Under these rules, the adoption by the Makati trial court of the facts stated in the
decision of the Paraaque trial court does not fall under the exception to the right of
confrontation as the exception contemplated by law covers only the utilization of
testimonies of absent witnesses made in previous proceedings, and does not include
utilization of previous decisions or judgments.

In the instant case, the prosecution did not offer the testimonies made by complainants
Generillo and Del Rosario in the previous estafa case. Instead, what was offered,
admitted in evidence, and utilized as a basis for the conviction in the case for illegal
recruitment in large scale was the previous decision in the estafa case.

A previous decision or judgment, while admissible in evidence, may only prove that
an accused was previously convicted of a crime. 30 It may not be used to prove that
the accused is guilty of a crime charged in a subsequent case, in lieu of the requisite
evidence proving the commission of the crime, as said previous decision is hearsay.
To sanction its being used as a basis for conviction in a subsequent case would
constitute a violation of the right of the accused to confront the witnesses against him.

As earlier stated, the Makati court's utilization of and reliance on the previous
decision of the Paraaque court must be rejected. Every conviction must be based on
the findings of fact made by a trial court according to its appreciation of the evidence
before it. A conviction may not be based merely on the findings of fact of another
court, especially where what is presented is only its decision sans the transcript of the
testimony of the witnesses who testified therein and upon which the decision is based.

Furthermore, this is not the only reason why appellant may not be held liable for
illegal recruitment in large scale. An evaluation of the evidence presented before the
trial court shows us that, apart from the adopted decision in the previous estafa case,
there was no other basis for said trial court's conclusion that illegal recruitment in
large scale was committed against all three complainants.

The distinction between simple illegal recruitment and illegal recruitment in large
scale are emphasized by jurisprudence. Simple illegal recruitment is committed where
a person: (a) undertakes any recruitment activity defined under Article 13(b) or any
prohibited practice enumerated under Articles 34 and 38 of the Labor Code; and (b)
does not have a license or authority to lawfully engage in the recruitment and
placement of workers. 31 On the other hand, illegal recruitment in large scale further
requires a third element, that is, the offense is committed against three or more
persons, individually or as a group. 32

In illegal recruitment in large scale, while the law does not require that at least three
victims testify at the trial, it is necessary that there is sufficient evidence proving that
the offense was committed against three or more persons. This Court agrees with the
trial court that the evidence presented sufficiently proves that illegal recruitment was
committed by appellant against Marasigan, but the same conclusion cannot be made
as regards Generillo and Del Rosario as well.

The testimonies of Generillo's mother, Lilia Generillo, and Del Rosario's sister,
Victoria Amin, reveal that these witnesses had no personal knowledge of the actual
circumstances surrounding the charges filed by Generillo and Del Rosario for illegal
recruitment in large scale. Neither of these witnesses was privy to the transactions
between appellant and each of the two complainants. The witnesses claimed that
appellant illegally recruited Generillo and Del Rosario. Nonetheless, we find their
averments to be unfounded as they were not even present when Generillo and Del
Rosario negotiated with and made payments to appellant.

For insufficiency of evidence and in the absence of the third element of illegal
recruitment in large scale, particularly, that "the offense is committed against three or
more persons," we cannot affirm the conviction for illegal recruitment in large scale.
Nonetheless, we agree with the finding of the trial court that appellant illegally
recruited Marasigan, for which she must be held liable for the lesser offense of simple
illegal recruitment.

Appellant's defense that she did not recruit Marasigan but merely purchased a plane
ticket for her is belied by the evidence as it is undeniable that she represented to
Marasigan that she had the ability to send people to work as factory workers in
Taiwan. Her pretext that the fees paid to her were merely payments for a plane ticket
is a desperate attempt to exonerate herself from the charges and cannot be sustained.

Furthermore, no improper motive may be attributed to Marasigan in charging
appellant. The fact that Marasigan was poor does not make her so heartless as to
contrive a criminal charge against appellant. She was a simple woman with big
dreams and it was appellant's duplicity which reduced those dreams to naught.
Marasigan had no motive to testify falsely against appellant except to tell the truth. 33

Besides, if there was anyone whose testimony needed corroboration, it was appellant
as there was nothing in her testimony except the bare denial of the accusations. 34 If
appellant really intended to purchase a plane ticket and not to recruit Marasigan, she
should have presented evidence to support this claim. Also, in her testimony,
appellant named an employee in the travel agency who was allegedly her contact
person for the purchase of the ticket. She could have presented that person, or some
other employee of the agency, to show that the transaction was merely for buying a
ticket. Her failure to do the foregoing acts belies her pretensions.

The Court likewise affirms the conviction of appellant for estafa which was
committed against Marasigan. Conviction under the Labor Code for illegal
recruitment does not preclude punishment under the Revised Penal Code for the
felony of estafa. 35 This Court is convinced that the prosecution proved beyond
reasonable doubt that appellant violated Article 315(2) (a) of the Revised Penal Code
which provides that estafa is committed:

2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits.

The evidence is clear that in falsely pretending to possess power to deploy persons for
overseas placement, appellant deceived the complainant into believing that she would
provide her a job in Taiwan. Her assurances made Marasigan exhaust whatever
resources she had to pay the placement fee required in exchange for the promised job.
The elements of deceit and damage for this form of estafa are indisputably present,
hence the conviction for estafa in Criminal Case No. 92-6154 should be affirmed.

Under the Revised Penal Code, an accused found guilty of estafa shall be sentenced
to:

. . . The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos. . . . 36

The amount involved in the estafa case is P23,000.00. Applying the Indeterminate
Sentence Law, the maximum penalty shall be taken from the maximum period of the
foregoing basic penalty, specifically, within the range of imprisonment from six (6)
years, eight (8) months and twenty-one (21) days to eight (8) years.

On the other hand, the minimum penalty of the indeterminate sentence shall be within
the range of the penalty next lower in degree to that provided by law, without
considering the incremental penalty for the amount in excess of P22,000.00. 37 That
penalty immediately lower in degree is prison correccional in its minimum and
medium periods, with a duration of six (6) months and one (1) day to four (4) years
and two (2) months. On these considerations, the trial court correctly fixed the
minimum and maximum terms of the indeterminate sentence in the estafa case.

While we must be vigilant and should punish, to the fullest extent of the law, those
who prey upon the desperate with empty promises of better lives, only to feed on their
aspirations, we must not be heedless of the basic rule that a conviction may be
sustained only where it is for the correct offense and the burden of proof of the guilt
of the accused has been met by the prosecution.

WHEREFORE, the judgment of the court a quo finding accused-appellant Lanie
Ortiz-Miyake guilty beyond reasonable doubt of the crimes of illegal recruitment in
large scale (Criminal Case No. 92-6153) and estafa (Criminal Case No. 92-6154) is
hereby MODIFIED, as follows.

1) Accused-appellant is declared guilty beyond reasonable doubt of simple
illegal recruitment, as defined in Article 38(a) of the Labor Code, as amended. She is
hereby ordered to serve an indeterminate sentence of four (4) years, as minimum, to
eight (8) years, as maximum, and to pay a fine of P100,000.00.

2) In Criminal Case No. 92-6154 for estafa, herein accused-appellant is
ordered to serve an indeterminate sentence of four (4) years and two (2) months of
prision correccional, as minimum, to eight (8) years of prision mayor, as maximum,
and to reimburse Elenita Marasigan the sum of P23,000.00.

In all other respects, the aforestated judgment is AFFIRMED, with costs against
accused-appellant in both instances.

SO ORDERED.


























































































Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION



G.R. No. 108488 July 21, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODENCIO NARCA Y GAGARIN, BENJAMIN NARCA Y GAGARIN,
RODELIO NARCA Y GAGARIN, and JAIME BALDELAMAR Y SELMO,
defendants-appellants.



FRANCISCO, J.:

For the death of Mauro Reglos, Jr. (hereinafter victim), defendants-appellants
Rodencio @ "Rudy", Benjamin, Rogelio all surnamed Narca and their brother-in-law
Jaime @ Benjamin Baldelamar were charged 1 with the following information for
murder:

That on or about the 10th day of March, 1990, between 7:00 and 8:00 in the evening,
at barangay Cavite, municipality of Guimba, province of Nueva Ecija, Republic of the
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, with treachery and evident premeditation, by conspiring,
confederating and helping one another, and taking advantage of the darkness of the
night, did then and there, willfully, unlawfully and feloniously attack, assault and
hack with bolos one MAURO REGLOS, JR., inflicting upon said victim fatal hack
wounds that caused his instantaneous death. 2

When appellants' failed in their motion to quash the above information, they filed a
motion for bail. 3 During the bail hearings on September 19, 1990, the victim's wife
Elizabeth Reglos, who was with him on that fateful night, testified on direct
examination. Defense counsel requested the court that his cross-examination of
Elizabeth be conducted on the next hearing, October 4, 1990. 4 Such cross-
examination on said date never took place because Elizabeth and her son were
bludgeoned to death on September 28, 1990. 5 After hearing, the lower court denied
bail. 6 During arraignment, appellants pleaded "not guilty". 7 Trial ensued and the
lower court thereafter rendered judgment 8 convicting appellants, the dispositive
portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered, finding the
accused Benjamin Narca y Gagarin, Rodencio "Rudy" Narca y Gagarin, Rogelio
Narca y Gagarin and Jaime "Benjamin" Baldelamar y Selmo, guilty beyond
reasonable doubt of the crime of Murder, defined and penalized under Article 248 of
the Revised Penal Code, and hereby sentences EACH of them to suffer the penalty of
LIFE IMPRISONMENT.

The said accused are likewise ordered to pay, jointly and severally, the heirs of the
deceased Mauro Reglos, Jr., the sum of P50,000.00 as indemnification fee, the sum of
P29,000.00 as actual damages and expenses, without subsidiary imprisonment in case
of insolvency, and to pay the costs.

IT IS SO ORDERED. 9

The facts given credence by the trial court are as follows: 10

. . . (O)n March 10, 1990, between 7:00 to 8:00 o'clock in the evening, after spouses
Mauro Reglos, Jr. and Elizabeth Reglos have just come from the house of the father of
Mauro Reglos, Jr. at Barangay Cavite Plum, Guimba, Nueva Ecija, who was then
sick, and on their way home to Sta. Ana, Guimba, Nueva Ecija, accused Benjamin
Narca suddenly hacked Mauro Reglos, Jr. at the back portion of his head with a long
bolo known as "panabas". When Mauro was about to fall at his back, Jaime
Baldelamar, Rogelio Narca and Rodencio "Rudy" Narca suddenly appeared, and they
took turns in hacking Mauro with bolos. When Mauro was being hacked, his wife
Elizabeth screamed for help, and Arturo Reglos and Dante Reglos responded and
arrived at the scene of the incident. They saw Benjamin, Rodencio "Rudy" and
Rogelio, all surnamed Narca, and Jaime Baldelamar, all armed with bolos, guarding
their brother Mauro Reglos, Jr. who was lying face downward, soaked with blood, but
still alive. Arturo Reglos and Dante Reglos and Elizabeth Reglos cannot approach
Mauro Reglos, Jr. because they were threatened by the Narca brothers and Jaime
Baldelamar. Two minutes after Arturo and Dante Reglos arrived, all the accused left,
but accused Rogelio Narca returned and hacked Mauro Reglos once more at his back.

On appeal to this court, appellants by way of defense (1) assail the validity of the
preliminary investigation because they were not represented therein by counsel and
was therefore deprived of due process, (2) argue that the testimony of Elizabeth
Reglos in the bail hearings should not be given credence since she was not cross-
examined, and (3) claim that pending this appeal, appellant Benjamin executed an
affidavit assuming full and sole responsibility for the victim's death but nonetheless
invokes self-defense while the other appellants in their respective affidavits state that
they were not in the scene of the crime. 11

All these defenses must fail.

On the first defense, there is nothing in the Rules which renders invalid a preliminary
investigation held without defendant's counsel. Not being a part of the due process
clause 12 but a right merely created by law, preliminary investigation if held within
the statutory limitations cannot be voided. Appellant's argument, if sustained, would
make a mockery of criminal procedure, since all that a party has to do to thwart the
validity of the preliminary investigation is for their counsel not to attend the
investigation. It must be emphasized that the preliminary investigation is not the
venue for the full exercise of the rights of the parties. This is why preliminary
investigation is not considered as a part of trial but merely preparatory thereto 13 and
that the records therein shall not form part of the records of the case in court. 14
Parties may submit affidavits but have no right to examine witnesses though they can
propound questions through the investigating officer. 15 In fact, a preliminary
investigation may even be conducted ex-parte in certain cases. 16 Moreover, in
Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine
a well grounded belief if a crime was "probably" committed by an accused. 17 In any
case, the invalidity or absence of a preliminary investigation does not affect the
jurisdiction of the court which may have taken cognizance of the information nor
impair the validity of the information or otherwise render it defective. 18

On their second defense, it is to be noted that the defense's failure to cross-examine
Elizabeth Reglos was occasioned by her supervening death. Lack of cross-
examination due to the death of the witness does not necessarily render the deceased's
previous testimony expungible. Thus, this Court in Republic v. Sandiganbayan, 19
citing Fulgado v. CA. 20 said that:

The wholesale exclusion of testimonies was too inflexible a solution to the procedural
impasse because it prejudiced the party whose only fault was to die before he could be
cross-examined. The prudent alternative should have been to admit the direct
examination so far as the loss of cross-examination could have been shown to be not
in that instance a material loss. And more compelling so in the instant case where it
has become evident that the adverse party was afforded a reasonable chance for cross-
examination but through his own fault failed to cross-examine the witness.

Where death prevents cross-examination under such circumstances that no
responsibility of any sort can be ascribed to the plaintiff or the witness, it seems a
harsh measure to strike out all that has obtained in the direct examination. (Emphasis
supplied)


Besides, mere opportunity and not actual cross-examination is the essence of the right
to cross-examine. 21 Appellants lost such opportunity when they sought the
deferment of their cross-examination of Elizabeth, and they only have themselves to
blame in forever losing that right by reason of Elizabeth's demise. This Court hold that
the right to cross-examination

is a personal one which may be waived expressly or impliedly by conduct amounting
to a renunciation of the right of cross-examination. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of it, he necessarily
forfeits the right to cross-examine and the testimony given on direct examination of
the witness will be received or allowed to remain in the record. . . . (W)aiver of the
right to cross-examine may take various forms. But the common basic principle
underlying the application of the rule on implied waiver is that the party was given the
opportunity to confront and cross-examine an opposing witness but failed to fake
advantage of if for reasons attributable to himself alone. 22 (Emphasis supplied)

We also find unmeritorious appellants' argument that Elizabeth's testimony, having
been taken during the bail hearings, cannot be used against them. Section 1(f) of Rule
115 provides that "either party may utilize as part of its evidence the testimony of a
witness who is deceased . . . given in another case or proceeding", and under Section 8
Rule 114 23 as amended by Circular 12-94 24, "evidence presented during the bail
hearings," like the testimony of deceased witness Elizabeth, are "considered
automatically reproduced at the trial" subject only to the possible recall of the
"witness for additional examination unless the witness is dead outside the Philippines
or otherwise unable to testify."

On their third defense, appellant Benjamin admits that he killed the victim but only in
self-defense and that his co-appellants, who are invoking alibi, had nothing to do with
the crime.

One who claims self-defense must prove: (a) unlawful aggression, (b) reasonable
necessity of the means employed to prevent or repel it and (c) lack of sufficient
provocation on the part of the person defending himself. 25 In the case at bench, the
foremost element of unlawful aggression is absent. Unlawful aggression presupposes
an actual or imminent danger on the life or limb of a person. Mere shouting,
intimidating or threatening attitude of the victim, assuming that to be true, does not
constitute unlawful aggression. 26 If there be any such aggression, it obviously came
from appellants. Evidence on record shows that the victim was only walking with his
wife, when he was suddenly and without warning attacked by appellants with
"panabas" and bolos. He was hit at the back of his head chopping off a part of his
skull exposing his brain. 27 Where the attack is perpetrated suddenly and without
warning, there is treachery. 28 Due to appellants' treacherous acts, the outnumbered
victim was caught by surprise and had no whimper of a chance to defend himself. 29
This satisfies the two conditions of treachery:

(a) employment of means of execution that gives the person attacked no
opportunity to defend himself or to retaliate, and

(b) that said means of execution be deliberately and consciously adopted. 30

Once the fact of alevosia was established and proven, any claim of self defense cannot
prosper for being inconsistent with treachery.

In addition, the location and severity of the fatal wounds on the head exposing the
brain 31 and the numerous other wounds suffered by the victim belie the claim of self-
defense but is indicative of a determined effort to kill. 32 Absent unlawful aggression,
there would be no occasion for the second and third elements to be present. Thus,
appellant Benjamin failed to discharge his burden of proving by clear and convincing
evidence the exculpatory cause he invokes. 33 He must rely on the strength of his own
evidence and not on the weakness of that for the prosecution, for even if the latter's
evidence is weak, it could not be disbelieved after he himself admitted the killing. 34
Accordingly, his conviction will follow from his admission as author of the crime as
well as his failure to prove self defense by the required quantum of evidence. 35

With respect to the defense of alibi by the other appellants such defense, aside
from being inherently weak and easy to fabricate, crumbles in the face of their
positive identification 36 by prosecution witnesses as being present in the scene of the
crime as well as the victim's dying declaration pointing to appellants as his assailants.

Appellants Rogelio and Rodencio's contention that they were irrigating their farm up
to the late hour of 9:00 P.M. on that fatal night is unbelievable since farm workers do
not usually work up to that late hours. They had not strictly complied with the
requirements of time and place in their alibi by failing to show that they were
somewhere else when the crime occurred and that it was physically impossible for
them to be at the scene at the covered time. 37 Worth noting is that the distance of the
houses of all appellants to the crime scene ranges from as near as 3 meters to as far as
1,500 meters, and their field is about 800 meters away or a mere 15 minute walk
therefrom. 38 Although none among the prosecution witnesses presented in the trial
proper saw the actual assault by appellants on the victim, yet one witness (Arturo
Reglos) testified that appellant Rogelio after leaving the scene returned thereto and
hacked the victim on his back one more time. 39 Appellant Jaime's denial of his
participation in the killing cannot stand against his positive identification in the scene
holding a "panabas" together with other appellants. The denial like alibi is weakened
by the overwhelming evidence on record supporting a judgment of conviction.

The circumstantial evidence on record also points to appellants' guilt. Pursuant to
Section 3 of Rule 133 conviction may be had on circumstantial evidence considering
that the requisites thereof were satisfied herein, to wit:

there is more than one circumstance

the facts from which the inference are derived are proven; and

the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. 40

The following undisputed facts when combined produce a logical conclusion pointing
to appellants' culpability: (a) their presence in the scene of the crime at about 6:30 to
7:00 PM, (b) they were holding sharp instruments like bolos or "panabas", (c) they
were talking to each other after the hacking of the victim with appellant Benjamin
telling his co-appellants that he will be the only one who will admit responsibility, (d)
they prevented and threatened the rescuing wife and brothers of the victim to come
near the latter's prostrate body. 41 (e) they all left together, (f) they were positively
identified by prosecution witnesses, (g) the medical examination showed that the
victim's wounds were caused by sharp or sharpened instruments 42 like the blood-
stained "panabas" appellants were seen holding.

Further damaging appellants avowed innocence is the testimony of Arturo Reglos that
when he approached the victim who was already lying on the ground soaked in his
own blood, the latter told the former that he was hacked and attacked by appellants.
The victim even told witness Arturo why the appellants did this to him when he had
no fault. This is a clear case of a dying declaration the elements for its admissibility
are as follows:

(a) the declaration must concern the crime and surrounding circumstances of
the declarant's death;

(b) it was made at a time when the declarant was under a consciousness of an
impending death;

(c) the declarant would have been competent to testify had he survived;

(d) the declaration is offered in any case in which the decedent is the victim. 43

All these elements are present in this case. The victim's declaration pertains to the
hacking incident particularly the identity of his assailants. Such declaration was made
when the declarant is certain that his death is at hand, considering the degree or the
wounds in his opened skull and that death supervened shortly afterwards. The rules
does not require that the declarant must first state explicitly his perception of the
inevitability of his death so long as the circumstances would justify a conclusion that
the is conscious of his condition. 44 Further, the declarant was not incompetent to
testify since he possess personal knowledge of the facts and could make known such
knowledge to others just what he did. Competency to testify means ability to
perceive, to retain what has been perceived and to express what has been retained.
Thus, the statement of the victim has the vestiges of a dying declaration and even if
not, there can be no doubt about its admissibility as part of the res gestae. 45

With respect to the qualifying circumstances of evident premeditation and nighttime,
the same were not proven and are not supported by evidence on record. To appreciate
evident premeditation three elements must be established:

(1) the time when the offender determined to commit the crime;

(2) an act manifestly indicating that the offender had clung to his
determination; and

(3) a sufficient lapse of time between the determination to commit the crime
and the execution thereof, to allow the offender to reflect upon the consequences of
his act. 46

The records are bereft of direct evidence that appellants concocted and deliberately
executed any plan or preparation to kill the victim. 47 The prosecution failed to prove
evident premeditation by evidence as clear as the crime itself. 48 With respect to the
circumstance of nighttime, the mere fact that the crime was committed at about 6:30-
7:00 p.m. does not prove that appellants used the darkness of the night to facilitate
their evil design. 49 Again the record is silent whether appellants took advantage of or
purposely sought 50 nocturnity or that it facilitated the perpetration of their felonious
acts. 51 Be that as it may, nighttime is absorbed in treachery. 52

As to the allegation of conspiracy, this is sustained by evidence on record. The victim
was first hacked on the back by appellant Benjamin and then almost simultaneously
by the other appellants. After the victim fell to the ground with blood oozing from his
wounds, appellants were seen talking with each other and even left the crime scene
together. Although, conspiracy like the crime must be proven beyond doubt, 53 it
need not be established by direct proof. 54 So long as the acts of the conspirators are
characterize by unity of purpose, intent and
design 55 in order to effect a common unlawful objective 56 conspiracy exists as
such fact may be inferred from the coordinated acts and movements of the co-
conspirators. 57 Appellants' action implicitly showed unity of purpose among them
a concerted effort to bring about the death of the victim. 58 Having established
conspiracy, all the appellants are answerable as co-principals regardless of their
degree of participation. 59 Thus, it becomes secondary 60 and unnecessary to
determine who inflicted the fatal wounds 61 the act of one is the act of all and that
all must suffer for their acts. 62

At any rate, the appeal assails the factual findings of the trial court which are
generally accorded great weight and respect on appeal, especially since in this case,
such findings are supported by substantial evidence on record. 63 Likewise, the
evaluation and assessment of credibility of witness is best left to the trial court judge
because of his unique position of having observed that elusive and incommunicable
evidence of the witnesses deportment on the stand, which opportunity is denied to the
reviewing court. 64 As aptly observed by the trial court:

[T]he testimonies of the accused and their witnesses, aside from being self-serving,
improbable, hard to believe, and (sic) not in accordance with common knowledge and
experience of mankind.

On the other hand, the testimonies of prosecution witness Elizabeth Reglos and the
other witnesses Arturo Reglos and Dante Reglos are very revealing, straight to the
point, probable and consistent. 65

No cogent reasons or material circumstances were shown to have been overlooked,
misunderstood or disregarded by the trial court, which if considered will vary the
outcome of the case. 66

Before we conclude, it is erroneous for the trial court to impose on appellants "life
imprisonment" as it is nowhere in the scheme of penalties in the Revised Penal Code
67 nor is it a penalty similar to "reclusion perpetua". 68 The appealed judgment is
dated September 1992. As early as 1948, the Court had made it clear that reclusion
perpetua is not the same as life imprisonment, and that "no trial judge should mistake
one for the other". 69 This ruling was reiterated in the case of People v. Baguio
promulgated on April 30, 1991. 70 It is for this reason that Supreme Court
Administrative Circular 6-A-92 (dated June 21, 1993) which amended Circular 6-92
(dated October 12, 1992) enjoins trial judges to strictly observe the distinction
between life imprisonment and reclusion perpetua in order to curb the erroneous
practice of using them interchangeably in the imposition of penalty in serious offenses
like murder.

Prior to the Heinous Crimes Law (R.A. 7659) the penalty for murder was "reclusion
temporal maximum to death". 71 In accordance with the graduation of penalties in
Article 63, when there is neither mitigating nor aggravating circumstance, as in this
case, the penalty is the medium period which is reclusion perpetua.

WHEREFORE, subject to the modification that each appellant shall suffer the penalty
of reclusion perpetua and not life imprisonment, the appealed decision of the Regional
Trial Court of Guimba, Nueva Ecija convicting appellants Rodencio, Benjamin,
Rogelio all surnamed Narca and Jaime Baldelamar of murder and the imposition of
the monetary awards are AFFIRMED.

SO ORDERED.





























































































Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-29271 August 29, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADELINO BARDAJE, defendant-appellant.



MELENCIO-HERRERA, J.:

The accused ADELINO Bardaje in this case, after trial, has been convicted of
Forcible Abduction with Rape, and sentenced to death. The case is before us on
automatic review.

On December 20, 1965, MARCELINA Cuizon lodged the following complaint with
the Court of First Instance of Samar against ADELINO and five (5) others 'namely,
Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter
called the FIVE OTHERS):

The undersigned complainant, after having been duly sworn to according to law,
accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and
Fidel Ansuas of the crime of Rape, committed as follows:

That on or about the period from the 14th day to 17th day of December, 1965, in Bo.
Lopig, Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused, conspiring, confederating together and
helping one another, with lewd design, by means of force and intimidation, and at
nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina
Cuizon from the house of one Norma Fernandez and brought her to a far away place
and once there, accused Adelino Bardaje, by means of force and intimidation forcibly
had sexual intercourse with her several times while his co-accused were on guard.

Contrary to law. (Emphasis supplied).

ADELINO was arrested on December 17th, and it was on December 20th, when he
signed the alleged confession, Exhibit "C", admitting having kidnapped and molested
MARCELINA, 1 which was probably the basis for MARCELINA's complaint,
presumably prepared with the help of the Fiscal. What has been noticed is that, in
Exhibit "C", ADELINO had mentioned that, besides the FIVE OTHERS, a sixth,
Domingo Odal, was with the group when MARCELINA was "kidnapped". There is
no indication in the record as to why Domingo Odal was not included in
MARCELINA's complaint as one of the accused.

The following day, December 21st, the Fiscal's office filed the following Information
with the Court:

The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate,
Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with
Illegal Detention committed as follows:

That on or about the period from the 14th day to 17th day of December, 1965, in Bo.
Crossing, Municipality of Sta. Rita, Province of Samar, Philippines and within the
jurisdiction of this Honorable court the above-named accused, conspiring,
confederating together and helping one another, with Lucio Malate, Pedro Odal,
Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means of force
and intimidation, armed with bolos and at nighttime, did then and there wilfully,
unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from
the house of one Norma Fernandez and brought her to a far away place and once
there, accused Adelino Bardaje, by means of force and intimidation forcibly had
sexual intercourse with her for several times while his co-accused were on guard.

That the commission of the crime the aggravating circumstances that it was
committed in an uninhabited place and with the aid of armed men, were present.
(Emphasis supplied).

It will be noted that the complaint filed directly by MARCELINA with the Court was
amended by the Fiscal in the Information. While MARCELINA charged ADELINO
only with Rape, the Fiscal charged him with "Rape with Illegal Detention".
MARCELINA merely alleged that she was dragged from the house of Norma
Fernandez by means of force and intimidation and at nighttime. On the other hand, the
Information added that the accused were "armed with bolos". The name of the barrio
was also changed from Lopig to Crossing. Lastly, the Information included the
allegation that the crime of Rape with Illegal Detention was committed with the
"aggravating circumstances that it was committed in an uninhabited place and with
the aid of armed men".

Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only
ADELINO stood trial. The period of the offense was from December 14th to 17th,
with the complaint having been filed on December 20th, or barely three (3) days
thereafter. With that time frame in mind, an analysis of the Information will show the
assumption that only ADELINO was the principal culprit while the FIVE OTHERS
were either principals by cooperation or accomplices. Thus, the clause "with" Lucio
Malate, Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it
was ADELINO who had dragged MARCELINA "with" the help of the FIVE
OTHERS. Both the complaint and Information also indicated that ADELINO was the
only one who committed the rape, while the FIVE OTHERS were merely
accomplices.

On June 2, 1966, before the arraignment of ADELINO, the Information was amended
to include the allegation that MARCELINA was detained and deprived of liberty for a
period of th0ree (3) days, which allegation could be taken into account in connection
with Illegal Detention 2 but not in connection with Forcible Abduction. 3 Since
according to Exhibit "C", MARCELINA was "kidnapped" at midnight of December
14th, and ADELINO was arrested in the morning of December 17th, or an interval of
less than 72 Hours, it could not be correctly pleaded that MARCELINA was deprived
of liberty for three (3) days. 4

After the trial was concluded, ADELINO's lawyer submitted his Memorandum on
July 26, 1967, in which he specifically argued that "the prosecution did not establish
the elements of Rape and Illegal Detention as prescribed by Articles 335 and 267 of
the Revised Penal Code." It was only in the Memorandum of the Fiscal, dated July 27,
1967, when the position was taken that the crime which should be imputed to
ADELINO is Rape with Forcible Abduction. The prosecution's Memorandum stated:

Although the information is for Rape with Illegal Detention instead of Rape with
Forcible Abduction, yet from the body of the information it could be clearly gleaned
that the elements of abduction are sufficiently alleged therein and hence the accused
can be convicted thereunder (People vs. Emiliano Javete, CA 01956-57-CR April 7,
1964 (82-1965).

The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible
Abduction with Rape with the aggravating circumstances of dwelling and aid of
armed men, and sentenced him to death.

The version of complainant MARCELINA Cuizon, 14 years of age, is that in
December, 1965, she and her mother were living in the house of her aunt, Sofia
Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as a beautician. At
7:00 o'clock in the evening of December 14, 1965 while she was then eating supper,
ADELINO, whom she knew when they were "still small", and who was her classmate
in Grade II (1960), accompanied by the FIVE OTHERS, entered the house and began
drinking "sho hoc tong" which they brought along. After the liquor had been fully
consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She then
ran to the room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and
Adriano Odal, followed her, tried to extricate her from her mother's embrace and
dragged the two of them to the sala. Pedro Odal choked the mother's neck thereby
loosening her hold on the daughter and the four males, two of whom were armed with
bolos, forced her downstairs and by holding and dragging her, brought her to the
mountain about two kilometers from Barrio Crossing. That was about 12 midnight.
On the way, ADELINO slapped her rendering her unconscious. She regained
consciousness in a hut, with ADELINO holding her hands, and removing her panty.
She bit and kicked him. Despite her struggle, ADELINO succeeded in having sexual
intercourse with her while his other companions stayed outside on guard.

Under cross-examination, MARCELINA declared that she did not know who owned
the hut and that it was just a one-room affair where a woman and two small children
lived; that she and Appellant slept in that same room as the woman, while the FIVE
OTHERS slept near the kitchen. 5

At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE
OTHERS brought her to another mountain, 6 kilometers farther, arriving there past
twelve o'clock noon at the house of one called Ceferino (also called Cipriano) who
lived there with his family. She was kept in one room. Outside the room were Pedro
Odal, Adriano Odal and Fidel Ansuas, still armed with bolos, drinking and guarding
her. In the evening, ADELINO had another sexual intercourse with her even though
she bit and kicked him and shouted for help which was to no avail as all present were
relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita
(daughter of Ceferino) the next day, because ADELINO threatened to kill her if she
did not. Her curling paraphernalia was taken by Adriano Odal, upon ADELINO's
instructions, from Norma Fernandez (her cousin) who gave the equipment as she
(Norma) was also threatened. MARCELINA and her "captors" stayed in Ceferino's
house for two days. In the morning of December 17, two soldiers with her father,
Alejo Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE
OTHERS jumped down the window and fled. Upon her father, she embraced him and
cried. They all returned to Barrio Crossing. She and her mother, Maria Fernandez,
then went to Catbalogan, where she filed a complaint at the Fiscal's Office on
December 20, 1965 and submitted to a medical examination at the Samar Provincial
Hospital.

When cross-examined, Complainant admitted that Ceferino, his wife. and seven
children were living in the same hut where she was taken the second time, which hut
was about waist high from the ground, consisted of one room, 3 x 2 meters, a sala, 6 x
3 meters, and a kitchen. Between the room and the sala was a wall of split bamboos so
that noise inside the room could be heard clearly from the other side. 6

Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared
that he examined MARCELINA on December 20, 1965 and issued a Medical
Certificate with the following findings:

1. No evidence of external injuries around the vulva or any part of the body.

2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.

3. Vagina easily admits two fingers.

4. Vaginal smear negative for spermatozoa 7

Explaining the "old healed laceration", the doctor stated that laceration may have been
caused by possible sexual intercourse or other factors, and if it were intercourse, he
estimated that it could have occured " say, two weeks or one month" or possibly more.
8

For his part, ADELINO, aged 18, admitted having had carnal knowledge of
MARCELINA but denied having raped her. He claims that they eloped on December
14 to 17, 1965 as previously planned, they having been sweethearts since November
12, 1964. As such, they used to date in Tacloban and "anything goes".
MARCELINA's family used to have a house in Barrio Crossing but now
MARCELINA just stays in the house of her aunt, Sofia, which is about five houses
away from theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's
mother and others were eating, MARCELINA handed him a bag and beauty culture
equipment through the window, went downstairs, after which the two of them walked
to the mountains, to Ceferino Armada's house. Ceferino was a cousin of ADELINO's
mother. He and MARCELINA slept in the bedroom with 18-year old Narita,
Ceferino's daughter. While in that hut, food was brought to them by his sister, Nenita.
MARCELINA curled Narita's hair the next day.

In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by
MARCELINA's father, Alejo Cuizon, apprehended him for having kidnapped
MARCELINA. The latter ran to him and embraced him and said she was to blame.
notwithstanding, he was boxed by the soldiers as instructed by MARCELINA's father
and taken to Maulong PC Headquarters for questioning. During the investigation, he
was boxed and kicked and was forced to sign a statement implicating the FIVE
OTHERS as his companions even if untrue. He did not know who attested to his
statement as one Sgt. Gacelos took the document elsewhere.

Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was
allegedly forcibly brought the second time, corroborated that portion of ADELINO's
testimony regarding their stay in his house adding that MARCELINA and ADELINO
had told him that they had eloped; that MARCELINA even offered to curl his
daughter's hair (Narita's and Concepcion's), and helped in house chores and in the
threshing of palay, while ADELINO helped in carrying palay because it was rainy.

The trial Court found the prosecutors version of the incident more worthy of credence
stating that Complainant had no improper motive to implicate ADELINO in such a
detestable crime as Rape.

On the basis of the evidence, testimonial and documentary, we find that the guilt of
ADELINO has not been established beyond reasonable doubt.

In crimes against chastity, the conviction or acquittal of an accused depends almost
entirely on the credibility of a complainant's testimony since by the intrinsic nature of
those crimes they usually involve only two persons the complainant and the
accused. The offended party's testimony, therefore, must be subjected to thorough
scrutiny for a determination of its veracity beyond reasonable doubt.

In the instant case, we find MARCELINA's charge that she was forcibly abducted and
afterwards raped by ADELINO in conspiracy with FIVE OTHERS highly dubious
and inherently improbable.

To start with, according to the medical findings, "no evidence of external injuries was
found around the vulva or any part of the body" of Complainant, a fact which is
strange, indeed, considering that Complainant was allegedly "dragged" slapped" into
unconsciousness, "wrestled" with, and criminally abused. Physical evidence is of the
highest order and speaks more eloquently than an witnesses put together. We are also
faced with the medical finding of "old healed lacerations" in the hymen which,
according to the testimony of the examining physician would have occurred two
weeks or even one month before if said lacerations had been caused by sexual
intercourse. This expert opinion bolsters the defense that MARCELINA and
ADELINO had previous amorous relations at the same time that it casts serious
doubts on the charge of intercourse by force and intimidation.

Secondly, by Complainant's own admission, the first hut she was taken to was a small
one-room affair occupied by a woman and two small children. Her charge, therefore,
that she was ravished in that same room is highly improbable and contrary to human
experience.

Thirdly, from her own lips, Complainant testified that the second hut where she was
taken, that of Ceferino Armada, consisted of a small room separated from the sala by
a wall of split bamboos. Further, that Ceferino with his wife and seven children all
lived therein. It challenges human credulity that she could have been sexually abused
with so many within hearing and distance. It is unbelievable, too, that under those
circumstances the FIVE OTHERS could have stood guard outside, armed with bolos
and drinking, while ADELINO allegedly took advantage of her. If rape were, indeed,
their malevolent intent, they would, in all probability, have taken turns in abusing her.
That they did not, indicates that there was, indeed, some special relationship between
MARCELINA and ADELINO. Furthermore, with people around, and the hut
constructed as it was, it would have been an easy matter for MARCELINA to have
shouted and cried for help. Surely, the old man Ceferino, his wife and/or his children
could not have been insensible to her outcries notwithstanding their relationship to
ADELINO. The aphorism still rings true that evidence to be believed must not only
come from the mouth of a credible witness but must be credible in itself.

Additionally, Complainant admits that she even curled the hair of Narita, one of
Ceferino's daughters, a fact inconsistent with her allegation of "captivity". That she
was threatened with death if she did not accede to such an inconsequential request
defies credulity. The livelihood is that, as the defense maintains, MARCELINA was
not forcibly abducted but that she and ADELINO had, in fact, eloped and that she had
brought her beauty culture paraphernalia with her, or, that she herself had sent for
them from her cousin Norma Fernandez voluntarily and not under threat from
ADELINO.

The totality of the foregoing circumstances count with such great weight and
significance that they lend an aura of improbability and reasonable doubt to the
allegation that MARCELINA had been "kidnapped" or "illegally detained" and that
when she and ADELINO engaged in sexual intercourse, it was because of force or
intimidation exercised upon her. They are circumstances that were overlooked by the
trial Court and justify a reversal of its finding of guilt as an exception to the
established rule that the findings of fact of a trial Judge based on the relative
credibility of witnesses are entitled to great respect and will not be disturbed by
appellate Courts.

This case also constitutes an exception to the general belief that a young girl would
not expose herself to the ordeal of public trial if she were not motivated solely by a
desire to have the culprit who had ravished and shamed her placed behind bars. As we
view it, MARCELINA was confronted with a paradoxical situation as a daughter of
relative tender age who could not shamefacedly admit to her parents that she had
eloped and voluntarily submitted to sexual intercourse, since that elopement must
have met with righteous indignation on the part of her parents. As a result,
MARCELINA was faced with no other choice but to charge ADELINO with rape or
incur the ire of her parents and social disrepute from a small community.

In respect of the alleged confession of ADELINO, suffice it to re-state that "an
extrajudicial confession made by an accused shag not be sufficient ground for
conviction unless corroborated by evidence of corpus delicti. 9 Corpus delicti is
proved when the evidence on record shows that the crime prosecuted had been
committed. That proof has not been met in the case at bar, the evidence establishing
more of an elopement rather than kidnapping or illegal detention or forcible
abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when
being investigated by soldiers, 10 without benefit of counsel nor of anyone to advise
him of his rights. Aside from his declaration that Ws confession was obtained through
maltreatment and violence, 11 it was also vitiated by a procedural irregularity testified
to by no less than prosecution witness Sgt. Pedro Gacelos to the effect that he and
room after he presented the statement to the Clerk of Court, Mr. Rojas. 12 There is
reason to believe, therefore that the so called confession was attested without
ADELINO's presence so that the latter cannot be said to have duly subscribed and
sworn to it.

It should also be noted that throughout the hearings before the trial Court, it was
assumed that ADELINO was being held responsible for the complex crime of Rape
with Illegal Detention. While it is true that an accused can be punished for a crime
described by the facts alleged in tile Information despite a wrong designation of the
crime in the preamble of the Information, 13 yet, in capital cases, it should be
desirable that, whenever a discrepancy is noted between the designation of the crime
made by the Fiscal and the crime described by the facts pleaded in his Information.
The lower Court should call attention of the accused to the discrepancy, so that the
accused may be fully apprised of the nature and cause of the accusation against him.
This was not done in regards to ADELINO who all the time was under the impression
that he was being tried for Rape with Illegal Detention, and not for Forcible
Abduction with Rape. If ADELINO had known that he was being tried for Forcible
Abduction with Rape, he may have changed the strategy or tactics of his defense. Not
that it could be said he would have done so; but he should have been advised he had
the right, and given the opportunity, to do so.

Again, one of the rights of an accused is "to have compulsory process issued to secure
the attendance of witnesses on his behalf. 14 ADELINO had stated that, while
MARCELINA was in the house of Ceferino Armada, she curled the hair of Narita.
one of the latter's children, as well as the hair of other girls in the vicinity.

ADELINO wanted to have Narita testify on his behalf, and a subpoena had been
issued to her. But instead of taking effective steps to have Narita brought to Court, the
lower court gave responsibility for Narita's attendance to the defense, expressly
stating that, if the defense was not able to bring her to the Court, her testimony will be
dispensed with. The record shows:

ATTY. BOHOL

I appear as counsel for the accused. Up to now, Your Honor, the witnesses we have
been expecting have not yet arrived. This representation, with the consent of the Clerk
of Court have wired the Chief of Police of Sta. Rita, Samar to bring Ceferino Armada
and Narita Armada tomorrow for the hearing, continuation of this case for those
persons mentioned to testify, your Honor, for the accused. We pray, Your Honor, that
we be given time to hear from the Chief of Police to bring those persons tomorrow,
Your Honor.

COURT

What will be the nature of the testimonies of those witnesses.

xxx xxx xxx

COURT

How about the other girl?

ATTY. BOHOL

Narita Armada will substantially be corroborative, Your Honor.

COURT

Suppose the two witnesses do not arrive tomorrow, for which this case is set also?

ATTY. BOHOL

If we receive information and find that those witnesses could really not come for this
case, Your Honor, I will be constrained to submit the case for decision based on the
testimony of the accused. However, Your Honor, if it will be all right with the
Honorable Court and we find that there is hope that within this week Ceferino
Armada could come here, in view of the distance, I pray before the Honorable Court
that we be given time within this week to present Ceferino Armada, and upon his
failure, submit the case for decision

COURT

The Court will not allow that anymore, anyway this case is set for tomorrow. The
Court wail grant the postponement today on condition that any witness not presented
tomorrow will be considered waived Afterall as you have manifest, 4 their testimonies
will be corroborative.

xxx xxx xxx

COURT

What I mean is that you should have taken the necessary precaution for the attendance
of your witness today considering that there is a subpoena for the witnesses.-

ORDER - for the reason that accused have no more witnesses to present today, the
trial of this case is hereby Postponed for tomorrow, July 26, 1967 at 8:30 A.M., with
the warning that witnesses not presented during that day shall be considered waived.
15

Considering that this case involved a prosecution for a capital offense, the lower
Court acted precipitously in not having Narita brought to Court, by ordering her arrest
if necessary ADELINO was deprived of his right "to have compulsory process issued
to secure the attendance of witnesses on his behalf."

Crucial questions should also have been asked by the trial Court of witnesses.
MARCELINA testified before the lower Court on December 1, 1966. On December
12, 1966, P Gacelos, the PC Sgt. who investigated the complaint against ADELINO,
testified:

Q. Was that investigation of M Cuizon reduced to writing?

A. Yes, Sir. 16

It would have been advisable if the lower Court had right then and there asked for the
production of the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had sexual
intercourse previous to December 14th. On the other hand, ADELINO had testified
that he and MARCELINA used to go together to Tacloban, and while there several
times, "we had sexual intercourse because she likes it." 17 Considering the possible
infliction of the death penalty on ADELINO, the lower Court could have asked
MARCELINA if she had had sexual intercourse prior to December 14th and, if so, if
it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really been
sweethearts. The lower Court could have asked MARCELINA if she realized that,
charging ADELINO with Rape with Illegal Detention, the latter could be sentenced to
death. If that had been explained to her clearly by the lower Court, she might then
have admitted that she was neither raped nor "kidnapped" nor illegally detained.

MARCELINA could had been examined on the two matters mentioned above, with
the Court excluding the public from the hearing under the provisions of Rule 119,
Section 14. MARCELINA might have testified without feeling the pressure of her
relatives or other persons, if such pressure had in fact existed.

It may not be amiss to state then that just as in pleas of guilty where a grave offense is
charged trial Judges have been enjoined to refrain from accepting them with alacrity
but to be extra solicitous in seeing to it that an accused fully understands the import of
his plea, so also, in prosecutions for capital offenses, it behooves the trial Courts to
exercise greater care in safeguarding the rights of an accused. The trial Judge should
also take a more active role by means of searching questions in the examination of
witnesses for the ascertaintment of the truth and credibility of their testimonies so that
any judgment of conviction imposing the supreme penalty may rest on firm and
unequivocal grounds. The life and liberty of an individual demand no less.

WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the
death penalty, is reversed and the appellant, Adelino Bardaje, acquitted of the crime
with which he is charged. His immediate release is ordered unless lie is held on other
charges.


Costs de oficio.

SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero, Abad
Santos and De Castro, JJ., concur.

Makasiar, * J., took no part.





Separate Opinions



AQUINO, J., dissenting:

I dissent. The following is a summary of the facts proven by the prosecution, as set
forth in the brief filed by Solicitor General Felix Q. Antonio, Assistant Solicitor
General Crispin V. Bautista and Solicitor Santiago M. Kapunan:

In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old
beautician was in the house of her aunt, Sofia Fernandez, located at Barrio Crossing,
Santa Rita, Samar.

At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez
were taking supper, six persons, namely, Adelino Bardaje, Silvino Odal, Pedro Odal,
Adriano Odal, Fidel Ansuas and Lucio Malate, all accused in this case, entered the
house bringing with them some bottles of Sho Hoc Tong, a locally manufactured
liquor.

Once inside the house, the accused began drinking the liquor. After consuming the
liquor, Silvino Odal put out the light by breaking the kerosene lamp. Afraid of what
the men would do, Marcelina and her mother went inside the bedroom but the accused
followed them and grabbed Marcelino While Marcelina was shouting for help, Maria
laid aside the baby whom she was carrying and put her arms tightly around Marcelino
in a desperate effort to protect her.

The accused dragged both mother and daughter into the sala. To take away Marcelino
from her mother's tenacious grasp, Fidel Ansuas aimed his bolo at Maria, threatening
to strike her, while Pedro Odal put his hands around her neck and squeezed it with
such force that Maria became unconscious, thus releasing Marcelina from her
protective embrace.

Then, the accused bodily carried Marcelina into the street and brought her to a hut in
the mountain two kilometers away. On the way, Marcelina lost consciousness after a
vigorous struggle to free herself from the accused and after Bardaje had slapped her
violently.

When Marcelina regained consciousness, she found herself in a hut with Bardaje in
the act of removing her underwear. She fought energetically to resist Bardaje's
advances by biting and kicking him, but all to no avail because she was no match to
his physical strength. Bardaje held her hands and consummated sexual intercourse
with her.

On the following day, December 15, Bardaje and his five companions brought
Marcelino to the house of one Cipriano where she was ravished two times. She was
held captive in the house of Cipriano for two days until she was rescued by
Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her father.

Bardaje was taken to the Constabulary headquarters in Catbalogan where he was
investigated. Bardaje admitted that he and his companions forcibly abducted
Marcelina and brought her to a hut in the mountain where he raped her. His admission
was reduced to writing and sworn to by him (Exh-C to C3).

Marcelina was brought to the Samar Provincial Hospital where she underwent a
medical examination.

Bardaje was the only one arrested and tried. The crime charged in the information is
the complex crime of "rape with Legal detention".

There may be some reasonable doubt as to the commission of rape because of the
finding that the victim was no longer a virgin when the incident took place, the
absence of external injuries on the victim's body and the claim of Bardaje that he with
the victim in Tacloban City.

But there is no doubt that Bardaje and his companions committed kidnapping and
serious illegal detention of a minor as well as of a "female", an offense penalized in
article 267(4) of the Revised Penal Code with reclusion perpetua to death.

Republic Act No. 18 specifically made kidnapping of a minor and a woman a capital
offense in order to deter the kidnapping of minors and women, a crime which was
very rampant after liberation.

The victim might have been a girl, who, like many teenagers of today, does not
safeguard her virtue or chastity and easily succumbs to the temptation of the flesh.
(Time Magazine reports that at the Puerta del Sol in Madrid, Spain, there is a
billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo
excepto la tentacion.")

Bardaje and his companions grievously and brazenly deprived the victim of her
liberty by forcibly taking her against her will and the will of her mother and detaining
her in a hut in the mountain. (See People vs. Ablaza, L-27352, October 31, 1969,30
SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching Suy Siong and
Mata, 97 Phil. 989.)

The victim, being a minor, was still under parental authority. Her parents were
entitled to her custody and to keep her in their company. They were obligated to take
care of her and to see to it that her rights were respected.

Even a layman would deduce from the manner in which the victim was snatched and
detained, that the accused committed an outrageous and wrongful act which should be
drastically punished. To acquit them would be a miscarriage of justice.

I vote for the imposition of reclusion perpetua on the accused and the imposition of an
indemnity of P10,000.





Separate Opinions

AQUINO, J., dissenting:

I dissent. The following is a summary of the facts proven by the prosecution, as set
forth in the brief filed by Solicitor General Felix Q. Antonio, Assistant Solicitor
General Crispin V. Bautista and Solicitor Santiago M. Kapunan:

In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old
beautician was in the house of her aunt, Sofia Fernandez, located at Barrio Crossing,
Santa Rita, Samar.

At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez
were taking supper, six persons, namely, Adelino Bardaje, Silvino Odal, Pedro Odal,
Adriano Odal, Fidel Ansuas and Lucio Malate, all accused in this case, entered the
house bringing with them some bottles of Sho Hoc Tong, a locally manufactured
liquor.

Once inside the house, the accused began drinking the liquor. After consuming the
liquor, Silvino Odal put out the light by breaking the kerosene lamp. Afraid of what
the men would do, Marcelina and her mother went inside the bedroom but the accused
followed them and grabbed Marcelino While Marcelina was shouting for help, Maria
laid aside the baby whom she was carrying and put her arms tightly around Marcelino
in a desperate effort to protect her.

The accused dragged both mother and daughter into the sala. To take away Marcelino
from her mother's tenacious grasp, Fidel Ansuas aimed his bolo at Maria, threatening
to strike her, while Pedro Odal put his hands around her neck and squeezed it with
such force that Maria became unconscious, thus releasing Marcelina from her
protective embrace.

Then, the accused bodily carried Marcelina into the street and brought her to a hut in
the mountain two kilometers away. On the way, Marcelina lost consciousness after a
vigorous struggle to free herself from the accused and after Bardaje had slapped her
violently.

When Marcelina regained consciousness, she found herself in a hut with Bardaje in
the act of removing her underwear. She fought energetically to resist Bardaje's
advances by biting and kicking him, but all to no avail because she was no match to
his physical strength. Bardaje held her hands and consummated sexual intercourse
with her.

On the following day, December 15, Bardaje and his five companions brought
Marcelino to the house of one Cipriano where she was ravished two times. She was
held captive in the house of Cipriano for two days until she was rescued by
Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her father.

Bardaje was taken to the Constabulary headquarters in Catbalogan where he was
investigated. Bardaje admitted that he and his companions forcibly abducted
Marcelina and brought her to a hut in the mountain where he raped her. His admission
was reduced to writing and sworn to by him (Exh-C to C3).

Marcelina was brought to the Samar Provincial Hospital where she underwent a
medical examination.

Bardaje was the only one arrested and tried. The crime charged in the information is
the complex crime of "rape with Legal detention".

There may be some reasonable doubt as to the commission of rape because of the
finding that the victim was no longer a virgin when the incident took place, the
absence of external injuries on the victim's body and the claim of Bardaje that he with
the victim in Tacloban City.

But there is no doubt that Bardaje and his companions committed kidnapping and
serious illegal detention of a minor as well as of a "female", an offense penalized in
article 267(4) of the Revised Penal Code with reclusion perpetua to death.

Republic Act No. 18 specifically made kidnapping of a minor and a woman a capital
offense in order to deter the kidnapping of minors and women, a crime which was
very rampant after liberation.

The victim might have been a girl, who, like many teenagers of today, does not
safeguard her virtue or chastity and easily succumbs to the temptation of the flesh.
(Time Magazine reports that at the Puerta del Sol in Madrid, Spain, there is a
billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo
excepto la tentacion.")

Bardaje and his companions grievously and brazenly deprived the victim of her
liberty by forcibly taking her against her will and the will of her mother and detaining
her in a hut in the mountain. (See People vs. Ablaza, L-27352, October 31, 1969,30
SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching Suy Siong and
Mata, 97 Phil. 989.)

The victim, being a minor, was still under parental authority. Her parents were
entitled to her custody and to keep her in their company. They were obligated to take
care of her and to see to it that her rights were respected.

Even a layman would deduce from the manner in which the victim was snatched and
detained, that the accused committed an outrageous and wrongful act which should be
drastically punished. To acquit them would be a miscarriage of justice.

I vote for the imposition of reclusion perpetua on the accused and the imposition of an
indemnity of P10,000.

Footnotes













G.R. No. 72335-39 March 21, 1988
FRANCISCO S. TATAD, petitioner,
vs.
THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

YAP, J .:
In this petition for certiorari and prohibition, with preliminary injunction, dated October 16,
1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7,
1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and
September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing
with the trial or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502
and 10503, an entitled "People of the Philippines versus Francisco S. Tatad."
The petition alleges, among other things, that sometime in October 1974, Antonio de los
Reyes, former Head Executive Assistant of the then Department of Public Information (DPI)
and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the
Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then
Secretary and Head of the Department of Public Information, with alleged violations of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Apparently, no action was taken on said report.
Then, in October 1979, or five years later, it became publicly known that petitioner had
submitted his resignation as Minister of Public Information, and two months after, or on
December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case
No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the
conduct of his office as then Secretary of Public Information. The complaint repeated the
charges embodied in the previous report filed by complainant before the Legal Panel,
Presidential Security Command (PSC).
On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E.
Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to
the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980,
Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his
Investigation Report, with the following conclusion, ". . . evidence gathered indicates that
former Min. TATAD have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the
other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and
recommended appropriate legal action on the matter.
Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution
by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for
reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and
counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the
Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor
Marina Buzon, recommending that the following informations be filed against petitioner
before the Sandiganbayan, to wit:
l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a
private corporation controlled by his brother-in-law, unwarranted benefits,
advantage or preference in the discharge of his official functions through
manifest partiality and evident bad faith;
2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check
of P125,000.00 from Roberto Vallar, President/General Manager of Amity
Trading Corporation as consideration for the release of a check of
P588,000.00 to said corporation for printing services rendered for the
Constitutional Convention Referendum in 1973;
3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to
file his Statement of Assets and Liabilities for the calendar years 1973,
1976 and 1978.
Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan
against the petitioner:
Re: Criminal Case No. 10499
The undersigned Tanodbayan Special Prosecutor accuses Francisco S.
Tatad with Violation of Section 3, paragraph (b) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on or about the 16th day of July, 1973 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being then the Secretary of the Department (now
Ministry) of Public Information, did then and there, wilfully and
unlawfully demand and receive a check for Pl25,000.00 from Roberto
Vallar, President/General Manager of Amity Trading Corporation as
consideration for the payment to said Corporation of the sum of
P588,000.00, for printing services rendered for the Constitutional
Convention Referendum of January, 1973, wherein the accused in his
official capacity had to intervene under the law in the release of the funds
for said project.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on May 16, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10500
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practice Act, committed as follows:
That on or about the 31st day of January, 1974 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true detailed and sworn statement of his assets and liabilities,
as of December 31, 1973, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses
and the amount of income taxes paid for the next preceding calendar year
(1973), as required of every public officer.
That the complaint against the above-named accused was flied with the
Office of the Tanodbayan on June 20, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10501
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 3, paragraph (e) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on or about the month of May, 1975 and for sometime prior thereto,
in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer being then
the Secretary of the Department (now Ministry) of Public Information, did
then and there, wilfully and unlawfully give Marketing Communication
Group, Inc. (D' Group), a private corporation of which his brother-in-law,
Antonio L. Cantero, is the President, unwarranted benefits, advantage or
preference in the discharge of his official functions, through manifest
partiality and evident bad faith, by allowing the transfer of D' GROUP of
the funds, assets and ownership of South East Asia Research Corporation
(SEARCH), allegedly a private corporation registered with the Securities
and Exchange Corporation on June 4, 1973, but whose organization and
operating expenses came from the confidential funds of the Department of
Public Information as it was organized to undertake research, projects for
the government, without requiring an accounting of the funds advanced by
the Department of Public Information and reimbursement thereof by D'
GROUP, to the damage and prejudice of the government.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on May 16, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10502
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 31st day of January, 1977 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true and sworn statement of his assets and liabilities, as of
December 31, 1976, including a statement of the amounts of his personal
and family expenses and the amount of income taxes paid for the next
preceding calendar year (1976), as required of every public officer.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on June 20, 1988.
CONTRARY TO LAW.
Re: Criminal Case No. 10503
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 15th day of April, 1979, in the City of Manila
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true, detailed and sworn statement of his assets and liabilities,
as of December 31, 1978, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses
and the amount of income taxes paid for the next preceding calendar year
(1978), as required of every public officer.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on June 20, 1980.
CONTRARY TO LAW.
On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the
informations on the follow grounds:
1 The prosecution deprived accused-movant of due process of law and of
the right to a speedy disposition of the cases filed against him, amounting
to loss of jurisdiction to file the informations;
2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500
and 10501;
3. The facts charged in Criminal Case No. 10500 (for failure to file
Statement of Assets and Liabilities for the year 1973) do not constitute an
offense;
4. No prima facie case against the accused-movant exists in Criminal
Cases Nos. 10500, 10502 and 10503;
5. No prima facie case against the accused-movant exists in Criminal Case
No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended;
6. No prima facie case against the accused-movant exists in Criminal Case
No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended.
On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to
quash, stating therein in particular that there were only two grounds in said motion that needed
refutation, namely:
1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501,
have already prescribed and criminal liability is extinguished; and
2. The facts charged in the information (Criminal Case No. 10500 For
failure to file Statement of Assets and Liabilities for the year 1973) do not
constitute an offense.
On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals,
122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office
interrupts the period of prescription. Since the above-numbered cases were filed with the
Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973,
January 31, 1974 and in May 1975, respectively, although the charges were actually filed in
Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it
appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan
pointed out that a law such as Batas Pambansa Blg. 195, extending the period of limitation
with respect to criminal prosecution, unless the right to acquittal has been acquired, is
constitutional.
Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and
Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of
the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person
having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "...
regardless of the networth," the mandate in the latter law is for ALL government employees
and officials to submit a statement of assets and liabilities. Hence, the prosecution under these
two laws are separate and distinct from each other. Tanodbayan also explained that delay in
the conduct of preliminary investigation does not impair the validity of the informations filed
and that neither will it render said informations defective. Finally, Tanodbayan added that P.D.
911, the law which governs preliminary investigations is merely directory insofar as it fixes a
period of ten (10) days from its termination to resolve the preliminary investigation.
On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's
motion to quash, the dispositive portion of which reads:
WHEREFORE, prescinding therefrom, We find, and so hold, that the
accused's "Consolidated Motion to Quash" should be as it is hereby,
denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985
Rules on Criminal Procedure, the defect in the information in Criminal
Case No. 10500 being one which could be cured by amendment,
the Tanodbayan is hereby directed to amend said information to change
the date of the alleged commission of the offense therein charged
fromJanuary 31, 1974 to September 30, 1974 within five (5) days from
receipt hereof.
SO ORDERED.
On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985,
the Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date
of the commission of the offense to September 30, 1974.
On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was
denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on
October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court,
without giving due course the petition, resolved to require the respondents to comment thereon
and issued a temporary restraining order effective immediately and continuing until further
orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from
continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501,
10502 and 10503. In compliance with said resolution, the respondents, through ,Solicitor
General Estelito P. Mendoza, filed their comment on January 6, 1986.
On April 10, 1986, the Court required the parties to move in the premises considering the
supervening events, including the change of administration that had transpired, and the
provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were
concerned, which requires the successor official to state whether or not he maintains the action
or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan
manifested that since "the charges are not political offenses and they have no political bearing
whatsoever," he had no alternative but to pursue the cases against the petitioner, should the
Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing
any other legal remedies under the law, such as the filing of a motion for re-evaluation of his
cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27,
1986 in which he concurred with the position taken by the new Tanodbayan.
Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for
re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in
question be re-evaluated and the informations be quashed. The Court is not aware of what
action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the
filing of the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing
insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned.
Petitioner has raised the following issues in his petition:
1. Whether the prosecution's long delay in the filing of these cases with
the Sandiganbayan had deprived petitioner of his constitutional light to
due process and the right to a speedy disposition of the cases against him.
2. Whether the crimes charged has already prescribed.
3. Whether there is a discriminatory prosecution of the petitioner by the
Tanodbayan.
4. Whether Sandiganbayan should have ruled on the question of amnesty
raised by the petitioner.
5. Whether petitioner's contention of the supposed lack or non- existence
of prima facie evidence to sustain the filing of the cases at bar justifies the
quashal of the questioned informations.
Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due
process" and "speedy disposition of cases" in unduly prolonging the termination of the
preliminary investigation and in filing the corresponding informations only after more than a
decade from the alleged commission of the purported offenses, which amounted to loss of
jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed
petitioner's contention, saying that the applicability of the authorities cited by him to the case
at bar was "nebulous;" that it would be premature for the court to grant the "radical relief"
prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue
delay" do not suffice to justify acceptance thereof without any showing "as to the supposed
lack or omission of any alleged procedural right granted or allowed to the respondent accused
by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or
abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that
such facts and circumstances as would establish petitioner's claim of denial of due process and
other constitutionally guaranteed rights could be presented and more fully threshed out at the
trial. Said the Sandiganbayan:
That there was a hiatus in the proceedings between the alleged termination
of the proceedings before the investigating fiscal on October 25, 1982 and
its resolution on April 17, 1985 could have been due to certain factors
which do not appear on record and which both parties did not bother to
explain or elaborate upon in detail. It could even be logically inferred that
the delay may be due to a painstaking an gruelling scrutiny by
the Tanodbayan as to whether the evidence presented during the
preliminary investigation merited prosecution of a former high-ranking
government official. In this respect, We are the considered opinion that the
provision of Pres. Decree No. 911, as amended, regarding the resolution of
a complaint by the Tanodbayan within ten (10) days from termination of
the preliminary investigation is merely "directory" in nature, in view of the
nature and extent of the proceedings in said office.
The statutory grounds for the quashal of an information are clearly set
forth in concise language in Rule 117, Section 2, of the 1985 Rules on
Criminal Procedure and no other grounds for quashal may be entertained
by the Court prior to arraignment inasmuch as it would be itself remiss in
the performance of its official functions and subject to the charge that it
has gravely abused its discretion. Such facts and circumstances which
could otherwise justify the dismissal of the case, such as failure on the part
of the prosecution to comply with due process or any other
constitutionally-guaranteed rights may presented during the trial wherein
evidence for and against the issue involved may be fully threshed out and
considered. Regrettably, the accused herein attempts to have the Court
grant such a radical relief during this stage of the proceedings which
precludes a pre-cocious or summary evaluation of insufficient evidence in
support thereof.
This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional
right to due process and the right to "speedy disposition" of the cases against him as
guaranteed by the Constitution? May the court, ostrich like, bury its head in the sand, as it
were, at the initial stage of the proceedings and wait to resolve the issue only after the trial?
In a number of cases,
1
this Court has not hesitated to grant the so-called "radical relief" and to
spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear
that he has been deprived of due process of law or other constitutionally guaranteed rights. Of
course, it goes without saying that in the application of the doctrine enunciated in those cases,
particular regard must be taken of the facts and circumstances peculiar to each case.
Coming to the case at bar, the following relevant facts appear on record and are largely
undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report"
with the Legal Panel of the Presidential Security Command (PSC) on October 1974,
containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public
Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC
until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a
falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979,
the 1974 complaint was resurrected in the form of a formal complaint filed with the
Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the
complaint on April 1, 1980-which was around two months after petitioner Tatad's resignation
was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security
Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the
Tanodbayan, recommending the filing of charges for graft and corrupt practices against former
Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counter-
affidavits were in the case was already for disposition by the Tanodbayan. However, it was
only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the
ring of the corresponding criminal informations against the accused Francisco Tatad. Five (5)
criminal informations were filed with the Sandiganbayan on June 12, 1985, all against
petitioner Tatad alone.
A painstaking review of the facts can not but leave the impression that political motivations
played a vital role in activating and propelling the prosecutorial process in this case. Firstly,
the complaint came to life, as it were, only after petitioner Tatad had a falling out with
President Marcos. Secondly, departing from established procedures prescribed by law for
preliminary investigation, which require the submission of affidavits and counter-affidavits by
the complainant and the respondent and their witnesses, the Tanodbayan referred the
complaint to the Presidential Security Command for finding investigation and report.
We find such blatant departure from the established procedure as a dubious, but revealing
attempt to involve an office directly under the President in the prosecutorial process, lending
credence to the suspicion that the prosecution was politically motivated. We cannot emphasize
too strongly that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends or
other purposes alien to, or subversive of, the basic and fundamental objective of serving the
interest of justice even handedly, without fear or favor to any and all litigants alike, whether
rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established
procedure may the public's perception of the of the prosecutor be enhanced.
Moreover, the long delay in resolving the case under preliminary investigation can not be
justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period
for the prosecutor to resolve a case under preliminary investigation by him from its
termination. While we agree with the respondent court that this period fixed by law is merely
"directory," yet, on the other hand, it can not be disregarded or ignored completely, with
absolute impunity. It certainly can not be assumed that the law has included a provision that is
deliberately intended to become meaningless and to be treated as a dead letter.
We find the long delay in the termination of the preliminary investigation by the Tanodbayan
in the instant case to be violative of the constitutional right of the accused to due process.
Substantial adherence to the requirements of the law governing the conduct of preliminary
investigation, including substantial compliance with the time limitation prescribed by the law
for the resolution of the case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the
due process clause, but under the constitutional guarantee of "speedy disposition" of cases as
embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the
inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three
(3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining
in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the
long delay by indulging in the speculative assumption that "the delay may be due to a
painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented
during the preliminary investigation merited prosecution of a former high ranking government
official." In the first place, such a statement suggests a double standard of treatment, which
must be emphatically rejected. Secondly, three out of the five charges against the petitioner
were for his alleged failure to file his sworn statement of assets and liabilities required by
Republic Act No. 3019, which certainly did not involve complicated legal and factual issues
necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three
years in terminating the preliminary investigation. The other two charges relating to alleged
bribery and alleged giving of unwarranted benefits to a relative, while presenting more
substantial legal and factual issues, certainly do not warrant or justify the period of three years,
which it took the Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating the preliminary investigation should
not be deemed fatal, for even the complete absence of a preliminary investigation does not
warrant dismissal of the information. True-but the absence of a preliminary investigation can
be corrected by giving the accused such investigation. But an undue delay in the conduct of a
preliminary investigation can not be corrected, for until now, man has not yet invented a
device for setting back time.
After a careful review of the facts and circumstances of this case, we are constrained to hold
that the inordinate delay in terminating the preliminary investigation and filing the information
in the instant case is violative of the constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against him. Accordingly, the informations in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of
the foregoing, we find it unnecessary to rule on the other issues raised by petitioner.
Accordingly, the Court Resolved to give due course to the petition and to grant the same. The
informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People
of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining
order issued on October 22, 1985 is made permanent.
SO ORDERED.