FIRST DIVISION [G.R. No. 180504, October 05, 2011] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.

EDWIN ULAT Y AGUINALDO @ PUDONG, ACCUSED-APPELLANT. DECISION LEONARDO-DE CASTRO, J.:

This is an appeal of the Decision[1] dated May 30, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01800 entitled, People of the Philippines v. Edwin Ulat y Aguinaldo @ Pudong, which affirmed the Decision[2] dated October 12, 2005 of the Regional Trial Court (RTC) of Makati, Branch 65, in Criminal Case No. 03-597. In said RTC Decision, the trial court found appellant Edwin Ulat y Aguinaldo @ Pudong guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 and imposed upon him the penalty of life imprisonment as well as a fine of Five Hundred Thousand Pesos (P500,000.00). In an Information[3] dated February 11, 2003, appellant was charged with violation of Section 5, Article II of Republic Act No. 9165, as set forth below: That on or about the 10th day of February 2003, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, without the necessary license or prescription and without being authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and distribute Methylamphetamine Hydrochloride, a dangerous drug, weighing zero point zero two (0.02) gram, in consideration of P100.00. Appellant pleaded "not guilty" to the charge leveled against him when arraigned on March 3, 2003.[4] Thereafter, trial commenced. The prosecution's version of the events leading to appellant's arrest and his being charged with the above-mentioned offense was summarized as follows: On February 10, 2003, a confidential informant relayed information regarding the illegal drug pushing activities of one alias Pudong along Seabird Street, Barangay Rizal, Makati City to Barangay Chairman Dreu, head of the Makati Anti-Drug Abuse Council (MADAC, for brevity) Cluster 6 (TSN, Aug. 6, 2003, p. 5). Consequently, the MADAC Cluster 6, in coordination with the Makati Police Drug Enforcement Unit (Makati DEU, for brevity), met and decided to go to the place of alias Pudong at Seabird Street, Barangay Rizal, Makati City to verify if alias Pudong is indeed selling illegal drugs and to conduct an entrapment operation under the supervision of PO1 Randy Santos. During the briefing, it was agreed that one of the MADAC volunteers, Armando Pol-ot (Pol-ot, for brevity), together with the confidential informant, would act as poseur-buyer and buy illegal drugs from alias Pudong that very same day. The pre-arranged signal for the back-up team to know that the transaction was already consummated would be the

poseur-buyer's act of lighting a cigarette. The buy-bust money was then marked and was handed to the poseur-buyer (TSN, Aug. 6, 2003, pp. 6-8, 10; TSN, Aug. 10, 2005, p. 9). Thus, at about 7:15 p.m. of February 10, 2003, Pol-ot and the confidential informant went to Seabird Street, Barangay Rizal, Makati City on foot while the rest of the team rode a tricycle and followed the two. Upon reaching the place, the members of the back-up team positioned themselves 10 to 15 meters from where Pol-ot and the confidential informant were, so they could see the transaction take pace (TSN, Aug. 10, 2005, pp. 10-12). Meanwhile, Pol-ot, who was then accompanied by the confidential informant, approached alias Pudong and was introduced by the informant as a buyer in need of shabu. Alias Pudong asked how much and Pol-ot replied "Piso lang naman", meaning One Hundred Pesos only. Thereafter, alias Pudong took the marked money and left. Upon his return, he handed Pol-ot a small plastic sachet containing suspected substance. Pol-ot then gave the pre-arranged signal and lighted a cigarette, signifying that the transaction was consummated (TSN, Aug. 6, 2003, pp. 9-10). Upon seeing the pre-arranged signal, PO1 Santos and Rogelio Patacsil (Patacsil, for brevity) approached alias Pudong and apprehended him. Pol-ot then identified himself as member of the MADAC. Alias Pudong was then ordered to empty the contents of his pockets and the marked money was recovered. PO1 Santos immediately asked alias Pudong his real name. PO1 Santos then informed him of the nature of his arrest and apprised him of his Constitutional rights in Tagalog. Thereafter, alias Pudong was brought to the barangay hall of Barangay Rizal to have the incident listed in the barangay blotter. The confiscated substance contained in the plastic sachet which Pol-ot bought from alias Pudong was then marked "EUA" (TSN, Aug. 6, 2003, pp. 23-24; TSN, Aug. 10, 2005, pp. 13-15) Subsequently, alias Pudong was brought to the Makati DEU office for proper investigation. The duty investigator prepared a request for laboratory examination of the specimen (the substance contained in the plastic sachet bought from the accused) marked "EUA" and a drug test for the accused (TSN, Aug. 6, 2005, pp. 15-16). P/Insp. Richard Allan B. Mangalip conducted the laboratory examination on the contents of the plastic sachet marked "EUA" and it tested positive for Methylamphetamine Hydrochloride (TSN, May 6, 2003, pp. 4-9). The following day, or on 11 February 2003, PO1 Santos and MADAC volunteers Pol-ot and Patacsil executed a sworn statement entitled "Pinagsanib na Salaysay ng Pag-aresto" in connection to the buybust operation which led to the arrest of appellant Edwin Ulat y Aguinaldo alias Pudong (TSN, Aug. 10, 2005, pp. 16-18; Records, p. 6).[5] On the other hand, the defense narrated a different version of the incident, to wit: In the evening of 10 February 2003, at about 7:30 o'clock p.m., the accused, EDWIN ULAT (Ulat for brevity), was at home watching television when he saw five (5) to seven (7) men in front of their door whom he thought were looking for someone. He approached them and asked who they were looking for. Suddenly, a gun was poked at him and he was told to go with them to the barangay hall. Ulat then asked who they were but he was told not to ask question or else he might get hurt. Two (2) of the men forced him out of the house. He resisted but he was punched in the stomach and was dragged towards a blue Revo. The accused was likewise asked if he knew a certain Sandy. He denied knowing the said person. He was brought to the barangay hall and then to the Criminal Investigation Division (CID).[6]

After due proceedings, the trial court convicted appellant of violation of Section 5, Article II of Republic Act No. 9165 in its Decision dated October 12, 2005. The dispositive portion of said Decision reads: THE FOREGOING CONSIDERED, the court is of the opinion and so holds accused Edwin Ulat y Aguinaldo guilty beyond reasonable doubt of the offense charged. He is hereby sentenced to life imprisonment and is fined the sum of five hundred thousand pesos (Php500,000.00) without subsidiary imprisonment in case of insolvency. The period of detention of the accused should be given full credit. Let the dangerous drug subject matter of this case be disposed of in the manner provided for by law.[7] On review, the Court of Appeals, in its Decision dated May 30, 2007, affirmed the ruling of the trial court and disposed of the appeal in this wise: WHEREFORE, premises considered, appeal is hereby DISMISSED for lack of merit and EDWIN ULAT y AGUINALDO should be made to suffer the penalty correctly imposed by the trial court.[8] Hence, appellant interposed the present appeal with this Court wherein he submits the following assignment of errors: I THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY WITH VIOLATION OF SECTION 5, ARTICLE II OF R.A. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE OFFENSE CHARGED BEYOND REASONABLE DOUBT. II THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCONSISTENT AND CONTRADICTING TESTIMONIES OF THE PROSECUTION WITNESSES.[9] In the instant petition, appellant's chief argument highlights the fact that the witnesses for the prosecution allegedly presented conflicting testimonies on material points regarding the chain of custody of the illegal drug taken from appellant, resulting in the failure of the prosecution to sufficiently establish the corpus delicti and engendering doubt as to appellant's guilt. In light of the attendant circumstances in the case at bar, the argument is persuasive. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. This basic constitutional principle is fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. However, an appeal throws the whole case open for review such that the Court may, and generally does, look into the entire records if only to ensure that no fact of weight or substance has been overlooked, misapprehended, or misapplied by the trial court.[10] Moreover, owing to the built-in dangers of abuse that a buy-bust operation entails, the law prescribes specific procedures on the seizure and custody of drugs, independently of the general procedures geared to ensure that the rights of people under criminal investigation and of the accused facing a criminal charge are safeguarded.[11]

In this regard, Section 21, paragraph 1, Article II of Republic Act No. 9165 states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. Furthermore, Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 expounds on the aforementioned provision of law: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures;Provided, further, that noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. In the crime of sale of dangerous drugs, the prosecution must be able to successfully prove the following elements: "(1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor."[12] Similarly, it is essential that the transaction or sale be proved to have actually taken place coupled with the presentation in court of evidence of corpus delicti which means the "actual commission by someone of the particular crime charged."[13] A meticulous review of the records of this case has led us to the conclusion that the prosecution failed to demonstrate with moral certainty that the identity and integrity of the prohibited drug, which constitutes the corpus delicti, had been duly preserved. First, the records reveal that the prosecution did not establish the exact location where the confiscated illegal drug was marked and the identity of the person who marked it because of contradicting testimonies from the prosecution's witnesses. According to witness Armando Pol-ot (Pol-ot), a Makati Anti-Drug Abuse Council (MADAC) civilian volunteer who acted as poseur-buyer in the entrapment operation, it was Police Officer 1 Randy Santos (PO1 Santos), the leader of the buy-bust team, who placed the marking on the confiscated sachet of shabu that was obtained from appellant. The relevant portion of the transcript is quoted here: Q: Why do you say it is the same plastic sachet containing white crystalline substance delivered to you by alias Pudong? A: Because of the markings, sir. Q: And who placed these markings? A: PO1 Santos, sir.

Q: Where were you when PO1 Santos placed these markings in this plastic sheet? A: In front of him. Q: Now, can you tell us what is that marking placed by PO1 Santos? A: Name of the accused. Q: What is that mark, Mr. Witness? A: Edwin Ulat Y Aguinaldo. Q: Can you read these markings? A: E.U.E. (sic)[14] This testimony contradicts what Pol-ot declared in the Pinagsanib na Salaysay ng Pag-aresto or the Joint Affidavit of Arrest[15] which was executed by the members of the buy-bust team on February 11, 2003. The pertinent portion of which reads: Na, ang aking (Madac Armando Pol-ot) nabiling isang sachet na naglalaman ng pinaghihinalaang shabu mula kay @ Pudong ay aking minarkahan sa harapan ng mga akusado ng inisyal na "EUA" (subject of sale) bago ito isinumite sa PNP Crime Laboratory Field Office para sa kaukuilang (sic) pagsisiyasat.[16] When confronted by the defense counsel about this discrepancy, Pol-ot merely surmised that it might be the product of typographical error, to wit: Q: You mentioned that it was Santos who made the markings on the sachet EAU, is that correct? A: Yes, sir. Q: You were present when Santos placed these markings? A: Yes, sir. Q: Are you sure? A: Yes, sir. Q: Very, very sure. A: Yes, sir. Q: I am just wondering Mr. Witness, in your Pinagsanib na Salaysay ng Pag aresto, the second to the last sentence, and I quote; "Na, ang aking (Madac Armando Pol-ot) nabiling isang sachet na naglalaman ng pinaghihinalaang shabu mula ka @ Pudong ay aking minarkahan sa harapan ng mga akusado na inisyal na "EUA" (subject of sale). Mr. Witness, your testimony earlier and your affidavit, is conflicting, which is correct, your testimony or your affidavit?

A: PO1 Santos marked, sir. Q: So your affidavit is not true? PROS. SALAZAR: In so far as the marking is concerned, not all affidavit, your Honor. PROS. SALAZAR: Q: This paragraph is not true? THE COURT: Read your affidavit. A: Maybe it's just typographical error, sir. Q: Who prepared this affidavit, Mr. Witness? A: At the DEU office, sir. Q: Did you read this affidavit before you sign? A: Not any more, sir. THE COURT: You did not read? A: No, your honor. Q: How did you know if it's right? A: I reviewed it after several days. THE COURT: After you signed, you read it after signing? A: Yes, sir.[17] However, when it was PO1 Santos' turn to testify, he discredited Pol-ot's testimony with regard as to who marked the confiscated sachet of shabu: Q: Why do you say this is the same plastic sachet containing white crystalline substance purchased from the accused in this case? A: Because of the marking EUA, sir.

Q: And who placed this marking, Mr. Witness? A: Armando Pol-ot, sir. Q: Where were you when this marking were placed, Mr. Witness? A: In front of him, sir. Q: By the way what does that marking EUA represents, Mr. Witness? A: Edwin Ulat y Aguinaldo, sir.[18] Indubitably, this conspicuous variance in the testimonies for the prosecution casts serious doubt on the arresting team's due care in the custody of the confiscated illegal drug. Worse, the foregoing is not the only instance of conflict between the narrations of Pol-ot and PO1 Santos with regard to the handling of the confiscated sachet ofshabu. In his testimony, Pol-ot declared that he was present when an inventory report of the confiscated illegal drug, which is required by Section 21 of Republic Act No. 9165, was prepared by PO1 Santos at the barangay hall where they brought appellant immediately after arresting him. The pertinent portion of his testimony reads: Q: Did you make any inventory report to the item that was allegedly confiscated from the accused? A: Yes, sir. Q: Where is your inventory report? A: With the police, then brought to the Crime Laboratory for examination? Q: Inventory report, you examine the inventory report to the crime lab? A: The item that was confiscated. Q: Were you present when this police made this inventory report? A: Yes, sir at the Barangay. Q: Can you tell us the name of the police who made the inventory report? A: PO1 Santos, sir. Q: Again, Santos? A: Yes, sir.[19] On the other hand, PO1 Santos emphatically denied ever making any inventory report:

Q: Did you make an inventory of those items that were confiscated? A: None, ma'am.[20] Furthermore, when Pol-ot was asked by the defense counsel if the confiscated sachet of shabu was photographed, as mandated by Section 21 of Republic Act No. 9165, he answered in the affirmative, and, when asked by the trial court if the accused was present when this was being done as required by the law, he likewise answered yes to the query, as can be gleaned from this portion of the transcript: Q: Did you photograph the item that was confiscated from the accused? A: Yes, sir. Q: Who was the photographer? A: Our companion, sir. Q: Who? A: Mr. Baisa, sir. Q: When you took the picture of the item, who were present? PROS. SALAZAR: Misleading, your Honor. He was not the one who took the pictures. THE COURT: When the pictures were taken who were present? A: My teammates. THE COURT: With the accused? A: He was present, but they photographed only the items confiscated from him, your Honor. Q: The items only. A: Yes, your honor.[21] However, PO1 Santos did not corroborate Pol-ot's claim and instead testified that: Q: Do you take photos of the items that were recovered, Mr. Witness? A: None, ma'am.[22]

Taking into consideration all the conflicting accounts of Pol-ot and PO1 Santos, the Court believes that any reasonable mind would entertain grave reservations as to the identity and integrity of the confiscated sachet of shabu submitted for laboratory examination. As likewise correctly raised by appellant, apart from the testimony that PO1 Santos turned over the accused to an unnamed duty inspector,[23] the prosecution evidence does not disclose with clarity how the confiscated sachet passed hands until it was received by the chemical analyst at the Philippine National Police (PNP) crime laboratory. In other words, the prosecution could not present an unbroken chain of custody for the seized illegal drug. In Zaragga v. People,[24] we held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. Thus, the accused were acquitted due to the prosecution's failure to indubitably show the identity of the shabu. In People v. Sitco,[25] we enumerated other occasions wherein acquittal was proper for failure of the prosecution to establish a complete chain of custody, such as: In a string of cases, we declared that the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before it was finally offered in court, fatally conflicts with every proposition relative to the culpability of the accused. As in People v. Partoza, this case suffers from the failure of the prosecution witness to provide the details establishing an unbroken chain of custody. In Partoza, the police officer testifying did not relate to whom the custody of the drugs was turned over. The evidence of the prosecution likewise did not disclose the identity of the person who had the custody and safekeeping of the drugs after its examination and pending presentation in court.[26](Emphases supplied; citations omitted.) We are not unaware of existing jurisprudence holding that non-compliance by the apprehending/buybust team with Section 21 of Republic Act No. 9165 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[27] It is this assurance of evidentiary integrity that is lacking in the case at bar. Thus, as a consequence thereof, appellant's acquittal from the criminal charge against him would be in order. Recently, we held that the unjustified failure of the police officers to show that the integrity of the object evidence - shabu - was properly preserved negates the presumption of regularity accorded to acts undertaken by them in the pursuit of their official duties.[28] As a rule, the testimony of arresting police officers in drug cases is accorded faith and credit because of the presumption that they have performed their duties regularly.[29] Slight infractions or nominal deviations by the police from the prescribed method of handling the corpus delicti should not exculpate an otherwise guilty defendant.[30] However, in the present case, there were not merely trifling lapses in the handling of the evidence taken from the accused but the prosecution could not even establish what procedure was followed by the arresting team to ensure a proper chain of custody for the confiscated prohibited drug.

WHEREFORE, premises considered, the assailed Decision dated May 30, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01800 is REVERSED and SET ASIDE. For failure of the prosecution to prove his guilt beyond reasonable doubt, appellant Edwin Ulat y Aguinaldo is ACQUITTED of the crime charged. Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City, who is ORDERED to cause the immediate release of appellant, unless he is being lawfully held for another cause, and to inform this Court of action taken thereon within ten (10) days from notice. SO ORDERED. Corona, C.J., (Chairperson), Bersamin, Del Castillo, and Villarama, Jr., JJ., concur. ________________________________________ [1] Rollo, pp. 2-14; penned by Associate Justice Andres B. Reyes, Jr. with Associate Justices Jose C. Mendoza (now a member of this Court) and Ramon M. Bato, Jr., concurring.

SECOND DIVISION [G. R. No. 193234, October 19, 2011] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO MARTIN Y CASTANO, ACCUSED-APPELLANT. DECISION SERENO, J.:
Before us on automatic review is the Decision of the Court of Appeals (CA) affirming the trial court's conviction of the accused for the sale of methylamphetamine hydrochloride or shabu. Accused cries foul, alleging extortion and citing various irregularities in the prosecution's evidence and in the conduct of the alleged buy-bust operation. On 13 November 2006, an Information was filed against Roberto Martin y Castano alias Inpet (Martin) for violation of Section 5, Article II of Republic Act (RA) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, in the following manner: That on or about November 6, 2006, in the City of Manila, Philippines, the said accused, not being authorized by law to sell, trade, deliver, or give away to another, any dangerous drug, did then and there willfully, unlawfully and knowingly sell or offer for sale ZERO POINT ZERO FIVE THREE (0.053) gram of white crystalline substance known as shabu, containing methylamphetamine hydrochloride which is a dangerous drug. Contrary to law. The case was docketed as Criminal Case No. 06-248053 and was raffled to the Regional Trial Court (RTC), Branch 2, Manila presided over by Judge Alejandro G. Bijasa. Martin pleaded not guilty to the charge during arraignment. Trial ensued with the prosecution presenting the testimonies of Police Officer 3 (PO3) Rodolfo Ong and Senior Police Officer 1 (SPO1) Jose Mora. Meanwhile, the defense presented the testimonies of Juvilyn Caletisen, Jimmy Garote, and accused Martin himself. According to the prosecution, the buy-bust operation and the subsequent events which led to the filing of the information against the accused were as follows: SPO1 Mora testified that after they received information from a confidential informant,[1] who came to their office "at around 5:30 p.m." of 6 November 2006,[2]the Pre-Operation Report/Coordination Sheet was prepared on the same day. On re-direct, SPO1 Mora stated that the informant came to their office

at 5:00 p.m.[3] On the other hand, SPO3 Ong testified that they prepared the Pre-Operation Report/Coordination Sheet on 6 November 2006 "on or about 2:00 to 3:00p.m."[4]and that they submitted this document to the Philippine Drug Enforcement Agency (PDEA) at "around 2:30 p.m."[5] The confidential informant was neither identified nor presented in court. A photocopy of the Pre-Operation Report/Coordination Sheet provisionally marked Exhibit "D" on 4 September 2007[6] (the original was never presented in court) showed that it was received by "SPO4 Mariano" of "PDEA-MMRO" but the date and time of receipt was not indicated in the space so provided. Assuming that the date and time of receipt by the PDEA-MMRO of the coordination document was either one of three faint stamps marked on the face thereof,[7] it received the said document hours ahead of the arrival of the confidential informant to the police station. The Pre-Operation Report/Coordination Sheet named six (6) police officers as part of the team led by Senior Police Inspector Joselito Binayug. They planned on using six (6) vehicles, three (3) of them SUVs, to perform the operation against alias "Inpet" in the area broadly identified as "MPD AOR (PS1 to PS 11)". After accomplishing the Pre-Operation Report/Coordination Sheet, the police officers testified that they proceeded to Oro-B, Pandacan, Manila accompanied by the informant. SPO1 Mora confirmed that he was designated as the poseur buyer, and that he was given the P100.00 marked money which he himself marked at the right hand portion with "DAID".[8] SPO1 Mora narrated that he arrived at the site together with the informant on board his car. The informant alighted from the car and, before he could reach Martin who was standing along Oro-B Street, the latter waved at the informant to come near.[9] SPO1 Mora then approached Martin together with the informant who introduced him to Martin as a buyer of P100.00 worth of shabu. Simultaneously, SPO1 Mora handed the P100.00 to Martin while the latter gave him a small plastic sachet.[10] SPO1 Mora grabbed Martin and introduced himself as a police officer while PO3 Ong assisted him with a body search of Martin. The police officers testified that the pre-arranged signal to indicate the consummation of the buy bust operation was the arrest of the accused.[11] Only the poseur-buyer, SPO1 Mora, and the confidential informant were with Martin minutes prior to the latter's arrest. SPO3 Ong confirmed that he was 10 to 15 meters away from SPO1 Mora and Martin while the meeting was taking place such that he could not "ascertain what was going on between the poseur buyer, SPO1 Mora and the accused"[12] and that he was the only police officer who assisted SPO1 Mora during the arrest, as the other police officers were left inside their respective vehicles[13] and were "very far" from him.[14] On the other hand, the defense witnesses testified as follows: The accused denied that he is alias Inpet, or that he gave PO1 Mora a plastic sachet containing shabu.[15] He testified that on 6 November 2006, he was working at the junkshop with Jimmy Garrote whom he later invited for lunch at his house nearby. They were about to enter the alley near Oro-B when the accused's neighbor, Juvilyn Caletisen, called out to talk with him.[16] A certain Jayrold was also in the alley. It was then that six policemen arrived and forced them to go with the police.[17] When asked what their offense was, the police replied that they could explain their side at the precinct.[18] Juvilyn Caletisen corroborated this with her testimony that six armed persons arrived at the alley near their house in Oro-B before lunch while she was conversing with the accused.[19] They arrested the accused, herself, Jimmy, Jayrold, and a certain Brian[20] and brought them to the police headquarters where they were detained for a night.

In their respective testimonies, Juvilyn Calitesen, [21]Jimmy Garote[22] and the accused[23] all testified that the police demanded that they give P5,000 each for their release or else, they will be charged with a crime. All the defense witnesses also testified that except for Martin who had no money, all of them were released because they were each able to give the P5,000 which the police demanded.[24] On 10 March 2008, the trial court issued its Decision, the dispositive portion of which read in part: WHEREFORE, finding the accused, Roberto Martin y Castano @ Inpet, GUILTY, beyond reasonable doubt of the crime charged, he is hereby sentenced to life imprisonment and to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. The trial court held that there was no showing of any ill motive on the part of the police in testifying against Martin. The integrity and evidentiary value of the seized item was properly preserved by SPO1 Mora. The defense of frame up is viewed with disfavor because it is easily concocted and commonly used as a standard line of defense in most prosecution of dangerous drugs cases. Assuming there was extortion, such fact is not determinative of his guilt or innocence as the demand was made after the offense was consummated. The Court of Appeals (CA) denied Martin's appeal and affirmed the RTC decision.[25]Martin elevated the matter for review by this Court, alleging that the Court of Appeals' Decision was contrary to facts, law, and jurisprudence. OUR RULING The accused is acquitted of the crime charged for failure of the prosecution to prove his guilt beyond reasonable doubt. Various irregularities in the conduct of the buy-bust operation and the processing of the evidence in the present case have left the case against the accused too weak to overcome the presumption of innocence in his favor. The first irregularity attaches to the Pre-Operation Report/Coordination Sheet, which is intended to show the coordination between the PDEA and the police. Its importance lies in the fact that RA No. 9165 mandates close coordination between the Philippine National Police/National Bureau of Investigation and the PDEA on all drug-related matters, including investigations on violations of RA No. 9165, with the PDEA as the lead agency.[26] In the case at bar, the original Pre-Operation Report/Coordination Sheet was not presented in court and the records contain only a photocopy thereof, provisionally marked Exhibit "D." Caution must be made that the failure of the prosecution to present the Pre-Operation Report, by itself, is not fatal to the prosecution's cause.[27]Even if the Pre-Operation Report/Coordination Sheet was properly presented in evidence, however, it is suspect as it was apparently accomplished and sent to PDEA hours before the informant arrived to give the police any information about the alleged illegal drug activity of Martin. SPO1 Mora variably testified that the confidential informant came to their office at 5 p.m. or 5:30 p.m. of 6 November 2006. Meanwhile, from the three faint stamps marked on the face of the Pre-Operation Report/Coordination Sheet, it was received by PDEA-MMRO either at 1:30 p.m., 1:40 p.m. or 2:00 p.m. of 6 November 2006.

Second, the actual marked money was likewise not presented in evidence[28] since SPO1 Mora could no longer locate the marked money[29] after he probably turned it over to the Investigator who photocopied it.[30] While the Court has also had occasion to hold that presentation of the buy-bust money, as a lone defect, is not indispensable to the prosecution of a drug case,[31] again it raises doubts regarding the regularity of the buy-bust operation. Third, the police officer did not comply with the procedure for seizure of evidence laid out in Section 21 of R.A. No. 9165[32] and its corresponding Implementing Rules[33]without giving any reasonable excuse for the lapse. When confronted with the fact that they have not complied with the procedure for seizure of evidence laid out in Section 21 of R.A. No. 9165, SPO1 Mora testified: Asst. Pros. Yap: Q Now you said the marking was made by the Investigator. Why did you not mark the specimen at the scene of the transaction? Witness: A Because the Investigator will make an inventory regarding the recovered evidence and other pertinent documents, sir. Asst. Pros. Yap: That would be all, your Honor. COURT: Cross. Atty. Cabrera: With the kind permission of this Honorable Court. Q Why did you not mark the specimen at the crime scene, you were not following the guidelines under the rules? A Because it was not properly implemented yet those guidelines of RA 9165, sir.[34] While noncompliance with the procedure laid out in Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution's case because the last sentence of the implementing rules provides that "noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items," nevertheless, lapses in procedure "must be recognized and explained in terms of their justifiable grounds and the integrity and evidentiary value of the evidence seized must be shown to have been preserved."[35] Otherwise, the procedure set out in the law will be mere lip service. In the present case, it was not shown that the police officers intended to comply with the procedure but were thwarted by some justifiable consideration/reason. The only "reason" the police officers gave for

not complying with the guidelines does not even hold water. The police justified their non-compliance with the procedure laid down in RA No. 9165 allegedly because these have not yet been "properly implemented" at the time. In truth, however, the implementing guidelines for R.A. No. 9165 took effect on November 27, 2002 while the arrest took place about four years later, or on 6 November 2006. Fourth, the prosecution failed to establish the "chain of custody"[36] of the seized item. After the buybust operation, the police officers proceeded to the DAID office where they turned over the sachet and (probably) the marked money to the Investigator.[37] It was this unidentified "investigator" who marked the corpus delicti(plastic sachet) and who had custody of both the corpus delicti and the marked money. Apparently, it was also he who turned over the plastic sachet to the Crime Laboratory for testing.[38] However, he was not presented to testify as to the marking of the sachet, the whereabouts of the marked money and the completion of the chain of custody of the evidence from SPO1 Mora to the Crime Laboratory. Various reasons exist why failure to establish the chain of custody in a narcotics case, such as the case at bar, is fatal to the prosecution's case. As the Court exhaustively explained in Carino v. People, [39] While a testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering -- without regard to whether the same is advertent or otherwise not -- dictates the level of strictness in the application of the chain of custody rule. A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. Hence, the risk of tampering, loss or mistake with respect to an exhibit of this nature is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. The danger, according to Graham v. State, is real. In that case, a substance later analyzed as heroin was excluded from the prosecution evidence because it was previously handled by two police officers prior to examination who, however, did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession. The court pointed out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratory's findings is inadmissible. Indeed, the Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over a narcotic specimen there could have been tampering, alteration or substitution of substances from other cases -- by accident or otherwise -- in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with. (Underscoring supplied)

Fifth, the presumption that the police officers regularly performed their duty cannot, standing alone, defeat the presumption of innocence of the accused herein. Generally, law enforcers are presumed to have regularly performed their duty,[40] but this is a mere procedural presumption which cannot overturn the constitutionally recognized presumption of innocence of the accused where lapses in the buy bust operation are shown. As we held in People v. Sanchez,[41] Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown. An effect of this lapse, as we held in Lopez v. People, is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence. People v. Santos instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.(Underscoring supplied) In this connection, since there were only three persons who had witnessed what actually transpired between SPO1 Mora and the accused prior to the arrest (the accused, SPO1 Mora and the confidential informant), the prosecution's failure to present the confidential informant left it without any witness to corroborate SPO1 Mora's testimony. In effect, it is SPO1 Mora's word against that of the accused. However, SPO1 Mora's testimony is unreliable. First, he testified that after interviewing the confidential informant who arrived at their office either at 5 p.m. or 5:30 p.m. of 6 November 2006, they prepared the Pre-Operation Report/Coordination Sheet and sent it to PDEA on the same day. However, the time stamped on the Pre-Operation Report/Coordination Sheet showed that it was sent to PDEA much earlier - either at 1:30 p.m., 1:40 p.m. or 2 p.m. of 6 November 2006. Second, while SPO1 Mora claimed to have custody of the shabu specimen right after recovering it from Martin during the latter's arrest, he did not mark the same at the scene of the crime. This is contrary to the explicit procedure for seizure of evidence laid down in Section 21 of R.A. 9165. He justified his non-compliance by saying that at the time, the guidelines had not yet been "properly implemented." Contrary to SPO1 Mora's excuse, however, the implementing guidelines for R.A. No. 9165 took effect on November 27, 2002, or four years before this incident. Third, SPO1 Mora had custody of the buy-bust money at the time of Martin's arrest but when asked to explain its loss less than a year after the incident, he could not remember whether or not he handed it over to the investigator.[42] In view of the cited irregularities in the buy bust operation and the processing of the evidence shown in the preceding discussion, SPO1 Mora's word cannot be given more weight than that of the accused. The burden of proving beyond reasonable doubt that the accused is guilty of the crime charged is based on the constitutional presumption of innocence of the accused until the contrary is proven.[43] Measured against this yardstick, and considering the foregoing discussion, the prosecution has fallen short of what is required for the conviction of the accused.

IN VIEW THEREOF, the appealed Decision is hereby SET ASIDE and accused-appellant Roberto Martin y Castano is hereby ACQUITTED on grounds of reasonable doubt. His release from detention is hereby ordered forthwith, unless he is detained for some other lawful cause. SO ORDERED. Carpio, (Chairperson), Brion, Sereno, and Perlas-Bernabe,* JJ., concur. ________________________________________ * Designated as Acting Member of the Second Division vice Associate Justice Jose P. Perez per Special Order No. 1114 dated 3 October 2011.

THIRD DIVISION PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee, - versus JAIME GATLABAYAN Y BATARA, Accused-Appellant. G.R. No. 186467 Present: CARPIO,* J. VELASCO, JR., Chairperson, ABAD, MENDOZA, and SERENO,* * JJ.
Promulgated: July 13, 2011 x ----------------------------------------------------------------------------------------x DECISION MENDOZA, J.:

This is an appeal from the July 29, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02221, which affirmed the May 10, 2005 Decision[2] of the Regional Trial Court of San Mateo, Rizal, Branch 77 (RTC), in Criminal Case No. 6384, finding accused Jaime Gatlabayan y Batara (Gatlabayan) guilty beyond reasonable doubt of violation of Section 5 (1), Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The Information[3] reads: That on or about the 10th day of September, 2002 in the Municipality of Rodriguez, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another person one (1) heat-sealed transparent plastic sachet containing 0.03 gram of white crystalline substance which gave positive result to the test for Methamphetamine Hydrochloride, a dangerous

drug, and which substance produces a physiological action similar to amphetamine or other compound thereof producing similar physiological effects. CONTRARY TO LAW. During the trial, the parties agreed to stipulate on the testimonies of prosecution witnesses, Police Officer 1 (PO1) Reynaldo Albarico and Police Inspector (P/Insp.) Joseph Perdido, the forensic chemist. The prosecution, thereafter, presented PO1 Fortunato Jiro III (PIO Jiro III) and PO1 Jose Gordon Antonio (PO1 Antonio) at the witness stand. The defense, on the other hand, presented Gatlabayan, the accused himself. The Version of the Prosecution The Peoples version of the incident has been summarized by the Office of the Solicitor General (OSG) in its Brief[4] as follows: On September 10, 2002, at around 8:30 in the evening, while PO1 Jose Gordon Antonio, a member of PNP Intelligence Operative Division of Rodriguez, Rizal, together with his colleagues, PO1 Fortunato Jiro and PO1 Albarico, were inside their station, they received an information from an asset that appellant Jaime Gatlabayan alias Pungay was rampantly selling illegal drugs at Carlton Village, Brgy. Manggahan, Rodriguez, Rizal. On the basis of said information, the police officers immediately decided to form a composite team for the conduct of a buy-bust operation against appellant. Consequently, PO1 Antonio was tasked as the poseur-buyer equipped with a 100.00 bill buy-bust money where his initials JGA was written thereon, while PO1 Jiro and PO1 Albarico acted as members. Thereupon, the composite team recorded in their police blotter the planned buy-bust operation. Thereafter, the three (3) police officers with their asset proceeded to the target area on board an owner type jeep. Arriving thereat, the civilian asset pointed appellant to the buy-bust team. Appellant was then standing under a Sampaloc tree at Carlton Village, Brgy. Manggahan, Rodriguez, Rizal. Afterwards, poseur-buyer PO1 Antonio, from a distance of 10 meters away from appellant alighted from the car while the rest of the composite team and the informer remained in the vehicle. Meanwhile, poseur-buyer PO1 Antonio walked towards appellant. Upon seeing PO1 Antonio, appellant asked if he wants to score, (which in local parlance means, if he wants to buy shabu) to which PO1 Antonio readily answered yes, and simultaneously handed to appellant the P100 marked money. In turn, appellant gave him a small plastic sachet containing white crystalline substance suspected of shabu. Upon consummation of the sale, PO1 Antonio gave the pre-arranged signal of waiving his hand. Seeing this, police officers Jiro and Albarico rushed to the locus criminis and simultaneously introduced themselves as police officers. Then, PO1 Jiro directed appellant to empty his pocket and the 100.00 marked money fell on the ground. Thereafter, appellant was arrested and was apprised of his constitutional rights and was likewise informed of the crime he committed. Appellant was brought to the nearby police station of Rodriguez, Rizal for investigation. Subsequently, the plastic sachet sold by appellant to poseur-buyer PO1 Antonio was subjected to a laboratory examination and forensic chemist Police Inspector Joseph M. Perdido of the PNP Crime Laboratory in his Chemistry Report No. D-1784-02E found that the subject crystalline substance is positive for methamphetamine hydrochloride or shabu. Consequently, appellant was charged for violation of Section 5, Paragraph 1, Article II of R.A. 9165 or for Illegal Sale of Dangerous Drugs.*5+

The Version of the Defense In his Brief,[6] Gatlabayan denied that he was caught, in flagrante, selling shabu and claimed that he was just a victim of police frame-up. The accused presents the following version of what transpired: JAIME GATLABAYAN was at the peryahan with a companion on September 10, 2002, at 8:00 oclock in the evening. While the accused was singing, PO1 Antonio along with PO1 Jiro arrived and suddenly handcuffed him. The accused asked Sir, anong kasalanan ko? PO1 Antonio just replied basta sumama ka na lang. He was brought to the police station and was incarcerated. The accused was not frisked when he was arrested. He denied the offense charged against him.[7]

On May 10, 2005, the RTC rendered its judgment rejecting the defense of frame-up proffered by the accused and declared that the same fell flat in the face of the affirmative testimony of prosecution witnesses, PO1 Antonio and PO1 Jiro III, who categorically and forthrightly testified that he was caught in flagrante delicto selling shabu. The trial court ruled that the presumption of regularity in the performance of duties in favor of the police operatives had not been overturned in the absence of clear showing that they had been impelled by any ill motive to falsely testify against him for such serious crime. It added that the alleged inconsistencies in the testimonies of the police officers pertained to inconsequential or collateral matters which did not impair their credibility. The dispositive portion of the RTC decision reads: WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt as charged in the information, without any aggravating or qualifying circumstance, accused JAIME GATLABAYAN Y BATARA is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the fine of FIVE HUNDRED THOUSAND (500,000.00) PESOS. SO ORDERED.[8] On appeal, the CA affirmed the conviction of the accused on the basis of the testimony of PO1 Antonio and PO1 Jiro, III which it found credible and sufficient to sustain a conviction. The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by him. It ruled that the prosecution was able to satisfactorily establish the elements of the crime of illegal sale of dangerous drugs as well as the identity of the accused. Lastly, the CA debunked his defense that he was a victim of frame-up and that he was not arrested pursuant to a valid buy-bust operation, for failure to substantiate the same. The dispositive portion of its Decision reads: WHEREFORE, the assailed Decision dated 10 May 2005 of the Regional Trial Court, Fourth Judicial Region, San Mateo, Rizal, Branch 77, is hereby AFFIRMED. SO ORDERED.[9] On August 20, 2008, Gatlabayan filed a Notice of Appeal,[10] which was given due course by CA in its Minute Resolution[11]dated September 23, 2008. On April 26, 2010, this Court issued a resolution notifying the parties that they may file their respective supplemental briefs, if they so desire, within thirty days from notice. The OSG filed a manifestation

dated May 29, 2009 informing the Court that it would no longer file a supplemental brief. On June 23, 2009, the accused filed his supplemental brief.[12] THE ISSUES Maintaining his innocence, Gatlabayan imputes to the trial court the following errors: I THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF VIOLATION OF SECTION 5, ARTICLE II, R.A. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE OFFENSE CHARGED BEYOND REASONABLE DOUBT. II THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCONSISTENT AND CONTRADICTING TESTIMONIES OF THE PROSECUTION WITNESSES.

III THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF SECTION 5, ARTICLE II, R.A. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE CHAIN OF CUSTODY OF THE ILLEGAL DRUG. In his Supplemental Brief, Gatlabayan presents the following additional assignment of error: THE COURT OF APPEALS GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE PROSECUTIONS FAILURE TO PROVE THE CHAIN OF CUSTODY OF THE ALLEGED SEIZED ILLEGAL DRUGS, IN VIOLATION OF SECTION 21 AND 86 OF R.A. NO. 9165.

The accused is of the stance that the prosecution failed to prove his guilt beyond reasonable doubt. He avers that both the RTC and the CA were mistaken in upholding the presumption of regularity in the performance of official functions in favor of the police officers and giving undue credence to their testimonies which, he claims, were laced with inconsistencies that cast serious doubt on their credibility and the validity of the alleged buy-bust operation. He posits that the prosecution failed to establish the material details of said entrapment operation and that his arrest was invalid. He argues that the failure of the apprehending team to observe the procedure outlined by Section 21 of R.A. No. 9165 impaired the prosecutions case. Finally, he assails the prosecution evidence for its failure to establish the proper chain of custody of the shabu allegedly seized from him. The OSG, on the other hand, maintains that the testimonies of PO1 Antonio and PO1 Jiro III were credible and sufficient to convict. It insists that the culpability of the accused for the crime of illegal sale of shabu was proven beyond reasonable doubt.

The Courts Ruling:

The core issue in this case is whether or not sufficient evidence exists to support the conviction of the accused for violation of Section 5, Article II of R.A. No. 9165. Let it be underscored that appeal in criminal cases throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned.[13] Considering that what is at stake here is no less than the liberty of the accused, this Court has meticulously and thoroughly reviewed and examined the records of the case, and finds that there is merit in the appeal. As a general rule, the trial courts findings of fact, especially when affirmed by the CA, are entitled to great weight and will not be disturbed on appeal. The rule, however, admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misplaced.[14] The case at bench falls under the above exception and, hence, a departure from the general rule is warranted. Jurisprudence has firmly entrenched that in prosecution of illegal sale of dangerous drugs, the following essential elements must be established: (1) the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) the buyer and seller were identified.[15] Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of the confiscated prohibited or regulated drug as evidence.

EN BANC [G.R. No. 135981. January 15, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. DECISION PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn childs. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case. The Case For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads: WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.*2+ The Information[3] charged appellant with parricide as follows: That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: Cadaveric spasm. Body on the 2nd stage of decomposition.

Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. Fracture, open, depressed, circular located at the occipital bone of the head, resulting *in+ laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. Blisters at both extrem*i+ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. Abdomen distended w/ gas. Trunk bloated. which caused his death.*4+ With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of parricide. The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise: Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Bens house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house, he heard her say I wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented house appeared uninhabited and was always closed. On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him. On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went

inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Bens death was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital *bone+. Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel went home despite appellants request for her to sleep in their house. Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her You might as well be killed so nobody would nag me. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, smashed the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom. Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly distorted the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom.*7+ (Citations omitted) Version of the Defense Appellant relates her version of the facts in this manner: 1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husbands death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. 2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas. 3. After their marriage, they lived first in the home of Bens parents, together with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben lived happily. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent.

4. Bens brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness. Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as the marriage went along, Marivic became already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two sons, there were three (3) misunderstandings. The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead using a sharp instrument until the eye was also affected. It was wounded and also the ear and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked. Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. 5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected our salary, we went to the cock-fighting place of ISCO. They stayed there for three (3) hours, after which they went to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet. On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. Basobas testimony on the root of the quarrel, conveniently overheard by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am innocent. Basobas thought they were joking. He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben before when he was stricken with a bottle by Marivic Genosa that he should leave her and that Ben would always take her back after she would leave him so many times. Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben even had a wound on the right forehead. He had known the couple for only one (1) year. 6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her. These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. 7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. 7.1. Mr. Joe Barrientos, a fisherman, who was a *neighbor+ of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses grappling with each other. Ben had Marivic in a choke hold. He

did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.[8]) 7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas). 7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified if somebody would come. He testified that while Ben was alive he used to gamble and when he became drunk, he would go to our house and he will say, Teody because that was what he used to call me, mokimas ta, which means lets go and look for a whore. Mr. Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning. 7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house because she might be battered by her husband. When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that her husband was already there and was drunk. Miss Arano knew he was drunk because of his staggering walking and I can also detect his face. Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple were very noisy in the sala and I had heard something was broken like a vase. She said Marivic ran into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and showed us the knife through the window grill and he scared us. She said that Marivic shouted for help, but no one came. On crossexamination, she said that when she left Marivics house on November 15, 1995, the couple were still quarreling. 7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness. xxx xxx xxx Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit 3.

On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, whether she is capable of committing a crime or not. 7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing family troubles. He told Marivic to return in the morning, but he did not hear from her again and assumed that they might have settled with each other or they might have forgiven with each other. xxx xxx xxx Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995. Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because he was crazy about his recent girlfriend, Lulu x x x Rubillos. On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias Marvelous Isidro; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna. Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to smash him once; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was whirled by Ben, he kicked her ass and dragged her towards the drawer when he saw that she had packed his things. 9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. 10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw some police officer and neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief. xxx xxx xxx Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. Dra. Cerillo was not cross-examined by defense counsel. 11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.

12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. 13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH. 14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. 15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her Brief without counsels to the Court. This letter was stamp-received by the Honorable Court on 4 February 2000. 16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe. 17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted. 18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled Energy Global Psychology (together with Drs. Allan Tan and Allan

Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder. Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse. xxx xxx xxx Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from broken homes. Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent. The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so there is a lot of modeling of aggression in the family. Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children. xxx xxx xxx Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering physical violence on both of them. She said that in a normal marital relationship, abuses also happen, but these are not consistent, not chronic, are not happening day in *and+ day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long lasting and even would cause hospitalization on the victim and even death on the victim. xxx xxx xxx Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because inspite of her feeling of selfconfidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past. xxx xxx xxx Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim. xxx xxx xxx 19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City. Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for

thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented twice in international congresses. He also authored The Mental Health of the Armed Forces of the Philippines 2000, which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a ParkeDavis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry. Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza. As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous. In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma. xxx xxx xxx Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks of nothing but the suffering. xxx xxx xxx A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her self-world is damaged. Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally internalizes what is around him within the environment. And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it there are doubts in himself and prone to act without thinking. xxx xxx xxx Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.

xxx xxx xxx Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household. He said a victim resorts to weapons when she has reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively. xxx xxx xxx Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. xxx xxx xxx On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she was re-experiencing the trauma. He said that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her mind. At the time he interviewed Marivic she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved. xxx xxx xxx 20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially reopened trial a quo were elevated.*9+ Ruling of the Trial Court Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review. Supervening Circumstances On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts testimonies. On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10]and Alfredo Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12] The Issues Appellant assigns the following alleged errors of the trial court for this Courts consideration: 1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense.

2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. 3. The trial court gravely erred finding the cause of death to be by beating with a pipe. 4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband. 5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. 6. The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child. 7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. 8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death.*13+ In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa. The Courts Ruling The appeal is partly meritorious. Collateral Factual Issues The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.[14] In appellants first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial courts disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court. First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense. We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judges conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an obviously hasty manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.[15] Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court held: The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage

certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to. Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased spouse -- attested in court that Ben had been married to Marivic.[17] The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.[19]Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, *c+onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victims death. Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of battered woman syndrome, for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time. Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.[20] As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify. Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial courts appreciation of these circumstances has little bearing on the final resolution of the case. First Legal Issue: Self-Defense and Defense of a Fetus Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense.[22] The Battered Woman Syndrome In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of selfdefense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.*24+

A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.*25+ Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterers actions; and false hopes that the relationship will improve.[26] More graphically, the battered woman syndrome is characterized by the so-called cycle of violence,*27+ which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.[28] During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her placatory and passive behavior legitimizes his belief that he has the right to abuse her in the first place. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence spirals out of control and leads to an acute battering incident.*29+ The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30] The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this good, gentle and caring man is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of

getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of tension, violence and forgiveness, each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.[31] History of Abuse in the Present Case To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows: ATTY. TABUCANON Q How did you describe your marriage with Ben Genosa? A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker. Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you? A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me. Q How many times did this happen? A Several times already. Q What did you do when these things happen to you? A I went away to my mother and I ran to my father and we separate each other. Q What was the action of Ben Genosa towards you leaving home? A He is following me, after that he sought after me. Q What will happen when he follow you? A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry. Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor? A Yes, sir. Q Who are these doctors? A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. xxx xxx xxx Q You said that you saw a doctor in relation to your injuries? A Yes, sir. Q Who inflicted these injuries? A Of course my husband. Q You mean Ben Genosa? A Yes, sir. xxx xxx xxx [Court] /to the witness Q How frequent was the alleged cruelty that you said? A Everytime he got drunk. Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence? A Everytime he got drunk. Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week. Q Do you mean three times a week he would beat you? A Not necessarily that he would beat me but sometimes he will just quarrel me. *32+ Referring to his Out-Patient Chart*33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic? A Yes, sir. Q Who prepared the list of six (6) incidents, Doctor? A I did. Q Will you please read the physical findings together with the dates for the record. A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero; 2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora; 3. March 26, 1993 - Abrasion, Furuncle (L) Axilla; 4. August 1, 1994 - Pain, mastitis (L) breast, 2 5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and 6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora. Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct? A Yes, sir. Q Did you actually physical examine the accused? A Yes, sir. Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla? A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied. Q What is meant by furuncle axilla? A It is secondary of the light infection over the abrasion. Q What is meant by pain mastitis secondary to trauma? A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain. Q So, these are objective physical injuries. Doctor? xxx xxx xxx Q Were you able to talk with the patient? A Yes, sir. Q What did she tell you? A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband. Q You mean, Ben Genosa? A Yes, sir. xxx xxx xxx ATTY. TABUCANON: Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened? A As per record, yes. Q What was the date?

A It was on November 6, 1995. Q So, did you actually see the accused physically? A Yes, sir. Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant? A Yes, sir. Q Being a doctor, can you more engage at what stage of pregnancy was she? A Eight (8) months pregnant. Q So in other words, it was an advance stage of pregnancy? A Yes, sir. Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings? A No, she was admitted for hypertension headache which complicates her pregnancy. Q When you said admitted, meaning she was confined? A Yes, sir. Q For how many days? A One day. Q Where? A At PHILPHOS Hospital. xxx xxx xxx Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant. What is this all about? A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times. Q For what? A Tension headache. Q Can we say that specially during the latter consultation, that the patient had hypertension? A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature. Q What did you deduce of tension headache when you said is emotional in nature? A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem. Q You mean problem in her household? A Probably. Q Can family trouble cause elevation of blood pressure, Doctor? A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused? A On November 6, 1995 consultation, the blood pressure was 180/120. Q Is this considered hypertension? A Yes, sir, severe. Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure? A It was dangerous to the child or to the fetus. *34+

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.[35] Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten oclock at night, because the couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife. On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.[37]Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her: ATTY. TABUCANON: Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening? A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, he was not home yet. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children. Q This is evening of November 15, 1995? A Yes, sir. Q What time did Ben Genosa arrive? A When he arrived, I was not there, I was in Isabel looking for him. Q So when he arrived you were in Isabel looking for him? A Yes, sir. Q Did you come back to your house? A Yes, sir. Q By the way, where was your conjugal residence situated this time? A Bilwang. Q Is this your house or you are renting? A Renting. Q What time were you able to come back in your residence at Bilwang? A I went back around almost 8:00 oclock. Q What happened when you arrived in your residence? A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year. Q Who was this cousin of yours who you requested to sleep with you? A Ecel Arao, the one who testified. Q Did Ecel sleep with you in your house on that evening? A No, because she expressed fears, she said her father would not allow her because of Ben. Q During this period November 15, 1995, were you pregnant? A Yes, 8 months.

Q A Q A Q A Q A Q A Q A Q A Q A Q A

How advance was your pregnancy? Eight (8) months. Was the baby subsequently born? Yes, sir. Whats the name of the baby you were carrying at that time? Marie Bianca. What time were you able to meet personally your husband? Yes, sir. What time? When I arrived home, he was there already in his usual behavior. Will you tell this Court what was his disposition? He was drunk again, he was yelling in his usual unruly behavior. What was he yelling all about? His usual attitude when he got drunk. You said that when you arrived, he was drunk and yelling at you? What else did he do if any? He is nagging at me for following him and he dared me to quarrel him. What was the cause of his nagging or quarreling at you if you know? He was angry at me because

EN BANC [G.R. No. 130038. September 18, 2000] ROSA LIM, petitioner, vs., PEOPLE OF THE PHILIPPINES, respondent. DECISION PARDO, J.:
The case is an appeal from the decision[1] of the Court of Appeals affirming in toto that of the Regional Trial Court, Cebu City.[2] Both courts found petitioner Rosa Lim guilty of twice violating Batas Pambansa Bilang 22[3] and imposing on her two one-year imprisonment for each of the two violations and ordered her to pay two fines, each amounting to two hundred thousand pesos (P200,000.00). The trial court also ordered petitioner to return to Maria Antonia Seguan, the jewelry received or its value with interest, to pay moral damages, attorney's fees and costs.[4] We state the relevant facts.[5] On August 25, 1990, petitioner called Maria Antonia Seguan by phone. Petitioner thereafter went to Seguan's store. She bought various kinds of jewelry -- Singaporean necklaces, bracelets and rings worth P300,000.00. She wrote out a check dated August 25, 1990, payable to "cash" drawn on Metrobank in the amount of P300,000.00[6] and gave the check to Seguan. On August 26, 1990, petitioner again went to Seguan's store and purchased jewelry valued at P241,668.00. Petitioner issued another check payable to "cash" dated August 16, 1990 drawn on Metrobank in the amount of P241,668.00[7] and sent the check to Seguan through a certain Aurelia Nadera. Seguan deposited the two checks with her bank. The checks were returned with a notice of dishonor. Petitioner's account in the bank from which the checks were drawn was closed. Upon demand, petitioner promised to pay Seguan the amounts of the two dishonored checks. She never did. On June 5, 1991,[8] an Assistant City Prosecutor of Cebu filed with the Regional Trial Court, Cebu City, Branch 23 two informations against petitioner. Both informations were similarly worded. The difference is that in Criminal Case No. 22128, the bouncing checks is Metro Bank Check No. CLN 094244392 dated August 26, 1990 in the amount of P241,668.00. The informations read:[9] Criminal Case No. 22127"The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for VIOLATION OF BATAS PAMBANSA BILANG 22 committed as follows: "That on or about the 20th day of August, 1990, and for sometime subsequent thereto, in the City of Cebu Philippines, and within the jurisdiction of this Honorable Court, the said accused, knowing at the time of issue of the check she does not have sufficient funds in the drawee bank for the payment of such check in full upon its presentment, with deliberate intent, with intent of gain and of causing damage, did then and there issue, make or draw Metro Bank Check NO. 1 CLN 094244391 dated August 25, 1990 in the amount of P300,000.00 payable to Maria Antonia Seguan which check was issued in payment of an obligation of said accused, but when the said check was presented with the bank the same was dishonored for reason "Account Closed" and despite notice and demands made to redeem or make good said check, said accused failed and refused, and up to the present time still fails and refuses to do so, to the damage and prejudice of said Maria Antonia Seguan in the amount of P300,000.00, Philippine Currency.

"CONTRARY TO LAW." Criminal Case No. 22128"The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for VIOLATION OF BATAS PAMBANSA BILANG 22, COMMITTED AS FOLLOWS:
"That on or about the 20th day of August, 1990, and for sometime subsequent thereto, in this City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, knowing at the time of issue of the check she does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, with deliberate intent, with intent of gain and of causing damage, did then and there issue, make or draw Metro Bank Check No. CLN-094244392 dated August 26, 1990 in the amount of P241,668.00 payable to Maria Antonia Seguan which check was issued in payment of an obligation of said accused, but when the said check was presented with the bank, the same was dishonored for reason "Account Closed" and despite notice and demands made to redeem or make good said check, said accused failed and refused, and up to the present time still fails and refuses to do so, to the damage and prejudice of said Maria Antonia Seguan in the amount of P241,668.00, Philippine Currency. "CONTRARY TO LAW. "Cebu City, Philippines, 30 May 1991."[10] Upon arraignment, petitioner pleaded "not guilty" in both cases. After due trial, on December 29, 1992, the trial court rendered a decision in the two cases convicting petitioner, to wit:[11] "WHEREFORE, prosecution having established the guilt of the accused beyond reasonable doubt, judgment is hereby rendered convicting the accused, Rosa Lim and sentencing her in Criminal Case No. CBU-22127, to suffer the penalty of imprisonment for a period of ONE (1) YEAR and a fine of TWO HUNDRED THOUSAND (P200,000.00) PESOS and in Criminal Case No. CBO-22128, the same penalty of imprisonment for ONE YEAR and fine of TWO HUNDRED THOUSAND (P200,000.00) is likewise imposed. "The accused is hereby ordered to pay private complainant Maria Antonia Seguan, the sum of P541,668.00 which is the value of the jewelries bought by the accused from the latter with interest based on the legal rate to be counted from June 5, 1991, the date of the filing of the informations, or return the subject jewelries; and further to pay private complainant: "(a) The sum of P50,000.00 as moral damages in compensation for the latter's worries with the freezing of her business capital involved in these litigated transactions; "(b) The sum of P10,000.00 for attorney's fees, plus costs. "SO ORDERED."[12] In due time, petitioner appealed to the Court of Appeals.[13] On October 15, 1996, the Court of Appeals rendered a decision, dismissing the appeal in this wise: "WHEREFORE, premises considered, the appeal is DISMISSED. The decision appealed from is AFFIRMED in toto. "SO ORDERED."[14] Hence, this appeal.[15] In this appeal, petitioner argues that she never knew Seguan and much more, had any "transaction" with her. According to petitioner, she issued the two checks and gave them to Aurelia Nadera, not to Seguan. She gave the two checks to Aurelia Nadera from whom she got two sets of jewelry, as a "security arrangement" or "guarantee" that she would return the jewelry received if she would not be able to sell them.[16] The appeal has no merit.

The elements of B.P. Blg. 22 are:[17] "(1) The making, drawing and issuance of any check to apply for account or for value; "(2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and "(3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment." Petitioner never denied issuing the two checks. She argued that the checks were not issued to Seguan and that they had no pre-existing transaction. The checks were issued to Aurelia Nadera as mere guarantee and as a security arrangement to cover the value of jewelry she was to sell on consignment basis.[18] These defenses cannot save the day for her. The first and last elements of the offense are admittedly present. To escape liability, she must prove that the second element was absent, that is, at the time of issue of the checks, she did not know that her funds in the bank account were insufficient. She did not prove this. B.P. No. 22, Section 2 creates a presumption juris tantum that the second element prima facie exists when the first and third elements of the offense are present.[19] If not rebutted, it suffices to sustain a conviction.[20] The gravamen of B.P. No. 22 is the act of making and issuing a worthless check or one that is dishonored upon its presentment for payment.And the accused failed to satisfy the amount of the check or make arrangement for its payment within five (5) banking days from notice of dishonor.[21] The act is malum prohibitum, pernicious and inimical to public welfare.[22] Laws are created to achieve a goal intended and to guide and prevent against an evil or mischief.[23] Why and to whom the check was issued is irrelevant in determining culpability. The terms and conditions surrounding the issuance of the checks are also irrelevant.[24] Unlike in estafa,[25] under B. P. No. 22, one need not prove that the check was issued in payment of an obligation, or that there was damage.The damage done is to the banking system.[26] In United States v. Go Chico, we ruled that in acts mala prohibita, the only inquiry is, "has the law been violated?" When dealing with actsmala prohibita[27]-" it is not necessary that the appellant should have acted with criminal intent. In many crimes, made such by statutory enactment, the intention of the person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially worthless. It would be impossible of execution. In many cases, the act complained of is itself that which produces the pernicious effect the statute seeks to avoid. In those cases the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is good or bad." This case is a perfect example of an act mala prohibita. Petitioner issued two checks. They were dishonored upon presentment for payment due to the fact that the account was closed. Petitioner failed to rebut the presumption that she knew her funds were insufficient at the time of issue of the checks. And she failed to pay the amount of the checks or make arrangement for its payment within five (5) banking days from receipt of notice of dishonor. B.P. No. 22 was clearly violated. Hoc quidem per quam durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written. However, we resolve to modify the penalty imposed on petitioner. B.P. No. 22 provides a penalty of "imprisonment of not less than thirty days but not more than one year or a fine of not less than, but not more than double, the amount of the check which fine shall in no case exceed two hundred thousand pesos, or both such fine and imprisonment at the discretion of the Court."[28] In Vaca v. Court of Appeals,[29] we held that in determining the penalty to be imposed for violation of B.P. No. 22, the philosophy underlying the Indeterminate Sentence Law applies. The philosophy is to redeem valuable human material, and to prevent unnecessary deprivation of personal liberty and

economic usefulness with due regard to the protection of the social order. There, we deleted the prison sentence imposed on petitioners. We imposed on them only a fine double the amount of the check issued. We considered the fact that petitioners brought the appeal, believing in good faith, that no violation of B.P. No. 22 was committed, "otherwise, they would have simply accepted the judgment of the trial court and applied for probation to evade prison term."[30] We do the same here. We believe such would best serve the ends of criminal justice. Consequently, we delete the prison sentences imposed on petitioner. The two fines imposed for each violation, each amounting toP200,000.00 are appropriate and sufficient. The award of moral damages and order to pay attorney's fees are deleted for lack of sufficient basis. WHEREFORE, we AFFIRM with modification the decision of the Court of Appeals.[31] We find petitioner Rosa Lim guilty beyond reasonable doubt of two counts of violation of Batas Pambansa Bilang 22. We SET ASIDE the sentence of imprisonment and hereby sentence her only to pay a fine of P200,000.00 in each case, with subsidiary imprisonment in case of insolvency or non-payment not to exceed six (6) months.[32] We DELETE the award of moral damages and attorney's fees. The rest of the judgment of the trial court as affirmed by the Court of Appeals shall stand. Costs against petitioner. SO ORDERED. Davide, Jr., C.J., (Chairman), Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pangniban, Purisima, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Quisumbing, J., In the result. Ynares-Santiago, J., On leave. Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION G.R. No. L-62449 July 16, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ATTY. RAUL H. SESBRENO, accused-appellee. The Solicitor General for plaintiff-appellant. R E S OL U T I O N
GUTIERREZ, JR., J.: This appeal from an order quashing an information furnishes occasion to reiterate the ambits of the well-established doctrine of privileged communications. The appeal was certified to us by the Court of Appeals on a finding that it involves a pure question of law. In an Information filed on March 4, 1981, the City Fiscal's Office of Cebu City accused Atty. Raul H. Sesbreno of the crime of libel based on alleged defamatory statements found in a pleading entitled "PLAINTIFF'S REPLY TO DEFENDANTS OPPOSITION DATED MARCH 9TH" dated March 11, 1980 filed in Civil Case No. R-18181 entitled"HEIRS OF ROBERTO CENIZA, ET AL. V. DANIELA CENIZA UROT" now pending litigation before Branch IV of the Court of First Instance of Cebu, 14th Judicial District. On March 5, 1981, the accused filed a MOTION TO QUASH INFORMATION. The main thrust of the motion is that on the face itself of the information, it is obvious that the allegedly libelous statements imputing that Atty. Ramon B. Ceniza is an irresponsible person, cannot be trusted, like Judas, a liar and irresponsible childish prankster are contained in a pleading filed in court and, therefore, covered by the DOCTRINE OF ABSOLUTELY PRIVILEGED COMMUNICATIONS; hence, no civil or criminal liability can arise therefrom. A decision was rendered by the court a quo quashing the information and dismissing the case for lack of cause of action. On appeal, the Court of Appeals certified the same to us. The doctrine of privileged communication that utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and motions, belong to the class of communications that are absolutely privileged has been expressed in a long line of cases (Us v. Salera, 32 Phil. 365; Us v. Bustos, 37 Phil. 732; Giler v. billiard, 43 Phil. 180; Santiago v. Calvo, 47 Phil. 919; People v. Flores, G.R. No. 7528, Dec. 18, 1957; Tupas v. Parreno, 105 Phil. 1304; Unrep., April 30, 1959; Smith Bell and Co. v. Ellis, 48 Phil. 475; People v. Valerio Andres, 107 Phil. 1046: Sison v. David, 1 SCRA 60; Tolentino v. Baylosis, 1 SCRA 396; People v. Aquino, 18 SCRA 555; Cuenco v. Cuenco, 70 SCRA 235; Elizalde v. Gutierrez, 76 SCRA 448; PCIB v. Philnabank Employees' Association, July 2, 1981, 105 SCRA 314), The doctrine of privileged communication rests upon public policy, which looks to the free and unfettered administration of justice, though, as an incidental result it may in some instances afford an immunity to the evil disposed and malignant slanderer (People v. Castelo, 4 SCRA 947). While the doctrine is liable to be abuse and its abuse may lead to great hardships, yet to give legal action to such libel suits would give rise to greater hardships. (Tolentino v. Baylosis, supra). The privilege is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages (Deles v. Aragona, Jr., 27 SCRA 633). Lawyers, most especially, should be allowed a great latitude of pertinent comment in the furtherance of the causes they uphold, and for the felicity of their clients, they may be pardoned some infelicities of language (Deles v. Aragona, supra).

The doctrine of privileged communication, moreover, is explicitly provided for in the Revised Penal Code, as an exception to tile general principle that every defamatory imputation is presumed to be malicious, even if it is true, in the absence of "good intention" and "justifiable motive" (Elizalde v. Gutierrez, supra). However, this doctrine is not without qualification. Statements made in the course of judicial proceedings are absolutely privileged that is, privileged regardless of defamatory tenor and of the presence of malice if the same are relevant, pertinent, or material to the cause in hand or subject of inquiry (Tolentino v. Baylosis, supra;People v. Alvarez, 14 SCRA 901; People v. Aquino, 18 SCRA 555). A pleading must meet the test of relevancy to avoid being considered libelous (Armovit v. Purisima, 118 SCRA 247). As to the degree of relevancy or pertinency necessary to make alleged defamatory matters privileged, the courts are inclined to be liberal (People v. Alvarez, supra; Malit v. People, 114 SCRA 348). The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevance and impropriety (Malit v. People, supra). In order that a matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings, It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of the inquiry in the course of the trial (Tolentino v. Baylosis, supra; People v. Alvarez, supra). It appears that in connection with the initial formal hearing of Civil Case No. R-18181 on February 7, 1980, appellant Atty. Ceniza as counsel for the defendant, filed an Urgent Motion to Transfer Hearing, receipt of notice of which was denied by herein appellee Atty. Sesbreno, counsel for the plaintiff. Upon the latter's representation, the court a quo granted the motion for postponement, ordering Atty. Ceniza, however, to reimburse Atty. Sesbreno's clients for expenses incurred in attending the supposed hearing slated that day. A motion for reconsideration was filed by Atty. Ceniza showing evidence of receipt of notice of hearing by Atty. Sesbreno's office. The same was granted. The court ordered Atty. Sesbreno to show cause why he should not be declared in contempt for misrepresentation. Against said order, Atty. Sesbreno filed a motion seeking reconsideration with a counter-motion for contempt against the appellant for reneging on his commitment to reimburse appellee's clients and for resorting to dilatory tactics. To that, Atty. Ceniza, filed his "Opposition to Motion for Reconsideration, Etc." charging Sesbreno with misrepresentation, prevarication, and "telling a barefaced and documented lie." Replying to these remarks, Sesbreno then filed his "REPLY" subject matter of Ceniza's libel suit. Applying the liberal rule to the case at bar and considering the incidents which preceded it, we find appellee's alleged slanderous statements pertinent to the motion to cite appellant Ceniza in contempt. Although the language used by defendant-appellee in the pleading in question was undoubtedly strong, since it was made in legitimate defense of his own and of his client's interest, such remarks must be deemed absolutely privileged and cannot be the basis of an action for libel (Tolentino v. Baylosis, supra). However, although it is understandable, if not justifiable, that, at times zeal in the defense of one's client may be carried to the point of undue skepticism and doubts as to the motives of opposing counsel, the spectacle presented by two members of the bar engaged in bickering and recrimination is far from modifying (Narido v. Linsangan, 58 SCRA 85). Mutual bickering and recriminations between brother attorneys detract from the dignity of the legal profession and will not receive any sympathy from this Court (Javier v. Cornejo, 63 Phil. 293). Clients, not lawyers, are the litigants. Whatever may be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a case it is indecent to allude to the personal history or the personal peculiarities and Idiosyncracies of counsel on the other side. Personal colloquies between counsel which cause delay and promote unseemly

wrangling should also be carefully avoided (Canon 17, Canons of Professional Ethics). Lawyers owe respect not only to the courts and their clients, but also to other members of the Bar. In keeping with the dignity of the legal profession, a lawyer's language should likewise be dignified (In re Climaco, 55 SCRA 107, 121). Choice of language is a very important requirement in the preparation of pleadings (Rule 8, Sec. 1; Rule 9, Sec. 5; Rule 7 Sec. 5, Revised Rules of Court). Appropriately, in the assertion of their client's rights, lawyers even those gifted with superior intellect are enjoined to rein up their tempers. Greater care and circumspetion must be exercised in the preparation of their pleadings and to refrain from using abrasive and offensive language (Yangson v. Saladanan, 68 SCRA 42). A becoming modesty is a desirable trait also of practising attorneys Festin v. Faderanga, 111 SCRA 1). Time and again we have rebuked and punished lawyers for conduct showing them unfit to practice law. The Supreme Court as guardian of the legal profession has ultimate powers over attorneys. Its authority to discipline lawyers stems from its constitutional prerogative to regulate the practice of law and the admission of the persons to engage therein 1 Section 5(5), Article X, The 1973 Philippine Constitution; In Re Cunanan, 94 Phil. 534, 1954). Apart from the constitutional mandate. the disciplinary authority of the Supreme Court over attorneys is an inherent power incidental to its proper administration of justice and essential to an orderly discharge of its judicial functions (Tejan v. Cusi, 57 SCRA 154: In Re Almacen, 31 SCRA 562; Hilado v. David, 84 Phil. 573; In the Matter of the IBP Membership Dues Delinquency of Edillon, G.R. No. AC-1928 [IBP Adm. Case No. DD-1] August 3, 1978). Furthermore, attorneys are the court's constituency to aid in the administration of justice (Doge S. State, 39 NE 745). A lawyer occupies what may be termed a quasi-judicial office since he is in fact an officer of the court, and like the court itself, an instrument or agency to advance the ends of justice (Kerlin v. Culkin, 60 ALR 851). Thus, only those complying with the strict standards of legal practice are maintained in the roll of attorneys and those falling short thereof may be disbarred. Thus, both attorneys are advised accordingly. WHEREFORE, the order appealed from is hereby AFFIRMED. Atty. Raul Sesbreno is reprimanded and admonished to refrain from employing language unbecoming of a member of the Bar and to extend courtesy and respect to his brothers in the profession with a warning that any future infraction of a nature similar to that found in this case shall be dealt with more severely. SO ORDERED. Teehankee (Chairman), Plana, Relota and De la Fuente, JJ., concur. Melencio-Herrera, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-1800 January 27, 1948 CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority Parties, petitioner, vs. VALERIANO E. FUGOSO, Mayor of City of Manila, respondent. Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent. FERIA, J.: This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon, November 16, 1947, for the purpose of petitioning the government for redress to grievances on the groun that the respondent refused to grant such permit. Due to urgency of the case, this Court, after mature deliberation, issued a writ of mandamus, as prayed for in the petition of November 15, 1947, without prejudice to writing later an extended and reasoned decision. The right of freedom of speech and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the Constitutions of democratic countries. But it a casettled principle growing out of the nature of wellordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power" which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities, and cities authorizing their legislative bodies, called municipal and city councils to enact ordinances for the purpose. The Philippine legislature has delegated the exercise of the police power to the Municipal Board of the City of Manila, which according to section 2439 of the Administrative Code is the legislative body of the City. Section 2444 of the same Code grants the Municipal Board, among others, the following legislative power, to wit: "(p) to provide for the prohibition and suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use of streets, avenues ... parks, cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of prosperity and the promotion of morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants." Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844 and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace, and section 1262 of the same Revised Ordinance penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation engaged in any lawful assembly." And section 1119 provides the following:

"SEC. 1119 Free for use of public The streets and public places of the city shall be kept free and clear for the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or occupied for other purposes as provided by ordinance or regulation: Provided, that the holding of athletic games, sports, or exercise during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any district in question, may be permitted by means of a permit issued by the Mayor, who shall determine the streets or public places or portions thereof, where such athletic games, sports, or exercises may be held: And provided, further, That the holding of any parade or procession in any streets or public places is prohibited unless a permit therefor is first secured from the Mayor who shall, on every such ocassion, determine or specify the streets or public places for the formation, route, and dismissal of such parade or procession: And provided, finally, That all applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession." As there is no express and separate provision in the Revised Ordinance of the City regulating the holding of public meeting or assembly at any street or public places, the provisions of saif section 1119 regarding the holding of any parade or procession in any street or public paces may be applied by analogy to meeting and assembly in any street or public places. Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the streets and other public places of the City of Manila; and the other is that the applicant has the right to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public places to be used for the purpose, with the view to prevent confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and proper policing to minimize the risk of disorder. After a mature deliberation, we have arrived at the conclusion that we must adopt the second construction, that is construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held. Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that "no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the select men of the town or from licensing committee," was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the State Supreme Court, held that " a statute requiring pewrsons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration, the time, place, and manner of the parade and procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing and are not invested with arbitrary discretion to issue or refuse license, ... ." We can not adopt the alternative construction or constru the ordinance under consideration as conferring upon the Mayor power to grant or refuse to grant the permit, which would be tantamount to authorizing him to prohibit the use of the streets and other public places for holding of meetings, parades or processions, because such a construction would make the ordinance invalid and void or violative of the constitutional limitations. As the Municipal Boards is empowered only to regulate the use of streets, parks, and the other public places, and the word "regulate," as used in section 2444 of

the Revised Administrative Code, means and includes the power to control, to govern, and to restrain, but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are executive and one of them is "to comply with and enforce and give the necessary orders for the faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised Administrative Code), the ligislative police power of the Municipal Board to enact ordinances regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets and other public places, can not be delgated to the Mayor or any other officer by conferring upon him unregulated discretion or without laying down rules to guide and control his action by which its impartial execution can be secured or partiality and oppression prevented. In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use of public streets, the council has no power to ordain that no processions shall be allowed upon the streets until a permit shall be obtained from the superintendent of police, leaving the issuance of such permits to his discretion, since the powers conferred on the council cannot be delegated by them. The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104, held the following: "The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also, in substance, the same, for the ordinance in that case upon its face committed to the unrestrained will of a single public officer the power to determine the rights of parties under it, when there was nothing in the ordinance to guide or cintrol his action, and it was held void because "it lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented." and that "when we remember that action or nonaction may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void." ... In the exercise of police power, the council may, in its discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress them, directly or indirectly, by attempting to commit the power of doing so to the mayor or any other officer. The discretion with which the council is vested is a legal discretion, to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any city officer and arbitrary authority, making him in its exercise a petty tyrant." In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons, or associations or organizations shall march, parade, ride or drive, in ou upon or through the public streets of the City of Grand Rapids with musical instrument, banners, flags, ... without first having obtained the consent of the mayor or common council of said city;" was held by the Supreme Court of Michigan to be unreasonable and void. Said Supreme Court in the course of the decision held: ". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it is not plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves, as secured by the principles of law, which cannot be less careful of private rights under the constitution than under the common law." "It is quite possible that some things have a greater tendency to produce danger and disorder in cities than in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a

purpose, and no grant of absolute discretion to suppress lawful action altogther can be granted at all. . . . ." "It has been customary, from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious, and social demonstrations are resorted to for the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. ... When people assemble in riotous mobs, and move for purposes opposed to private or public security, they become unlawful, and their members and abettors become punishable. . . ." "It is only when political, religious, social, or other demonstrations create public disturbances, or operate as a nuisance, or create or manifestly threaten some tangible public or private mischief, that the law interferes." "This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and because it leaves the power of permitting or restraining processions, and thier courses, to an unregulated official discretion, when the whole matter, if regualted at all, must be permanent, legal provisions, operating generally and impartially." In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance which made it unlawful for any person, society or club, or association of any kind, to parade any of the streets, with flags, banners, or transparencies, drums, horns, or other musical instruments, without the permission of the city council first had and obtained. The appellants were members of the Salvation Army, and were prosecuted for a violation of the ordinance, and the court in holding the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be oppressive; they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship accordingto the dictates of one's conscience, and the right to parade in a peaceable manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions allows great latitude in public parades and emonstrations whether religious or political ... If this ordinance is held valid, then may the city council shut off the parades of those whose nations do not suit their views and tastes in politics or religion, and permit like parades of those whose nations do. When men in authority are permitted in their discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions violated. ... Where the granting of the permit is left to the unregulated discretion of a small body of city eldermen, the ordinance cannot be other than partial and discriminating in its practical operation. The law abhors partiality and discrimination. ... (19 L.R.A., p. 861) In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it shall be unlawful for any person or persons or association to use the street of the City of Walsenburg, Colorado for any parade, procession or assemblage without first obtaining a permit from the Chief of Police of the City of Walsenburg so to do," held the following: "[1] The power of municipalities, under our state law, to regulate the use of public streets is conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of the United States to use the streets ... may be regulated in the interest of all; it is not absolute, but relative, and must be excercised in subordination to the general, be abridged or denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423. [2, 3] An excellent statement of the power of a municipality to impose regulations in the use of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The authority of a municipality to impose

regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted excercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional excercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58 S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352." [4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the uncontrolled official discretion of the chief of police of the municipal corporation to say who shall, who shall not, be accorded the privilege of parading on its public streets. No standard of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief of police may for any reason which he may entertain arbitrarily deny this privelege to any group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said: "In the instant case the uncontrolled official suppression of the privilege of using the public streets in a lawful manner clearly is apparent from the face of the ordinance before us, and we therefore hold it null and void." The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of a permit for a public assembly in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of the conclusion said: ". . . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. "We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking

will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right." Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes, cannot be cited as an authority for the Mayor to deny the application of the petitioner, for the simple reason that said general power is predicated upon the ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the Mayor, such as those found in Chapters 40 to 87 of the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is required to enforce under the same section 2434. Moreover "one of the settled maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority," except certain powers of local government, specially of police regulation which are conferred upon the legislative body of a municipal corporation. Taking this into consideration, and that the police power to regulate the use of streets and other public places has been delegated or rather conferred by the Legislature upon the Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m) the same power, specially if we take into account that its exercise may be in conflict with the exercise of the same power by the Municipal Board. Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred, upon the Mayor the power to grant or refuse licenses and permits of all classes, independent from ordinances enacted by the Municipal Board on the matter, and the provisions of section 2444 (u) of the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other public places for processions, parades, or meetings, would be null and void, for the same reasons stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra, wherein the question involved was also the validity of a similar statute of New Hamsphire. Because the same constitutional limitations applicable to ordinances apply to statutes, and the same objections to a municipal ordinance which grants unrestrained discretion upon a city officer are applicable to a law or statute that confers unlimited power to any officer either of the municipal or state governments. Under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. As stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is a legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any city officer an arbitrary authority making in its exercise a petty tyrant." It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of said provision was made by the writer of the decision under a mistaken conception of its purview and is an obiter dictum, for it was not necessary for the decision rendered. The popular meeting or assemblage intended to be held therein by the Communist Party of the Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had no power to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have the promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision, "the doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."

The reason alleged by the respondent in his defense for refusing the permit is, "that there is a reasonable ground to believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups, remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the people in their government, and in the duly constituted authorities, which might threaten breaches of the peace and a disruption of public order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the refusal of the permit can not be given any consideration. As stated in the portion of the decision in Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse the permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly 'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr. Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107: "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one . . . "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . . "Moreover, even imminent danger cannot justify resort to prohibition of these functions essential effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen, the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S. Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.) In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is ordered to issue the corresponding permit, as requested. So ordered. Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions PARAS, J., concurring: The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4, amending section 2434, paragraph (m) of the Revised Administrative Code, the Mayor has discretion to grant or deny the petition to hold the meeting. (See Evangelista vs. Earnshaw, 57 Phil., 255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this Court said: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct

by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor." The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the House of Representatives; he was the chief campaigner of the said party in the last elections. As the petition comes from a responsible party, in contrast to Evangelista's Communist Party which was considered subversive, I believe that the fear which caused the Mayor to deny it was not well founded and his action was accordingly far from being a sound exercise of his discretion.

BRIONES, M., conforme: En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P. Primicias, director general de campaa de las minorias coaligadas en las ultimas elecciones y "Floor Leader" de dichas minorias en la Camara de Representantes, solicito del Alcalde de Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso "para celebrar un mitin publico en la Plaza Miranda el Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00 a.m., a fin de pedir al gobierno el remedio de ciertos agravios." Tambien se pedia en la comunicacion licencia para usar la plataforma ya levantada en dicha Plaza. El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para la celebracion del mitin como para el uso de la plataforma, "en la inteligencia de que no se pronunciaran discursos subversivos, y ademas, de que usted (el solicitante) sera responsable del mantenimiento de la paz y orden durante la celebracion del mitin." Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el permiso concedido, expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep. Primicias. "Sirvase dar por informado dice el Alcalde Fugoso en su carta que despues de haber leido los periodicos metropolitanos da esta maana en que aparece que vuestro mitin va a ser un 'rally' de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes electorales perpetrados en varias partes de Filipinas para anular la voluntad popular, por la presente se revoca dicho permiso. "Se cree aade el Alcalde que la paz y el orden en Manila sufriran dao en dicho 'rally' considerando que las pasiones todavia no se han calmado y la tension sigue alta como resultado de la ultima contienda politica. "Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las universidades locales participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar disturbios, pues no se puede asegurar que concurriran alli solamente elementos de la oposicion. Desde el momento en que se mezclen entre la multitud gentes de diferentes matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines del mitin tal como han sido anunciados en los periodicos mencionados. "Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para este proceder toda vez que los resultados todavia no han sido oficialmente anunciados. "Por tanto termina el Alcalde su orden revocatoria la accion de esta oficina se toma en interes del orden publico y para prevenir la perturbacion de la paz en Manila." De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida inmediatamente el permiso solicitado. Se pide tambien que ordenemos al Procurador General para que investigue la fase criminal del caso y formule la accion que justifiquen las circunstancias.

Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los abogados de ambas partes ante esta Corte en sus informes orales.1 El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la Constitucion de Filipinas, el cual preceptua "que no se aprobara ninguna ley que coarte la libertad de la palabra, o de la prensa, o el derecho del pueblo de reunirse pacificamente y dirigir petiticiones al gobierno para remedio de sus agravios." Con respecto al posible aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado, el cual dispone que "la pena de prision correccional en su periodo minimo, se impondra al funcionario publico o empleado que, sin fundamento legal, prohibiere o interrumpiere una reunion pacifica, o disolviere la misma." La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como guardian legal de las plazas, calles y demas lugares publicos. Se alega que como Alcalde de la Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la Plaza Miranda, que es una plaza publica, para la celebracion de un mitin o reunion, de conformidad con las exigencias del interes general tal como el las interpreta. Especificamente se citan dos disposiciones, a saber: el articulo 2434 (b), inciso (m) del Codigo Administrativo Revisado, y el articulo 1119, capitulo 118 de la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo aludido del Codigo Administrativo Revisado se lee como sigue: xxx xxx xxx "(m) To grant and refuse municipal license or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinance are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other good reason of general interest." La ordenanza municipal indicada reza lo siguiente: La ordenanza municipal indicada reza lo siguiente: "SEC. 1119. Free for use of public. The streets and public places of the city shall be kept free and clear for the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or occupied for other purposes as provided by the ordinance or regulation: Provided, That the holding of athletic games, sports, or exercises during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any district in question, may be permitted by means of a permit issued by the Mayor, who shall determine the streets or public places, or portions thereof, where such athletic games, sports, or exercises may be held: And provided, further, That the holding of any parade or procession in any streets or public places is prohibited unless a permit therefor is first secured from the Mayor, who shall, on every occasion, determine or specify the streets or public places for the formation, route, and dismissal of such parade or procession: And provided, finally, That all applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession." Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que habla el Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la peticion del recurrente ni en ningun documenmento o manifestacion verbal atribuida al mismo, sino solamente en las columnas informativas de la prensa metropolitana. El recurrente admite, sin embargo, que el objeto del mitin era comunicar al pueblo la infinidad de telegramas y comunicaciones que como jefe de campaa de las oposiciones habia recibido de varias partes del archipielago denunciando tremendas anomalias, escandalosos fraudes, actos vandalicos de terrorismo politico, etc., etc., ocurridos en las elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia tales anomalias y abusos; y pedir su pronta, eficaz y honrada intervencion para evitar lo que todavia se podia evitar, y con relacion a los hechos consumados urgir la pronta persecucion y castigo inmediato de los culpables y malhechores. De esto resulta evidente que el objeto del mitin era completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el recurrente y los partidos oposicionistas coaligados que representa tuvieran

el proposito de utilizar el mitin para derribar violentamente al presente gobierno, o provocar una rebelion o siquiera un motin. En realidad, teniendo en cuenta las serias responsabilidades del recurrente como jefe de campaa electoral de las minorias aliadas y como "Floor Leader" en el Congreso de dichas minorias, parecia que esta consideracion debia pesar decisivamente en favor de la presuncion de que el mitin seria una asamblea pacifica, de ciudadanos conscientes, responsables y amantes de la ley y del orden.2 Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas Revisadas de Manila no figura el mitin entre las materias reglamentadas, sino solo la procesion o parada por las calles. Esto demuestra, se sostiene, que cuando se trata de un mitin en una plaza o lugar publico, la concesion del permiso es ineludible y el Alcalde no tiene ninguna facultad discrecional. Pareceme, sin embargo, que no es necesario llegar a este extremo. Creo no debe haber inconveniente en admitir que el mitin esta incluido en la reglamentacion, por razones de conveniencia publica. Verbigracia, es perfectamente licito denegar el permiso para celebrar un mitin en una plaza publica en un dia y una hora determinados cuando ya previamente se ha concedido de buena fe el uso del mismo lugar a otro a la misma hora. La prevencion de esta clase de conflictos es precisamente uno de los ingredientes que entran en la motivacion de la facultad reguladora del Estado o del municipio con relacion al uso de calles, plazas y demas lugares publicos. Por ejemplo, es tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el movimiento general del trafico tanto de peatones como de vehiculos. Estas consideraciones de comfort y conveniencia publica son por lo regular la base, el leitmotif de toda ley u ordenanza encaminada a reglamentar el uso de parques, plazas y calles. Desde luego que la regla no excluye la consideracion a veces de la paz y del buen orden, pero mas adelante veremos que este ultimo, para que sea atendible, requiere que exista una situacion de peligro verdadero, positivo, real, claro, inminente y substancial. La simple conjetura, la mera aprension, el temor mas o menos exagerado de que el mitin, asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es motivo bastante para denegar el permiso, pues el derecho constitucional de reunirse pacificamente, ya para que los ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento sobre ellos, ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso de los parques, plazas y calles. La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla. Tenia razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente, ora bajo los terminos de la ordenanza pertinente, ora bajo la carta organica de Manila, y sobre todo, bajo el precepto categorico, terminante, expresado en el inciso 8, seccion 1, del Articulo III de la Constitucion? No constituye la denegacion del permiso una seria conculcacion de ciertos privilegios fundamentales garantizados por la Constitucion al ciudadano y al pueblo? Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama "allpervading power of the state to regulate," temiendo que el mitin solicitado iba a poner en peligro la paz y el orden publico en Manila. No se fundo la denegacion en razones de "comfort" o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir un conflicto con otro mitin ya previamente solicitado y concedido, sino en una simple conjetura, en un mero temor o aprension la aprension de que, dado el tremendo hervor de los animos resultante de una lucha electoral harto reida y apasionada, un discurso violento, una arenga incendiaria podria amotinar a la gente y provocar serios desordenes. La cuestion en orden es la siguiente: se puede anular o siquiera poner en suspenso el derecho fundamentalisimo de reunion o asamblea pacifica, garantizado por la Constitucion, por razon de esta clase de conjetura, temor o aprension? Es obvio que la contestacion tiene que ser decididamente negativa. Elevar tales motivos a la categoria de razon legal equivaldria practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y garantias constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales privilegios y garantias hubiera de depender de

las suspicacias, temores, aprensiones, o hasta humor del gobernante, uno podria facilmente imaginar los resultados desastrosos de semejante proposicion; un partido mayoritario dirigido por caudillos y liders sin escrupulos y sin conciencia podria facilmente anular todas las libertades, atropellar todos los derechos incluso los mas sagrados, ahogar todo movimiento legitimo de protesta o peticion, estrangular, en una palabra, a las minorias, las cuales como sabe todo estudiante de ciencia politica en el juego y equilibrio de fuerzas que integran el sistema democratico son tan indispensables como las mayorias. Que es lo que todavia podria detener a un partido o a un hombre que estuviera en el poder y que no quisiera oir nada desagradable de sus adversarios si se le dejara abiertas las puertas para que, invocando probables peligros o amagos de peligro, pudiera de una sola plumada o de un solo gesto de repulsa anular o poner en suspenso los privilegios y garantias constitucionales? No seria esto retornar a los dias de aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico de uno de los Estados del Sur de America que asombro al resto de su pais con este nefasto pronunciamiento: "I am the only Constitution around here"? Es inconcebible que la facultad de reglamentar o el llamado poder de policia deba interpretarse en el sentido de justificar y autorizar la anulacion de un derecho, privilegio o garantia constitucional. Sin embargo, tal seria el resultado si en nombre de un concepto tan vago y tan elastico como es el "interes general" se permitiera in terdecir la libertad de la palabra, de la cual los derechos de reunion y de peticion son nada mas que complemento logico y necesario. Una mujer famosa de Francia 3 en la epoca del terror, momentos antes de subir al cadalso y colocar su hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion: "Libertad, cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso legitimando la accion del recurrido y consiguientemente autorizando la supresion de los mitines so pretexto de que la paz y el orden publico corren peligro con ellos, un desengaado de la democracia en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la historica exclamacion de la siguiente manera: "Interes general, paz, orden publico, cuantos atentados se cometen en vuestro nombre contra la libertad!" El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas, particularmente en Estados Unidos, es que el privilegio del ciudadano de usar los parques, plazas y calles para el intercambio de impresiones y puntos de vista sobre cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de que se puede regular, pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague vs. Committee for Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y decidido en 1938, ha venido a ser clasico en la jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. La formidable asociacion obrera Committee for Industrial Organization conocida mas popularmente por la famosa abreviatura CIO, planteo una queja ante los tribunales de New Jersey contra las autoridades de Jersey City, (a) atacando, por fundamentos constitucionales, la validez de una ordenanza municipal que regulaba y restringia el derecho de reunion; y (b) tachando de inconstitucionales los metodos y medios en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades. Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar mitines y asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la "National Labor Relations Act." Las autoridades de la ciudad, comenzando por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de New Jersey, rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa alegacion de que los miembros de la organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave perturbacion; es decir, casi, casi la misma alegacion que en el presente caso. La denegacion de la licencia se fundaba en una ordenanza municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea pacifica. Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los metodos por los cuales se trataba de poner en vigor, sentenciaron a favor de la CIO permitiendole celebrar los mitines

solicitados. Elevado el asunto en casacion e la Corte Suprema Federal, esta confirmo la sentencia con solo una ligera modificacion. Entre otros pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles, parques y plazas, desde tiempo inmemorial los mismos siempre se han considerado como un fideicomiso para uso del publico, y desde tiempos remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio de impresiones y puntos de vista entre los ciudadanos, asi como para la libre discusion de los asuntos publicos; (b) que el uso de las calles y plazas publicas para tales fines ha sido siempre, desde la antiguedad, una parte importante y esencial de los privilegios, inmunidades, derechos y libertades de los ciudadanos; (c) que el privilegio del ciudadano de los Estados Unidos de usar las calles, plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo, y debe ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia con la paz y el buen orden; pero no puede ser coartado o denegado so pretexto y forma de regulacion; (d) que el tribunal inferior estuvo acertado al declarar invalida la ordenanza en su faz, pues no hace del "comfort" o conveniencia en el uso de calles y plazas la norma y patron de la accion official; por el contrario, faculta al Director de Seguridad a rehusar el permiso en virtud de su simple opinion de que la denegacion es para prevenir motines, trastornos o reuniones turbulentas y desordenadas; (e) que, de esta manera, y conforme lo demuestra el record, la denegacion puede ser utilizada como instrumento para la supresion arbitraria de la libre expression de opiniones sobre asuntos nacionales, pues la prohibicion de hablar producira indudablemente tal efecto: (f) y, por ultimo, que no puede echarse mano de la supresion official del privilegio para ahorrarse el trabajo y el deber de mantener el orden en relacion con el ejercicio del derecho. En otras palabras, traduciendo literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede hacerse de la supresion official incontrolada del privilegio un sustituto del deber de mantener el orden en relacion con el ejercicio del derecho." He aqui ad verbatim la doctrina: "5. Regulation of parks and streets. "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of the citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not in the guise of regulation be abridged or denied. We think the court below was right in holding the ordinance . . . void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent riots, disturbances, or disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right." (Hague vs. Committee for Industrial Organization, 307 U. S. 496, 515-516.) Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra Earnshaw, 57 Jur. Fil., 255, como un precedente en apoyo de la accion del Alcalde recurrido. Pero la similitud es solo en el hecho de que el entonces Alcalde D. Tomas Earnshaw tambien revoco el permiso previamente concedido al partido comunista que representaba Crisanto Evangelista para celebrar mitines en Manila, pero las circunstancias en ambos casos son enteramente diferentes. El Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se habian encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido comunista se preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas gobierno que ellos calificaban de

imperialista y capitalistico sino que de hecho en mitines celebrados con anterioridad los comunistas habian pronunciado discursos clara y positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para liberar, segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La accion, por tanto, del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero temor o aprension, sino en la existencia de un peligro inminente, claro, real, sustantivo ingrediente unico y excepcionalisimo que permite una salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales de que se trata. Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha hecho la mas pequea insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por metodos y procedimientos violentos. El mismo Fiscal Villamor, en su informe oral, admitio francamente la legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial de que esas minorias coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para todos los cargos nacionales, provinciales y locales, y de que su candidatura senatorial triunfo en 21 provincias de las 50 que componen el mapa electoral, y en 5 ciudades con carta especial de las 8 que existen, incluyendose entre dichas 5 la de Manila, capital del archipielago. Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el caso de Evangelista contra Earnshaw, sino que por el contrario propugna la balota, no la bala, como el instrumento normal y democratico para cambiar los gobiernos y las administraciones, lo demuestra, ademas del hecho ya apuntado de que lucho en las ultimas elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los medios de que disponia frente a la natural superioridad del partido gobernante, lo demuestra, repito, la circunstancia de que despues de hechas las votaciones y mientras se estaban contando los votos y cuando vio que, segun ella, se habia escamoteado o se estaba escamoteando la voluntad popular en varias partes mediante engaos, abusos y anomalias de diferentes clases, no busco la violencia ni recurrio a la accion directa para hallar remedio a sus agravios o vengarlos, sino que trato de cobijarse bajo la Constitucion reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir sus quejas y recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente, con todas las rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos el recurrente en este caso, cuya solvencia moral y politica esta doblemente garantida por su condicion de lider de las minorias en el Congreso y jefe de campaa de las mismas en las pasadas elecciones. Que mejor prueba de legalidad y de propositos pacificos y ordenados? Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado, el camino angosto de la represion, de una politica de fuerza y de cordon ferreo policiaco; por otro lado, la amplia avenida de la libertad, una politica que consista en abrir espitas y valvulas por donde pueda extravasarse no ya la protesta sino inclusive la indignacion del pueblo, previniendo de esta manera que los vapores mal reprimidos hagan estallar la caldera, o que la desesperacion lo arrastre a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil. Creo que entre ambas politicas la eleccion no es dudosa. Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en diferentes sitios de Manila; que en dichos mitines se habian pronunciado discursos altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios funcionarios del gobierno nacional y de la Ciudad de Manila, entre ellos el Presidente de Filipinas, el Presidente del Senado y el mismo recurrido, suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del bienestar e interes generales; que, dado este antecedente, habia motivo razonable para creer que semejantes discursos se pronunciarian de nuevo,

minandose de tal manera la fe y la confianza del pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias perturbaciones, teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo de parte de los grupos perdidosos y derrotados. Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui un regimen de previa censura, el cual no solo es extrao sino que es enteramente repulsivo e incompatible con nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion, es de represion y castigo sobre la base de los hechos consumados. En otras palabras, es un sistema que permite el amplio juego de la libertad, exigiendo, sin embargo, estricta cuenta al que abusase de ella. Este es el espiritu que informa nuestras leyes que castigan criminalmente la calumnia, la difamacion oral y escrita, y otros delitos semejantes. Y parafraseando lo dicho en el citado asunto de Hague vs. Committee for Industrial Organization, la supresion incontrolada del privilegio constitucional no puede utilizarse como sustituto de la operacion de dichas leyes. Se temia dice el recurrido en su contestacion que la probable virulencia de los discursos y la fuerte tension de los animos pudiesen alterar seriamente la paz y el orden publico. Pero cabe preguntar de cuando aca la libertad, la democracia no ha sido un peligro, y un peligro perpetuo? En realidad, de todas las formas de gobierno la democracia no solo es la mas dificil y compleja, sino que es la mas peligrosa. Rizal tiene en uno de sus libros inmortales una hermosa imagen que es perfectamente aplicable a la democracia. Puede decirse que esta es como la mar: serena, inmovil, sin siquiera ningun rizo que arrugue su superficie, cuando no lo agita ningun viento. Pero cuando sopla el huracan lease, Vientos de la Libertad sus aguas se alborotan, sus olas se encrespan, y entonces resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se desencadenan liberrimamente. Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden encresparse y enfurecerse a veces? Pues bien; lo mismo puede decirse de la democracia: hay que tomarla con todos sus inconvenientes, con todos sus peligros. Los que temen la libertad no merecen vivirla. La democracia no es para pusilanimes. Menos cuando de la pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo. Porque entonces el absolutismo se disfraza bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de Rusia. Y ya se sabe como terminaron. El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y democracia y previno el temor a ellos con las luminosas observaciones que se transcriben a continuacion, expuestas en la causa de Estados Unidos contra Apurado, 7 Fur. Fil., 440 (1907), a saber: "Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos siempre estan excesivamente exaltados, y mientras mayor sea el agravio y mas intenso el resentimiento, tanto menos perfecto sera por regla general el control disciplinario de los directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y tumultuoso contra las autoridades, entonces el derecho de asociacion, y de pedir reparacion de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la ocasion mas propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden debe averiguarse quienes son los culpables y castigarseles por este motivo, pero debe procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la sedicion, y entre la reunion esencialmente pacifica y un levantamiento tumultuoso." En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de los discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la oposicion antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa. Como se dice mas arriba, en el mitin monstruo que despues se celebro en virtud de nuestra decision en el presente asunto tampoco ocurrio nada. Que demuestra esto? Que los temores eran exagerados, por no llamarlos fantasticos; que

el pueblo de Manila, con su cordura, tolerancia y amplitud de criterio, probo ser superior a las aprensiones, temores y suspicacias de sus gobernantes. La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes el de reunion y peticion. Se trata de derechos demasiado sagrados, harto metidos en el corazon y alma de nuestro pueblo para ser tratados negligentemente, con un simple encogimiento de hombros. Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas contra la opresion y el despotismo. Fueron esas libertades la base del programa politico de los laborantes precursores del '96. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio, generando luego el famoso Grito de Balintawak. Fueron esas libertades las que despues informaron los documentos politicos de Mabini y la celebre Constitucion de Malolos. Y luego, durante cerca de medio siglo de colaboracion filipino americana, fueron esas mismas libertades la esencia de nuestras instituciones, la espina dorsal del regimen constitucional y practicamente republicano aqui establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los atinados y elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados Unidos contra Bustos, 37 Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por transcribirlos ad verbatim a continuacion: "Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la palabra, tal y como la han defendido siempre todos los paises democraticos, era desconocida en las Islas Filipinas antes de 1900. Por tanto, existia latente la principal causa de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Aos' (paginas 62 y siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos, dijo: "El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la prensa libre en Filipinas, y por crear diputados filipinos. "Los patriotas filipinos que estaban en Espaa, por medio de las columnas de La Solidaridad y por otros medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la 'libertad de prensa, de cultos y de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de Derechos, garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y de peticion. "Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida, debe ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia el derecho a la libertad. "Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto, no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de 1900, que sientan el siguiente inviolable principio: "Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para remedio de sus agravios." "El Bill de Filipinas, o sea la Ley del Congreso de 1. de Julio de 1902, y la Ley Jones, o sea la Ley del Congreso de 29 de Agosto de 1916, que por su naturaleza son leyes organicas de las Islas Filipinas, siguen otorgando esta garantia. Las palabras entre comillas no son extraas para los estudiantes de derecho constitucional, porque estan calcadas de la Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio antes de otorgar su aprobacion a la Constitucion. "Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe olvidarse por un solo instante, de que las mencionadas garantias constituyen parte integrante de la Ley Organica La Constitucion de las Islas Filipinas. "Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera palabreria. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de aplicacion a los grandes

casos constitucionales de Inglaterra y America. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y cuales son estos principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre aquellos estan los siguientes: "Los intereses de la sociedad y la conservacion de un buen gobierno requieren una discusion plena de los asuntos publicos. Completa libertad de comentar los actos de los funcionarios publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra. La penetrante incision de la tinta libra a la burocracia del absceso. Los hombres que se dedican a la vida publica podran ser victimas de una acusacion injusta y hostil; pero podra calmarse la herida con el balsamo que proporciona una conciencia tranquila. El funcionario publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad de los individuos. Desde luego que la critica no debe autorizar la difamacion. Con todo, como el individuo es menos que el Estado, debe esperarse que sobrelleve la critica en beneficio de la comunidad. Elevandose a mayor altura que todos los funcionarios o clases de funcionarios, que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial que cualesquiera o sobre todas las dependencias del Gobierno la opinion publica debe ser el constante manantial de la libertad y de la democracia. (Veanse los casos perfectamente estudiados de Wason vs. Walter, L. R. 4 Q. B., 73, Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.) Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa que la antigua colonia en la tenencia y conservacion de esas libertades, sino que, por el contrario, tiene que ser muchisimo mas activa y militante. Obrar de otra manera seria como borrar de una plumada nuestras mas preciosas conquistas en las jornadas mas brillantes de nuestra historia. Seria como renegar de lo mejor de nuestro pasado: Rizal; Marcelo H. del Pilar, Bonifacio, Mabini, Quezon, y otros padres inmortales de la patria. Seria, en una palabra, como si de un golpe catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos sacrificios ha costado a nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura de opera bufa, al amparo de caciquillos y despotillas que pondrian en ridiculo el pais ante el mundo . . . Es evidente que no hemos llegado a estas alturas, en la trabajosa ascension hacia la cumbre de nuestros destinos, para permitir que ocurra esa tragedia. No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del pueblo el propio y correspondiente remedio. Pudieran ser reales o pudieran ser imaginarios, en todo o en parte. Pero de una cosa estamos absolutamente seguros y es que la democracia no puede sobrevivir a menos que este fundada sobre la base de un sufragio efectivo, sincero, libre, limpio y ordenado. El colegio electoral es el castillo, mejor todavia, el baluarte de la democracia. Suprimid eso, y la democracia resulta una farsa. Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser reprimido, sino que debe ser alentado. Y para esto, en general para la salud de la republica, no hay mejor profilaxis, no hay mejor higiene que la critica libre, la censura desembarazada. Solamente se pueden corregir los abusos permitiendo que se denuncien publicamente sin trabas sin miedo.5 Esta es la mejor manera de asegurar el imperio de la ley por encima de la violencia.

HILADO, J., dissenting: Because the constitutional right of assembly and petition for redress of grievances has been here invoked on behalf of petitioner, it has been considered doubly necessary to expound at length the grounds of my dissent. We are all ardent advocates of this right, whenever and wherever properly exercisable. But, in considering the legal problem here presented serenely and dispassionately, as I had to, I arrived at a different conclusion from that of the majority.

(a) Right not absolute but subject to regulation. It should be recognized that this right is not absolute and is subject to reasonable regulations. (Philippine Constitutional Law by Malcolm and Laurel, 3d ed., p. 407; Commonwealth vs. Abrahams, 156 Mass., 57, 30 N.E. 79.) Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one. Assemblies are subject to reasonable regulations." In the above cited case of Commonwealth vs. Abrahams, which is cited in support of the text on page 407 of the above cited work on Philippine Constitutional Law by Malcolm and Laurel, the Supreme Judicial Court of Massachusetts considered and decided a case involving a regulation by the Board of Park Commissioners forbidding all persons "to make orations, harangues, or loud outcries" in a certain park, under penalty of $20, except upon prior consent of the board. The defendant requested permission to deliver an oration in the park, which was refused by the board, and thereafter entered the park, and delivered an "oration or harangue" about ten or fifteen minutes in length. In a criminal trial of said defendant for violating the rules promulgated by the Board of Park Commissioners, said rules were held valid and reasonable, and not inconsistent with article 19 of the Bill of Rights (of the Massachusetts Constitution), providing that "the people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that case the defendant admitted that the people would not have the right to assemble for the purposes specified in the public streets, and might not have such right in the public gardens or on the common, because such an assembly would or might be inconsistent with the public use for which these places are held. And the Supreme Court of Massachusetts said: ". . . . The same reasons apply to any particular park. The parks of Boston are designed for the use of the public generally; and whether the use of any park or a part of any park can be temporarily set aside for the use of any portion of the public, is for the park commissioners to decide, in the exercise of a wise discretion." In the above-quoted case it appears from the statement of facts preceding the opinion that within the limits of Franklin Park, there involved, were large areas not devoted to any special purpose and not having any shrubbery that would be injured by the gathering thereon of a large concourse of people; that defendant's speech contained nothing inflammatory or seditious, and was delivered in an ordinary oratorical tone; that at the close of the oration the audience quietly dispersed; and that no injury of any kind was done to the park. Still, it was held that the regulation under which the Board of Park Commissioners denied the permission to deliver said oration requested by the defendant was valid and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to the people the "right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and refuse municipal . . . permits of all classes . . . for any (other) good reason of general interest" (Rev. Ad. Code, section 2434 [b]-[m]; italics ours); and "to comply with and enforce and give the necessary orders for the faithful enforcement and execution of the laws and ordinances in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and among the general powers and duties of the Municipal Board, whose ordinances the said Mayor was at once bound and empowered to comply with and enforce, were such as "regulate the use of streets, . . . parks, . . . and other public places." [Ibid., section 2444 (u); italics ours.] Another legal doctrine which should not be lost sight of is that, without abridging the right of assembly and petition, the government may regulate the use of places public places wholly within its control, and that the state or municipality may require a permit for public gatherings in public parks and that, while people have the right to assemble peaceably on the highways and to parade on streets,

nevertheless the state may regulate the use of the streets by requiring a permit (16 C. J. S., p. 642). In our government the state, through the Charter of Manila, has conferred certain powers pertinent to the subject under consideration upon the City Mayor, and upon the Municipal Board. Among these is the duty and power of said Mayor "to grant and refuse municipal . . . permits of all classes . . . for any good reason of general interest" (italics ours), and the power and duty of the Municipal Board "to regulate the use . . . of street, . . . parks, . . . and other public places . . ." (italics ours), already above discussed. Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more frequent public use, is a public place devoted to traffic between several streets which empty into it within the district of Quiapo. It is a fact of common knowledge and within the judicial notice of this Court that said plaza is one of the public places constantly used by an usually great number of people during all hours of the day and up to late hours of the night, both for vehicular and for pedestrian traffic. It is one of the centers of the city where a heavy volume of traffic during those hours converges and from which it again proceeds in all directions; and the holding during those hours of a meeting, assembly or rally of the size and nature of that contemplated by petitioner and those belonging to the Coalesced Minority Parties when the permit in question was requested from the City Mayor, must have been expected to greatly inconvenience and interfere with the right of the public in general to devote said plaza to the public uses for which it has been destined since time immemorial. The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition is not absolute but subject to regulation as regards the time, place, and manner of its exercise. As to time, it seems evident, for example, that the State, directly or through the local government of the city or municipality, by way of regulation of the right of free speech, may validly prohibit the delivery of speeches on public streets near private residences between midnight and dawn. As to place, we have the example of the instant case involving Plaza Miranda or any other public place. And as to manner, it is a familiar rule that the freedom of speech does not authorize the speaker to commit slander or defamation, and that laws and ordinances aimed at preventing such abuses are valid regulations of the right. Among other cases which may be cited on the same point, we have that of Hague vs. Committee on Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the majority opinion and from which the following passage is copied from the quotation therefrom in the said opinion: ". . . The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." (Italics ours.) I construe this declaration of principles by the United States Supreme Court to imply that where the regulatory action is predicated upon the "general comfort and convenience," and is "in consonance with peace and good order," as in the instant case, such action is regulation and not "guise of regulation," and therefore does not abridge or deny the right. (b) No constitutional right to use public places under government control, for exercise of right of assembly and petition, etc. Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of the constitutional right of assembly and petition, or free speech, claimed by petitioner, but rather of the use of a public place under the exclusive control of the city government for the exercise of that right. This, I submit, is a distinction which must be clearly maintained throughout this discussion. No political party or section of our people has any constitutional right to freely and without government control make use of such a public place as Plaza Miranda, particularly if such use is a deviation from those for which said public places have been by their nature and purpose immemorially dedicated. In other words, the City Mayor did not attempt to have anything to do with the holding of the "indignation rally" or the delivery of speeches thereat on the date desired at any place over which said mayor had no control his action was exclusively confined to the regulation of the use of Plaza Miranda for such a purpose and at such a

time. Chief Justice Hughes, speaking for a unanimous court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said: If a municipality has authority to control the uses of its public streets for parades or processions, as it undoubtedly has, it can not be denied authority to give consideration, without unfair discrimination, to time, place, and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constituional right. (emphasis ours). That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal court in the State of New Hampshire for violation of a state statute prohibiting a "parade or procession" upon a public street without a special license. The appellants invoked the constitutional right of free speech and press, as well as that of the assembly. The judgment of the municipal court was affirmed by the Supreme Court of New Hampshire and that of the latter was affirmed by the United States Supreme Court. Among other things, the United States Supreme Court said that the appellants were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, of for maintaining or expressing religious beliefs. Their right to do any of these things apart from engaging in a "parade or procession," upon a public street was not involved in the case. The question of the validity of a statute addressed to any other sort of conduct than that complained of was declared not to be before the court (85 Law. ed., 1052). By analogy, I may that in the instant case the constitutional rights of free speech, assmebly, and petition are not before the court but merely the privilege of petitioner and the Coalesced Minorities to exercise any or all of said rights by using Plaza Miranda, a public place under the complete control of the city government. In the same case of Cox vs. New Hampshire, supra, Chief Justice Hughes, in his opinion, used the following eloquent language:. "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it can not be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protectio. One would not be justified in ignoring the familiar red lightbecause he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinion...." (85 Law. ed., 1052-1053.). In other words, when the use of public streets or places is involved, public convenience, public safety and public order take precedence over even particular civil rights. For if the citizen asserting the civil right were to override the right of the general public to the use of such streets or places, just because it is guaranteed by the constitution, it would be hard to conceive how upon the same principle that citizen be prevented from using the private property of his neighbor for the exercise of the asserted right. The constitution, in guaranteeing the right of peaceful assembly and petition, the right of free speech, etc., does not guarantee their exercise upon public places, any more than upon private premises, without government regulation in both cases, of the owners' consent in the second.. In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme Court, in affirming the decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver Wendell Holmes, then of the latter tribunal, quoted from said decision as follows:. "...As representatives of the public it (legislature) may and does excercise control over the use which the public may make of such places (public parks and streets), and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to

forbid public speaking in a highway or public park is no more an infringement of the rights of the member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs. Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70)....". (c) Authorities cited.--. I have examined the citations of authorities in the majority opinion. Most of the cases therin cited are, I think, inapplicable to the oune under consideration, and those which may have some application, I believe reinforce this dissent. None of them was for mandamus to compel the granting of a permit for holding a meeting, assembly or the like, upon a public place within the control of the general or local government.. The fact that a law or municipal ordinance under which a person had been prosecuted for delivering a speech without the required permit, for example, was declared unconstitutional or otherwise void for delegating an unfettered or arbitrary discretion upon the lisencing authority, thus completely failing to confer the discretion, does not mean that such person has the right by mandamus to force said authority to grant him the permit. If, in such case, the law or ordinance, conferring the discretion, is unconstitutional or void, the mandamus suit becomes entirely idle. Such a suit would involve selfcontradictory proposition, for the very idea of a permit is something which may be granted or witheld. He who has the power to grant permission for the doing of an act necessarily has the correlative power to deny the permission. A "permit" which under no conditions or circumstances and at no time can be refused needs a different name.. Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the State of New Hampshire which was construed by the Supreme Court of the same State as not conferring upon the licensing board unfettered discretion to refuse the license, and was held valid both by said Supreme Court and the Supreme Court of the United States.. In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the Mayor of Manila an unfettered discretion to grant or refuse the permit--his power to grant or to refuse the permit is controlled and limited by the all important requirement of the same section that whatever his determination, it should be "for any good reason of general interest.". In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held that the power of City councils under the state law to regulate the use of the public streets could not be delegated by them, and therefore could not be delegated to the superintendent of police. But in our case, the power of the City Mayor under the Revised Administrative Code has not been delegated by the Municipal Board of Manila but has been directly conferred by the State through its legislature. . In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city ordinance committing to the unrestrained will of public officer the power to determine the rights of parties under the ordinance without anything (to guide or control his action.) In our case, as already stated, the city mayor received his power from the State through the Legislature which enacted the Revised Administrative Code, and moreover, his action therein provided to be guided and controlled by the already mentioned requirement that whether he grants or refuses a municipal premit of any class it shall be for some "good reason of general interest," and not as his unfettered will may dictate.. The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable and void by the Supreme Court of Michigan, the ordinance prohibiting certain uses of the public streets of the City of Grand Rapids "without having first obtained the consent of the Mayor or Common Council of said City." The ordinance did not prescribe any guide, control or limitation for, of, and to, the exercise of the power thus conferred upon the mayor or common council. The following passage from the quotation from the

decision of the Supreme Court of Michigan made in the majority opinion would seem to reinforce the stand taken in this dissent.. "...We must therefore construe this Charter and the powers it assumes to grant, so far as it is not plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves, as secured by the principles of law, which cannot be less careful of private rights under a constitution than under the common law.. "It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a purpose and no grant of absolute discretion to suppress lawful action altogether can be granted at all...." (emphasis ours.) The instant case is concerned with an "indignation rally" to be held at one of the busiest and most frequented public places in this big cosmopolitan city, with a present population estimated to be 150 per cent larger than its prewar population, and the public officer who was being called upon to act on the petition for permit was the chief executive of the city who was by reason of his office the officer most directly responsible for the keeping and maintenance of peace and public order for the common good. And as stated elsewhere in this dissent, his power in the premises was not without control, limitation or guide and, lastly, the action taken by him was not an absolute suppression of the right claimed but was merely a postponement of the use of a public place for the excercise of that right when popular passions should have calmed down and public excitement cooled off sufficiently to better insure the avoidance of public peace and order being undermined.. Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city ordinance. The court there held that when men in authority are permitted in their discretion to excercise "power so arbitrary , liberty is subverted, and the spirit of our free institution violated." (Emphasis ours.) This is not our case, as the power of the Manila Mayor now under consideration is not at all arbitrary. It was further held in that case that where the granting of the permit is left to the unregulated discretion of a small body of city alderman, th ordinance can not be other than partial and discriminating in its practical operation. The case at bar is radically different for, as already shown, the discretion of the City Mayor here is not unregulated, for the phrase "any good reason of general interest" is certainly an effective regulatory condition precedent to the exercise of the power one way or the other. And just as certainly the reasons alleged by the respondent Mayor for his action stated in his letters dated November 15 and 17, 1947, addressed to petitioner and in his affidavit Annex 1, seem entirely well founded and well taken, consideration being had of his grave responsibilities as the immediate keeper of peace and public order in the city. Elsewhere in this dissent we quote from said documents textually.. On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs. New Hampshire, supra, which says:. "As regualtion of the use of the streets for parades or processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.". The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of assembly, such control is legally valid. This is precisely our case, since the respondent Mayor neither denied not unwarrantedly abridged the right asserted by petitioner and his companions. If the postponement of the granting of the permit should be taken as a denial of the right, then we would practically be denying the discretion of the proper official for it would be tantamount to compelling him to grant the permit outright, which could necessarily mean that he can never refuse the permit, for one who cannot even postpone the granting of such permit much less can altogether refuse it. .

Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart from being clearly distinguishable from the instant case as later demonstrated, contains the passage quoted on page 7 of this dissent, which decidedly supports it. The distinction between that case and this is that there "the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks" (83 Law. ed., 1436); while in the instant case section 2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular act for it likewise provides permission, and in both cases is expressly aimed at promoting the "general interest." . Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid support of this dissent as appears from No. 2 of the syllabus therein:. "A statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of time, place, and manner, of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse licenses, but are required to exercise their discretion free from the improper or inappropriate consideration and from unfair discrimination." (Emphasis ours.). In empowering and directing the City Mayor to grant or refuse permits "for any...good reason of general interest," the Revised Administrative Code plainly has in view only the common good and excludes all "improper or inappropriate considerations" and "unfair discrimination" in the exercise of the granted discretion. Lastly, as between Hague vs, Committee fro Industrial Organization, supra, and Cox vs. State of New Hampshiresupra, the choice is obvious with regard to their authoritative force, when it is considered that in the former out of the nine Justices of the United States Supreme Court two did not take part and of the seven who dis only two, Justices Roberts and Black, subscribed the opinion from which the majority here quote, while in the latter (Cox vs. State of New Hampshire) the decision was unanimous.. (d) Mandamus unavailable.--- . Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section 2714, expresses the rule obtaining in the United States that the immunity from judicial control appertaining to the Office of the Governor of the State, or to the Presidency of the United States, does not attach to the mayoralty of a city. But on page 878, section 2728, ha has the following to say on the unavailability of mandamus to compel the granting of licenses and permits by municipal officers:. "SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the license or permit is discretionary with the officer or municipal board, it is clear that it cannot be compelled by mandamus. The cases rarely, if ever, depart from this well established rule, and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the remedy. As already stated, the fundamental condition is that the petition must show a clear legal right to the writ and a plain neglect of duty on the part of the public officer to perform the act sought to be enforced. For example, one who seeks to compel a city to issue to him a permit for the erection of a buiding must show compliance with all valid requirements of the building ordinances and regulations.. "The granting of licenses or permits by municipal or other public authorities, as mentioned, is usually regarded as a discretionary duty, and hence, ordinarily mandamus will not lie to compel them to grant a license or issue a permit to one claiming to be entitled thereto, especially where it is not alleged and shown that the exercise of such discretion was arbitrary. All the court can do is to see that the licensing authorities have proceeded according to law. Their decision will not be reviewed on its merits. Where,

however, refusal to grant a license or to issue a permit, as said above, is arbitrary or capricious mandamus will lie to compel the appropriate official action...." . To my mind, the following reasons, alleged by the respondent mayor, negative all element of arbitrariness in his official action:. "...please be advised that upon reading the metropolitan newspapers this morning wherein it appears that your meeting will be an indignation rally at which all the supposed election frauds allegedly perpetrated in many parts of the Philippines for the purpose of overriding the popular will, will be bared before the people, this office hereby revokes the said permit.. "It is believed that public peace and order in Manila will be undermined at the proposed rally considering the passions have not as yet subsided and tension remains high as an aftermath of the last political contest.. "According to the same newspapers, delegates from the provinces and students from local universities will particpate in the said rally which, in my opinion, would only precipitate trouble since no guarantee can be given that only the opposition elements will be there. The moment the crowd becomes mixed with people of different political colors which is most likely to happen, public order is exposed to danger once the people are incited, as they will be incited, considering the purposes for which the meeting will be held as reported in the newspapers above mentioned.. "...." (Mayor's letter dated November 15, 1947.). "I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947, for the purpose of denouncing the alleged fraudulent manner in which the last elections have been conducted and the alleged nationwide flagrant violation of the Election Law, and of seeking redress therefor. It is regretted that for the same reasons stated in my letter of November 15, 1947, your request can not be granted for the present. This Office has adopted the policy of not permitting meetings of this nature which are likely to incite the people and disrupt the peace until the results of the elections shall have been officially announced. After this announcement, requests similar to yours will be granted.. "...." (Mayor's letter dated November 17, 1947.). "That according to Congressman Primicias, the meeting will be an indignation rally for the purpose of denouncing the alleged fraudulent manner the said elections were conducted and the nationwide falgrant violations of the Election Law;. "2. That it is a fact that the returns of the last elections are still being recounted in the City of Manila in the Commission on Elections, and pending the final announcement of the results thereof, passions, especially on the part of the losing groups, remain bitter and high;. "3. That allusions have been made in the metropolitan newspapers that in the case of defeat, there will be minority resignations in Congress, rebellion and even revolution in the country;. "4. That I am sure that the crowd that will attend said meeting will be a multitude of people of different and varied political sentiments;. "5. ....... . "6. That judging from the tenor of the request for permit and taking into consideration the circumstances under which said meeting will be held, it is safe to state that once the people are gathered thereat are incited, there will surely be trouble between the opposing elements, commotion will follow, and then peace and order in Manila will be disrupted; and. "7. That the denial of said request for permit has been made for no other reasons except to perform my duty as Mayor of Manila to maintain and preserve peace and order in this City.. 8. That I have assured Congressman Primicias that immediately after the election returns shall have been officially announced, the Nacionalista Party or any party will be granted permit to hold meetings of indignation and to denounce alleged faruds." (Annex 1, Answer.).

For these and other reasons which could be advanced in corroboration, I am of the considered opinion that the respondent Mayor had under the law the requisite discretion to grant or refuse the permit requested, and therefore to revoke that which had previously been granted, and that the reasons for such revocation alleged in his letters dated November 15 and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient to justify his last action. And be it distinctly observed that this last action was not an absolute denial of the permit, but a mere postponement of the time for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of the Revised Admninistrative Code..

TUASON, J., dissenting:. I join in Mr. Hilado's dissent and wish to add a few remarks.. As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceble assemblage, is only an incidental issue in this case. No one will contest the proposition that the mayor or the Congress itself may stop the petitioner and his men from meeting peacebly and venting their grievances in a private place. The main issue rather is the extent of the right of any group of people to use a public street or a public plaza for a purpose other than that for which it is dedicated.. The constitutional guaranty of free speech does not prevent the government from regulating the use of places within its control. A law or ordinance may forbid the delivery of addresses on the public parks, or on the streets as a valid exrcise of police power. (12 C. J., 954) Rights of assembly and of petition are not absolute rights and are to be construed with regard to the general law. (16 C.J.S., 640) Indeed, "the privileges of a citizen of the United States to use the streets and parks for the communication of views on national questions...must be exercised in subordination to the general comfort and convenience." (Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83 Law. ed., 1433) And so long as the municpal authorities act within the legitimate scope of their police power their discretion is not subject to outside interference or judicial revsion or reversal (14 C. J., 931.). The mayor did not act capriciously or arbitrarily in withholding or postponing the permit applied for by the petitioner. His reasons were real, based on contemporary events of public knowledge, and his temporary refusal was reasonably calculated to avoid possible disturbances as well as to adavance and protect the public in the proper use of the most congested streets and public plaza in an overcrowded city. There was reason to fear disturbances, not from the petitioner and his men but from elements who had no connection with the holding of the meeting but who, having gripes, might be easily excited to violence by inflammatory harangues when nerves were on edge. The fact that no untoward incident occurred does not prove the judiciousness of this Court's resolution. The court is not dealing with an isolated case; it is laying down a rule of transcendental importance and far-reaching consequences, in the administration of cities and towns. If nothing happened, it is well to remember that, according to newspapers, 500 policemen were detailed to prevent possible disorder at the gathering. It should also be borne in mind that vehicular traffic in the vicinity of Plaza Miranda had to be suspended and vehicles had to be rerouted, during and after the meeting. All of which entailed enormous expense by the city and discomforts to the general public.. No individual citizen or group of citizens certainly has a right to claim the use of a public plaza or public streets at such great expense and sacrifice on the part of the city and of the rest of the community. Yet, by virtue of this Court's resolution any person or group of persons invoking political, civil or religious freedom under the constitution is at liberty to stage a rally or parade or a religious procession, with the mayor powerless to do anything beyond seeing to it that no two meetings or parades were held in the same place or close to each other. No precedent in the United States, after whose institutions ours are modelled, approaches this Court's resolution in its disregard of the government's authority to control public streets and to maintain peace and order. In an infant republic where the state of peace and order

is still far from normal, where the forces of law are far from adequate to cope with lawlessness; in a city where conditions of traffic are among the worst if not the worst on earth, this Court sets down a principle that outstrips its prototype in "liberality", forgetting that personal rights can only exist in a properly regulated society. As Mr. Chief Justice Hughes said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lsot in the excesses of unrestrained abuses. The authority of the municipality to impose regulations in order to assure the safety and convenience of the people in the use public highways has never been regarded as inconsistent with civil liberties, but rather as one of the means of safeguarding the good order upon which they ultimately depend." To be logical, peddlers and merchants should be given, as a matter of right, the freedom to use public streets and public squares to ply their trade, for the freedom of expression and of assemblage is no more sacred than the freedom to make a living. Yet no one has dared make such a claim.. The cases cited in the resolution are not applicable. It will be seen that each of these cases involved the legality of a law and municipal ordinance. And if in some of said cases a law or an ordinance was declared void, the grounds of invalidation were either discrimination or lack of authority of the Legislature or the municipal council under the state constitution or under the law to adopt the contested measure.. As applied to Manila, there are both a law and an ordiance regulating the use of public places and the holding of meetings and parades in such places. As long as this law and this ordinance are in force the mayor does not only have the power but it is his sworn duty to grant or refuse a permit according to what he believes is in consonance with peace and order or is proper to promote the general comfort and convenience of the inhabitants.. The Court says that section 2434 (m) of the Revised Administrative Code "is not a specific of substantive power independent from the corresponding municipal ordinance which the Mayor, as Chief Executive of the City, is required to enforceunder the same section 2434." The Court advances the opinion that because section 2444 confers upon the municipal board "the police power to regulates the use of streets and othe public places," "It is to be presumed that the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m), the same power, specially if we take into account that its exercise may be in conflict with the exercise of the same power by the municipal board.". Section 2434 (m) is written in the plainest language for any casual reader to understand, and it is presumed that it means what it says. This provision certainly was not inserted in the city charter, which must have been drawn with painstaking care, for nothing. And I am aware of no constitutional provision or constitutional maxim which prohibits the delegation by the Legislature of part of its police power affacting local matters, directly upon the mayor instead of through the municipal board. Nor is there incompatibilty between section 2434 (m) and section 2444 or the ordinance enacted under the latter. At any rate, section 2434 (m) is of special character while section 2444 is general, so that, if there is any conflict between section 2434 (m) and the ordinance passed under section 2444, the former is to prevail.. This Court has already set at rest the validity, meaning any scope of section 2434 (m) in a unanimous decision with all the nine members voting, when it sustained the mayor's refusal to grant a permit for a public meeting on a public plaza to be followed by a parade on public streets. (Evangelista vs. Earnshaw, 57 Phil., 255) The reference to section 2434 (m) in that decision was not an obiter dictum as the majority say. The sole question presented there, as we gather from the facts disclosed, was the legality of the mayor's action, and the court pointed to section 2434 (m) as the mayor's authority for his refusal. The fact that the mayor could have denied the petitioner's application under the general power to prohibit a meeting for unlawful purposes did not make the disposition of the case on the strength of section 2434 (m) obiter dictum. An adjudication on any point within the issues presented by the case cannot be considered a dictum; and this rule applies as to all pertinent questions, although only incidentally

involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated. Accordingly, a point expressly decided does not lose its value as a precedent because the disposition of the case is or might have been on some other ground, or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did. (1 C. J. S. 314-315.). But the Court asserts that if the meaning of section 2434 (m) is what this Court said in EvangelistaEarnshaw case, then section is void. I do not think that that provision is void--at least not yet. Until it is invalidated in the proper case and in the proper manner, the mayor's authority in respect of the issuance of permits is to be measured by section 2434 (m) and by the municipal ordinance in so far as the ordinance does not conflict with the law. The validity of that provision is not challenged and is nowhere in issue. It is highly improper, contrary to the elementary rules of practice and procedure for this Court to say or declare that the provision is void. Moreover, Article VIII, section 10, of the Constitution provides that "all cases involving the constitutionality of a treaty or a law shall be heard and decided by the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the court." Only seven voted in favor of the resolution... 1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el Fiscal Auxiliar de Manila D. Julio Villamor, en representacion del recurrido.. 2 Los hechos confirmaron plenamente esta presuncion; el mitin monstruo ques se celebro en la noche del 22 de Noviembre en virtud de nuestra resolucion concediendo el presente recurso de mandamus-- el mas grande que se ghaya celebrado jamas en Manila, segun la prensa, y al cual se calcula que assistieron unas 80,000 personas--fue completamente pacifico y ordenado, no registrandose el menor incidente desagradable. Segun los periodicos, el mitin fue un magnifico acto de ciudadania militante y responsable, vindicatoria de la fe de todos aquellos que jamas habian dudado de la sensatez y cultura del pueblo de Manila. . 3 Madame Roland.. 4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin reelecion." Los que conocen Mejico aseguran que, merced a esta consigna, la era de las convulsiones y guerras civiles en aquella republica ha pasado definitivamente a la historia. . 5 "No puedo pasar por alto una magistratura que contribuyo mucho a sostener el Gobierno de Roma; fue la de los censores. Hacian el censo del pueblo, y, ademas, como la fuerza de la republica consistia en la disciplina, la austeridad de las costumbres y la observacion constante de ciertos ritos, los censores corregian los abusos que la ley no habia previsto o que el magistrado ordinario no podia castigar..... "El Gobierno de Roma fue admirable, porque desde su nacimiento, sea por el espiritu del pueblo, la fuerza del Senado o la autoridad de ciertos magistrados, estaba constituido de tal modo, que todo abuso de poder pudo ser siempre corregido. . "El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo encargado de examinarlo continuamente y de examinarse a si mismo; sus errores son de suerte que nunca se prolongan, y por el espiritu de atencion que despiertan en el pais, son a menudo utiles. . "En una palabra: un Gobierno libre, siempre agitado, no podria mantenerse, si no es por sus propias leyes capaz de corregirse." ("Grandeza y decadencia de los romanos," por Montesquieu, pags. 74, 76 y 77.) .

[Crim. No. 286. Fifth Dist. Aug. 7, 1967.] THE PEOPLE, Plaintiff and Respondent, v. PHILLIP GARCIA PEREZ, Defendant and Appellant. COUNSEL
Phillip Garcia Perez, in pro. per., Wallace J. Quinlisk and W. J. McDermott, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, Daniel J. Kremer and Frank O. Bell, Jr., Deputy Attorneys General, for Plaintiff and Respondent. OPINION CONLEY, P. J. Phillip Garcia Perez and his sometime mistress, Lydia Garcia Reyes, were jointly informed against for violation of section 11500 of the Health and Safety Code [253 Cal. App. 2d 290] in that on or about December 1, 1965, "they did wilfully and unlawfully have in their possession narcotics, to wit: Heroin, without the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this State." Lydia Garcia Reyes pleaded guilty to the charge; this appeal, therefore, concerns only Phillip Garcia Perez. Mr. Perez was represented during the trial by an appointed attorney. His later request for appellate counsel was also granted, and Wallace Quinlisk was named to represent him; that attorney was later relieved, upon his request, from his duty to act further for the appellant, and Mr. Perez filed a comprehensive and able brief; thereafter, at the further request of the defendant for an attorney, W. J. McDermott was appointed to represent him and made an extensive oral argument in his behalf. The appellant contends: 1) That the evidence is insufficient to justify the verdict; 2) That the court committed prejudicial error by permitting reference to certain prior criminal activity; 3) That the court erroneously instructed the jury; 4) That the district attorney was guilty of gross misconduct. In weighing the contention that the evidence did not warrant the verdict, it should be noted at the outset that important elements of testimony given by law enforcement officers on the one hand and by defense witnesses on the other were in direct conflict. If the defense told the truth in essential particulars, the conviction should be reversed; on the other hand, if the law enforcement officers testified correctly, it is our conclusion that the facts amply sustain the judgment. I. The Evidence Was Sufficient To Warrant A Conviction. [1] The argument that there was insufficient evidence to sustain the verdict must be considered in the light of the clearly established law that an appellate court is in no sense the trier of fact and that it does not have to be convinced of defendant's guilt beyond a reasonable doubt. That is the function of the jury in the trial court, and it is our duty only to inquire if the circumstances reasonably justify the trier of fact's findings. [2] If we determine that there is substantial evidence to support the conclusion of the jury, it is our duty to sustain the conviction as against that particular attack. (People v. Hillery, 62 Cal. 2d 692, 702-703 [44 Cal.Rptr. 30, 401 P.2d 382]; People v. Groom, 60 Cal. 2d 694, 697 [253 Cal. App. 2d 291] [36 Cal.Rptr. 327, 388 P.2d 359]; People v. Rosoto, 58 Cal. 2d 304, 321 [23 Cal.Rptr. 779, 373 P.2d 867].) Armed with a search warrant, three agents of the California Bureau of Narcotic Enforcement, Messrs. Shoemaker, Lacey and Sherwood, together with Fresno Police Department Officers Thrasher and Packard and a representative of the district attorney's office, entered the home of the defendant Perez, where he lived with his mother. All of the officers but one used the back door of the residence and they

moved quickly. As they passed through the kitchen, Miss Reyes was busy burning something; they did not stop there but entered the living room where defendant Perez was; they seized him and tried to prevent his swallowing what appeared to be, according to their own terminology, a "balloon," which was orange in color; it apparently was then successfully swallowed by the defendant. The officers attempted, without success, to induce Perez to vomit up the receptacle and its contents. The appellant was placed under arrest, and Agent Lacey gave him the constitutional warnings then required by law. Appellant informed Agent Shoemaker that he had been in the kitchen previously when he had heard a dog barking outside; he thought the commotion might be caused by the police and he walked into the living room to look out the front window; he also told Agent Shoemaker, with respect to what he had swallowed, "Man, that was close. I just swallowed two papers." The evidence shows that, in the jargon of the world of addiction, the word "paper" means a quantity of heroin sufficient for a dose or an injection of the drug, wrapped in white paper and of a form and nature familiar to addicts. The appellant also stated to Agent Lacey, "I am sorry, I swallowed it." (Later, on the way to the jail, Miss Reyes asked defendant Perez, in the hearing of the officers, if they found any "stuff" on him, and he replied that he had swallowed it, meaning heroin, according to the expert testimony as to the locution.) Meanwhile, in the kitchen, Miss Reyes was busy attempting to cover up what apparently were recent preparations for the use of heroin. She burned some of the leavings resulting from the planned use of the drug. The police inferred legitimately from the whole situation that when the law enforcement officers arrived each of the two defendants was about to effect an injection of the forbidden drug. In the kitchen of appellant's home, the enforcement officers found a single complete set of instruments for the injections: [253 Cal. App. 2d 292] a spoon with a blackened under-base in which it was designed to heat the drug in a few drops of water, a needle and an eye dropper for the purpose of injecting the watered heroin into a vein. Both Mr. Perez and Mrs. Reyes were habitues, and the record shows that, within a short period of time before the day and hour in question, they had made injections in their arms. Miss Reyes said that the instruments to accomplish the injections were hers and that she had brought them to the Perez house with her. The contrary inference sought to be established by the police was that the paraphernalia was, at the very least, a set of items kept by the appellant for use by him and Miss Reyes and that these various parts of an injecting outfit were in the joint possession of the two defendants. The testimony of the chemist agent of the California Bureau of Narcotic Enforcement, Mr. Louis Moller, was that the various articles constituting the paraphernalia for the taking of a hypodermic injection of heroin contained telltale indications of their contents. The hypodermic needle with a piece of a dollar bill used as a shim or gasket for the eye dropper responded to well-recognized chemical tests by showing that it had contained an opium derivative; the chemical test of the eye dropper established that an alkaloid had been present; it contained traces of heroin. The teaspoon was the article that showed the most heroin. The dark color underneath the spoon was the result of burning; the purpose of the application of fire, usually by a match, to the bottom of such a spoon is "First, to dissolve the heroin, they actually put the powdered heroin in the spoon with a little water and then they have a piece of cotton that they drop in and they burn the bottom of the spoon to dissolve the heroin and get it in solution. ..." The heating of the water also tends to make it more acceptable as an injection in that its temperature is thus brought nearer to that of the blood. Mr. Moller testified, "Actually, the spoon had a lot of sticky substance on the spoon and I put three drops of mercuric iodide, 27 per cent hydrochloric acid, and I took a stirring rod and I stirred it up and then I poured the stuff off on a miscroscopic slide and then I examined the microscope slide and I got rosettes of yellow crystals"; the latter indicated the presence of heroin. The witness further testified: "I ran many analyses and most of the time the spoon or the bottle cap or something like that, when you add the mercuric iodide and 27 per cent hydrochloric acid and look at it under a microscope, you will see only, oh, maybe five or six crystals, rosettes of yellow crystals, and in this particular [253 Cal. App. 2d 293]sample it was just like examining a sample of heroin.

There were numerous crystals and I believe, actually, that a person could actually have received an injection of heroin from this. Q. Now, by the way, this sticky substance that you analyzed, that was inside the spoon, is that right? A. Yes. Q. That would be People's 1-A for identification? A. Yes, it is not there now because of the chemical test. Q. Yes, And the sticky substance that you analyzed, was it visible to the naked eye, sir? A. Oh, yes, very visible." The only lacking element of the offense, then, up to this point of review was proof of knowledge by appellant that there was heroin present in the house and that it was in fact the drug forbidden by the law. This element was thereafter proven by the testimony of law enforcement agents that in the past the appellant had shown, in conversations with the agents and by the actual use of heroin injections, that he was fully conscious of the nature and character of the drug. This testimony was objected to by the appellant during the trial; and it is under attack, also, in his brief on appeal. We shall discuss in more detail the admission of this evidence at a later point of the opinion. It should be mentioned in passing that there was also some testimony given by law enforcement officers that the appellant tried to escape. While it is not conclusive, there is some indication in the record that the appellant vainly attempted an escape through the front door after the arrival of the officers, thus indicating consciousness of guilt, but that he was induced to change his mind when he noted the presence of so many officers. It is clear that the testimony of Chemist Agent Moller, taken with the evidence of the location of the paraphernalia for injection showed the corpus delicti of the crime of possession of heroin. (See People v. Cunningham, 188 Cal. App. 2d 606, 610-611 [10 Cal.Rptr. 604]; People v. Lawton, 186 Cal. App. 2d 834, 836-837 [9 Cal.Rptr. 122]; People v. Walters, 148 Cal. App. 2d 426, 431 [306 P.2d 606].) The appellant cites People v. McChristian, 245 Cal. App. 2d 891 [54 Cal.Rptr. 324], and federal cases to support his position. One of the latter is Cook v. United States, 362 F.2d 548, 549, in which the United States Court of Appeals of the Ninth Circuit reversed a conviction of conspiracy to conceal narcotic drugs. The court in that case emphasized that there was no direct proof that the substance in question was a narcotic, even though the defendants in the case dealt with it with a [253 Cal. App. 2d 294] secrecy appropriate in narcotic traffic, high prices were bid for the substance, and the parties involved referred to it as a narcotic drug as among themselves. The court held that "... before that presumption can come into play there must be proof that the possessed drugs were in fact narcotic drugs." It is a basic rule that each case must depend upon its own facts; in that instance there was no testimony by a "qualified witness," as here, that the substance was in fact heroin. And it should be noted that while in the Cook case the substance in question was actually received in evidence, no attempt was made to prove the narcotic character of the powder. In Toliver v. United States, 224 F.2d 742, 745, the same court held that there was sufficient evidence to establish the presence of heroin. Appellant cannot rely successfully on the case of People v. McChristian, supra, 245 Cal. App. 2d 891, 896-897, for that authority is also distinguishable from the case at bar. There the defendant was charged in two counts with possession of heroin, in violation of section 11500 of the Health and Safety Code. His motion to dismiss under Penal Code section 995 was granted. The evidence at the preliminary examination was that a police officer, who was acquainted with the defendant, saw him in front of a liquor store at about 3:30 p.m. The officer had information that the defendant was engaged in narcotics activity; he initiated conversation with the defendant who mumbled a reply; the officer could not understand what the defendant said, because the accused had something in his mouth that blocked his voice. The officer grabbed him by the throat to prevent him from swallowing and ordered him to open his mouth. The defendant did so and the officer saw six to nine "balloons" jammed into his mouth; the balloons were not recovered, however, because the defendant broke away and ran. The next day two officers went to see the defendant at a residence in Los Angeles; when they attempted to enter they saw him put his hand in his pocket and withdraw six small balloon-wrapped packages; defendant ran

toward the bathroom and out of view; a half hour later, the culprit was arrested and searched, as was the house, but no narcotics were found. Again, there was no testimony by the defendant in that case that the "balloons" contained heroin. In affirming the order of dismissal, the court held that: "The opinion testimony of the officers, based upon their observation of the outward appearance of the balloons, was speculative [253 Cal. App. 2d 295] and conjectural, and was not competent evidence that the balloons in the possession of defendant contained heroin." [3] Our review of the record shows that in the house where the appellant lived there was a complete set of instruments necessary to give injections of heroin, and that there was enough of the drug in the spoon, constituting part of the paraphernalia, to constitute a "fix," that is to say, an injection of the heroin. In addition, there was the statement of the appellant that he had swallowed in the "balloon," which a witness saw in his mouth, enough heroin to constitute two dosages. We believe that the evidence, therefore, generally considered, proved without question the presence of the forbidden drug under the dominion and joint control of the two defendants. (People v. Hamilton,223 Cal. App. 2d 542, 544 [35 Cal.Rprt. 812]; People v. Villanueva, 220 Cal. App. 2d 443, 450 [33 Cal.Rptr. 811].) While the defendant's witnesses claimed that the paraphernalia for taking an injection of heroin belonged to Miss Reyes, that was not the theory of the prosecution. Both defendants were confessed habitues, and it would seem strange that the appellant, who was admittedly taking heroin frequently, should not have the instruments in his home for the purpose of effecting such injections. The evidence was such as to authorize the jury to make an implied finding of jointly held possession, not only of the paraphernalia necessary to give an injection of heroin, but of the heroin which was found in the spoon and which, upon analysis and under the testimony of Chemist Agent Moller, was said to be sufficient in quantity to permit its taking as a "fix," or dosage of the forbidden drug. We have specific evidence of the presence of heroin in a sufficient quantity to constitute a crime. It is true that in order to convict a person of possession of heroin, there must be proof that there is a sufficient amount either to permit a sale or use and that the presence of minute fragments, which cannot be utilized in either fashion, is not sufficient to warrant a conviction for possession. (People v. Leal, 64 Cal. 2d 504 [50 Cal.Rptr. 777, 413 P.2d 665]; People v. McCarthy, 64 Cal. 2d 513 [50 Cal.Rptr. 783, 413 P.2d 671]; People v. Thomas, 246 Cal. App. 2d 104 [54 Cal.Rptr. 409].) The testimony of Chemist Agent Moller was that there was enough heroin on the spoon so that an injection could be taken from it. In view of the complete proof in every detail warranting a finding of possession of heroin, it becomes a somewhat academic question to determine whether or not the swallowing of [253 Cal. App. 2d 296] the two papers of heroin contained in the "balloon," which the defendant himself admitted, constituted separate complete proof of the crime. The admission by the defendant that he had swallowed two dosages of heroin, in any event, supports the conviction, even if it should be argued that, standing alone and without the testimony concerning paraphernalia and the contents of the spoon, the proof would not have been sufficient. II. Proof Of Knowledge Of What Heroin Is Was Necessary Even Though It Incidentally Indicated Other Crimes. [4] In order to prove the crime of possession of heroin alleged in the information it is necessary to show not only that a defendant has physical possession of the drug, but also that he has knowledge of its presence and of its forbidden character. For example, a messenger boy might carry a package filled with heroin for delivery to someone else, but if he does not know of what the contents of the package consist or that it is a forbidden drug, he would not be guilty of "possession" in carrying it from one place to another. For this reason, the People introduced testimony showing knowledge on the part of Mr. Perez of heroin and its forbidden quality. The effect of this testimony was strictly limited by the court to the question above stated, and the judge gave repeated instructions to the jury accordingly. While it is undoubtedly injurious to a defendant to prove that at other times he has broken the law, generally speaking, it is permissible to make such proof if a necessary element of the crime of which he is

presently charged is shown by such testimony. As is correctly said in People v. Clifton, 248 Cal. App. 2d 126, 132-133 [56 Cal.Rptr. 74], if evidence which incidentally may be damaging to a defendant establishes a fact material to the prosecution's case, it cannot properly be excluded merely because it might tend to be prejudicial. (See People v. Peete, 28 Cal. 2d 306, 314- 315 [169 P.2d 924]; People v. Raleigh, 83 Cal. App. 2d 435, 442 [189 P.2d 70]; People v. Brown, 168 Cal. App. 2d 549, 553 [336 P.2d 1]; People v. Griffin, 66 Cal. 2d 459, 464 [58 Cal.Rptr. 107, 426 P.2d 507].) Appellant argues that this element of the crime was sufficiently shown otherwise; but there was no offer to stipulate accordingly and the evidence was relevant and material. The testimony therefore, of admissions made by the defendant to law enforcement officers with respect to heroin at different times preceding the charge here made and the testimony of [253 Cal. App. 2d 297] puncture marks on appellant's arms on earlier occasions indicating heroin use were properly admissible. III. The Instruction Complained Of Was Not Prejudicially Erroneous. [5] The appellant takes exception to an instruction given by the court in the following words: "You are further instructed that the law does not fix any minimum amount of heroin that is necessary to constitute the possession thereof. The possession of heroin in any amount constitutes a violation of the law where the possessor has knowledge of its presence and of its narcotic character." In view of the announcement of the present applicable rule in People v. Leal, supra, 64 Cal. 2d 504, 512, People v. McCarthy, supra, 64 Cal. 2d 513, and People v. Thomas, supra, 246 Cal. App. 2d 104, the instruction as given was abstractly erroneous; that is true because the present law requires that enough heroin be possessed in order to permit its use by sale or as an injection. A few crumbs or minute amounts of a forbidden drug are presently insufficient to warrant a conviction for possession as stated in the authorities above cited. However, to be prejudicial, an error must be of such a nature as to permit a conviction which would otherwise be impossible, and, in the present case, it is clear that while the instruction as given was not accurate from an abstract point of view there can be no question that it was not prejudicial to the defendant, because all the evidence in the case showed that if the appellant were guilty of possession of any heroin it was an amount sufficient to constitute a breach of the law. Chemist Agent Moller testified, without contradiction, that there was a sufficient amount of the forbidden drug in the spoon to constitute a dosage, and, with respect to the heroin swallowed by the appellant according to the testimony concerning his admissions, the evidence was that there were two "papers" involved. Thus, all evidence relative to both instances of physical possession of heroin related to an amount sufficient to constitute a dose, or more, and was large enough to be denounced under the Leal rule, supra. That being so, the error in the instruction was not prejudicial. IV. The District Attorney's Staff Was Not Guilty Of Prejudicial Misconduct. The appellant claims that the district attorney's deputy was guilty of gross misconduct in his crossexamination of defense witnesses. Both defendants took the witness stand, [253 Cal. App. 2d 298] and their testimony in important particulars was at complete variance with the account given by the law enforcement officers. Experience shows that cross-examination is one of the most effective aids to an ascertainment of the truth. [6] While it is improper to ask questions which find no support in the actual facts, or to insinuate charges harmful to a defendant in the absence of a good faith belief on the part of the prosecutor that the questions should be answered in the affirmative, or that the facts which constitute the background of the questions could be proved if their existence should be denied (People v. Perez, 58 Cal. 2d 229, 241 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946]; People v. Swayze, 220 Cal. App. 2d 476, 497 [34 Cal.Rptr. 5]; People v. Lo Cigno, 193 Cal. App. 2d 360, 388 [14 Cal.Rptr. 354]), legitimate crossexamination is a favored method of attempting to secure what the cross-examiner believes to be the truth. Here, the questions asked of appellant and of Miss Reyes were wholly competent and relevant. Some of them were designed to show knowledge on the part of the defendants of the nature and forbidden character of heroin, and some of them were planned to probe the theory of the prosecution

that the appellant and his codefendant were preparing to take a "fix," when the officers entered the house, and that the "balloon" swallowed by appellant contained two "papers" of heroin. It cannot be said that the prosecution did not have the means to prove the truth of the allegations inferentially assumed in the questions. In fact, the deputy district attorney told the court that he was willing to make an offer of proof. And the record shows in connection with the report of the probation officer that the appellant had in the past engaged in the sale of narcotics; it is quite apparent that this fact would establish his knowledge of the forbidden character of the drug. (See People v. Weire, 198 Cal. App. 2d 138, 142-143 [17 Cal.Rptr. 659]; People v. Torres, 98 Cal. App. 2d 189, 191-192 [219 P.2d 480].) After Miss Reyes admitted that she was habitually using heroin, it was neither an exhibition of bad faith nor an improper solicitation of fact to inquire whether she did not obtain it from the codefendant. [7] We do not believe that any of the questions asked by the prosecution were improper, but we also point out that in no instance was any question objected to on the ground that it constituted misconduct. Consequently, this contention cannot now be made for the first time on appeal. In People v. Berryman, [253 Cal. App. 2d 299] 6 Cal. 2d 331, 337 [57 P.2d 136], it is said: "The general rule regarding misconduct of the district attorney which tends to and is likely to result in prejudice to the defendant is that where no objection is made to such misconduct by the defendant, or where objection is made and the court sustains the objection and properly admonishes the jury, the misconduct claimed to be prejudicial to defendant's rights will not furnish grounds sufficient to justify the granting of a new trial or the reversal of the judgment. (8 Cal.Jur., 603, p. 623, and cases there cited.)" (See People v. Perez, supra, 58 Cal. 2d 229, 247; People v. Lyons, 50 Cal. 2d 245, 262 [324 P.2d 556].) The two exceptions to this general rule noted in the Berryman case are not applicable here. The judgment is affirmed.

Co Kim Chan v. Valdez Tan Keh 75 Phil 113 Nov. 16, 1945
Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese). Issues: 1. Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after the American occupation; 2. Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared that all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control invalidated all judgments and judicial acts and proceedings of the courts; 3. And whether or not if they were not invalidated by MacArthurs proclamation, those courts could continue hearing the cases pending before them. Ratio: Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto governments, supported by the military force and deriving their authority from the laws of war. Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror. Civil obedience is expected even during war, for the existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. And if they were not valid, then it would not have been necessary for MacArthur to come out with a proclamation abrogating them. The second question, the court said, hinges on the interpretation of the phrase processes of any other government and whether or not he intended it to annul all other judgments and judicial proceedings of courts during the Japanese military occupation. IF, according to international law, non-political judgments and judicial proceedings of de facto governments are valid and remain valid even after the occupied territory has been liberated, then it could not have been MacArthurs intention to refer to judicial processes, which would be in violation of international law.

A well-known rule of statutory construction is: A statute ought never to be construed to violate the law of nations if any other possible construction remains. Another is that where great inconvenience will result from a particular construction, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words. Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate international law, therefore what MacArthur said should not be construed to mean that judicial proceedings are included in the phrase processes of any other governments. In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the occupant, they become his and derive their force from him. The laws and courts of the Philippines did not become, by being continued as required by the law of nations, laws and courts of Japan. It is a legal maxim that, excepting of a political nature, law once established continues until changed by some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY. Until, of course, the new sovereign by legislative act creates a change. Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and courts of the Philippines had become courts of Japan, as the said courts and laws creating and conferring jurisdiction upon them have continued in force until now, it follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government, until abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case no. 3012. Summary of ratio: 1. International law says the acts of a de facto government are valid and civil laws continue even during occupation unless repealed. 2. MacArthur annulled proceedings of other governments, but this cannot be applied on judicial proceedings because such a construction would violate the law of nations. 3. Since the laws remain valid, the court must continue hearing the case pending before it. ***3 kinds of de facto government: one established through rebellion (govt gets possession and control through force or the voice of the majority and maintains itself against the will of the rightful government) through occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the course of war; denoted as a government of paramount force) through insurrection (established as an independent government by the inhabitants of a country who rise in insurrection against the parent state)