SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 178544

Appellee,
Present:

CARPIO, J., Chairperson,
- versus - VELASCO, JR.,
*

PERALTA,
ABAD, and
MENDOZA, JJ.
MANUEL PALOMA y ESPINOSA,
Appellant. Promulgated:

February 23, 2011
x ---------------------------------------------------------------------------------------- x

DECI SI ON

ABAD, J .:


This case is about the need in cases of illegal sale of prohibited drugs for the
prosecution to prove the details of the transaction through someone who saw the
sale take place.

The Facts and the Case

The public prosecutor charged the accused Manuel Paloma (Paloma) before
the Regional Trial Court (RTC) of Quezon City in Criminal Case Q-03-116898
with violation of Section 5, Article II of Republic Act (R.A.) 9165 or the
Comprehensive Dangerous Drugs Act of 2002.

At the trial, PO2 Bernard Amigo testified that at about 1:00 p.m. on April
23, 2003 the Batasan Police Station got a tip from an informant that accused
Paloma was selling illegal drugs at Pacomara Street in Commonwealth, Quezon
City. The station chief directed PO2 Amigo and PO1 Arnold Pealosa to conduct
a buy-bust operation involving Paloma. The police officers went to Pacomara
Street with the informant and brought with them a P100.00 bill marked with the
initials AP.

When the buy-bust team arrived at Pacomara Street at around 3:15 p.m., they
saw Paloma standing beside a man and a woman. PO1 Pealosa and the informant
approached them; PO2 Amigo, the witness, stood as back-up some 15 meters
away. From where he stood, he saw PO1 Pealosa talking to
Paloma. Momentarily, PO1 Pealosa waved his hand, signifying that he had made
the purchase. On seeing the pre-arranged signal, PO2 Amigo approached and
arrested Paloma; PO1 Pealosa for his part arrested Palomas companions, later on
identified as Noriel Bamba (Bamba) and Angie Grotel (Grotel). PO2 Amigo
recovered from Palomas pants pocket a plastic sachet with a white crystalline
substance and the marked P100.00 bill.

After the police officers informed Paloma, Bamba, and Grotel of their rights
during custodial investigation, they brought them to the police station and turned
them over to the desk officer. The arresting officers also turned over the three
sachets of suspected shabu that they seized. According to PO2 Amigo, two of
these sachets were those that PO1 Pealosa bought from Paloma. The police
eventually let Bamba and Grotel go for the reason that the police officers found no
illegal drugs in their possession.

In his defense, Paloma denied that such a buy-bust operation took place. He
claimed that at the time of the alleged buy-bust, he was with his 80-year-old
mother at their house on Pacomara Street, taking a nap. Suddenly, five armed men
in civilian clothes barged into the house and woke him up. Two of them held him
by the arms while the others searched the house. Although the men found nothing,
they handcuffed him and brought him to the police station.

On June 10, 2005 the RTC found Paloma guilty beyond reasonable doubt in
Criminal Case Q-03-116898 of the crime charged and sentenced him to suffer the
penalty of life imprisonment and to pay a fine ofP500,000.00.

On February 13, 2007 the Court of Appeals (CA) in CA-G.R. HC CR 01289
affirmed the RTCs ruling in toto.

The Issue Presented

The sole issue in this case is whether or not the CA erred in finding that the
prosecution succeeded in proving beyond reasonable doubt that Paloma sold
prohibited drugs to PO1 Pealosa.

The Ruling of the Court

To prove the crime of illegal sale of drugs under Section 5, Article II of R.A.
9165, the prosecution is required to prove (a) the identity of the buyer and the
seller as well as the object and consideration of the sale; and (b) the delivery of the
thing sold and the payment given for the same. Further, the prosecution must
present in court evidence of corpus delicti.
[1]


Here, the proof of the sale of illegal drugs is wanting.

One. Under the objective test set by the Court in People v. Doria,
[2]
the
prosecution must clearly and adequately show the details of the purported sale,
namely, the initial contact between the poseur-buyer and the pusher, the offer to
purchase, the promise or payment of the consideration, and, finally, the accuseds
delivery of the illegal drug to the buyer, whether the latter be the informant alone
or the police officer. This proof is essential to ensure that law-abiding citizens are
not unlawfully induced to commit the offense.
[3]


Here, PO2 Amigos testimony miserably failed to establish the required
details of the supposed illegal drug sale. He testified on direct examination:

Q: When you, [P]olice [O]fficer Pealosa and the confidential
informant arrived at around 3:15 at Pacomara Street, what
happened there?
A: Upon arrival of that said place Pacomara Street we saw Paloma
and one female companion talking with each other.
[4]


x x x x

Q: Now when Police Officer Pealosa and the asset approached
Paloma where were you at that time?
A: I was in a hiding place, in a viewing distance.

Q: Can you see them talking with each other from where you
were stationed?
A: Yes, sir.

Q: You said earlier Mr. Witness that there were other person[s]
other than Paloma, female and male when Police Officer Pealosa
and the confidential informant approached him, where were these
two persons?
A: They were beside each other.

Q: What were they doing, these two persons at that time when they
approached by your companion?
A: They were just standing.

Q: When these Pealosa and confidential informant approached
the subject, what happened next? What transpired next
at that time?
A: While they were talking Pealosa made the pre-arrange[d]
signal.

Q: What was that signal that Pealosa did?
A: By waving his hand.

Q: Meaning to say?
A: The buy-bust has already consummated.

Q: When Pealosa made that signal what did you do if any?
A: We rushed up to the area where they were standing.

Q: When you arrived in that area what happened there?
A: I grabbed Paloma and made the search.
[5]
(Emphasis supplied)

All that PO2 Amigo could say was that PO1 Pealosa and the informant
approached Paloma, talked to him, and then PO1 Pealosa made the pre-arranged
signal that the sale had been consummated. Since he was standing at a great
distance during the purported buy-bust, PO2 Amigo could not provide the details
of the offer to buy the drug and the acceptance of that offer. Indeed, he did not see
Paloma take money from PO1 Pealosa nor Pealosa take delivery of the
prohibited substance from Paloma.

The cross-examination of PO2 Amigo does not help. He testified:

Q: As a back up Mr. Witness you will agree with me that you
cannot hear what was the conversation between the
informant, Mr. Pealosa and Mr. Paloma?
A: Yes, maam.

Q: So you merely acted upon their gesture?
A: Yes, maam.

Q: So Mr. Witness when you rushed-in to the place where the buy-
bust operation was being conducted, you just rushed-in not
because you were called upon, but because of the gesture that the
same was consummated?
A: Yes maam only the pre-arranged signal.
[6]
(Emphasis supplied)

While law enforcers enjoy the presumption of regularity in the performance
of their duties, this presumption is disputable by contrary proof and cannot prevail
over the constitutional right of the accused to be presumed innocent.
[7]
The totality
of the evidence presented in this case does not support Palomas conviction for
violation of Section 5, Article II of R.A. 9165, since the prosecution failed to prove
beyond reasonable doubt all the elements of the offense.
[8]


WHEREFORE, the Court GRANTS the petition, SETS ASIDE the
decision of the Court of Appeals in CA-G.R. HC CR 01289 dated February 13,
2007 as well as the decision of the Regional Trial Court of Quezon City, Branch
103, in Criminal Case Q-03-116898, and ACQUITS the accused-appellant Manuel
Paloma y Espinosa of the crime of which he is charged on the ground of reasonable
doubt. The Court orders his immediate RELEASE from custody unless he is
being held for some other lawful cause.

The Court further ORDERS the Director of the Bureau of Corrections to
implement this Decision forthwith and to inform this Court, within five (5) days
from receipt hereof, of the date appellant was actually released from
confinement. Costs de oficio.

SO ORDERED.




Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION


PEOPLE OF
THEPHILIPPINES,
Appellee,





- versus -





JHON-JHON ALEJANDRO y
DELA CRUZ @ NOGNOG,
Appellant.
G.R. No. 176350

Present:

CARPIO, J., Chairperson,
BRION,

*
BERSAMIN,
PEREZ, and
SERENO, JJ.

Promulgated:


August 10, 2011
x----------------------------------------------------------------------------------------- x


D E C I S I O N


BRION, J .:


We resolve in this appeal the challenge to the May 31, 2006 decision
[1]
of
the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01251. The CA affirmed the
May 14, 2004 decision
[2]
of the Regional Trial Court (RTC), Branch 231, Pasay
City, finding appellant Jhon-Jhon Alejandro y dela Cruz (appellant) guilty beyond
reasonable doubt of violating Section 5, Article II of Republic Act (R.A.) No. 9165
(the Comprehensive Dangerous Drugs Act of 2002) and imposing on him the
penalty of life imprisonment.

BACKGROUND FACTS

The prosecution charged the appellant with violation of Section 5, Article II
of R.A. No. 9165 before the RTC, under an Information that states:

That on or about the 1
st
day of September 2002, in Pasay City,
Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, without authority of law, did then and
there willfully, unlawfully and feloniously sell and deliver 0.06 gram of
Methylamphetamine Hydrochloride (shabu), a dangerous
drug.
[3]
(emphases in the original)


The appellant pleaded not guilty to the charge.
[4]
During the pre-trial, the
prosecution and the defense stipulated on the following:

PRE-TRIAL ORDER

x x x x

III. Evidence of the Prosecution:

A. Testimonial (witnesses) -

x x x x

B. Documentary

Exhibit A - Affidavit of Arrest
Exhibit B - Buy-bust Money
Exhibit C - Booking and Information Sheet
Exhibit D - Request for Laboratory
Examination
Exhibit E - Physical Science Report
No. D-1331-02

C. Real Evidence x x x

Exhibit F - subject specimen

x x x x

VI. Stipulation of Facts (Including those admitted or undisputed): The
accused with counsel and the Trial Prosecutor have agreed on the
following:

Exhibits C, D, & E admitted their existence only but not as to
the source

x x x x
This pre-trial order shall control the course of the trial in this case,
unless modified by the Court to prevent manifest injustice. The trial
prosecutor as well as the accused and counsel have signed this pre-trial
order to attest to the correctness thereof and their conformity thereto
which may accordingly be used in evidence in this case.
[5]
[emphases
ours]


Thus, the defense admitted the existence of Exhibits C (Booking and
Information Sheet), D (Request for Laboratory Examination) and E (Physical
Science Report No. D-1331-02). The parties also agreed, during the pre-trial, to
dispense with the testimony of the forensic chemist, Police Inspector (P/Insp.)
Lourdeliza M. Gural.

The prosecution presented, as its witnesses, Senior Police Officer 1 (SPO1)
Jesus Tan and Police Officer 1 (PO1) Timothy Mengote. The appellant and Reggie
Morilla took the witness stand for the defense.

The evidence for the prosecution established that in the afternoon
of September 1, 2002, SPO1 Tan was in the office of the District Drug
Enforcement Group, Southern Police District, Taguig, Metro Manila, when a
confidential informant called and told him about the illegal drug activities of the
appellant, alias Nog-nog. Police Superintendent (P/Supt.) Mariano Fegarido
conducted a briefing, and then dispatched Senior Police Officer 2 (SPO2) Nilo
Banzuela, Senior Police Officer 1 (SPO1)Alberto Sangalang, Police Officer
3 (PO3) Carlos Cachapero, SPO1 Tan, and PO1 Mengote, to meet with the
informant.
[6]


At around 5:00 p.m., the police met with the informant at the Pio Del Pilar
Elementary School. Thereafter, SPO1 Tan, PO1 Mengote and the informant went
to M. Dela Cruz Street in Pasay City to conduct a surveillance.
[7]
There, the
informant pointed to a person standing at the corner of Mary Luz Street and M.
Dela Cruz Street, and identified him as the appellant.
[8]
They observed the
appellant for about half an hour, and saw that there were people approaching him.
They also observed that there was an exchange of goods between the appellant
and the people who approached him.
[9]
The police thereafter returned to the station
where they underwent another briefing and planned an entrapment operation.
Under the plan, PO1 Mengote was designated as the poseur-buyer.
[10]


SPO2 Banzuela, SPO1 Tan, SPO1 Sangalang, PO1 Mengote, PO3
Cachapero and the informant returned to M. Dela Cruz Street to conduct the buy-
bust operation. When they arrived at the place at around 6:00 p.m., they saw the
appellant sitting in front of a sari-sari store. The informant introduced PO1
Mengote to the appellant as a buyer (i.e., a shabu scorer). The appellant asked,
Magkano ba? PO1 Mengote answered, Halagang piso. PO1 Mengote then
gave the one hundred peso marked money to the appellant. The appellant, in turn,
pulled out a plastic sachet from his right pocket and handed it to PO1 Mengote.
Upon receiving the plastic sachet, PO1 Mengote made the pre-arranged signal (i.e.,
wiped his face with a towel) to his companions. Immediately, the other members of
the buy-bust team approached the appellant. They introduced themselves as police
officers, recovered the buy-bust money from the appellant, and arrested him. They
then brought him and the confiscated items to the police station.
[11]
At the police
station, they forwarded the seized items to the Philippine National Police (PNP)
Crime Laboratory where they were examined by P/Insp. Gural.
[12]


The laboratory examination, conducted by P/Insp. Gural on the confiscated
specimen, yielded the following result:

PHYSICAL SCIENCE REPORT NO. D-1331-02

x x x x

SPECIMEN SUBMITTED:

A One (1) small brown staple wire-sealed evidence envelope
with signature markings containing one (1) small heat sealed transparent
plastic sachet with markings TM-1-010902 containing 0.06 gram of
white crystalline substance and marked as A-1.

x x x x

FINDINGS:

Qualitative examination conducted on the above-stated specimen
gave POSITIVE result to the tests for the presence of
Methylamphetamine hydrochloride, a dangerous drug.

CONCLUSION:

Specimen A-1 contains Methylamphetamine hydrochloride, a
dangerous drug.
[13]


In his defense, the appellant submitted a different version of events. He
testified that at around 6:00 p.m. of September 1, 2002, he was in front of his
grandmothers store on Mary Luz Street, Pasay City, when eight (8) policemen
arrived. PO1 Mengote and SPO1 Tan approached and asked him about the
whereabouts of a certain Terio. When he replied that he did not know where
Terio was, the police brought him to the Pio Del Pilar Elementary School
in Makati City
[14]
from where the police apparently received a text message
informing them that Terio was in Pasay City. The police and the appellant returned
to Mary Luz Street, and entered a house owned by Terio. Inside, they saw its
occupant, Enrico Yatco. The police searched the house for about half an hour.
Afterwards, they brought the appellant and Enrico to the Sothern Police
District.
[15]
At the police station, PO1 Mengote and SPO1 Tan showed six (6)
pieces of plastic sachets to the appellant and forced him to admit ownership.
[16]


Reggies testimony was summarized by the RTC as follows:

REGGIE MORILLA, the caretaker of the store owned by the
accuseds grandmother, testified that he has been living with the family
of the accused for three (3) years already. The family of the accused is
located at 51 Mary Luz St., M. dela Cruz, Pasay City. On September 1,
2002, he was inside the store while the accused was standing outside
when suddenly he heard a commotion. So he peeped through a hole in
the store and saw two policemen in civilian attire handcuffing the
accused. He asked assistance from his neighbors. Then he saw the
accused being taken out of Mary Luz St. Later, they returned the accused
and they led the accused inside a house and then after thirty minutes, he
was brought out and was boarded inside an owner type jeep.
[17]



The RTC, in its decision of May 14, 2004, found the appellant guilty
beyond reasonable doubt of the crime charged, and sentenced him to suffer the
penalty of life imprisonment. The RTC also ordered the appellant to pay
a P500,000.00 fine.
[18]


The records of this case were originally transmitted to this Court on appeal.
Pursuant to our ruling in People v. Efren Mateo y Garcia,
[19]
we endorsed the case
and its records to the CA for appropriate action and disposition.

The CA affirmed the RTC decision.
[20]
The CA held that the appellant and
his counsel entered into a stipulation of facts whereby they agreed on the
admissibility of the request for laboratory examination of the submitted specimen
and on the findings of P/Insp. Gural. Hence, they cannot be allowed to question, on
appeal, the identity and integrity of the plastic sachet of shabu seized from the
appellant by members of the entrapment team. The CA added that the prosecution
witnesses positively identified the appellant as the person who handed the plastic
sachet of shabu to the poseur-buyer.
[21]


The CA further held that the police officers are presumed to have performed
their duties in a regular manner, in the absence of any evidence of improper motive
on their part. It, likewise, disregarded the appellants defense of denial, as it was
unsupported by reliable corroborative evidence.
[22]


In his brief, the appellant claims that the trial court erred in convicting him
of the crime charged despite the prosecutions failure to prove his guilt beyond
reasonable doubt. He claims that the integrity of the seized item had been
compromised due to the failure of the apprehending police to mark it.
[23]


The Office of the Solicitor General counters with the argument that the
appellant cannot now question the identity and integrity of the specimen
confiscated from him as he already entered into a stipulation
regarding the admissibility of the request for laboratory examination and on the
result of this examination. In addition, the appellant failed to impute any ill motive
on the part of the police officers to falsely testify against him.
[24]


THE COURTS RULING

We resolve to ACQUIT the appellant, for the prosecutions failure to prove
his guilt beyond reasonable doubt.

The Constitution mandates that an accused shall be presumed innocent until
the contrary is proven beyond reasonable doubt. The burden lies on the prosecution
to overcome such presumption of innocence by presenting the quantum of
evidence required. In doing so, the prosecution must rest its case on its own merits
and cannot merely rely on the weakness of the defense. If the prosecution fails to
meet the required quantum of evidence, the defense does not even need to present
any evidence in its behalf; the presumption of innocence prevails and the accused
should be acquitted.
[25]


Reasonable Doubt on the Corpus Delicti

The elements necessary for the prosecution of illegal sale of drugs under
Section 5 of R.A. No. 9165 are: (1) the identity of the buyer and the seller, the
object and the consideration; and (2) the delivery of the thing sold and the payment
therefor. What is material in the prosecution for illegal sale of dangerous drugs is
proof that the transaction or sale actually took place, coupled with the presentation
in court of evidence of thecorpus delicti, i.e., the body or substance of the crime
that establishes that a crime has actually been committed, as shown by presenting
the object of the illegal transaction.
[26]
In prosecutions involving narcotics, the
narcotic substance itself constitutes the corpus delicti of the offense and proof of
its existence is vital to sustain a judgment of conviction beyond reasonable
doubt.
[27]
To remove any doubt or uncertainty on the identity and integrity of the
seized drug, the evidence must definitely show that the illegal drug presented in
court is the very same illicit drug actually recovered from the appellant; otherwise,
the prosecution for drug pushing under R.A. No. 9165 fails.
[28]


a. The Chain of Custody Rule and the Marking Requirement

Dangerous Drugs Board Regulation No. 1, Series of 2002, which
implements R.A. No. 9165, defines chain of custody as the duly recorded
authorized movements and custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction.

In Junie Malillin y Lopez v. People,
[29]
we explained the importance of
establishing the chain of custody of the confiscated drugs, in this wise:

As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received, where it
was and what happened to it while in the witness' possession, the
condition in which it was received and the condition in which it was
delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in
the condition of the item and no opportunity for someone not in the
chain to have possession of the same.

While 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.
[30]


Thus, crucial in proving chain of custody is the marking of the seized drugs
or other related items immediately after they are seized from the accused.
Marking means the placing by the apprehending officer or the poseur-buyer of
his/her initials and signature on the items seized.
[31]
Long before Congress passed
R.A. No. 9165, this Court has consistently held that failure of the authorities to
immediately mark the seized drugs casts reasonable doubt on the authenticity of
the corpus delicti.
[32]
Marking after seizure is the starting point in the custodial
link; hence, it is vital that the seized contraband be immediately marked because
succeeding handlers of the specimens will use the markings as reference. The
marking of the evidence serves to separate the marked evidence from the corpus of
all other similar or related evidence from the time they are seized from the accused
until they are disposed of at the end of the criminal proceedings, thus preventing
switching, "planting," or contamination of evidence.
[33]


In the present case, the records do not show that the apprehending team
marked the seized items with their initials immediately upon confiscation.
In Sanchez,
[34]
we explained that consistency with the chain of custody rule
requires that the marking of the seized items be done (1) in the presence of the
apprehended violator, and (2) immediately upon confiscation. We clarified
in People v. Manuel Resurreccion
[35]
that [m]arking upon immediate
confiscation does not exclude the possibility that marking can be at the police
station or office of the apprehending team. In the present case, the testimonies of
the apprehending officers do not indicate that they ever marked the seized items,
either at the place of seizure or at the police station. How the police could have
omitted such a basic and vital procedure in the initial handling of the seized drugs
truly baffles us. Going back to what we earlier discussed, succeeding handlers of
the specimen will use the markings as reference. If at the first instance or
opportunity, the apprehending team did not mark the seized item/s, then there is
nothing to identify it later on as it passes from one hand to another.

Curiously, the seized item already bore the markings TM-1-010902 when
it was examined by the forensic chemist. In the absence, however, of specifics on
how, when and where this marking was done, and who witnessed the marking
procedure, we cannot accept this marking as compliance with the chain of custody
requirement required by the law. In People v. Ranilo Dela Cruz y Lizing,
[36]
the
Court reversed the accuseds conviction for the failure of the police to mark the
plastic sachet in the presence of the accused or his representatives. People v. Zaida
Kamad y Ambing,
[37]
likewise, resulted in an acquittal for the failure of the
prosecution to provide specific details on how the seized shabu was marked.

The second link in the chain of custody is the turnover of the confiscated
drug from PO1 Mengote to the police station. To recall, after PO1 Mengote
allegedly received the plastic sachet from the appellant, he made the pre-arranged
signal to his companions. The other members of the buy-bust team approached the
appellant, introduced themselves as police officers, and arrested him. Thereafter,
they brought him and the confiscated item to the police station.

Notably, the testimonies of the prosecution witnesses failed to identify the
person who took custody of the seized item at the police station. Although the
request for laboratory examination was signed by P/Supt. Fegarido, the Chief of
the District Drug Enforcement Group, we cannot assume that he was the person
who received the seized item from PO1 Mengote, in the absence of any testimony
proving such fact.

For the succeeding links in the chain of custody, the evidence shows that
the confiscated item was forwarded to the PNP Crime Laboratory by one SPO2
Pepano, and then received by a certain Relos. P/Insp. Gural examined the
submitted specimen, and found it positive for the presence of methylamphetamine
hydrochloride. As previously discussed, there was a missing link in the custody of
the confiscated item after it left the possession of PO1 Mengote. The police did not
only fail to mark the specimen immediately upon seizure; it likewise failed to
identify the police officer to whose custody the confiscated item was given at the
police station. Thus, we cannot conclude with certainty that the item seized from
the appellant was the same as that presented for laboratory examination and, later
on, presented in court.

That the defense admitted the existence of the Booking and Information
Sheet (Exh. C), the Request for Laboratory Examination (Exh. D) and
Physical Science Report No. D-1331-02 (Exh. E) during the pre-trial did not
amount to an admission of the identity of the seized specimen. What the
admissions proved were merely the existence and authenticity of the request for
laboratory examination and the result of this examination, not the required chain of
custody from the time of seizure of evidence. Simply put, the admission regarding
the existence of Exhibits C, D and E has no bearing on the question of
whether the specimen submitted for chemical analysis was the same as that seized
from the appellant.
[38]
To interpret the stipulations as an admission that the
appellant was the source of the specimen would be contrary to the pre-trial order
(stating that Exhibits C, D and E were admitted as to their existence only
and not as to the source); it would also bind the appellant to an unceremonious
withdrawal of his plea of not guilty.

In like manner, the stipulation during the pre-trial regarding the non-
presentation of the forensic chemist, P/Insp. Gural, merely covers the handling of
the specimen at the forensic laboratory and the result of the examination,
but not the manner the specimen was handled before it came to the possession of
the forensic chemist and after it left his possession.
[39]


b. Non-compliance with the requirements of paragraph 1,
Section 21, Article II of R.A. No. 9165

Section 21, paragraph 1, Article II of R.A. No. 9165 and Section 21(a),
Article II of the Implementing Rules and Regulations (IRR) of RA No. 9165 give
us the procedures that the apprehending team should observe in the handling of
seized illegal drugs in order to preserve their identity and integrity as evidence. As
indicated by their mandatory terms, strict compliance with the prescribed
procedure is essential and the prosecution must show compliance in every case.
[40]


Section 21, paragraph 1, Article II of R.A. No. 9165 reads:

(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[.]

This provision is further elaborated in Section 21(a), Article II of the IRR of
R.A. No. 9165, which reads:

(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 non-compliance 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[.]

The records of the present case are bereft of evidence showing that the
apprehending or buy-bust team followed the outlined procedure of Section 21 of
R.A. No. 9165 and its IRR. PO1 Mengote narrated the police operation as follows:

PROSECUTOR BERNABE SOLIS:

Q: So [were] you able to locate him afterwards?

PO1 TIMOTHY MENGOTE:

A: Yes, sir.

Q: Where was he at that time?

A: At that time, he was in front of a sari-sari store or M.
dela Cruz St., sir.

Q: What was he doing at that time?

A: He was just sitting there at that time, sir.

x x x x

Q: What did you do next?

A: When we saw him, our asset introduced me to him as a
shabu scorer sir.

x x x x

Q: So what was the reply of the accused?

A: He said, Magkano ba? and I answered, Halagang piso
sir.

Q: What does Piso mean?

A: P100.00 worth, sir.

Q: After having conveyed your intention to buy P100.00
worth of shabu, what did the accused do, if any?

A: When I had given him the buy bust money, he pulled x x x
the shabu out of his right pocket pants, sir.

x x x x

Q: What did he do with the shabu which he pulled out of his
right pocket?

A: He handed over the stuff to me, sir.

Q: And after this exchange of goods, what did you do if any?

A: I executed the pre-arranged signal by wiping my face with
a face towel, sir.

x x x x

Q: And did your colleagues respond to the pre-arranged
signal?

A: Yes, sir.

Q: What happened after that?

A: I properly introduced myself to Jhon Jhon as a police
officer, sir.

x x x x

Q: Upon the arrival of your back-up team, what happened
next?

A: They likewise introduced themselves as police officers and
we recovered the buy bust money which was taken from his
right hand sir.

x x x x

Q: What happened next?

A: We apprised him of his rights, arrested him and brought
him to our office sir.
[41]



From these exchanges, clearly it appears that the apprehending team did not
photograph or conduct a physical inventory of the item seized, whether at the place
of seizure or at the police station. The non-compliance by the apprehending team
with the photograph and physical inventory requirements under R.A. No. 9165 and
its IRR was also evident in the testimony of another member of the buy-bust teams,
PO1 Tan, who corroborated PO1 Mengotes testimony on material points. Notably,
even the Joint Affidavit of Arrest
[42]
of the members of the entrapment team made
no mention of any inventory or photograph.

Prior to the passage of R.A. No. 9165, the Court applied the procedure
required by Dangerous Drugs Board Regulation No. 3, Series of 1979, amending
Board Regulation No. 7, Series of 1974.
[43]
Section 1 of this Regulation requires
the apprehending team, having initial custody and control of the seized drugs, to
immediately inventory and photograph the same in the presence of the accused
and/or his representatives, who shall be required to sign and be given copies of the
inventory.

After the passage of R.A. No. 9165, the Court did not waver in ensuring that
the prescribed procedures in the handling of the seized drugs were observed.
In People v. Rosemarie R. Salonga,
[44]
we acquitted the accused for the failure of
the police to inventory and photograph the confiscated items. We also reversed the
accuseds conviction in Gutierrez,
[45]
for the failure of the buy-bust team to
inventory and photograph the seized items without justifiable grounds. People v.
Cantalejo
[46]
also resulted in an acquittal because no inventory or photograph was
ever made by the police.

We reached the same conclusions in the recent cases of People v. Erlinda
Capuno y Tison,
[47]
People v. Jay Lorena y Labag,
[48]
and People
v. Arnold Martinez y Angeles, et al.
[49]


Lest the chain of custody rule be misunderstood, we clarify that non-
compliance with the prescribed procedural requirements does not necessarily
render the seizure and custody of the items void and invalid; the seizure may still
be held to be valid, provided that (a) there is a justifiable ground for the non-
compliance, and (b) the integrity and evidentiary value of the seized items are
shown to have been properly preserved. These conditions, however, were not met
in the present case as the prosecution did not even
attempt to offer any justification for the failure of the police to follow
the prescribed procedures in the handling of the seized items. As we held
in People v. Ronaldo De Guzman y Danzil,
[50]
the failure to follow the procedure
mandated under R.A. No. 9165 and its IRR must be adequately explained. The
justifiable ground for the non-compliance must be proven as a fact. The Court
cannot presume what these grounds are or that they even exist.




No Presumption of Regularity in
the Performance of Official Duties


In convicting the appellant of the crime charged, both the RTC and the CA
relied on the evidentiary presumption that official duties have been regularly
performed. However, this presumption is not conclusive and cannot, by itself,
overcome the constitutional presumption of innocence. The presumption of
regularity, it must be emphasized, obtains only when there is no deviation from the
regular performance of duty. Where the official act in question is irregular on its
face, no presumption of regularity can arise.
[51]
Our declaration in People v. Samuel
Obmiranis y Oreta
[52]
is particularly instructive:

It needs no elucidation that the presumption of regularity in the
performance of official duty must be seen in the context of an existing
rule of law or statute authorizing the performance of an act or duty or
prescribing a procedure in the performance thereof. The presumption, in
other words, obtains only where nothing in the records is suggestive of
the fact that the law enforcers involved deviated from the standard
conduct of official duty as provided for in the law. Otherwise, where the
official act in question is irregular on its face, an adverse presumption
arises as a matter of course. There is indeed merit in the contention that
where no ill motives to make false charges was successfully attributed to
the members of the buy-bust team, the presumption prevails that said
police operatives had regularly performed their duty, but the theory is
correct only where there is no showing that the conduct of police duty
was irregular. People v. Dulayand People v. Ganenas in fact both
suggest that the presumption of regularity is disputed where there is
deviation from the regular performance of duty. Suffice it to say at this
point that the presumption of regularity in the conduct of police duty is
merely just thata mere presumption disputable by contrary proof and
which when challenged by the evidence cannot be regarded as binding
truth.
[53]


In the present case, the procedural lapses by the apprehending team in the
handling of the seized items from their failure to mark it immediately upon
confiscation, to their failure to inventory and photograph it in the presence of the
accused, or his representative or counsel, a representative from the media and the
DOJ, and any elected public official, without offering any justifiable ground
effectively negated the presumption of regularity.

Conclusion

In fine, the totality of evidence presented in the present case does not
support the appellant's conviction for violation of Section 5, Article II of R.A. No.
9165, since the prosecution failed to prove beyond reasonable doubt all the
elements of the offense. The prosecutions failure to comply with Section 21,
Article II of R.A. No. 9165, and with the chain of custody requirement of this
Act compromised the identity of the item seized, leading to the failure to
adequately prove the corpus delicti of the crime charged. In accordance with the
constitutional mandate that the guilt of the appellant must be proven beyond
reasonable doubt, we hold for failure to establish the required quantum of
evidence that the presumption of innocence must prevail and acquittal should
follow as a matter of right.
[54]


WHEREFORE, premises considered, we REVERSE and SET
ASIDE the May 31, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 01251. Appellant Jhon-Jhon Alejandro y dela Cruz is
herebyACQUITTED for the failure of the prosecution to prove his guilt beyond
reasonable doubt. He is ordered immediately RELEASED from detention, unless
he is confined for another lawful cause.

Let a copy of this Decision be furnished the Director, Bureau of
Corrections, Muntinlupa City, for immediate implementation. The Director of the
Bureau of Corrections is directed to report the action he has taken to this Court,
within five (5) days from receipt of this Decision.

SO ORDERED.






SECOND DIVISION


JUN MUPAS and GIL MUPAS, G.R. No. 172834
Petitioners,

Present:

QUISUMBING, J.,
- versus - Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
PEOPLE OF THE PHILIPPINES, VELASCO, JR., JJ.
Respondent.

Promulgated:

February 6, 2008

x ---------------------------------------------------------------------------------x


DECISION

TINGA, J.:


Petitioners Jun and Gil
[1]
Mupas were found guilty of frustrated homicide in
Criminal Case No. 2314 in the Decision
[2]
dated 22 November 2002 rendered by
the Regional Trial Court of Malaoan, La Union, Branch 34. The dispositive portion
of the decision reads:

WHEREFORE, in light of the foregoing, the Court hereby renders
judgment declaring both accused JUN MUPAS and GIL MUPAS @ Banjo
guilty beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE as
defined and penalized in Art. 249 in relation with Art. 6 of the Revised Penal
Code, and thereby sentenced EACH of the accused to suffer an indeterminate
penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS
PRISION CORRECCIONAL as Minimum to TEN (10) years PRISION MAYOR
as maximum and the accessory penalties provided for by law and to indemnify
jointly the private complainant the reasonable amount of P5,000.00 for hospital
expenses and other miscellaneous expenses.

The preventive imprisonment suffered by the accused is counted in his
favor.

SO ORDERED.
[3]


The relevant antecedents are as follows:

The Information
[4]
for frustrated homicide alleged:

That on or about the 18
th
day of February 1993, in the Municipality of
Bangar, Province of La Union, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another and with intent to kill, did then and there willfully,
unlawfully and feloniously attack, maul with fist and stones and stab with a knife
Rogelio Murao y Sibayan hitting the latter and inflicting injuries on his face and
head thus performing all the acts of execution which would have produced the
crime of Homicide as a consequence but which nevertheless did not produce it by
reason of causes independent of the will of the accused, that was the timely and
able medical assistance rendered to the offended party which saved his life to his
damage and prejudice.

CONTRARY TO LAW.
[5]



During the arraignment, petitioners, assisted by counsel, pleaded not guilty
to the charge.
[6]
Thereafter, trial ensued.

The prosecution presented three witnesses, namely: Rogelio Murao
(Rogelio), Flaviano Murao (Flaviano) and Dr. Arsenio B. Martinez (Dr. Martinez).

Rogelio testified that at around 7:30 in the morning of 18 February 1993, he
was walking to school with his companion Eduardo Murao, Jr. when Jun suddenly
stopped and stabbed him using a 29-inch Batangas knife. Meantime, Banjo bodily
restrained him but luckily Rogelio was able to avoid the blow. Next, Banjo and
Jun hurled stones at him and hit him on the leg while Rogelio was running
eastward. Rogelio then flagged down a motorized tricycle but the two assailants
continued to pursue him. While inside the tricycle, Banjo held Rogelio by his neck
and punched him while Jun stabbed him several times. Then, Rogelio alighted
from the tricycle and ran home. Afterwards, his father and mother accompanied
him to the hospital.
[7]
There, Dr. Martinez attended to Rogelio and issued a medical
certificate containing the following findings:

Cut wound, 2-3 cm. parietal area
Abrasion, maxiliary area, (L)
Contusion, maxiliary area, (L)
Abrasion, lumbar area, (L)

HEALING PERIOD: It may take two weeks to heal.
[8]



Prior to the incident, Rogelio recalled that in January of the same year, he
had a misunderstanding with Jun where he and the latter hurled invectives at each
other. Rogelio suspected that this event gave rise to the subject incident.
[9]


Flaviano, Rogelios father, testified that on 18 February 1993, Rogelio came
home bleeding from head injuries. Immediately, he brought Rogelio to the
Martinez Clinic in Bangar, La Union. Flaviano reported that he has
spent P2,000.00 for Rogelios medical treatment and P3,000.00 for attorneys fees
and transportation.
[10]


For the defense, Jun testified that on 18 February 1993, at around 7:30 in the
morning, he was watering the plants in front of Gils house when he accidentally
sprayed water on Rogelio who was passing by. Rogelio scolded him and Jun
immediately apologized. Rogelio then challenged Jun to a fistfight which Jun
accepted. After that, Rogelio ran away, picked up big stones and threw them at
Gils house. Jun gave chase and was able to catch up with Rogelio. They both
boarded a tricycle and continued their fighting inside. One of the passengers of the
tricycle, Josefina Mendoza, pacified the two men. Banjo arrived only when the
fighting ceased.
[11]


Afterwards, Jun went home. Then, Rogelio and Flaviano, each armed with a
bolo, arrived and challenged Jun to a fight. However, the two could not enter the
house as the gate was locked.
[12]


Gil testified that in the morning of 18 February 1993, at around 7:00,
somebody threw a stone at their house. He went outside the house and saw Jun
chasing Rogelio. He went near them and saw that they had already been pacified
by one Ms. Monis. Afterward, he sent the two men home. Gil also went home and
thereat, Rogelio, who had a stone with him, arrived with his father Flaviano who
was carrying a bolo. Rogelio then challenged Gil and Jun to a fight.
[13]


Danilo Olpindo testified that between 7:00 and 8:00 in the morning of 18
February 1993, he was buying soap from Banjos store when a fistfight transpired
between Rogelio and Jun. Rogelio then ran away, picked up a stone and threw it at
Jun. After Rogelio threw another stone at Banjos house, Jun chased him and had a
fistfight with him again. Banjo then came out of the house and asked the two to go
home. Danilo also saw Teresita Monis at the scene trying to pacify the two.
[14]


Teresita Monis testified that on that fateful day, she was riding a tricycle
when suddenly, somebody from outside punched one of her co-passengers. She
saw an arm reach inside the tricycle and hit the passenger. Blood started to ooze
from the fellows forehead. Shortly, she had to alight from the tricycle to attend the
flag ceremony at her school.
[15]


Josefina Mendoza testified that on said day, she saw Jun box Rogelio.
Subsequently, Banjo went near the two and dispersed them.
[16]


Jun and Gil were found guilty as charged and the judgment of conviction
was elevated to the Court of Appeals.

Before the Court of Appeals, Jun and Gil argued that the trial court erred in:
(1) finding Gil guilty of the crime charged despite the prosecutions failure to
prove his guilt beyond reasonable doubt; and (2) finding Jun guilty of the crime of
frustrated homicide instead of physical injuries only.
[17]


Jun and Gil contended that Rogelio had failed to identify with moral
certainty that Gil had been one of those who inflicted the injury on him. They
pointed out that Rogelio had failed to categorically state that Gil and Banjo Mupas
are one and the same person. Moreover, they asserted that in Juns case, the
prosecution had failed to prove intent to kill and as such, he should be convicted
only of the crime of physical injuries.
[18]


The Court of Appeals in a Decision
[19]
dated 23 January 2006, in CA-G.R.
CR. No. 27768, affirmed with modifications the decision of the trial court. The
dispositive portion of the decision reads:


WHEREFORE, the Decision appealed from convicting accused-
appellants JUN MUPAS and GIL MUPAS alias BANJO MUPAS of the crime
of Frustrated Homicide is AFFIRMED with MODIFICATION in that
appellants are ordered to pay ROGELIO MURAO in the amount of P4,000 as
temperate damages.

SO ORDERED.
[20]



After a review of the records of the case, the Court of Appeals concluded
that Banjo Mupas and Gil Mupas are one and the same person. The Court of
Appeals observed that when Banjo posted a bail bond in the case entitled People
of the Philippines v. Jun Mupas and Banjo Mupas, he had made no objection to
the caption of the case and he had even signed his name as Gil Mupas. Secondly,
when the Information was amended to include Gils alias, Banjo did not interpose
any objection to the correction. Lastly, Rogelio had not been able to identify Banjo
in court due to the latters absence at the time of his testimony.
[21]


The Court of Appeals likewise held that Jun already performed all the acts of
execution necessary to bring about the death of Rogelio which would have
transpired had it not been for the timely medical intervention. As such, the trial
court correctly found him liable for the crime of frustrated homicide.
[22]


Jun and Gil are now before the Court reiterating their assertion that the
prosecution failed to establish Gils identity as one of the perpetrators of the crime
and that his defense of denial was duly supported by clear and convincing
evidence.
[23]
They also contend that on the assumption that Jun is guilty of having
committed a crime, he should only be convicted of the crime of physical
injuries.
[24]


There is merit in the petition.

The Constitution mandates that an accused shall be presumed innocent until
the contrary is proven beyond reasonable doubt. The prosecution has the burden to
overcome such presumption of innocence by presenting the quantum of evidence
required. In addition, the prosecution must rest on its own merits and must not rely
on the weakness of the defense. In fact, if the prosecution fails to meet the required
quantum of evidence, the defense may logically not even present evidence on its
own behalf. In which case, the presumption of innocence shall prevail and hence,
the accused shall be acquitted. However, once the presumption of innocence is
overcome, the defense bears the burden of evidence to show reasonable doubt as to
the guilt of the accused. Reasonable doubt is that doubt engendered by an
investigation of the whole proof and an inability after such investigation to let the
mind rest each upon the certainty of guilt. Absolute certainty of guilt is not
demanded by the law to convict a criminal charge, but moral certainty is required
as to every proposition of proof requisite to constitute the offense.
[25]


The trial court solely hinged its judgment of conviction on the victim
Rogelios lone and uncorroborated testimony. While it is true that the testimony of
one witness is sufficient to sustain a conviction if such testimony establishes the
guilt of the accused beyond reasonable doubt, the Court rules that the testimony of
one witness in this case is not sufficient for this purpose.
[26]
Apart from Rogelios
testimony, the Court observes that the prosecutions version of events has no leg to
stand on.

In his Sworn Statement
[27]
dated 23 February 1993, Rogelio admitted that he
had a companion with him on that fateful incident named Eduardo Murao, Jr. He
also stated that there were other persons who may have witnessed the assault
namely, Josephine Mendoza, Terisita Mico and one Mario Olpindo, the driver of
the tricycle. On the witness stand, Rogelio likewise testified that there had been
others who may have witnessed the incident including Eduardo Murao, Jr. and
Teresita Monis.
[28]
Interestingly, Josephine Mendoza testified for the defense that
she had only witnessed a fistfight between Jun and Rogelio while Teresita Monis,
also for the defense, testified that she had only seen a hand reach inside the tricycle
to hit Rogelio.

It appears then that Rogelio had at his disposal many witnesses who could
have supported his allegations but curiously and without any explanation, none of
these so-called witnesses were presented. It is thus Rogelios word against the
attestations of others. Such omission already raises a reasonable doubt as to the
guilt of the petitioners.

In contrast, the defense was able to present three (3) other witnesses than the
petitioners themselves. In the Courts view, Danilo Olpindo, one of the defense
witnesses, could hardly be called a biased witness contrary to the appellate courts
opinion. He may indeed be Juns second cousin but the appellate court failed to
consider that Danilo is likewise Rogelios third cousin
[29]
which fact, in the Courts
estimation, cancels the supposed partiality based on kinship.

Danilo Olpindo, Josefina Mendoza together with Jun and Gil are in
agreement that a fistfight occurred between Jun and Rogelio. In addition, Jun
admitted that the fighting continued inside a tricycle. Teresita Monis attested that
this latter detail did occur but was not able to identify whose hand it was that
reached in the tricycle and hit Rogelio.

Juxtaposing the testimonies of the witnesses, it can be safely deduced that a
fistfight occurred only between Jun and Rogelio which continued inside a tricycle.
Rogelios allegations of Banjos participation in the incident and that Jun carried
with him a bolo are uncorroborated and bereft of any proof. Absent proof of Gil
alias Banjos involvement in the incident, his acquittal is in order.

Assuming that Gil alias Banjo had any participation, there is likewise no
evidence that he or Jun had intent to kill Rogelio. Intent to kill is the principal
element of homicide or murder, in whatever stage of commission. Such intent must
be proved in a clear and evident manner to exclude every possible doubt as to the
homicidal intent of the aggressor.
[30]


Although it can be fairly assumed that the injuries suffered by Rogelio were
sustained during the fistfight, it is not conclusive that the same were inflicted
purposely to kill him. For one, if Jun in fact had been carrying a bolo with intent of
killing Rogelio, and if indeed Banjo had conspired with Jun, it is no small wonder
why the wounds inflicted were more superficial than mortal, more mild than grave.
That Rogelio was able to go home shortly after the tricycle incident without being
pursued by his aggressor also shows that Jun and Banjo were not intent on beating
him to death or even leaving him for dead.
[31]
It is thus wrong to infer that the
intent to kill was present in the absence of circumstances sufficient to prove this
fact beyond reasonable doubt.
[32]
Moreover, Rogelios suggested motive for killing
him, i.e., his previous altercation with Jun, was too weak and shallow a reason to
kill under the circumstances.
[33]


Notably, Dr. Martinez, Rogelios attending physician, opined that if
Rogelios wound was left untreated it could lead to his death, but at the same
time he also testified that such wound merely required suturing. He also testified
that the wound, which was only 2-3 cm long and whose depth he did not indicate,
could have been caused by a rough or sharp object not necessarily a knife. And in
the medical certificate he issued, he reported that the wounds sustained by Rogelio
would take two (2) weeks to heal.
[34]
Dr. Martinez stated as follows:

Q And what did you do when you noticed the wounds on the patient Rogelio
Murao?
A I gave the necessary injections and medicines preliminary in suturing the
wound and treating the wound, sir.

Q What particular kind of injections did you make on the patient?
A Regularly a patient who will undergo the kind of operation [sic] we gave
novaine injection[.] [T]hen after ten minutes we gave the local anesthesia
for suturing, sir.

Q You said that you conducted surgery, what exactly did you do?
A After rushing and preparing the operative area and after giving the novaine
injection [sic] and I will now examine the kind of wound, it was a two to
three cms. long on the parietal area and partially cut and after cleaning the
wound, we put anesthesia and suture the wound, sir.

x x x

Q Particularly this cut wound which you mentioned as the wound on the
parietal area of the patient, what particularly [sic] did you do when you
said you applied surgery, did you do surgery only on the cut wound?
A I referred to injuries, damages tissues, we removed unnecessary tissues,
sir.

Q After removing the unnecessary tissues, and cut wound, what did you do?
A I have to suture, sir.

Q And in laymans language, what is meant by suture?
A We used the chromic sutures and followed by the skin suture which is
made of silk, sir.

Q Now, this cut would as you have said doctor, what would be the result of
this cut wound if it was not treated by you?
A Death, sir.

Q How come it would result to death, if you did not treat the cut wound?
A In the first place according to the legal ethics made by Dr. Solis even if
there is slight wound on the head, it is considered serious because the
wound on the head is proximal to the brain, sir. Meaning, usually, it gets
in when the injuries were on the head, sir.
[35]


x x x

Q You also stated that it is a cut wound which must have been caused by a
sharp instrument or bladed edge?
A Sharp edge, sir.

x x x

Q Because it is a cut wound, the tendency was not penetrating wound?
A No, not penetrating wound, sir.

Q The wound is possible to have been caused by a knife or it might have
been caused by any sharp object not necessarily a knife or by any rough or
sharp object?
A Yes, sir.
[36]



Taken in its entirety, there is a dearth of medical evidence on record to
sustain the claim that petitioners had any intention to kill Rogelio. When such
intent is lacking but wounds were inflicted, the crime is not frustrated homicide but
physical injuries only and in this case, less serious physical injuries considering the
attending physicians opinion that the wounds sustained by Rogelio would take
two (2) weeks to heal.
[37]


Although the Information charged petitioners with frustrated homicide, a
finding of guilt for the lesser offense of less serious physical injuries may be made
considering that the latter offense is necessarily included in the former, and since
the essential ingredients of physical injuries constitute and form part of those
constituting the offense of homicide.
[38]


In sum, absent competent proof, Jun should be held liable only for the crime
of less serious physical injuries under Article 265
[39]
of the Revised Penal Code, as
amended. Gil, alias Banjo, must be absolved from any liability for failure of the
prosecution to conclusively prove that he had conspired with Jun in the
commission of the crime or that he had any participation in it.

The Court sustains the appellate courts award of P4,000.00 as temperate
damages. Having suffered actual injuries, Rogelio is likewise entitled to moral
damages.
[40]
The award of P5,000.00 as moral damages is sufficient under the
circumstances.
[41]


WHEREFORE, the Petition is GRANTED IN PART and the Decision
dated 23 January 2006 of the Court of Appeals in CA- G.R. CR. No. 27768 is
MODIFIED. Petitioner Jun Mupas is found GUILTY beyond reasonable doubt of
the crime of Less Serious Physical Injuries, and sentenced to suffer a straight
prison term of four (4) months and ten (10) days of arresto mayor in its
maximum period, and to pay Rogelio Murao the amount of Four Thousand Pesos
(P4,000.00) as temperate damages, and Five Thousand Pesos (P5,000.00) as moral
damages.

Petitioner Gil Mupas is ACQUITTED and the bail bond posted for his
provisional liberty is cancelled and released.

SO ORDERED.





















THIRD DIVISION


Re: CONVICTION OF JUDGE
ADORACION G. ANGELES,
REGIONAL TRIAL COURT,
BRANCH 121, CALOOCAN CITY
IN CRIMINAL CASE NOS.
Q-97-69655 to 56 FOR CHILD ABUSE

A.M. No. 06-9-545-RTC


Present:

YNARES-
SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,
*

NACHURA, and
REYES, JJ.



Promulgated:

January 31, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


DECISION

NACHURA, J .:


Before this Court is yet another administrative case confronting respondent
Adoracion G. Angeles (respondent), Presiding Judge of the Regional Trial Court
(RTC), Branch 121, Caloocan City (sala) filed by the Office of the Court
Administrator
[1]
(OCA) recommending that she be suspended pending the outcome
of this administrative case.
The Facts


On July 17, 2006, the RTC, Branch 100, Quezon City rendered a
Decision
[2]
in Criminal Case Nos. Q-97-69655-56 convicting respondent of
violation of Republic Act (RA) No. 7610.
[3]
The criminal cases are now on appeal
before the Court of Appeals (CA).
[4]



On July 25, 2006, Senior State Prosecutor Emmanuel Y. Velasco (SSP
Velasco) of the Department of Justice (DOJ) wrote a letter
[5]
to then Chief Justice
Artemio V. Panganiban inquiring whether it is possible for this Court, in the public
interest, motu proprio to order the immediate suspension of the respondent in view
of the aforementioned RTC Decision. SSP Velasco opined:

1. Judge Angeles now stands convicted on two counts of a crime,
child abuse under Republic Act 7610, which involves moral
turpitude. Until she clears her name of such conviction, her current
moral qualification to do the work of a judge is under a dark
cloud. Litigants seeking justice in our courts are entitled to a hearing by
judges whose moral qualifications are not placed in serious doubt.

2. Although her conviction is not yet final, the presumption of
innocence that Judge Angeles enjoyed during the pendency of the trial
has already been overcome by its result. The presumption today is that
she is guilty and must clear her name of the charges.

x x x x

It simply would not be right to have a person presumably guilty
of a crime involving moral turpitude to hear and adjudicate the cases of
others.

3. Under section 5 of Rule 114 of the Rules of Criminal
Procedure, since the RTC of Quezon City convicted Judge Angeles of an
offense not punishable by death, reclusion perpetua or life imprisonment,
she no longer has a right to bail and, therefore, should ordinarily be held
in prison pending adjudication of her appeal. That the RTC of Quezon
City chose
to exercise its discretionary power to nonetheless grant her bail does not
change the fact that, except for the bail, Judge Angeles rightful place by
reason of conviction is within the confinement of prison.

It would seem incongruous for the Supreme Court to allow
convicted felons out on bail to hear and adjudicate cases in its courts.

4. Finally, as a sitting judge who wields power over all persons
appearing before her and has immeasurable influence within the judicial
system as one of its members, Judge Angeles could definitely cause
pressure to bear, not only on the members of the Court of Appeals and,
possibly, the Supreme Court, but also on the Office of the Solicitor
General that prosecutes her case on appeal. Only temporary suspension
from official function, pending resolution of her case, will neutralize her
judicial clout and clear the air of any kind of suspicion that justice is not
going well in her case.


On July 27, 2006, the matter was referred to the OCA for comment and
recommendation.
[6]


On the basis of SSP Velasco's letter and by virtue of this Court's
Resolution
[7]
dated March 31, 1981, the OCA submitted to this Court a
Report
[8]
dated August 25, 2006 with an attached Administrative Complaint,
[9]
the
dispositive portion of which reads as follows:

WHEREFORE, it is respectfully prayed that this administrative
complaint be given due course and, respondent be ordered to file her
Comment within ten (10) days from receipt. Considering the evidence is
prima facie strong, it is respectfully recommended that she
be INDEFINITELY SUSPENDED pending the outcome of the instant
case or until further orders from this Court. It is further recommended
that after the Comment is filed, the administrative proceeding be
suspended to await the final outcome of the criminal cases filed against
her.


In a Resolution
[10]
dated September 18, 2006, this Court's Second Division
approved all of these recommendations, thus, suspending respondent from
performing her judicial functions while awaiting the final resolution of her criminal
cases or until further orders from this Court.

On October 6, 2006, respondent filed an Urgent Motion for
Reconsideration
[11]
of the aforementioned Resolution. Respondent claimed that the
suspension order was wielded against her without affording her the opportunity to
be heard since she was not furnished copies of SSP Velasco's letter and OCA's
Administrative Complaint. Thus, respondent submitted that her suspension is
essentially unjust. Moreover, respondent manifested that the two criminal cases
against her are on appeal before the CA and have, therefore, not yet attained
finality. As such, respondent still enjoys the constitutional presumption of
innocence and her suspension clashes with this presumption and is tantamount to a
prejudgment of her guilt.

On the other hand, on October 11, 2006, SSP Velasco filed an Urgent
Appeal/Manifestation
[12]
to the Court En Banc on the alleged unethical conduct of
respondent, seeking the immediate implementation of this Court's Resolution
dated September 18, 2006. On October 16, 2007, SSP Velasco filed an Opposition
to the said Motion for Reconsideration,
[13]
manifesting that respondent
continuously defied this Court's Resolution dated September 18, 2006 as she did
not desist from performing her judicial functions despite her receipt of said
Resolution on October 6, 2006. SSP Velasco stressed that an order of suspension
issued by this Court is immediately executory notwithstanding the filing of a
motion for reconsideration. Moreover, SSP Velasco reiterated that due to her
conviction on two counts of child abuse, respondent no longer enjoys the
constitutional presumption of innocence and should remain suspended in order to
erase any suspicion that she is using her influence to obtain a favorable decision
and in order to maintain and reaffirm the people's faith in the integrity of the
judiciary.
Correlatively, the Integrated Bar of the Philippines-Caloocan, Malabon,
Navotas Chapter (IBP-CALMANA Chapter), through its Public Relations Officer
(PRO) Atty. Emiliano A. Mackay, wrote a letter
[14]
dated October 18, 2006
addressed to the Second Division of this Court inquiring as to the effectivity of the
Resolution suspending the respondent so as not to sow confusion among the legal
practitioners and party litigants with pending cases before the respondent's sala.
Likewise, the IBP-CALMANA Chapter manifested that respondent did not cease
to perform her judicial functions as evidenced by a Commitment Order
[15]
issued
by respondent on October 16, 2006, and handwritten manifestations
[16]
of some
party litigants attesting that on various dates they attended hearings before
respondent's sala. In the same vein, in an undated letter
[17]
addressed to Associate
Justice Angelina Sandoval-Gutierrez, the Concerned Trial Lawyers in the City
of Caloocan raised the same concern before this Court.


In her Reply
[18]
to SSP Velasco's Opposition, respondent admitted that she
continued discharging her bounden duties in utmost good faith after filing her
motion for reconsideration. She averred that she did not have the slightest intention
to defy or ignore this Court's Resolution which did not categorically state that the
said suspension is immediately executory. Respondent reiterated her arguments
against the suspension order on the grounds that she was deprived of due process;
that her conviction is not yet final; and that the crimes for which she was convicted
have nothing to do with the discharge of her official duties. Lastly, respondent
claimed that the instant case is but another harassment suit filed against her by SSP
Velasco because she earlier filed an administrative complaint against the latter for
maliciously indicting respondent with respect to another case of child abuse.

On October 25, 2006, respondent filed a Manifestation of Voluntary
Inhibition
[19]
stating that she is voluntarily inhibiting from handling all cases
scheduled for hearing before her sala from October 25, 2006 toNovember 13,
2006.

On October 27, 2006, the OCA conducted a judicial audit in respondent's
sala. Per Report
[20]
of the judicial audit team, it was established that from October
6, 2006 to October 23, 2006, respondent conducted hearings, issued orders,
decided cases and resolved motions, acting as if the order of suspension which the
respondent received on October 6, 2006 was only a mirage. The Report was
brought to the attention of Chief Justice Reynato S. Puno by Court Administrator
Christopher O. Lock (CA Lock).
[21]


On October 30, 2006, SSP Velasco filed an Administrative Complaint against
respondent for violation of the Court's Circulars, the New Code of Judicial
Conduct, and the Civil Service Rules and Regulations, and for Gross Misconduct,
asseverating, among others, that the suspension order was immediately
executory
[22]
and that integrity as mandated by the New Code of Judicial Conduct
is essential not only to the proper discharge of the judicial office but also to the
personal demeanor of judges.

In her Comment,
[23]
respondent, in addition to her previous contentions,
argued that the Resolution dated September 18, 2006 ordering her suspension was
issued only by a Division of this Court contrary to Section 11, Article VIII of the
Constitution, which provides that the Supreme Court en banc shall have the
power to discipline judges of lower courts, or order their dismissal by a vote of a
majority of the Members who actually took part in the deliberations on the issues
in the case and voted thereon.

On November 9, 2006, SSP Velasco filed a Supplement to the
Opposition to Respondent's Urgent Motion for Reconsideration
[24]
of the
Resolution dated September 18, 2006. Thereafter, numerous pleadings
[25]
were
filed by both parties practically repeating their previous allegations.

Subsequently, in a Resolution dated February 19, 2007, this Court lifted the
suspension of respondent on the ground that:

Upon verification, it appears that the Office of the Clerk of Court,
Second Division, indeed failed to attach a copy of the OCA complaint to
the copy of our resolution dated September 18, 2006 sent to Judge
Angeles. Due process requires that Judge Angeles be accorded the
opportunity to answer the complaint.


Respondent was then given a fresh period of ten (10) days from the receipt
of the OCA Administrative Complaint within which to file her comment.


On March 15, 2007, respondent filed her Comment
[26]
with the following
material assertions: (1) that CA Lock as Court Administrator and who in behalf of
the OCA stands as the complainant in this case, has no personal knowledge of the
facts, issues and evidence presented in the criminal cases; (2) that the instant case,
filed eleven (11) years after the criminal charges for child abuse were filed by
Nancy Gaspar and Proclyn Pacay, smacks of malice and bad faith on the part of
CA Lock; (3) that CA Lock is a friend and former subordinate of then National
Bureau of Investigation (NBI) Director Epimaco Velasco (Director Velasco),
father of
herein party SSP Velasco, thus, CA Lock's ill motive against respondent is clear;
(4) that CA Lock should not use the OCA to harass a member of the judiciary; (5)
that the decision in the aforementioned criminal cases has not yet become final; (6)
that the acts for which she was convicted are totally alien to her official functions
and have nothing to do with her fitness and competence as a judge; (7) that there is
no wisdom in the imposition of the suspension which in this case is preventive in
character because respondent cannot do anything through her office that could
possibly cause prejudice to the prosecution of the child abuse case; (8) that the
lifting of the suspension order retroacts to the date of its issuance; (9) that the
instant case should be struck down because the judgment of conviction was
contrary to law and jurisprudence; and (10) that under the circumstances, all the
charges were merely concocted by respondent's detractors in order to embarrass,
humiliate and vex her.

In his Motion for Reconsideration
[27]
of this Court's Resolution
dated February 19, 2007, SSP Velasco argued that respondent's deprivation of her
right to due process was cured when she filed her motion for the reconsideration of
the suspension order; thus, there is no need to lift such order. He reiterated his
previous statement that as a sitting judge who wields power over all persons
appearing before her and thus has immeasurable influence within the judicial
system as one of its members, Judge Angeles could definitely cause pressure to
bear, not only on the members of the Court of Appeals and, possibly, the Supreme
Court, but also on the Office of the Solicitor General (OSG) that prosecutes her
case on appeal. Only her suspension from official function, pending resolution of
her case, will neutralize her judicial clout and clear the air of any kind of
suspicion that justice is not going well in her case.
[28]

In response, respondent filed a Comment/Opposition to the said motion with
a Motion to Declare SSP Velasco in contempt of Court
[29]
due to this
aforementioned statement. Respondent argued that such statement betrays SSP
Velasco's cheap and low perception of the integrity and independence of this
Court, of the CA and of the OSG. It also shows his utter lack of respect for the
judicial system. Moreover, respondent added that since she was not furnished a
copy of the OCA Administrative Complaint, the issuance of the suspension order
deprived her of her right to due process and prevented her from fully ventilating
her arguments. Respondent, likewise, questioned SSP Velasco's legal personality
in this case as it was the OCA which, motu proprio, initiated the filing of the said
case.

In a Resolution dated July 4, 2007, this Court, among others, directed SSP
Velasco to file his comment on respondent's motion to cite him for contempt.
On August 21, 2007, SSP Velasco filed his Comment claiming that he has legal
personality to file pleadings before this Court because it was he who initiated the
filing of this case through his letter to then Chief Justice Artemio V. Panganiban
on July 25, 2006. He admitted that the allegedly contemptuous statements were
merely lifted from said letter. He argued that the former Chief Justice or the Court
for that matter, did not find any contemptuous statement in the letter. Taking the
letter in its entire context, SSP Velasco posited that he did not commit any act of
disobedience to the orders of this Court; neither did he bring the Court's authority
and the administration of law into disrepute nor did he impede the due
administration of justice. Nowhere in the letter was it stated that this Court, the CA
and the OSG could be pressured; the letter merely stated that respondent could
cause pressure. SSP Velasco pointed that the letter to the then Chief Justice, in
itself, shows his respect for the judiciary and the promotion of the administration
of justice.

In her Reply
[30]
to said Comment, respondent argued that it cannot be said
that somebody could cause pressure if no one is believed to be susceptible to
pressure. Thus, the use of this kind of language tends to degrade the administration
of justice and constitutes indirect contempt. She stressed that SSP Velasco's act of
misrepresenting himself as the complainant in this case while it is clear from the
Resolution of this Court that the OCA motu proprio filed the same, is per
se contemptuous.

Meanwhile in its Memorandum,
[31]
the OCA reiterated its earlier position that
respondent should be suspended pending the outcome of this administrative case.
The OCA opined that the Resolution lifting the suspension order was basically
premised on the ground that respondent was not accorded her right to due process.
By filing her Comment raising arguments against her suspension, respondent has
fully availed herself of such right. However, the OCA submitted that respondent's
arguments are devoid of merit on the following grounds: (1) the Court
Administrator need not personally know about the criminal cases of respondent
because the instant case is based on a public document, i.e., the decision of the
RTC convicting the respondent of child abuse; (2) the fact that said decision has
not attained finality is of no moment for what is being sought is merely preventive
suspension. Thus, in the event that respondent is acquitted in the criminal cases of
which she stands accused, she will receive the salaries and other benefits which she
would not receive during her suspension; (3) even if the acts of child abuse have no
connection with respondents official functions as a judge, it is established that the
private conduct of judges cannot be dissociated from their official functions; (4)
respondent's preventive suspension shall serve an important purpose: it will
protect the image of the judiciary and preserve the faith of the people in the
same; and
(5) citing the case of Leonida Vistan v. Judge Ruben T. Nicolas,
[32]
the RTC
decision convicting respondent of child abuse is prima facie evidence that
respondent committed the said crime which indicates the moral depravity of the
offender and, as such, warrants the punishment of dismissal from the service. Thus,
the OCA recommended that respondent be suspended pending the outcome of this
administrative case and that the CA be directed to resolve the criminal cases with
dispatch.

The I ssues

There are two ultimate issues in this case:

First, whether or not grounds exist to cite SSP Velasco for indirect contempt
of Court; and

Second, whether or not grounds exist to preventively suspend the respondent
pending the resolution of this administrative case.

The Court's Ruling

We resolve the first issue in the negative.

In Pilar Barredo-Fuentes v. Judge Romeo C. Albarracin,
[33]
we held:

Contempt of court is a defiance of the authority, justice or dignity
of the court, such conduct as tends to bring the authority and
administration of the law into disrespect or to interfere with or prejudice
parties, litigant or their witnesses during litigation.
There are two kinds of contempt punishable by law: direct
contempt and indirect contempt. Direct contempt is committed when a
person is guilty of misbehavior in the presence of or so near a court as to
obstruct or interrupt the proceedings before the same, including
disrespect toward the court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to subscribe an affidavit
or deposition when lawfully required to do so. Indirect contempt or
constructive contempt is that which is committed out of the presence of
the court. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice would
constitute indirect contempt.


In her Comment/Opposition with Motion to Declare SSP Velasco in
contempt of Court, respondent espoused the view that SSP Velasco is guilty of
indirect contempt for using language which tends to degrade the administration of
justice. But if this were so, respondent should have availed herself of the remedy in
accordance with Section 4, Rule 71 of the Rules of Court, viz:

SEC. 4. How proceedings commenced. Proceedings for
indirect contempt may be initiated motu proprio by the court against
which the contempt was committed by an order or any other formal
charge requiring the respondent to show cause why he should not be
punished for contempt.

In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting particulars and
certified true copies of documents or papers involved therein, and
upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned . . . . (Emphasis
supplied)


A charge of indirect contempt must be filed in the form of a verified petition
if it is not initiated directly by the court against which the contemptuous act was
committed. On previous occasions, we clarified that such petition is in the nature
of a special civil action. Certified true copies of related documents must be
submitted with the petition and appropriate docket fees must be paid. The
requirement of a verified petition is mandatory. As Justice Florenz D. Regalado
has explained:

This new provision clarifies with a regulatory norm the proper
procedure for commencing contempt proceedings. While such
proceeding has been classified as a special civil action under the former
Rules, the heterogeneous practice, tolerated by the courts, has been for
any party to
file a mere motion without paying any docket or lawful fees therefor and
without complying with the requirements for initiatory pleadings, which
is now required in the second paragraph of [Section 4].
[34]



On the charge of indirect contempt of court, we therefore find that SSP
Velasco's statement, while irresponsible, did not necessarily degrade the
administration of justice as to be considered contumacious. The salutary rule is that
the power to punish for contempt must be exercised on the preservative, not
vindictive principle, and on the corrective and not retaliatory idea of punishment.
A lawyer's remarks explaining his position in a case under consideration do not
necessarily assume the level of contempt that justifies the courts exercise of the
power of contempt.
[35]
We note that SSP Velasco's statement was made in support
of his argument for the imposition of preventive suspension, i.e., to prevent the
respondent from using her current position to alter the course of the investigation
and the disposition of the appealed criminal cases.

Nevertheless, SSP Velasco must bear in mind that as a lawyer, he must be
circumspect in his language. We remind him of our admonition to all lawyers to
observe the following Canons of the Code of Professional Responsibility, which
read:

Canon 8. Rule 8.01 A lawyer shall not, in his professional dealings,
use language which is abusive, offensive or otherwise improper.

Canon 11. A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by
others.


A lawyer is an officer of the Court. It is a lawyer's sworn and moral duty to
help build and not unnecessarily destroy the peoples high esteem and regard for
the courts so essential to the proper administration of justice.
A lawyer's language may be forceful but should always be dignified;
emphatic but respectful, as befitting an advocate. Arguments, whether written or
oral, should be gracious to both court and opposing counsel, and should use such
language as may be properly addressed by one person to another.
[36]


We likewise resolve the second issue in the negative. The Court cannot fully
agree with the recommendation of the OCA.

Pertinent is our ruling in Emmanuel Ymson Velasco v. Judge Adoracion G.
Angeles,
[37]
which involved the same parties and where we held:

An act unrelated to a judge's discharge of judicial functions may
give rise to administrative liability even when such act constitutes a
violation of penal law. When the issue is administrative liability, the
quantum of proof required is only substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to
support a conclusion. Evidence to support a conviction in a criminal case
is not necessary, and the dismissal of the criminal case against the
respondent in an administrative case is not a ground for the dismissal of
the administrative case. Conversely, conviction in the criminal case
will not automatically warrant a finding of guilt in the
administrative case.We emphasize the well-settled rule that criminal
and civil cases are altogether different from administrative matters, and
each must be disposed of according to the facts and the law applicable to
it.


In Nuez v. Atty. Arturo B. Astorga,
[38]
the Court held that the mere existence
of pending criminal charges against the respondent-lawyer cannot be a ground for
disbarment or suspension of the latter. To hold otherwise would open the door to
harassment of attorneys through the mere filing of numerous criminal cases against
them.


By parity of reasoning, the fact of respondents conviction by the RTC does
not necessarily warrant her suspension. We agree with respondent's argument that
since her conviction of the crime of child abuse is currently on appeal before the
CA, the same has not yet attained finality. As such, she still enjoys the
constitutional presumption of innocence. It must be remembered that the existence
of a presumption indicating the guilt of the accused does not in itself destroy the
constitutional presumption of innocence unless the inculpating presumption,
together with all the evidence, or the lack of any evidence or explanation, proves
the accused's guilt beyond a reasonable doubt. Until the accused's guilt is shown in
this manner, the presumption of innocence continues.
[39]
In Mangubat
v. Sandiganbayan,
[40]
the Court held that respondent Sandiganbayan did not act
with grave abuse of discretion, correctible by certiorari, when it ruled that despite
her convictions, "Preagido has still in her favor the constitutional presumption of
innocence x x x (and until) a promulgation of final conviction is made, this
constitutional mandate prevails." The Court therein further held that such ruling is
not bereft of legal or logical foundation and cannot, in any sense, be characterized
as a whimsical or capricious exercise of judgment. So also must we hold in this
case.

Moreover, it is established that any administrative complaint leveled against
a judge must always be examined with a discriminating eye, for its consequential
effects are, by their nature, highly penal, such that the respondent judge stands to
face the sanction of dismissal or disbarment.
[41]
As aforementioned, the filing of
criminal cases against judges may be used as tools to harass them and may in the
long run create adverse consequences. The OCA, as well as SSP Velasco, failed to
prove that other than the fact that a judgment of conviction for child abuse was
rendered against the respondent, which is still on appeal, there are other lawful
grounds to support the imposition of preventive suspension. Based on the
foregoing disquisition, the Court is of the resolve that, while it is true that
preventive suspension pendente lite does not violate the right of the accused to
be presumed innocent as the same is not a penalty,
[42]
the rules on preventive
suspension of judges, not having been expressly included in the Rules of Court,
are amorphous at best.
[43]
Likewise, we consider respondent's argument that there
is no urgency in imposing preventive suspension as the criminal cases are now
before the CA, and that she cannot, by using her present position as an RTC Judge,
do anything to influence the CA to render a decision in her favor. The issue of
preventive suspension has also been rendered moot as the Court opted to resolve
this administrative case.

However, even as we find that the OCA and SSP Velasco have not clearly
and convincingly shown ample grounds to warrant the imposition of preventive
suspension, we do note the use of offensive language in respondent's pleadings, not
only against SSP Velasco but also against former CA Lock. To reiterate our
previous ruling involving the respondent, her use of disrespectful language in her
Comment is certainly below the standard expected of an officer of the court. The
esteemed position of a magistrate of the law demands temperance, patience and
courtesy both in conduct and in language.
[44]
Illustrative are the following
statements: CA Lock's hostile mindset and his superstar complex;
[45]
In a
frenzied display of arrogance and power;
[46]
(CA Lock's) complaint is merely a
pathetic echo of the findings of the trial court;
[47]
and when (CA Lock) himself
loses his objectivity and misuses the full powers of his Office to persecute the
object
of his fancy, then it is time for him to step down.
[48]
In the attempt to discredit
CA Lock, respondent even dragged CA Lock's son into the controversy, to wit:

It is noteworthy to mention that CA Locks hostile attitude was
aggravated by his embarrassment when the undersigned mentioned to
him that she knew how he used his influence to secure a position for his
son at the RTC Library of Pasay City which was then managed by Judge
Priscilla Mijares. CA Lock had made sure that his son be assigned to the
library to enable the latter to conveniently adjust his schedule in
reviewing for the bar examination.


Neither was SSP Velasco spared. Of him, the respondent said: A reading of
the motion for reconsideration readily discloses that it is mainly anchored on SSP
Velascos malicious speculations about the guilt of the undersigned. Speculations,
especially those that emanate from the poisonous intentions of attention-seeking
individuals, are no different from garbage that should be rejected outright;
[49]
and
His malicious insinuationis no less than a revelation of his warped mindset that a
persons position could cause pressure to bear among government officials. This
brings forth a nagging question. Did SSP Velasco use his position at the DOJ to
cause pressure to bear and obtain a favorable disposition of the administrative
cases lodged against him by the undersigned? Is he afraid of his own ghost?
[50]


It must be stressed again that, as a dispenser of justice, respondent should
exercise judicial temperament at all times, avoiding vulgar and insulting language.
She must maintain composure and equanimity. The judicial office circumscribes
the personal conduct of a judge and imposes a number of
restrictions. This is the price that judges have to pay for accepting and
occupying their exalted positions in the administration of justice.
[51]


One final word. The parties herein have admitted in their various pleadings
that they have filed numerous cases against each other. We do not begrudge them
the prerogative to initiate charges against those who, in their opinion, may have
wronged them. But it is well to remind them that this privilege must be exercised
with prudence, when there are clearly lawful grounds, and only in the pursuit of
truth and justice. This prerogative does not give them the right to institute shotgun
charges with reckless abandon, or allow their disagreement to deteriorate into a
puerile quarrel, not unlike that of two irresponsible children.

Judge Angeles and SSP Velasco should bear in mind that they are high-
ranking public officers whom the people look up to for zealous, conscientious and
responsive public service. Name-calling hardly becomes them.

Cognizant of the adverse impact and unpleasant consequences this continuing
conflict will inflict on the public service, we find both officials wanting in the
conduct demanded of public servants.

WHEREFORE, the instant administrative complaint is
hereby DISMISSED for lack of merit. Nevertheless, respondent Adoracion G.
Angeles, Presiding Judge of the Regional Trial Court of Caloocan City, Branch
121, is hereby REPRIMANDED for her use of intemperate language in her
pleadings and is STERNLY WARNED that a repetition of the same or similar act
shall merit a more severe sanction.

Senior State Prosecutor Emmanuel Y. Velasco of the Department of Justice
is hereby WARNED that he should be more circumspect in the statements made in
his pleadings and that a repetition of the same shall be dealt with more severely.
The motion to cite him for contempt is DENIED for lack of merit.

The Court of Appeals is DIRECTED to resolve CA-G.R. CR No. 30260
involving respondent Judge Adoracion G. Angeles with dispatch.

SO ORDERED.



Republic of the Philippines
SUPREME COURT
Manila


SECOND DIVISION




PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,



- versus -



SERGIO LAGARDE,
Accused-Appellant.



G.R. No. 182549

Present:

QUISUMBING, J., Chairperson, CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

Promulgated:

January 20, 2009


x-----------------------------------------------------------------------------------------x

D E C I S I O N

VELASCO, JR., J .:


In this appeal, accused-appellant Sergio Lagarde seeks to reverse the
Decision of the Court of Appeals (CA) dated March 7, 2007
[1]
in CA-G.R. CR-
H.C. No. 00069, affirming the judgment of conviction for rape handed down by the
Regional Trial Court (RTC), Branch 13 in Carigara, Leyte on April 24, 2003
[2]
in
Criminal Case No. 4132.

The Facts

Accused-appellant was charged with rape in an information dated March 1,
2002 which reads:

That on or about the 27
th
day of December, 2001, in the municipality of
San Miguel, Province of Leyte, Philippines and within the jurisdiction of this
Honorable court, the above-named accused, with deliberate intent with lewd
designs and by use of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge with [AAA], 11 years old,
against her will to her damage and prejudice.

CONTRARY TO LAW.
[3]


Upon arraignment on August 5, 2002, accused-appellant pleaded not guilty.

During trial, the prosecution presented the victim, AAA,
[4]
and Drs. Felix P.
Oyzon and Karen Palencia-Jadloc as witnesses. According to the prosecution, on
December 27, 2001, around 12 noon, AAA and her mother were at the house of
Lolita Lagarde-Sarsosa, which was about 500 to 600 meters away from the
victims house, to attend the death anniversary celebration of Lolitas
mother. Accused-appellant was also present in that occasion, being the nephew of
Lolita. Accused-appellant is a neighbor of AAA and the father of her classmate.

After lunch, AAAs mother, accused-appellant, and the other visitors started
drinking tuba (coconut wine). AAA remained inside the house until her mother
ordered her to pick a jackfruit at around 4:00 p.m. AAA obliged and went outside
towards the jackfruit tree which was about 150 meters away from the house. When
she was near the tree, she sensed the presence of somebody behind her who
suddenly placed his hand over her mouth and dragged her to the loonan or copra
dryer which was about eight meters away from the jackfruit tree. There, AAA
recognized the attacker as accused-appellant.

In the copra dryer, accused-appellant undressed AAA while keeping one of
his hands on her mouth. He then took off his clothes and told AAA to lie on
the papag or bamboo bench. Accused-appellant then mounted AAA, poked a
seven-inch knife on her face, and told her to be silent. Thereafter, he inserted his
penis into her vagina and made a pumping motion, which hurt AAAs chest and
vagina. After the sexual assault, accused-appellant stood up, put on his shirt and
pants, and then left the place. Not long after, AAA dressed herself up, and
returned to the house and told her ordeal to her mother. AAA and her mother
subsequently reported the incident to the officials of Barangay Lukay, San
Miguel, Leyte. Accused-appellant was immediately arrested.
[5]


On December 28, 2001, AAA was brought to
the Eastern Visayas Regional Medical Center, Tacloban City for physical
examination. Drs. Oyzon and Palencia-Jadloc, the attending medical examiners,
submitted a report with the following relevant findings:

Pelvic Exam
External genitalia: grossly normal
Intoitus: (+) healed incomplete laceration of the hymen at 3, 9 & 10
oclock
S/E: speculum inserted with ease
Cervix pinkish, small, smooth (+) whitish mucoid discharge
I/E: cervix firm, closed, nontender on motion
U: small
A: no mass/tenderness
D: whitish mucoid discharge

LABORATORY RESULT:
Vaginal smear for presence of spermatozoa = Negative for spermatozoa
[6]


The pertinent testimony of Dr. Oyzon tended to prove that there was
apparently no struggle on the part of the victim because there was no hematoma on
her body, although it is possible for injuries to be concealed. Dr. Palencia-Jadloc,
on the other hand, established the fact that the victim had sexual intercourse.
[7]

For the defense, Lolita testified that on December 27, 2001, during the
celebration of her mothers death anniversary, accused-appellant was
drinking tuba with other visitors on the ground floor of her house. Most of the
time, AAA played with Lolitas niece, Jennilyn, around 10 meters away from the
house. AAA went to see her mother a few times on the second floor of the house
until they left around 7:00 p.m. Lolita asserted that at no time did accused-
appellant leave his seat until he left around 5:00 p.m. On cross-examination, Lolita
stated that prior to the incident, there was no altercation between AAAs mother
and accused-appellant, and she did not know why they would file a case against
her nephew.
[8]


Accused-appellant denied raping AAA. He testified that on the day the
alleged offense occurred, he never left the house of Lolita from the time he arrived
at 12 noon until he went home at about 9:00 p.m. He admitted having a drinking
spree with other visitors, but disclaimed never talking to AAA who left with her
mother at 4:30 p.m. He stated that there was no loonan or copra/kiln dryer near the
house of Lolita.
[9]


The RTC found AAAs testimony credible, noting that at her age, it is
inconceivable for her to concoct a tale of having been raped. Her accusation,
according to the RTC, was supported by medical findings that she was indeed
sexually abused. The lower court dismissed accused-appellants denial and
alibi. Lolitas testimony was likewise disbelieved not only because she was related
to accused-appellant but also because she herself was busy drinking tuba in
another part of the house. She could not categorically say, the RTC added, that
accused-appellant did not leave his seat and molest AAA. Thus, the trial court
convicted accused-appellant of rape aggravated by minority of the victim, use of
bladed weapon and force, and uninhabited place in view of the location of the
offense. The dispositive portion of the RTCs decision states:
WHEREFORE, premises considered, pursuant to Article 266-A and 266-B
of the Revised Penal Code as Amended, and further amended by R.A. No. 8353
(The Anti Rape law of 1997) and the amendatory provision of R.A. No. 7659
(Death Penalty Law), the Court found SERGIO LAGARDE, GUILTY, beyond
reasonable doubt for the crime of Rape charged under the information and
sentenced to suffer a maximum penalty of DEATH and pay civil indemnity to
[AAA], the sum of seventy Five Thousand (P75,000.00) Pesos and pay moral
damages in the amount of Fifty Thousand (P50,000.00) Pesos, and

Pay the cost.

SO ORDERED.
[10]


In view of the imposition of the death penalty, the case was automatically
elevated to the Court. In accordance with the ruling in People v.
Mateo,
[11]
however, the case was transferred to the CA for review per this
Courts August 24, 2004 Resolution.

The Ruling of the CA

The appellate court upheld the trial courts findings of fact and judgment of
conviction. With regard to the penalty, however, the CA ruled that the trial court
erred when it imposed the death sentence on the basis of the following aggravating
circumstances: minority, use of bladed weapon, and uninhabited place. Aside from
the abolition of the death penalty, the CA held that:

It is basic in criminal procedure that the purpose of the information is to
inform the accused of the nature and cause of the accusation against him or the
charge against him so as to enable him to prepare a suitable defense. It would be
a denial of the right of the accused to be informed of the charges against him, and
consequently, a denial of due process, if he is charged with simple rape and
convicted of its qualified form punishable by death although the attendant
circumstances qualifying the offense and resulting in capital punishment were not
set forth in the indictment on which he was arraigned. More importantly, they are
not the circumstances that would call for the application of death penalty. Article
266-B of Republic Act 8353 provides, viz-

x x x x
Anent the victims minority, the allegation in the Information that she was
a minor and only eleven (11) years old at the time she was raped by accused-
appellant was but an assertion of fact to establish that the crime committed by
accused-appellant fall under Article 266-A in relation to Article 266-B of the
Revised Penal Code which provides:

Art. 266-A. Rape; when and how committed.

1) By a man who shall have carnal knowledge of a woman under any
of the following circumstances:

x x x x

d) when the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mention above be
present.

Art. 266-B. Penalties. Rape under paragraph 1 of the next preceding
article shall be punished by reclusion perpetua.

To warrant sentencing the accused to death, the child must be under seven
(7) years of age.

x x x x

Consequently, the amount of Seventy Five Thousand Pesos (P75,000.00)
as indemnity awarded by the trial court to the victim must be reduced to Fifty
Thousand Pesos (P50,000.00) for the crime of rape committed in this case was in
its simple form in the absence of any qualifying circumstance under which the
imposition of death penalty is unauthorized.
[12]


The dispositive portion of the CAs judgment reads:

WHEREFORE, the Decision of the Regional Trial Court of
Carigara, Leyte, Branch 13, dated 24 April 2003, in Criminal Case No. 4132 is
UPHELD with modification as to the penalty and award of civil
damages. Accordingly, accused-appellant Sergio Lagarde is hereby sentenced to
suffer Reclusion Perpetua in lieu of death penalty and is further ordered to pay the
private complainant the amount of Fifty Thousand Pesos (P50,000.00) as civil
indemnity and another Fifty Thousand Pesos (P50,000.00) as moral damages.
[13]


Hence, before us is this appeal.



Assignment of Errors

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT
OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN
PROVEN BEYOND REASONABLE DOUBT.

THE COURT A QUO GRAVELY ERRED IN IMPOSING UPON THE
ACCUSED-APPELLANT THE PENALTY OF [RECLUSION PERPETUA]
[14]


Accused-appellant asserts that the trial court should not have easily
dismissed his denial and alibi, i.e., that he was at the party drinking tuba with the
other visitors and he neither left his seat nor talked to the victim that day. He
stresses that his testimony was corroborated by Lolita. Considering that the crime
involves capital punishment, conviction should, according to accused-appellant,
rest on moral certainty of guilt.

Accused-appellant also questions the death penalty imposed on him, arguing
that the aggravating circumstances of minority, use of a bladed weapon, and
uninhabited place were not specifically alleged in the information. Since the crime
was not qualified, the award of PhP 75,000 was likewise erroneous.

The Office of the Solicitor General, on the other hand, agrees with the
judgment of conviction but not with the death penalty for the same reasons
submitted by accused-appellant.

The Courts Ruling

The appeal has no merit.

In rape cases, courts are governed by the following principles: (1) an
accusation of rape can be made with facility; it is difficult to prove but more
difficult for the person accused, though innocent, to disprove; (2) due to the nature
of the crime of rape in which only two persons are usually involved, the testimony
of the complainant must be scrutinized with extreme caution; and (3) the evidence
for the prosecution must stand or fall on its own merits and cannot be allowed to
draw strength from the weakness of the evidence for the defense. Due to the nature
of this crime, only the complainant can testify against the assailant. Accordingly,
conviction for rape may be solely based on the complainants testimony provided it
is credible, natural, convincing, and consistent with human nature and the normal
course of things.
[15]


In this case, AAA testified as follows:

PROS. MERIN:
Q: Do you know Sergio Lagarde?
A: Yes, sir.
Q: Is he inside the courtroom?
A: Yes, sir.
Q: Where is he?
A: There. [Witness pointing to a person inside of the courtroom who when asked
of his name identified himself as Sergio Lagarde.]
Q: Why do you know the accused in this case Sergio Lagarde?
A: Because his residence is near our house.

x x x x

Q: On December 27, 2001, about 4:30 oclock in the afternoon, where were you?
A: Yes, sir.
Q: Where were you?
A: I was in a celebration of the death anniversary.
Q: And who was celebrating then?
A: A certain Lolita friend of my mother.
Q: How far is that house to that of your house?
A: From here to the public market.
[Witness indicating a distance of five hundred (500) meters to six hundred
(600) meters distance.]
Q: Now, were you alone in attending that particular death anniversary or tapos?
A: No, I was a companion of my mother.

x x x x

Q: What time when you arrived at the place where there was a celebration?
A: About 12:00 oclock noon.
Q: You mean, you and your mother took lunch in that particular place of Lolita?
A: Yes, sir we ate our lunch in that place.
Q: And after you ate lunch at that place what did you do next?
A: My mother together with some other people had a drinking spree.

x x x x

Q: And during that time when your mother having that drinking spree where did
you go, tell this Court?
A: I stayed inside their house.
Q: And up to when did you stay?
A: Until about 4:00 oclock in the afternoon.
Q: And after 4:00 oclock where did you go?
A: My mother ordered me to pick a jackfruit for me to cook as a viand.

x x x x

Q: And did you accede to that order of your mother?
A: Yes, sir.
Q: Now, you in fact reached that jackfruit tree?
A: Yes, sir.
Q: Were you successful in taking a jackfruit?
A: Yes, sir.
Q: Were you successful in taking a jackfruit?
A: No sir, I was not.
Q: Were you alone in going there?
A: Yes, sir.
Q: Why were you not able to get a jackfruit?
A: Because that person was there.
Q: Who was that person?
A: Sergio Lagarde.
Q: And where was he located in reference to that jackfruit tree?
A: He was already at my back.
Q: Now, were there houses nearby that jackfruit tree?
A: None, sir.
Q: And when you noticed the presence of Sergio Lagarde what happened next, if
any?
A: He placed his hand on my mouth to keep me from not making any noise.
Q: Was he in front of you? What was his relative position when he put his hand
at your mouth?
A: He was at my back.
Q: And after your mouth was covered by his hand what did Sergio Lagarde do
next, if any?
A: He brought me to the copra dryer.

x x x x

Q: Now, how were you brought by this accused to that loonan or kiln dryer?
A: He dragged me.
Q: How were you able to know his person as he was situated at your back?
A: I learned his identity when we were already at the kiln dryer.
Q: When you reached the kiln dryer, what happened next, tell the Court?
A: He placed himself on top of me.
Q: And what was your relative position when he placed himself on top of
you? Were you on a bed or were you on the ground?
A: I was lying down face up in [the] bamboo bench.

x x x x

Q: When you were placed by this accused on this papag and you were laid
upon on that papag while he placed himself on top of you, what did this accused
do upon your person?
A: He poked a knife on me and told me not to tell our neighbors.

x x x x

Q: Now, when this knife was poked upon your face which is about seven (7)
inches long what did you feel?
A: I was afraid.
Q: Were you able to shout for help?
A: No, I was not able to shout and he placed his hand on my mouth.

x x x x

Q: Now, how did he rape you?
A: He placed himself on top of me.
Q: And were you still with your clothes?
A: No, he has none.
Q: How about you?
A: None also.
Q: Who took off your clothes?
A: He.
Q: When did he take your clothes?
A: At the time when he placed his hand on my mouth.
[16]


The trial court observed that AAAs testimony was credible, straightforward,
clear, and convincing. She ably identified accused-appellant as her attacker and
described in detail how she was sexually assaulted. There is no reason a child
would fabricate such a serious accusation such as rape and risk public humiliation
if not to seek justice. It is for this reason that testimonies of child-victims are
normally given full weight and credence, since when minors say they were raped,
they say in effect all that is necessary to show that rape was
committed.
[17]
According to the trial court:
No woman, especially one who is of tender age would concoct a tale of
defloration, allow the examination of her private parts, and undergo the expense,
trouble, inconvenience, not to mention the trauma of a public trial, if she is not
motivated solely by the desire to have the culprit apprehended and punished.
(People v. Segui, 346 SCRA 178)

The young rape victim, [AAA], when she testified, was frank and
straightforward in vividly describing her horrible and harrowing sexual
molestation in the hands of the accused at the copra kiln.

Time-tested is the principle that when a woman says she has been raped,
she says in effect all that is necessary to show that she has been so raped. A
woman will not expose herself to the humiliation of a trial with its attendant
publicity and the morbid curiosity it would arouse, unless she has been truly
wronged and seek atonement for her abuse. (People v. Boy Domingo, et. al. G.R.
No. 143660, June 5, 2002.)

x x x x

It is inconceivable that [AAA], a very young woman, 11 years of age
would concoct a story that she had been raped by her neighbor, if indeed she was
not sexually molested and that her only intention is to seek justice from the bestial
and harrowing experience she suffered from the hands of the accused, Sergio
Lagarde. In fact, her family and family of the accused, Sergio Lagarde, has no
misunderstanding that would propel her to file such a heinous crime against the
accused.
[18]


Accused-appellant admitted in court that he is not aware of any cause for the
accusation against him:

PROS. MERIN:
Q: Did I hear you correctly from the question of your counsel that in so far as the
family of [AAA], there is no untoward relationship between you and [her] family
x x x?
A: No, we do not have any misunderstanding and I am no a troublesome person
and also [AAA and her siblings] are friends of my children.
Q: And in fact [AAA] is a close friend of your daughter?
A: Yes, because they are classmates.
Q: So, you do not know of any reason or reasons why [AAA] a classmate of your
daughter would file a case against you of raping her?
A: I do not know of her, sir.
[19]


The victims credibility is further bolstered by the immediate reporting of
the incident to her mother and subsequently to the authorities. Moreover, the
medical findings of Drs. Oyzon and Palencia-Jadloc established the fact that
complainant had sexual intercourse.
Accused-appellant, on the other hand, could only offer denial and alibi as
defenses. His alibi that he spent the afternoon drinking with other visitors does not
deserve merit since he was present in the same house where the victim was. The
copra dryer was only 150 meters away from the house. For alibi to prosper, the
accused persons must establish, by clear and convincing evidence, (1) their
presence at another place at the time of the perpetration of the offense and (2) the
physical impossibility of their presence at the scene of the crime.
[20]
It should also
be supported by the most convincing evidence since it is an inherently weak
defense which can easily be fabricated.
[21]
Accused-appellants alibi miserably
fails the foregoing test. His only defense witness, his relative, Lolita, cannot
consistently and convincingly assert that accused-appellant stayed in one place the
whole afternoon. Lolita herself was busy entertaining other visitors while accused-
appellant was outside the house. As found by the trial court:

The testimony of Lolita Lagarde, aunt of the accused, Sergio Lagarde,
claiming among others that since Sergio Lagarde arrived in her house, took his
lunch at noontime and started drinking tuba at 1:00 x x x in the afternoon up to
8:00 x x x in the evening, and that, during that period, Sergio Lagarde did not
leave the place, is of dubious veracity. Sergio Lagarde claimed that her auntie
Lolita was drinking tuba at the upstairs of the house, together with Minggay
Guipon, Esing Lagarde, Bandang Lar, June Biako, Lukas, Olay, Silay, including
the accused and some others, however at about 1:00 oclock in the afternoon,
because of the number of people who kept on coming upstairs, Lolita Lagarde
requested the accused and his male drinking partners to transfer to the yard of her
house, where they continued their drinking spree. Lolita Lagarde and her
drinking partners remained drinking upstairs. She could not categorically say that
the accused, Sergio Lagarde did not leave her place nor molested Mary Ann
Guipon at around 4:30 oclock in the afternoon, when she, herself, was also busy
drinking inside their house upstairs, separated by walls, from the place where
Sergio Lagarde and his companions were drinking at the yard. It could only be
surmised that Lolita Lagarde only concocted her testimony in favor of her
nephew, Sergio Lagarde.
[22]


As regards the second assigned error, we agree with the appellate court that
the death penalty is not warranted by the alleged aggravating circumstances, i.e.,
victims minority, use of bladed weapon, and uninhabited place. First, the death
penalty was abolished under Republic Act No. (RA) 9346. Second, the use of a
bladed weapon and uninhibited place cannot be appreciated here because these
were not specifically alleged in the information. Section 8, Rule 110 of the
Revised Rules of Criminal Procedure provides:

Sec. 8. Designation of the offense.The complaint or information shall
state the designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.

It is a basic constitutional right of the accused persons to be informed of the
nature and cause of accusation against them. It would be a denial of accused-
appellants basic right to due process if he is charged with simple rape and
consequently convicted with certain qualifying circumstances which were not
alleged in the information.

The appellate court correctly ruled that the use of a bladed weapon and
uninhabited place are not circumstances that would call for the imposition of the
death penalty. Sec. 2 of RA 8353 or the Anti-Rape Law of 1997, incorporating
Article 266-B into the Revised Penal Code, provides:

The death penalty shall also be imposed if the crime of rape is committed
with any of the following aggravating/qualifying circumstances:

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

2) When the victim is under the custody of the police or military
authorities or any law enforcement or penal institution.

3) When the rape is committed in full view of the spouse, parent, any of
the children or other relatives within the third civil degree of
consanguinity.


4) When the victim is a religious engaged in legitimate vocation or
calling and is personally known to be such by the offender before or at
the time of the commission of the crime.

5) When the victim is a child below seven (7) years old.

6) When the offender knows that he is afflicted with Human Immuno-
Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome
(AIDS) or any other sexually transmissible disease and virus or disease
is transmitted to the victim.

7) When committed by any member of the Armed Forces of the
Philippines or para-military units thereof or the Philippine National
Police or any law enforcement agency or penal institution, when the
offender took advantage of his position to facilitate the commission of
the crime.

8) When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation or disability.

9) When the offender knew of the pregnancy of the offended party at the
time of the commission of the crime.

10) When the offender knew of the mental disability, emotional disorder
and/or physical handicap of the offended party at the time of the
commission of the crime.

The victims minority does not also qualify the offense to merit the death
penalty. To warrant a death sentence, the victim must be under seven (7) years of
age. The applicable provisions, therefore, are the following:

Art. 266-A. Rape; when and how committed.

1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mention above is present.

x x x x

Art. 266-B. Penalties.Rape under paragraph 1 of the next preceding article
shall be punished by reclusion perpetua.

In the case at bar, the trial court found that accused-appellant, with the use of
force, did have sexual intercourse with the victim who was then under 12 years
old. His guilt was established beyond reasonable doubt. Thus, the applicable
penalty is only reclusion perpetua and not death, the imposition of which has been
abolished. Without the qualifying circumstances, the indemnity should also be
reduced from PhP 75,000 to PhP 50,000 only. The award of PhP 50,000 as moral
damages is retained.
[23]


WHEREFORE, the CAs March 7, 2007 Decision in CA-G.R. CR-H.C.
No. 00069 is AFFIRMED I N TOTO. No costs.

SO ORDERED.















Republic of the Philippines
Supreme Court
Manila


SECOND DIVISION

JOSE C. GO,
Petitioner,



- versus -




BANGKO SENTRAL NG
PILIPINAS,
Respondent.
G.R. No. 178429

Present:


QUISUMBING, J., Chairperson,

*
CARPIO,
CARPIO MORALES,
BRION, and
ABAD, JJ.


Promulgated:


October 23, 2009

x ------------------------------------------------------------------------------------------x




D E C I S I O N


BRION, J .:
Through the present petition for review on certiorari,
[1]
petitioner Jose C. Go
(Go) assails the October 26, 2006 decision
[2]
of the Court of Appeals (CA) in CA-
G.R. SP No. 79149, as well as its June 4, 2007resolution.
[3]
The CA decision and
resolution annulled and set aside the May 20, 2003
[4]
and June 30, 2003
[5]
orders of
the Regional Trial Court (RTC), Branch 26, Manila which granted Gos motion to
quash the Information filed against him.


THE FACTS


On August 20, 1999, an Information
[6]
for violation of Section 83 of Republic
Act No. 337 (RA 337) or the General Banking Act, as amended by Presidential
Decree No. 1795, was filed against Go before the RTC. The charge reads:

That on or about and during the period comprised between June 27, 1996
and September 15, 1997, inclusive, in the City of Manila, Philippines, the said
accused, being then the Director and the President and Chief Executive
Officer of the Orient Commercial Banking Corporation (Orient Bank), a
commercial banking institution created, organized and existing under Philippines
laws, with its main branch located at C.M. Recto Avenue, this City, and taking
advantage of his position as such officer/director of the said bank, did then and
there wilfully, unlawfully and knowingly borrow, either directly or indirectly,
for himself or as the representative of his other related companies, the
deposits or funds of the said banking institution and/or become a guarantor,
indorser or obligor for loans from the said bank to others, by then and there
using said borrowed deposits/funds of the said bank in facilitating and
granting and/or caused the facilitating and granting of credit lines/loans and,
among others, to the New Zealand Accounts loans in the total amount of TWO
BILLION AND SEVEN HUNDRED FIFTY-FOUR MILLION NINE
HUNDRED FIVE THOUSAND AND EIGHT HUNDRED FIFTY-SEVEN
AND 0/100 PESOS, Philippine Currency, said accused knowing fully well that
the same has been done by him without the written approval of the majority
of the Board of Directors of said Orient Bank and which approval the said
accused deliberately failed to obtain and enter the same upon the records of said
banking institution and to transmit a copy of which to the supervising department
of the said bank, as required by the General Banking Act.

CONTRARY TO LAW. [Emphasis supplied.]

On May 28, 2001, Go pleaded not guilty to the offense charged.

After the arraignment, both the prosecution and accused Go took part in the
pre-trial conference where the marking of the voluminous evidence for the parties
was accomplished. After the completion of the marking, the trial court ordered the
parties to proceed to trial on the merits.

Before the trial could commence, however, Go filed on February 26,
2003
[7]
a motion to quash the Information, which motion Go amended on March 1,
2003.
[8]
Go claimed that the Information was defective, as the facts charged
therein do not constitute an offense under Section 83 of RA 337 which states:

No director or officer of any banking institution shall either directly or
indirectly, for himself or as the representative or agent of another, borrow any of
the deposits of funds of such banks, nor shall he become a guarantor, indorser, or
surety for loans from such bank, to others, or in any manner be an obligor for
money borrowed from the bank or loaned by it, except with the written approval
of the majority of the directors of the bank, excluding the director
concerned. Any such approval shall be entered upon the records of the
corporation and a copy of such entry shall be transmitted forthwith to the
appropriate supervising department. The office of any director or officer of a
bank who violates the provisions of this section shall immediately become vacant
and the director or officer shall be punished by imprisonment of not less than one
year nor more than ten years and by a fine of not less than one thousand nor more
than ten thousand pesos.

The Monetary Board may regulate the amount of credit accommodations
that may be extended, directly or indirectly, by banking institutions to their
directors, officers, or stockholders. However, the outstanding credit
accommodations which a bank may extend to each of its stockholders owning two
percent (2%) or more of the subscribed capital stock, its directors, or its officers,
shall be limited to an amount equivalent to the respective outstanding deposits and
book value of the paid-in capital contribution in the bank. Provided, however,
that loans and advances to officers in the form of fringe benefits granted in
accordance with rules and regulations as may be prescribed by Monetary Board
shall not be subject to the preceding limitation. (As amended by PD 1795)

In addition to the conditions established in the preceding paragraph, no
director or a building and loan association shall engage in any of the operations
mentioned in said paragraphs, except upon the pledge of shares of the association
having a total withdrawal value greater than the amount borrowed. (As amended
by PD 1795)

In support of his motion to quash, Go averred that based on the facts alleged
in the Information, he was being prosecuted for borrowing the deposits or funds of
the Orient Bank and/or acting as a guarantor, indorser or obligor for the banks
loans to other persons. The use of the word and/or meant that he was charged
for being either a borrower or a guarantor, or for being both a borrower and
guarantor. Go claimed that the charge was not only vague, but also did not
constitute an offense. He posited that Section 83 of RA 337 penalized only
directors and officers of banking institutions who acted either as borrower or as
guarantor, but not as both.

Go further pointed out that the Information failed to state that his alleged act
of borrowing and/or guarantying was not among the exceptions provided for in the
law. According to Go, the second paragraph of Section 83 allowed banks to
extend credit accommodations to their directors, officers, and stockholders,
provided it is limited to an amount equivalent to the respective outstanding
deposits and book value of the paid-in capital contribution in the bank. Extending
credit accommodations to bank directors, officers, and stockholders is not per
se prohibited, unless the amount exceeds the legal limit. Since the Information
failed to state that the amount he purportedly borrowed and/or guarantied was
beyond the limit set by law, Go insisted that the acts so charged did not constitute
an offense.

Finding Gos contentions persuasive, the RTC granted Gos motion to quash
the Information on May 20, 2003. It denied on June 30, 2003 the motion for
reconsideration filed by the prosecution.

The prosecution did not accept the RTC ruling and filed a petition
for certiorari to question it before the CA. The Information, the prosecution
claimed, was sufficient. The word and/or did not materially affect the validity of
the Information, as it merely stated a mode of committing the crime penalized
under Section 83 of RA 337. Moreover, the prosecution asserted that the second
paragraph of Section 83 (referring to the credit accommodation limit) cannot be
interpreted as an exception to what the first paragraph provided. The second
paragraph only sets borrowing limits that, if violated, render the bank, not the
director-borrower, liable. A violation of the second paragraph of Section 83
under which Go is being prosecuted is therefore separate and distinct from a
violation of the first paragraph. Thus, the prosecution prayed that the orders of the
RTC quashing the Information be set aside and the criminal case against Go be
reinstated.

On October 26, 2006, the CA rendered the assailed decision granting the
prosecutions petition for certiorari.
[9]
The CA declared that the RTC misread the
law when it decided to quash the Information against Go. It explained that the
allegation that Go acted either as a borrower or a guarantor or as both borrower and
guarantor merely set forth the different modes by which the offense was
committed. It did not necessarily mean that Go acted both as borrower and
guarantor for the same loan at the same time. It agreed with the prosecutions
stand that the second paragraph of Section 83 of RA 337 is not an exception to the
first paragraph. Thus, the failure of the Information to state that the amount of the
loan Go borrowed or guaranteed exceeded the legal limits was, to the CA, an
irrelevant issue. For these reasons, the CA annulled and set aside the RTCs orders
and ordered the reinstatement of the criminal charge against Go. After the CAs
denial of his motion for reconsideration,
[10]
Go filed the present appeal
by certiorari.

THE PETITION

In his petition, Go alleges that the appellate court legally erred in
overturning the trial courts orders. He insists that the Information failed to allege
the acts or omissions complained of with sufficient particularity to enable him to
know the offense being charged; to allow him to properly prepare his defense; and
likewise to allow the court to render proper judgment.

Repeating his arguments in his motion to quash, Go reads Section 83 of RA
337 as penalizing a director or officer of a banking institution for
either borrowing the deposits or funds of the bank, or guaranteeing or indorsing
loans to others, but not for assuming both capacities. He claimed that the
prosecutions shotgun approach in alleging that he acted as borrower and/or
guarantor rendered the Information highly defective for failure to specify with
certainty the specific act or omission complained of. To petitioner Go, the
prosecutions approach was a clear violation of his constitutional right to be
informed of the nature and cause of the accusation against him.

Additionally, Go reiterates his claim that credit accommodations by banks to
their directors and officers are legal and valid, provided that these are limited to
their outstanding deposits and book value of the paid-in capital contribution in the
bank. The failure to state that he borrowed deposits and/or guaranteed loans
beyond this limit rendered the Information defective. He thus asks the Court to
reverse the CA decision to reinstate the criminal charge.

In its Comment,
[11]
the prosecution raises the same defenses against Gos
contentions. It insists on the sufficiency of the allegations in the Information and
prays for the denial of Gos petition.


THE COURTS RULING


The Court does not find the petition meritorious and accordingly denies
it.

The Accuseds Right to be Informed

Under the Constitution, a person who stands charged of a criminal offense
has the right to be informed of the nature and cause of the accusation against
him.
[12]
The Rules of Court, in implementing the right, specifically require that the
acts or omissions complained of as constituting the offense, including the
qualifying and aggravating circumstances, must be stated in ordinary and concise
language, not necessarily in the language used in the statute, but in terms sufficient
to enable a person of common understanding to know what offense is being
charged and the attendant qualifying and aggravating circumstances present, so
that the accused can properly defend himself and the court can pronounce
judgment.
[13]
To broaden the scope of the right, the Rules authorize the quashal,
upon motion of the accused, of an Information that fails to allege the acts
constituting the offense.
[14]
Jurisprudence has laid down the fundamental test in
appreciating a motion to quash an Information grounded on the insufficiency of the
facts alleged therein. We stated in People v. Romualdez
[15]
that:

The determinative test in appreciating a motion to quash xxx is the
sufficiency of the averments in the information, that is, whether the facts
alleged, if hypothetically admitted, would establish the essential
elements of the offense as defined by law without considering
matters aliunde. As Section 6, Rule 110 of the Rules of Criminal
Procedure requires, the information only needs to state the ultimate
facts; the evidentiary and other details can be provided during the
trial.

To restate the rule, an Information only needs to state the ultimate
facts constituting the offense, not the finer details of why and how
the illegal acts alleged amounted to undue injury or damage
matters that are appropriate for the trial. [Emphasis supplied]

The facts and circumstances necessary to be included in the Information are
determined by reference to the definition and elements of the specific crimes. The
Information must allege clearly and accurately the elements of the crime
charged.
[16]


Elements of Violation of
Section 83 of RA 337


Under Section 83, RA 337, the following elements must be present to
constitute a violation of its first paragraph:

1. the offender is a director or officer of any banking institution;
2. the offender, either directly or indirectly, for himself or as representative or
agent of another, performs any of the following acts:
a. he borrows any of the deposits or funds of such bank; or
b. he becomes a guarantor, indorser, or surety for loans from such bank
to others, or
c. he becomes in any manner an obligor for money borrowed from
bank or loaned by it;
3. the offender has performed any of such acts without the written approval of
the majority of the directors of the bank, excluding the offender, as the
director concerned.

A simple reading of the above elements easily rejects Gos contention that
the law penalizes a bank director or officer only either for borrowing the banks
deposits or funds or for guarantying loans by the bank, but not for acting in both
capacities. The essence of the crime is becoming an obligor of the bank
without securing the necessary written approval of the majority of the banks
directors.

The second element merely lists down the various modes of committing the
offense. The third mode, by declaring that [no director or officer of any banking
institution shall xxx] in any manner be an obligor for money borrowed from the
bank or loaned by it, in fact serves a catch-all phrase that covers any situation
when a director or officer of the bank becomes its obligor. The prohibition is
directed against a bank director or officer who becomes in any manner an
obligor for money borrowed from or loaned by the bank without the written
approval of the majority of the banks board of directors. To make a
distinction between the act of borrowing and guarantying is therefore unnecessary
because in either situation, the director or officer concerned becomes an obligor of
the bank against whom the obligation is juridically demandable.

The language of the law is broad enough to encompass either act of
borrowing or guaranteeing, or both. While the first paragraph of Section 83 is
penal in nature, and by principle should be strictly construed in favor of the
accused, the Court is unwilling to adopt a liberal construction that would defeat the
legislatures intent in enacting the statute. The objective of the law should allow
for a reasonable flexibility in its construction. Section 83 of RA 337, as well as
other banking laws adopting the same prohibition,
[17]
was enacted to ensure that
loans by banks and similar financial institutions to their own directors, officers,
and stockholders are above board.
[18]
Banks were not created for the benefit of
their directors and officers; they cannot use the assets of the bank for their own
benefit, except as may be permitted by law. Congress has thus deemed it essential
to impose restrictions on borrowings by bank directors and officers in order to
protect the public, especially the depositors.
[19]
Hence, when the law prohibits
directors and officers of banking institutions from becoming in any manner an
obligor of the bank (unless with the approval of the board), the terms of the
prohibition shall be the standards to be applied to directors transactions such as
those involved in the present case.

Credit accommodation limit is not an
exception nor is it an element of the
offense


Contrary to Gos claims, the second paragraph of Section 83, RA 337 does
not provide for an exception to a violation of the first paragraph thereof, nor does it
constitute as an element of the offense charged. Section 83 of RA 337 actually
imposes three restrictions: approval, reportorial, and ceiling requirements.

The approval requirement (found in the first sentence of the first paragraph
of the law) refers to the written approval of the majority of the banks board of
directors required before bank directors and officers can in any manner be an
obligor for money borrowed from or loaned by the bank. Failure to secure the
approval renders the bank director or officer concerned liable for prosecution and,
upon conviction, subjects him to the penalty provided in the third sentence of first
paragraph of Section 83.

The reportorial requirement, on the other hand, mandates that any such
approval should be entered upon the records of the corporation, and a copy of the
entry be transmitted to the appropriate supervising department. The reportorial
requirement is addressed to the bank itself, which, upon its failure to do so,
subjects it to quo warranto proceedings under Section 87 of RA 337.
[20]


The ceiling requirement under the second paragraph of Section 83
regulates the amount of credit accommodations that banks may extend to their
directors or officers by limiting these to an amount equivalent to the respective
outstanding deposits and book value of the paid-in capital contribution in the
bank. Again, this is a requirement directed at the bank. In this light, a prosecution
for violation of the first paragraph of Section 83, such as the one involved here,
does not require an allegation that the loan exceeded the legal limit. Even if the
loan involved is below the legal limit, a written approval by the majority of the
banks directors is still required; otherwise, the bank director or officer who
becomes an obligor of the bank is liable. Compliance with the ceiling requirement
does not dispense with the approval requirement.

Evidently, the failure to observe the three requirements under Section 83
paves the way for the prosecution of three different offenses, each with its own set
of elements. A successful indictment for failing to comply with the approval
requirement will not necessitate proof that the other two were likewise not
observed.

Rules of Court allow amendment of
insufficient I nformation


Assuming that the facts charged in the Information do not constitute an
offense, we find it erroneous for the RTC to immediately order the dismissal of the
Information, without giving the prosecution a chance to amend it. Section 4 of
Rule 117 states:

SEC. 4. Amendment of complaint or information.If the motion to
quash is based on an alleged defect of the complaint or information which
can be cured by amendment, the court shall order that an amendment be
made.

If it is based on the ground that the facts charged do not constitute
an offense, the prosecution shall be given by the court an opportunity
to correct the defect by amendment. The motion shall be granted if the
prosecution fails to make the amendment, or the complaint or
information still suffers from the same defect despite the
amendment. [Emphasis supplied]

Although an Information may be defective because the facts charged do not
constitute an offense, the dismissal of the case will not necessarily follow. The
Rules specifically require that the prosecution should be given a chance to correct
the defect; the court can order the dismissal only upon the prosecutions failure to
do so. The RTCs failure to provide the prosecution this
opportunity twice
[21]
constitutes an arbitrary exercise of power that was correctly
addressed by the CA through the certiorari petition. This defect in the RTCs
action on the case, while not central to the issue before us, strengthens our
conclusion that this criminal case should be resolved through full-blown trial on
the merits.

WHEREFORE, we DENY the petitioners petition for review
on certiorari and AFFIRM the decision of the Court of Appeals in CA-G.R. SP
No. 79149, promulgated on October 26, 2006, as well as its resolution of June 4,
2007. The Regional Trial Court, Branch 26, Manila is directed
to PROCEED with the hearing of Criminal Case No. 99-178551. Costs against
the petitioner.

SO ORDERED.


















SECOND DIVISION


PEOPLE OF THE PHILIPPINES,
Petitioner,



- versus -





MA. THERESA PANGILINAN,
Respondent.
G.R. No. 152662

Present:

CARPIO,
Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

Promulgated:
June 13, 2012

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DECISION


PEREZ, J.:

The Office of the Solicitor General (OSG) filed this petition for
certiorari
[1]
under Rule 45 of the Rules of Court, on behalf of the Republic of the
Philippines, praying for the nullification and setting aside of the Decision
[2]
of the
Court of Appeals (CA) in CA-G.R. SP No. 66936, entitled Ma. Theresa Pangilinan
vs. People of the Philippines and Private Complainant Virginia C. Malolos.
The fallo of the assailed Decision reads:

WHEREFORE, the instant petition is GRANTED. Accordingly, the assailed Decision
of the Regional Trial Court of Quezon City, Branch 218, is REVERSED and SET ASIDE and
Criminal Cases Nos. 89152 and 89153 against petitioner Ma. Theresa Pangilinan are
hereby ordered DISMISSED.
[3]


Culled from the record are the following undisputed facts:

On 16 September 1997, Virginia C. Malolos (private complainant) filed an
affidavit-complaint for estafa and violation of Batas Pambansa (BP) Blg. 22 against
Ma. Theresa Pangilinan (respondent) with the Office of the City Prosecutor of
Quezon City. The complaint alleges that respondent issued nine (9) checks with
an aggregate amount of Nine Million Six Hundred Fifty-Eight Thousand Five
Hundred Ninety-Two Pesos (P9,658,592.00) in favor of private complainant which
were dishonored upon presentment for payment.

On 5 December 1997, respondent filed a civil case for accounting, recovery
of commercial documents, enforceability and effectivity of contract and specific
performance against private complainant before the Regional Trial Court (RTC) of
Valenzuela City. This was docketed as Civil Case No. 1429-V-97.

Five days thereafter or on 10 December 1997, respondent filed a Petition
to Suspend Proceedings on the Ground of Prejudicial Question before the Office
of the City Prosecutor of Quezon City, citing as basis the pendency of the civil
action she filed with the RTC of Valenzuela City.

On 2 March 1998, Assistant City Prosecutor Ruben Catubay recommended
the suspension of the criminal proceedings pending the outcome of the civil
action respondent filed against private complainant with the RTC of Valenzuela
City. The recommendation was approved by the City Prosecutor of Quezon City.

Aggrieved, private complainant raised the matter before the Department of
Justice (DOJ).

On 5 January 1999, then Secretary of Justice Serafin P. Cuevas reversed the
resolution of the City Prosecutor of Quezon City and ordered the filing of
informations for violation of BP Blg. 22 against respondent in connection with her
issuance of City Trust Check No. 127219 in the amount of P4,129,400.00 and RCBC
Check No. 423773 in the amount of P4,475,000.00, both checks totaling the
amount of P8,604,000.00. The estafa and violation of BP Blg. 22 charges involving
the seven other checks included in the affidavit-complaint filed on 16 September
1997 were, however, dismissed.

Consequently, two counts for violation of BP Blg. 22, both dated 18
November 1999, were filed against respondent Ma.Theresa Pangilinan on 3
February 2000 before the Office of the Clerk of Court, Metropolitan Trial Court
(MeTC), Quezon City. These cases were raffled to MeTC, Branch 31on 7 June
2000.

On 17 June 2000, respondent filed an Omnibus Motion to Quash the
Information and to Defer the Issuance of Warrant of Arrest before MeTC, Branch
31, Quezon City. She alleged that her criminal liability has been extinguished by
reason of prescription.

The presiding judge of MeTC, Branch 31, Quezon City granted the motion in
an Order dated 5 October 2000.

On 26 October 2000, private complainant filed a notice of appeal. The
criminal cases were raffled to RTC, Branch 218, Quezon City.

In a Decision dated 27 July 2001, the presiding judge of RTC, Branch 218,
Quezon City reversed the 5 October 2000 Order of the MeTC. The pertinent
portion of the decision reads:

xxx Inasmuch as the informations in this case were filed on 03 February 2000 with
the Clerk of Court although received by the Court itself only on 07 June 2000, they are
covered by the Rule as it was worded before the latest amendment. The criminal action
on two counts for violation of BP Blg. 22, had, therefore, not yet prescribed when the
same was filed with the court a quo considering the appropriate complaint that started
the proceedings having been filed with the Office of the Prosecutor on 16 September 1997
yet.

WHEREFORE, the assailed Order dated 05 October 2000 is hereby REVERSED AND
SET ASIDE. The Court a quo is hereby directed to proceed with the hearing of Criminal
Cases Nos. 89152 and 89153.
[4]


Dissatisfied with the RTC Decision, respondent filed with the Supreme Court
a petition for review
[5]
on certiorari under Rule 45 of the Rules of Court. This was
docketed as G.R. Nos. 149486-87.

In a resolution
[6]
dated 24 September 2000, this Court referred the petition
to the CA for appropriate action.

On 26 October 2001, the CA gave due course to the petition by requiring
respondent and private complainant to comment on the petition.

In a Decision dated 12 March 2002, the CA reversed the 27 July 2001
Decision of RTC, Branch 218, Quezon City, thereby dismissing Criminal Case Nos.
89152 and 89153 for the reason that the cases for violation of BP Blg. 22 had
already prescribed.

In reversing the RTC Decision, the appellate court ratiocinated that:

xxx this Court reckons the commencement of the period of prescription for
violations of Batas Pambansa Blg. 22 imputed to [respondent] sometime in the latter part
of 1995, as it was within this period that the [respondent] was notified by the private
[complainant] of the fact of dishonor of the subject checks and, the five (5) days grace
period granted by law had elapsed. The private respondent then had, pursuant to Section 1
of Act 3326, as amended, four years therefrom or until the latter part of 1999 to file her
complaint or information against the petitioner before the proper court.

The informations docketed as Criminal Cases Nos. 89152 and 89152(sic) against the
petitioner having been filed with the Metropolitan Trial Court of Quezon City only on 03
February 2000, the said cases had therefore, clearly prescribed.

xxx

Pursuant to Section 2 of Act 3326, as amended, prescription shall be interrupted
when proceedings are instituted against the guilty person.

In the case of Zaldivia vs. Reyes
[7]
the Supreme Court held that the proceedings
referred to in Section 2 of Act No. 3326, as amended, are judicial proceedings, which
means the filing of the complaint or information with the proper court. Otherwise stated,
the running of the prescriptive period shall be stayed on the date the case is actually filed in
court and not on any date before that, which is in consonance with Section 2 of Act 3326, as
amended.

While the aforesaid case involved a violation of a municipal ordinance, this Court,
considering that Section 2 of Act 3326, as amended, governs the computation of the
prescriptive period of both ordinances and special laws, finds that the ruling of the Supreme
Court in Zaldivia v. Reyes
[8]
likewise applies to special laws, such as Batas Pambansa Blg.
22.
[9]



The OSG sought relief to this Court in the instant petition for
review. According to the OSG, while it admits that Act No. 3326, as amended by
Act No. 3585 and further amended by Act No. 3763 dated 23 November 1930,
governs the period of prescription for violations of special laws, it is the institution
of criminal actions, whether filed with the court or with the Office of the City
Prosecutor, that interrupts the period of prescription of the offense charged.
[10]
It
submits that the filing of the complaint-affidavit by private complainant Virginia
C. Malolos on 16 September 1997 with the Office of the City Prosecutor of
Quezon City effectively interrupted the running of the prescriptive period of the
subject BP Blg. 22 cases.

Petitioner further submits that the CA erred in its decision when it relied on
the doctrine laid down by this Court in the case of Zaldivia v. Reyes, Jr.
[11]
that the
filing of the complaint with the Office of the City Prosecutor is not the judicial
proceeding that could have interrupted the period of prescription. In relying
on Zaldivia,
[12]
the CA allegedly failed to consider the subsequent jurisprudence
superseding the aforesaid ruling.

Petitioner contends that in a catena of cases,
[13]
the Supreme Court ruled
that the filing of a complaint with the Fiscals Office for preliminary investigation
suspends the running of the prescriptive period. It therefore concluded that the
filing of the informations with the MeTC of Quezon City on 3 February 2000 was
still within the allowable period of four years within which to file the criminal
cases for violation of BP Blg. 22 in accordance with Act No. 3326, as amended.

In her comment-opposition dated 26 July 2002, respondent avers that the
petition of the OSG should be dismissed outright for its failure to comply with the
mandatory requirements on the submission of a certified true copy of the
decision of the CA and the required proof of service. Such procedural lapses are
allegedly fatal to the cause of the petitioner.

Respondent reiterates the ruling of the CA that the filing of the complaint
before the City Prosecutors Office did not interrupt the running of the
prescriptive period considering that the offense charged is a violation of a special
law.

Respondent contends that the arguments advanced by petitioner are
anchored on erroneous premises. She claims that the cases relied upon by
petitioner involved felonies punishable under the Revised Penal Code and are
therefore covered by Article 91 of the Revised Penal Code (RPC)
[14]
and Section 1,
Rule 110 of the Revised Rules on Criminal Procedure.
[15]
Respondent pointed out
that the crime imputed against her is for violation of BP Blg. 22, which is
indisputably a special law and as such, is governed by Act No. 3326, as
amended. She submits that a distinction should thus be made between offenses
covered by municipal ordinances or special laws, as in this case, and offenses
covered by the RPC.

The key issue raised in this petition is whether the filing of the affidavit-
complaint for estafa and violation of BP Blg. 22 against respondent with the Office
of the City Prosecutor of Quezon City on 16 September 1997 interrupted the
period of prescription of such offense.

We find merit in this petition.

Initially, we see that the respondents claim that the OSG failed to attach to
the petition a duplicate original or certified true copy of the 12 March 2002
decision of the CA and the required proof of service is refuted by the record. A
perusal of the record reveals that attached to the original copy of the petition is a
certified true copy of the CA decision. It was also observed that annexed to the
petition was the proof of service undertaken by the Docket Division of the OSG.

With regard to the main issue of the petition, we find that the CA reversively
erred in ruling that the offense committed by respondent had already
prescribed. Indeed, Act No. 3326 entitled An Act to Establish Prescription for
Violations of Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin, as amended, is the law applicable to BP Blg. 22
cases. Appositely, the law reads:

SECTION 1. Violations penalized by special acts shall, unless otherwise provided
in such acts, prescribe in accordance with the following rules: (a) xxx; (b) after four years
for those punished by imprisonment for more than one month, but less than two years; (c)
xxx.

SECTION 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery thereof
and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting jeopardy.
Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of
not less than thirty (30) days but not more than one year or by a fine for its
violation, it therefor prescribes in four (4) years in accordance with the aforecited
law. The running of the prescriptive period, however, should be tolled upon the
institution of proceedings against the guilty person.

In the old but oft-cited case of People v. Olarte,
[16]
this Court ruled that the
filing of the complaint in the Municipal Court even if it be merely for purposes of
preliminary examination or investigation, should, and thus, interrupt the period of
prescription of the criminal responsibility, even if the court where the complaint
or information is filed cannot try the case on the merits. This ruling was
broadened by the Court in the case ofFrancisco, et.al. v. Court of Appeals, et.
al.
[17]
when it held that the filing of the complaint with the Fiscals Office also
suspends the running of the prescriptive period of a criminal offense.

Respondents contention that a different rule should be applied to cases
involving special laws is bereft of merit. There is no more distinction between
cases under the RPC and those covered by special laws with respect to the
interruption of the period of prescription. The ruling in Zaldivia v. Reyes, Jr.
[18]
is
not controlling in special laws. In Llenes v. Dicdican,
[19]
Ingco, et al. v.
Sandiganbayan,
[20]
Brillante v. CA,
[21]
and Sanrio Company Limited v. Lim,
[22]
cases
involving special laws, this Court held that the institution of proceedings for
preliminary investigation against the accused interrupts the period of
prescription. In Securities and Exchange Commission v. Interport Resources
Corporation, et. al.,
[23]
the Court even ruled that investigations conducted by the
Securities and Exchange Commission for violations of the Revised Securities Act
and the Securities Regulations Code effectively interrupts the prescription period
because it is equivalent to the preliminary investigation conducted by the DOJ in
criminal cases.

In fact, in the case of Panaguiton, Jr. v. Department of Justice,
[24]
which is in
all fours with the instant case, this Court categorically ruled that commencement
of the proceedings for the prosecution of the accused before the Office of the City
Prosecutor effectively interrupted the prescriptive period for the offenses they
had been charged under BP Blg. 22. Aggrieved parties, especially those who do
not sleep on their rights and actively pursue their causes, should not be allowed
to suffer unnecessarily further simply because of circumstances beyond their
control, like the accuseds delaying tactics or the delay and inefficiency of the
investigating agencies.

We follow the factual finding of the CA that sometime in the latter part of
1995 is the reckoning date of the commencement of presumption for violations
of BP Blg. 22, such being the period within which herein respondent was notified
by private complainant of the fact of dishonor of the checks and the five-day
grace period granted by law elapsed.

The affidavit-complaints for the violations were filed against respondent on
16 September 1997. The cases reached the MeTC of Quezon City only on 13
February 2000 because in the meanwhile, respondent filed a civil case for
accounting followed by a petition before the City Prosecutor for suspension of
proceedings on the ground of prejudicial question. The matter was raised
before the Secretary of Justice after the City Prosecutor approved the petition to
suspend proceedings. It was only after the Secretary of Justice so ordered that
the informations for the violation of BP Blg. 22 were filed with the MeTC of
Quezon City.

Clearly, it was respondents own motion for the suspension of the criminal
proceedings, which motion she predicated on her civil case for accounting, that
caused the filing in court of the 1997 initiated proceedings only in 2000.

As laid down in Olarte,
[25]
it is unjust to deprive the injured party of the right
to obtain vindication on account of delays that are not under his control. The only
thing the offended must do to initiate the prosecution of the offender is to file the
requisite complaint.

IN LIGHT OF ALL THE FOREGOING, the instant petition is GRANTED. The 12
March 2002 Decision of the Court of Appeals is hereby REVERSED and SET
ASIDE. The Department of Justice isORDERED to re-file the informations for
violation of BP Blg. 22 against the respondent.
SO ORDERED.
Republic of the Philippines
Supreme Court
Baguio City


THIRD DIVISION


JOHN HILARIO y SIBAL, G.R. No. 161070
Petitioner,
Present:

YNARES-SANTIAGO, J.
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. April 14, 2008
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D E C I S I O N


AUSTRIA-MARTINEZ, J.:


Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
filed by John Hilario y Sibal (petitioner), seeking to annul and set aside the Resolutions
dated August 19, 2003
[1]
and November 28 2003
[2]
of the Court of Appeals in CA-G.R. SP
No. 75820.

The antecedents are as follows:

Petitioner, together with one Gilbert Alijid (Alijid), was charged with two counts
[3]
of
Murder in the Regional Trial Court (RTC), Branch 76, Quezon City to which petitioner,
assisted by counsel de parte, pleaded not guilty.

During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO), counsel
of Alijid, took over representing petitioner in view of the death of the latter's counsel.

On December 5, 2001, the RTC rendered its Decision
[4]
finding petitioner and his co-
accused Alijid guilty beyond reasonable doubt of the crime of homicide and sentencing
them to suffer imprisonment of eight (8) years and one (1) day of prision mayor to
fourteen (14) years and eight (8) months of reclusion temporal in each count.

On May 10, 2002, petitioner, this time unassisted by counsel, filed with the RTC a
Petition for Relief
[5]
from the Decision dated December 5, 2001 together with an affidavit
of merit. In his petition, petitioner contended that at the time of the promulgation of the
judgment, he was already confined at Quezon City Jail and was directed to be committed
to the National Penitentiary in Muntinlupa; that he had no way of personally filing the
notice of appeal thus he instructed his lawyer to file it on his behalf; that he had no choice
but to repose his full trust and confidence to his lawyer; that he had instructed his lawyer
to file the necessary motion for reconsideration or notice of appeal; that on May 2, 2002,
he was already incarcerated at the New Bilibid Prisons, Muntinlupa City and learned from
the grapevine of his impending transfer to the Iwahig Penal Colony, Palawan; that
believing that the notice of appeal filed by his counsel prevented the Decision dated
December 5, 2001 from becoming final to warrant his transfer, he instructed his
representative to get a copy of the notice of appeal from the RTC; that no notice of
appeal was filed by his lawyer in defiance of his clear instructions; and that the RTC
Decision showed that it was received by his counsel on February 1, 2002 and yet the
counsel did not inform him of any action taken thereon.

Petitioner claimed that he had a meritorious defense, to wit:

1. The Decision dated December 5, 2001, on page 16 thereof states an
imprisonment term of eight (8) years and one (1) day of Prision Mayor to
fourteen (14) years and eight (8) months of Reclusion Temporal - a matter
which ought to be rectified;

2. The undersigned is a first time offender;

3. No ruling was laid down on the stipulated facts (Decision, p. 3) relative to
the (1) absence of counsel during the alleged inquest, and (2) absence of
warrant in arresting the accused after ten (10) days from the commission
of the crime;

4. Absence of a corroborating witness to the purported lone eyewitness, as
against the corroborated testimony of accused-petitioner's alibi;

5. The Commission on Human Rights investigation on the torture of the
accused-petitioner;

6. and others.
[6]


Petitioner argued that he was meted a total of 16 years imprisonment or almost
equal to the previous capital punishment of 20 years which was given an automatic
review by the Supreme Court, thus it is of greater interest of justice that his case be
reviewed by the appellate court; and that no damage will be sustained if the appeal is
given due course since he continues to languish in jail while the Petition for Relief is
pending.

The Assistant City Prosecutor filed his Comment on the Petition for Relief where he
contended that the petition should no longer be entertained; and that perfection of
appeal in the manner and within the period permitted by law was not only mandatory
but jurisdictional and failure to perfect the appeal rendered the judgment final
and executory.

The records do not show that the RTC required petitioner's counsel to whom
petitioner attributed the act of not filing the notice of appeal to file his comment.
On September 30, 2002, petitioner's counsel filed a Withdrawal of
Appearance
[7]
from the case with petitioner's consent. Again, the documents before us
do not show the action taken by the RTC thereon.

In an Order
[8]
dated December 13, 2002, the RTC dismissed petitioner's petition for
relief with the following disquisition:

After a careful study of the instant petition and the arguments raised by
the contending parties, the Court is not persuaded by
petitioner/accused's allegation that he was prevented from filing a notice of
appeal due to excusable negligence of his counsel.

Accused's allegation that he indeed specifically instructed his
counsel to file a notice of appeal of the Decision dated [sic] and the latter did
not heed his instruction is at best self-serving and unsubstantiated and thus,
unworthy of credence. At any rate, even if said omission should be considered
as negligence, it is a well-settled rule that negligence of counsel is binding on
the client. x x x Besides, nowhere does it appear that accused/petitioner was
prevented from fairly presenting his defense nor does it appear that he was
prejudiced as the merits of this case were adequately passed upon in the
Decision dated December 5, 2001.

It must also be pointed out that in his petition for relief, he stated that
he instructed his counsel to file the necessary motion for reconsideration or
notice of appeal of the Decision dated December 5, 2001, whereas in his
affidavit of merit, he claimed to have told his counsel to simply file a notice of
appeal thereof.
[9]
(Emphasis supplied)

Petitioner, again by himself, filed a petition for certiorari with the CA on the ground
that the RTC committed grave abuse of discretion in dismissing his petition for relief. He
claims that the delay in appealing his case without his fault constitutes excusable
negligence to warrant the granting of his petition for relief.

In a Resolution dated August 19, 2003, the CA dismissed the petition in this wise:

It appearing that petitioner in the instant petition for certiorari failed to
attach the following documents cited in his petition, namely:

1. The December 5, 2001 Decision;
2. Comment of the City Prosecutor;
3. Manifestation of petitioner's counsel de oficio signifying his
withdrawal as petitioner's counsel.

The instant petition for certiorari is hereby DISMISSED pursuant to
Section 2, Rule 42 of the 1997 Rules of Civil Procedure and as prayed for by the
Solicitor General.
[10]


Petitioner's motion for reconsideration was denied in a Resolution
dated November 28, 2003 for having been filed beyond the 15-
day reglementary period, in violation of Section 1, Rule 52 of the Rules of Court and for
failure to attach to the petition, the relevant and pertinent documents. The CA also
stressed that procedural rules are not to be belittled simply because their non-observance
may have resulted in prejudice to a party's substantive rights.

Hence, herein recourse filed by petitioner, still unassisted by counsel, raising the
following issues:

Whether or not the delay in appealing the instant case due to the
defiance of the petitioner's counsel de oficio to seasonably file a Notice of
Appeal, constitutes excusable negligence to entitle the undersigned detention
prisoner/ petitioner to pursue his appeal?

Whether or not pro hac vice, the mere invocation of justice warrants
the review of a final and executory judgment?

Petitioner contends that the negligence of his counsel de oficio cannot be binding
on him for the latter's defiance of his instruction to appeal automatically breaks the
fiduciary relationship between counsel-client and cannot be against the client who was
prejudiced; that this breach of trust cannot easily be concocted in this situation
considering that it was a counsel de oficio, a lawyer from PAO, who broke the fiduciary
relationship; that the assailed CA Resolutions both harped on technicalities to uphold the
dismissal by the RTC of his petition for relief; that reliance on technicalities to the
prejudice of petitioner who is serving 14 years imprisonment for a crime he did not
commit is an affront to the policy promulgated by this Court that dismissal purely on
technical grounds is frowned upon especially if it will result to unfairness; and that it
would have been for the best interest of justice for the CA to have directed the petitioner
to complete the records instead of dismissing the petition outright.

In his Comment, the OSG argues that the mere invocation of justice does not
warrant the review of an appeal from a final and executory judgment; that perfection of
an appeal in the manner and within the period laid down by law is not only mandatory
but jurisdictional and failure to perfect the appeal renders the judgment sought to be
reviewed final and not appealable; and that petitioner's appeal after the finality of
judgment of conviction is an exercise in futility, thus the RTC properly dismissed
petitioner's petition for relief from judgment. The OSG further claims that notice to
counsel is notice to clients and failure of counsel to notify his client of an adverse
judgment would not constitute excusable negligence and therefore binding on the client.

We grant the petition.

The CA dismissed the petition for certiorari filed under Rule 65 of the Rules of Court,
in relation to Rule 46, on the ground that petitioner failed to attach certain documents
which the CA found to be relevant and pertinent to the petition for certiorari.

The requirements to attach such relevant pleadings under Section 1, Rule 65 is read
in relation to Section 3, Rule 46 of the Rules of Court, thus:

Section 1, Rule 65 provides:

SECTION. 1. Petition for certiorari.

x x x x

The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto x x x.

Section 3, Rule 46, provides:

SEC. 3. Contents and filing of petition; effect of non-compliance with
requirements.

x x x x

[The petition] shall be x x x accompanied by a clearly legible duplicate
original or certified true copy of the judgment, order, resolution, or ruling
subject thereof, such material portions of the record as are referred to therein,
and other documents relevant or pertinent thereto x x x.

x x x x

The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition.

The initial determination of what pleadings, documents or orders are relevant and
pertinent to the petition rests on the petitioner. If, upon its initial review of the petition,
the CA is of the view that additional pleadings, documents or order should have been
submitted and appended to the petition, the following are its options: (a) dismiss the
petition under the last paragraph of Rule 46 of the Rules of Court; (b) order the petitioner
to submit the required additional pleadings, documents, or order within a specific period
of time; or (c) order the petitioner to file an amended petition appending thereto the
required pleadings, documents or order within a fixed period.
[11]


The RTC Decision dated December 5, 2001, finding petitioner guilty of two counts
of homicide, the Comment of the City Prosecutor as well as the counsel's withdrawal of
appearance were considered by the CA as relevant and pertinent to the petition
for certiorari, thus it dismissed the petition for failure to attach the same. However, the
CA failed to consider the fact that the petition before it was filed by petitioner, a detained
prisoner, without the benefit of counsel. A litigant who is not a lawyer is not expected to
know the rules of procedure. In fact, even the most experienced lawyers get tangled in
the web of procedure.
[12]
We have held in a civil case that to demand as much from
ordinary citizens whose only compelle intrare is their sense of right would turn the legal
system into an intimidating monstrosity where an individual may be stripped of his
property rights not because he has no right to the property but because he does not
know how to establish such right.
[13]
This finds application specially if the liberty of a
person is at stake. As we held in Telan v. Court of Appeals:

The right to counsel in civil cases exists just as forcefully as in criminal
cases, specially so when as a consequence, life, liberty, or property is subjected
to restraint or in danger of loss.

In criminal cases, the right of an accused person to be assisted by a
member of the bar is immutable. Otherwise, there would be a grave denial
of due process. Thus, even if the judgment had become final and executory,
it may still be recalled, and the accused afforded the opportunity to be heard
by himself and counsel.

x x x x

Even the most experienced lawyers get tangled in the web of
procedure. The demand as much from ordinary citizens whose
only compelle intrare is their sense of right would turn the legal system into an
intimidating monstrosity where an individual may be stripped of his property
rights not because he has no right to the property but because he does not
know how to establish such right.

The right to counsel is absolute and may be invoked at all times. More
so, in the case of an on-going litigation, it is a right that must be exercised at
every step of the way, with the lawyer faithfully keeping his client company.

No arrangement or interpretation of law could be as absurd as the
position that the right to counsel exists only in the trial courts and that
thereafter, the right ceases in the pursuit of the appeal.
[14]
(Emphasis
supplied)

The filing of the petition for certiorari by petitioner without counsel should have
alerted the CA and should have required petitioner to cause the entry of appearance of
his counsel. Although the petition filed before the CA was a petition for certiorari assailing
the RTC Order dismissing the petition for relief, the ultimate relief being sought by
petitioner was to be given the chance to file an appeal from his conviction, thus the need
for a counsel is more pronounced. To repeat the ruling in Telan, no arrangement or
interpretation of law could be as absurd as the position that the right to counsel exists
only in the trial courts and that thereafter, the right ceases in the pursuit of the
appeal.
[15]
It is even more important to note that petitioner was not assisted by counsel
when he filed his petition for relief from judgment with the RTC.

It cannot be overstressed therefore, that in criminal cases, as held in Telan, the
right of an accused person to be assisted by a member of the bar is immutable;
otherwise, there would be a grave denial of due process.

Cases should be determined on the merits after full opportunity to all parties for
ventilation of their causes and defenses, rather than on technicality or some procedural
imperfections. In that way, the ends of justice would be served better.
[16]


The CA denied petitioner's motion for reconsideration for having been filed late. It
appears that the CA Resolution dismissing the petition for certiorari was received at the
address written in the petition on September 1, 2003, and that petitioner filed his motion
for reconsideration on September 18, 2003, or two days late.

While as a general rule, the failure of petitioner to file his motion for
reconsideration within the 15-day reglementary period fixed by law rendered
the resolution final and executory, we have on some occasions relaxed this
rule. Thus,in Barnes v. Padilla
[17]
we held:

However, this Court has relaxed this rule in order to serve substantial
justice considering (a) matters of life, liberty, honor or property, (b) the
existence of special or compelling circumstances, (c) the merits of the case, (d)
a cause not entirely attributable to the fault or negligence of the party favored
by the suspension of the rules, (e) a lack of any showing that the review sought
is merely frivolous and dilatory, and (f) the other party will not be unjustly
prejudiced thereby.

Invariably, rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be eschewed. Even the Rules of Court reflects
this principle. The power to suspend or even disregard rules can
be so pervasive and compelling as to alter even that which this Court itself had
already declared to be final.

In De Guzman v. Sandiganbayan, this Court, speaking through the late
Justice Ricardo J. Francisco, had occasion to state:

The Rules of Court was conceived and promulgated to set forth
guidelines in the dispensation of justice but not to bind and chain the hand that
dispenses it, for otherwise, courts will be mere slaves to or robots of technical
rules, shorn of judicial discretion. That is precisely why courts in rendering justice
have always been, as they ought to be guided by the norm that when on the
balance, technicalities take a backseat against substantive rights, and not the
other way around. Truly then, technicalities, in the appropriate language of
JusticeMakalintal, "should give way to the realities of the situation.

Indeed, the emerging trend in the rulings of this Court is to afford every
party litigant the amplest opportunity for the proper and just determination of
his cause, free from the constraints of technicalities.
[18]


Moreover, in Basco v. Court of Appeals,
[19]
we also held:

Nonetheless, procedural rules were conceived to aid the attainment of
justice. If a stringent application of the rules would hinder rather than serve the
demands of substantial justice, the former must yield to the latter. Recognizing
this, Section 2, Rule 1 of the Rules of Court specifically provides that:

SECTION 2. Construction. These rules shall be liberally construed in
order to promote their object and to assist the parties in obtaining just, speedy,
and inexpensive determination of every action and proceeding.
[20]


Petitioner claims that he actually received the CA Resolution dismissing his petition
for certiorari only on September 4, 2003 even as the same Resolution was earlier received
on September 1, 2003 at the address written in his petition,i.e., c/o Robert S. Bacuraya,
No. 9 Iris St., West Fairview, 1118, Quezon City, by a certain Leonora Coronel.
Apparently, Bacuraya is not a lawyer. Ordinarily, petitioner being detained at the
National Penitentiary, Muntinlupa, the CA should have also sent a copy of such
Resolution to his place of detention. Considering that petitioner only received the
Resolution on September 4, 2003, we find the two days delay in filing his motion for
reconsideration pardonable as it did not cause any prejudice to the other party. There is
no showing that petitioner was motivated by a desire to delay the proceedings or
obstruct the administration of justice. The suspension of the Rules is warranted in this
case since the procedural infirmity was not entirely attributable to the fault or negligence
of petitioner.

Rules of procedure are mere tools designed to expedite the decision or resolution
of cases and other matters pending in court. A strict and rigid application of rules that
would result in technicalities that tend to frustrate rather than promote substantial justice
must be avoided.
[21]


In dismissing the petition for certiorari filed before it, the CA clearly put a premium
on technicalities and brushed aside the issue raised before it by petitioner, i.e., whether
the RTC committed grave abuse of discretion in dismissing petitioner's petition for relief
thus preventing him from taking an appeal from his conviction.

Even if the judgment had become final and executory, it may still be recalled, and
the accused afforded the opportunity to be heard by himself and counsel.
[22]
However,
instead of remanding the case to the CA for a decision on the merits, we opt to resolve
the same so as not to further delay the final disposition of this case.

The RTC denied the petition for relief as it found petitioner's claim that his counsel
did not heed his instruction to file an appeal to be unsubstantiated and self serving; and
that if there was indeed such omission committed by thecounsel, such negligence is
binding on the client.

Petitioner insists that the failure of his counsel to timely file a notice of appeal of his
judgment of conviction despite his explicit instruction to do so constitutes excusable
negligence and so his petition for relief should have beengranted.
We find that the RTC committed grave abuse of discretion in dismissing petitioner's
petition for relief from judgment.

Petitioner was represented in the RTC by Atty. Rivera of the PAO. Section 1,
Article IV of PAO Memorandum Circular No.18 series of 2002, the Amended Standard
Office Procedures in Extending Legal Assistance (PAO Memorandum Circular),
provides that all appeals must be made upon the request of the client himself and only
meritorious cases shall be appealed; while Section 2, Article II of PAO Memorandum
Circular provides that in criminal cases, the accused enjoys the constitutional
presumption of innocence until the contrary is proven, hence cases of defendants in
criminal actions are considered meritorious and therefore, should be appealed, upon the
client's request.

In this case, petitioner claims he had instructed the PAO lawyer to file an
appeal. Under the PAO Memorandum Circular, it was the duty of the latter to perfect the
appeal. Thus, in determining whether the petition for relief from judgment is based on a
meritorious ground, it was crucial to ascertain whether petitioner indeed gave explicit
instruction to the PAO lawyer to file an appeal but the latter failed to do so.

To determine the veracity of petitioner's claim, it was incumbent upon the RTC to
have required the PAO lawyer to comment on the petition for relief. However, it
appears from the records that the RTC only required the City Prosecutor to file a
comment on the petition.

The RTC Order dismissing the petition for relief did not touch on the
question whether the PAO lawyer was indeed negligent in not filing the appeal as it
merely stated that even if said omission, i.e., not filing the appeal despite his
clients instruction to do so, should be considered as negligence, it is a well-settled rule
that negligence of counsel is binding on the client.

While as a general rule, negligence of counsel may not be condoned and should
bind the client,
[23]
the exception is when the negligence of counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court.
[24]
In Aguilar v. Court of
Appeals,
[25]
we held:

x x x Losing liberty by default of an insensitive lawyer should be frowned
upon despite the fiction that a client is bound by the mistakes of his
lawyer. The established jurisprudence holds:

x x x x

The function of the rule that negligence or mistake of counsel in
procedure is imputed to and binding upon the client, as any other procedural
rule, is to serve as an instrument to advance the ends of justice. When in the
circumstances of each case the rule desert its proper office as an aid to justice
and becomes its great hindrance and chief enemy, its rigors must be relaxed to
admit exceptions thereto and to prevent a manifest miscarriage of justice.

x x x x

The court has the power to except a particular case from the operation
of the rule whenever the purposes of justice require it.

x x x x

If the incompetence, ignorance or inexperience of counsel is so great
and the error committed as a result thereof is so serious that the client, who
otherwise has a good cause, is prejudiced and denied his day in court, the
litigation may be reopened to give the client another chance to present his
case. In a criminal proceeding, where certain evidence was not presented
because of counsel's error or incompetence, the defendant in order to secure a
new trial must satisfy the court that he has a good defense and that the
acquittal would in all probability have followed the introduction of the omitted
evidence. What should guide judicial action is that a party be given the fullest
opportunity to establish the merits of his action or defense rather than for him
to lose life, liberty, honor or property on mere technicalities.
[26]


The PAO lawyer, Atty. Rivera, filed his Withdrawal of Appearance on September
30, 2002, almost three months before the RTC rendered its assailed Order
dated December 13, 2002, dismissing the petition for relief. The RTC had ample time to
require the PAO lawyer to comment on the petition for relief from judgment, before
issuing the questioned Order. Had the RTC done so, there would have been a factual
basis for the RTC to determine whether or not the PAO lawyer was grossly negligent; and
eventually, whether the petition for relief from judgment is meritorious. If there was no
instruction from petitioner to file an appeal, then there was no obligation on the part of
the PAO lawyer to file an appeal as stated in the PAO Memorandum Circular and
negligence could not be attributed to him. However, if indeed there was such an
instruction to appeal but the lawyer failed to do so, he could be considered negligent.

Thus, there was no basis for the RTC to conclude that the claim of petitioner that
he instructed the PAO lawyer to file an appeal as self-serving and
unsubstantiated. The RTC's dismissal of the petition for relief was done with grave abuse
of discretion amounting to an undue denial of the petitioner's right to appeal.

The RTC faulted petitioner for claiming in his petition for relief that he instructed his
counsel to file the necessary motion for reconsideration or notice of appeal; while in his
affidavit of merit, he claimed to have told his counsel to simply file a notice of appeal. We
do not find such circumstance sufficient ground to dismiss the petition considering that
he filed the petition for relief unassisted by counsel.

In all criminal prosecutions, the accused shall have the right to appeal in the
manner prescribed by law. The importance and real purpose of the remedy of appeal has
been emphasized in Castro v. Court of Appeals
[27]
where we ruled that an appeal is an
essential part of our judicial system and trial courts are advised to proceed with caution so
as not to deprive a party of the right to appeal and instructed that every party-litigant
should be afforded the amplest opportunity for the proper and just disposition of his
cause, freed from the constraints of technicalities. While this right is statutory, once it is
granted by law, however, its suppression would be a violation of due process, a right
guaranteed by the Constitution. Thus, the importance of finding out whether
petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not at
all attributed to petitioner.

However, we cannot, in the present petition for review
on certiorari, make a conclusive finding that indeed there was excusable negligence on
the part of the PAO lawyer which prejudiced petitioner's right to appeal his conviction. To
do so would be pure speculation or conjecture. Therefore, a remand of this case to the
RTC for the proper determination of the merits of the petition for relief from judgment is
just and proper.

WHEREFORE, the petition is GRANTED. The Resolutions dated August 19,
2003 and November 28, 2003 of the Court of Appeals are REVERSED and SET ASIDE. The
Order dated December 13, 2002 of the Regional Trial Court of Quezon City, Branch 76,
is SET ASIDE. The RTC is hereby ordered to require Atty. Raul Rivera of the Public
Attorney's Office to file his comment on the petition for relief from judgment filed by
petitioner, hold a hearing thereon,and thereafter rule on the merits of the petition for
relief from judgment, with dispatch.

SO ORDERED.















EN BANC
[G. R. No. 126029. March 27, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. REY SUNGA, RAMIL
LANSANG, INOCENCIO PASCUA, LITO OCTAC and LOCIL CUI
@ GINALYN CUYOS, accused,
REY SUNGA, RAMIL LANSANG and INOCENCIO PASCUA, appellants.
D E C I S I O N
CARPIO-MORALES, J .:
The sole, uncorroborated testimony of an accused who turned state
witness may suffice to convict his co-accused if it is given unhesitatingly and
in a straightforward manner and is full of details which by their nature could
not have been the result of deliberate afterthought;
[1]
otherwise, it needs
corroboration the presence or lack of which may ultimately decide the cause
of the prosecution and the fate of the accused.
On July 12, 1994, the mutilated body of Jocelyn Tan (Jocelyn), a minor
and a high school student of Palawan Integrated National School, (PINS), was
found at a coffee plantation in Jacana, Barangay Bancao-Bancao in Puerto
Princesa City, Palawan.
The hunt for the possible killers of Jocelyn was swift, several arrests
having been made in a span of days, followed by the conduct of the requisite
preliminary investigation by the Municipal Trial Court in Cities (MTCC) in
Puerto Princesa City which culminated in the filing before the Regional Trial
Court (RTC) of Puerto Princesa City of the information for rape with homicide
against the suspects. The case was raffled to Branch 48 of the court.
Accused in the Information were Rey Sunga, Ramil Lansang, Inocencio
Pascua, Jr., and Lito Octac as principals, and Locil Cui alias Ginalyn Cuyos as
accomplice the accusatory portion of the information dated September 6,
1994 reads as follows:
x x x
That on or about June 29, 1994 in the afternoon, at Barangay Irawan, Puerto Princesa
City, Philippines, and within the jurisdiction of this Honorable Court, the said accused
conspiring and confederating together and mutually helping one another, did then and
there wilfully, unlawfully and feloniously, by means of force, violence and
intimidation, to wit: by pinning down one JOCELYN TAN, a minor, fifteen (15) years
of age, succeeded in having carnal knowledge of her against her will and without her
consent; that on the occasion of said rape and to enable them to conceal the
commission of the crime, the herein accused in furtherance of the conspiracy together
with LOCIL CUI, a minor, acting with discernment and who cooperated in the
execution of the offense as ACCOMPLICE, did then and there wilfully, unlawfully
and feloniously, taking advantage of their superior number and strength, with intent to
kill, treacherously attack, assault, and use personal violence upon JOCELYN TAN by
repeatedly stabbing and smashing a stone on her head, thereby inflicting upon her
mortal wounds and multiple fractures on her skull which were the direct cause of her
death shortly thereafter.
CONTRARY TO LAW.
[2]

x x x.
The case was docketed as Criminal Case No. 11984.
Upon arraignment all the accused pleaded not guilty.
On September 26, 1994, the accused through counsel filed a petition for
bail,
[3]
underscoring the weakness of the Peoples evidence, there being no
direct evidence against them, a fact admitted by the City Prosecutor in his
resolution
[4]
for their indictment. Hearings on the bail petition were conducted
in the course of which the prosecution, after presenting several witnesses,
filed on October 18, 1994 a motion to discharge
[5]
accused Locil Cui (Locil) to
be a state witness, averring therein that the legal requisites for her discharge
had been complied with, and submitting her sworn statement
[6]
which detailed
how her co-accused carried out the crime. The respective counsels for the
other accused opposed the motion, insisting that it could only be filed during
trial on the merits and that Locils testimony was not absolutely necessary.
[7]
By
Order of October 20, 1994,
[8]
the trial court deferred the resolution of the bail
petition until after the prosecution had rested its case, but it granted the
motion to discharge Locil.
The accused assailed the discharge of Locil via a petition for certiorari and
prohibition
[9]
before the Court of Appeals which issued a temporary restraining
order (TRO) enjoining the trial court from proceeding with the trial of the
case.
[10]
The TRO lapsed, however, without a preliminary injunction being
issued, hence, the trial of the case resumed.
Through state witness Locil, then 14 years old and an elementary school
dropout who had been living away from her parents and using the alias
Ginalyn Cuyos
[11]
to evade, by her own account,
[12]
her mother and aunt who
were looking for her after she got pregnant (the pregnancy was later aborted),
the prosecution established the following version:
At about 2:00 p. m. of June 29, 1994, Locil boarded a tricycle bearing the
marking Ryan-Ryan from the Social Security System (SSS) Office in Puerto
Princesa City. Already on board the tricycle was a lesbian who had a
birthmark on the right side of the face and who invited Locil for a joy
ride.
[13]
Upon instruction of the lesbian, the tricycle driver, whom she did not
know but whom she later identified and who answered to the name Rey
Sunga (Sunga), repaired to the Mendoza Park.
At the Mendoza Park, the lesbian alighted and spoke to Jocelyn Tan, the
victim, who was dressed in a PINS uniform. The lesbian, together with
Jocelyn, then joined Locil aboard the tricycle which was already driven by
Inocencio Pascua (Pascua) vice Sunga who had in the meantime left. Still
aboard the tricycle, the four of them proceeded to and reached Barangay
Irawan, Puerto Princesa City and on reaching a forested area, Jocelyn was
met by Sunga who held her and by Ramil Lansang (Lansang) who wrapped
his arm around her waist as they dragged her to a nearby buho
clumps. There, Jocelyn was made to lie down. Her skirt was raised and her
panty was taken off by Lansang. As she lay face up with both her hands held
by Sunga and Pascua, Lansang stripped naked, placed himself on top of
Jocelyn, inserted his penis into her vagina and seemed to be pumping.
[14]

After Lansang, Sunga took turn to have sexual intercourse with Jocelyn as
Lansang and one who was not known to Locil and whom the latter described
as one who has chinky or narrow eyes, later identified to be Pascua, kept
Jocelyn pinned down by her hands.
[15]

Pascua too subsequently had carnal knowledge of Jocelyn who all along
struggled against her malefactors.
[16]

After Pascua satisfied his lust, Sunga, with a sharp bladed weapon,
stabbed the abdomen of the motionless Jocelyn, drawing her to rise to a
sitting position and clutch her abdomen. Sunga then passed on the bladed
weapon to Lansang who smashed Jocelyns head with an irregularly shaped
stone, causing her to fall to the ground lifeless. Locil, who witnessed
everything, was then pulled by the lesbian and led back into the tricycle where
they awaited Lansang, Sunga and Pascua to ride with them. All five
thereafter headed back to Puerto Princesa City proper, leaving Jocelyns body
behind.
[17]

When the five reached the Mendoza Park where Locil alighted, she heard
the voice of someone from inside the tricycle warning her to keep mum about
the incident, otherwise something would also happen to her. Locil then
repaired to her boarding house. Until she was arrested following the
discovery on July 12, 1994 of Jocelyns corpse, she did not report the incident
to anyone.
[18]

The other prosecution witnesses provided testimonies pertaining to
circumstances after the fact.
Oscar Devilleres, a garbage truck driver, recalled that he was on his way
home in Jacana, Barangay Bancao-Bancao at 12:30 a. m. of June 30, 1994, a
day after the incident, when from a distance of about 30 meters, he saw
Lansang walking back and forth and appearing restless near the coffee
plantation in Jacana, Barangay Bancao-Bancao where Jocelyns body was
later found on July 12, 1994. Although it was then nighttime, Devilleres had a
good look at Lansang due to the illumination provided by the electric light post
under which Lansang was situated.
[19]

Igleceria Gabinete, a resident of Jacana, declared that she was among
those who saw the mutilated body of Jocelyn in the morning of July 12, 1994
at a coffee plantation near her place; that in the afternoon of that date and
while tending her sari-sari store, a tricycle arrived with three men on board,
one of whom, Lito Octac (Octac) alighted, leaving the two inside the tricycle
who seemed to be hiding their faces; that one of those two men inside the
tricycle inquired from her whether the discovered corpse, that of Jocelyn, was
from Barangay Caroray; that the following day, she reported to the police
about the three suspicious looking men who went to her store; and that two
days later, she was made to, as she did, identify Lansang at the police station
as one of the men who went to her store in the afternoon of July 12, 1994 and
inquired as to Jocelyns corpse.
[20]

Galahad Tan (Tan), Jocelyns father, recounted as follows: During the
wake of his daughter at the Sampaton Funeral Parlor, at 1:30 a. m. of July 14,
1994 (15
th
day following the incident), Lansang arrived and told him as
follows: Total tayo ay magkaisang barangay lang ay ayosin natin itong kaso
at magtulungan na lang, mayroon na akong alam na makakapagturo kung
sino and may kagagawan sa krimen. Huwag na lang nating sabihin sa mga
polis. When he asked Lansang who he was referring to, Lansang replied that
he would return. Lansang did not return, however, prompting Tan to relay to
law enforcers the statements of Lansang, his neighbor who was courting
Jocelyn at the time and with whose family his own family was in good terms.
[21]

Testifying on the autopsy she conducted on Jocelyn, Dr. Ma. Carla
Gallego - Vigonte (Dr. Vigonte) affirmed the following findings in her
report
[22]
dated July 12, 1994:
POST-MORTEM FINDINGS
1. The cadaver was seen in advanced stage of decomposition.
2. Depressed fracture noted at the frontal bone of the skull about 2 cm anterior to the
bregma, measuring 2.5 cm in width and 3.5 cm in length, with a rounded hole at its
right side with irregular edges measuring 4 cm x 5 cm in diameter; with a linear
fracture about 2 cm in length extending from the depressed fracture up to the bregma;
linear fracture about 3 cm in length along the coronal suture, right side, extending
from the hole to the bregma.
3. Multiple linear fracture with lengths ranging from 2 cm to 5 cm, noted at the
lambdoid suture, about 2 cm right side of the lambda, extending to the right side of the
occipital and parietal bones of the skull.
PROBABLE CAUSE OF DEATH: Intracranial Hemorrhage secondary to multiple
fractures of the skull.
Dr. Vigonte opined that a blunt object or instrument like a hard wood or a rock
caused the injury noted in post-mortem finding no. 2 which was fatal, it being
a deep wound in the skull affecting its inner organ and lacerating the tissues
of the brain, thus causing hemorrhage; that for said fatal wound, the assailant
was probably at Jocelyns left side; that for the injury in post-mortem finding
no. 3, the attacker was at the back of Jocelyn; and that in light of the multiple
injuries, there were more than one perpetrator.
[23]
Dr. Vigonte was, however,
unable to determine whether Jocelyn was also raped.
[24]

The prosecution adduced documentary evidence consisting mainly of two
supposed extrajudicial confessions made by Sunga.
In a sworn statement (Exhibit A)
[25]
dated July 18, 1994 which was
executed before SPO2 Jose P. Janoras (SPO2 Janoras), Sunga made the
following disclosures:
At about 10:00 a. m. of the day of the incident, June 29, 1994, as he was
then at work as a tricycle dispatcher, Lansang arrived in a tricycle bearing the
marking Ryan-Ryan and invited him to accompany him in fetching Jocelyn at
the PINS. He obliged and just before reaching their destination, Locil boarded
the tricycle. At the gate of the school, Lansang talked to Jocelyn who was
then wearing the school uniform after which the two boarded the tricycle which
he (Sunga) drove to a spot at the corner of Rizal Avenue and Lacao St. in the
Puerto Princesa City proper where the four of them (Sunga, Lansang, Locil
and Jocelyn) transferred to an owners jeep brought by Octac alias
Toto. The group then proceeded to and reached Barangay Irawan at around
10:30 a. m. and at a forested area in Sitio Tagaud, everyone alighted except
for Octac. Lansang then forcibly undressed Jocelyn and raped her while he
(Sunga) and Locil watched. After consummating his carnal desire, Lansang
hit Jocelyn with a 2 x 2 piece of wood on her head and successively on
different parts of her body. When Jocelyn was already dead, Locil also
whacked Jocelyns body many times. The group then headed back to the city
proper, leaving Jocelyns remains at the scene of the crime.
In accordance with their previous agreement, he (Sunga), Lansang and
Locil returned to Barangay Irawan aboard a jeep driven by Octac four days
after June 29, 1994 and took Jocelyns body for the purpose of bringing it to
Jacana in Barangay Bancao-Bancao in accordance with Lansangs wish. On
their way to Bancao-Bancao, Locil inserted a cigarette into the corpses mouth
. pinasigarilyo ni [Locil] ang bangkay upang ikubli sa maaaring makakita
ang tunay na kaanyuan ni Jocelyn Tan.
[26]
At Barangay Bancao-Bancao, he
(Sunga), Lansang and Locil carried the victims body and left the same at a
coffee plantation fifty meters away from Jacana Road while Octac served as a
lookout by the roadside. On their return to the city, the four parted ways at the
corner of Rizal Avenue and Lacao Street. He (Sunga) then drove the tricycle
with the marking Ryan-Ryan with Locil aboard while Lansang and Octac
remained together at the jeep.
[27]

The above sworn statement bears Sungas signature and that of his
assisting counsel, Atty. Agustin Rocamora (Atty. Rocamora), Puerto Princesa
City Legal Officer.
Testifying as to the investigation he conducted upon Sunga, SPO2
Janoras recalled that he was on duty at the Puerto Princesa City police
precinct in the morning of July 18, 1994 when SPO4 Boy Pantollano and
patrolman Bolos arrived together with Sunga. The two brought Sunga inside
a room and asked him questions pertaining to Jocelyns death and after about
thirty minutes, Sunga was presented before him (SPO2 Janoras) for
investigation. He initially asked Sunga whether he knew anything about
Jocelyns death and Sunga replied affirmatively, prompting him to inform him
of his rights under custodial interrogation. After Sunga signified his desire to
avail of the services of a lawyer, Sunga chose Atty. Rocamora to be his
counsel from among the names of lawyers mentioned by him (SPO2
Janoras). He thereupon fetched Atty. Rocamora from his residence. Atty.
Rocamora briefly conferred with Sunga, asking him if he wanted to give a
confession and informing him of the consequences thereof. Thereafter, the
investigation proceeded with Sunga voluntarily giving his answers to
questions he (SPO2 Janoras) propounded at the end of which investigation
Sunga and Atty. Rocamora affixed their respective signatures on the recorded
statement.
[28]

The execution of Exhibit A was, during the preliminary investigation
before the Municipal Trial Court,
[29]
affirmed by Sunga. Apart from
acknowledging its contents, Sunga answered the investigating judges other
queries as he implicated Lansang, Locil and Octac in the killing of
Jocelyn. This time, however, he alleged that not only Lansang but also
Octac raped Jocelyn, adding that he merely held Jocelyns hand.
[30]

Subsequently or on August 3, 1994, Sunga executed another sworn
statement (Exhibit I)
[31]
before Special Investigator Reynaldo O. Abordo of the
Puerto Princesa office of the National Bureau of Investigation (NBI). Exhibit
I varied in a number of respects from Exhibit A. In Exhibit I, Sunga
declared that in the morning of June 28, 1994 he already had an agreement
with Lansang to fetch Jocelyn from her school on the following day; that at
8:00 a. m. of the following day, June 29, 1994, he, together with Lansang, Lito
Octa (should be Octac) and a certain Jun left Mendoza Park and proceeded to
Irawan after asking Locil, one Bing Manila, and a certain Josie to fetch
Jocelyn at her
school; that Jun drove the tricycle back to the city proper and he
transported their female companions including Jocelyn to Irawan; that at
Irawan, Lansang raped the struggling Jocelyn whose hands were then held
by Josie; that after Lansang and Jun raped Jocelyn, Lansang smashed her
head twice in accordance with his plan to kill her which plan was known to him
(Sunga), Locil, Octac and Jun; that at 1:30 a. m. of June 30, 1994, Lansang,
Sunga, Octa and Jun returned to Irawan, took Jocelyns corpse and
dumped it at a coffee plantation in Jacana Road; and that he did not take part
in the rape or killing of Jocelyn but merely joined the group due to Lansangs
promise to give him P500.00. Exhibit I embodied a waiver by Sunga of
his right to counsel.
[32]

The prosecution evidence with respect to Jocelyns familys incurring of
the amount of P11,000.00 for Jocelyns funeral expenses was admitted by the
defense.
[33]

Upon the other hand, all the accused proffered alibi.
Accused-appellant Sunga, who had previously been convicted for robbery
with homicide, denied having anything to do with the rape and killing of
Jocelyn. He branded as false the testimony of Locil whom he claimed is a
prostitute and a pimp and was always seen loitering at Mendoza Park. While
he acknowledged knowing Octac and Pascua, he denied being in their
company on June 29, 1994 or in Lansangs.
[34]

Confronted with his sworn statement-Exhibit A, Sunga explained the
circumstances behind his execution thereof as follows: After having been
arrested without a warrant by the police in the evening of July 15, 1994 at the
corner of Rizal and Valencia streets while picking up passengers, he was
brought to the police station where he was subjected to violence and
intimidation by SPO2 Pantollano and a certain Ka Ronnie to coerce him to
pinpoint to anybody, and he involuntarily did. After being mauled and
kicked, he was made to appear before police investigator Janoras on that
same night of July 15, 1994 during which he signed the second and third
pages of a three paged affidavit embodying his questioned extrajudicial
confession without the assistance of counsel and under threats and
intimidation from SPO2 Pantollano. He was later brought on July 18, 1994 to
the Capitol building where he signed the first page of his confession after
which Atty. Agustin Rocamora also signed the same.
[35]

As to his other sworn statement-Exhibit I executed before the NBI,
Sunga initially affirmed having given the answers to questions propounded
therein by the NBI Investigator and having executed the confession for the
purpose of applying to become a state witness in the case.
[36]
He subsequently
retracted his acknowledgement of Exhibit I as his own confession.
[37]
While he
admitted having participated in the preliminary investigation at the MTCC of
Puerto Princesa City, he could not remember having given most of the
statements he made therein.
[38]

The defense presented other witnesses.
Joel Esquela Mayo (Mayo), an employee of Puerto Princesa Citys crime
watchdog Bantay Puerto, declared that in the morning of July 14, 1994 he
and a co-employee Miguel Abrina (Abrina) were at Jacana in Barangay
Bancao-Bancao upon orders from their superior to be on the lookout for the
possible return thereto of the perpetrators behind Jocelyns killing; seeing
Locil uneasy as she alighted from a tricycle, they approached and asked her
how she was related to Jocelyn to which she replied that she was a
friend; then Locil brought the two to the very spot where Jocelyns remains
were found and while there she acted as if she was looking for
something; Locil later commented that it was there that Jocelyn and she had
a fight; and Locil was subsequently apprehended by the police.
[39]

Abrina substantially corroborated Mayos story.
[40]

Another witness, Orlando Lacsamana (Lacsamana), a detainee at the
Puerto Princesa City jail, testified that while he was conversing with Locil, also
a detainee, on August 15, 1994, they saw Lansang being brought
inside. Lacsamana asked Locil if she knew Lansang but she denied having
known Lansang or having been her companion.
[41]

Detention prisoners John Pulga (Pulga) and Jerry Galgarin (Galgarin) as
well as Bureau of Jail Management and Penology (BJMP) personnel Joel
Rabanal (Rabanal) and SPO2 Conrado Guzman Rafael (SPO2
Rafael) testified as to Locils failure to correctly identify Lansang on
separate occasions.
Thus detention prisoner Pulga narrated that on July 21, 1994, he was
made to form part of a police line-up together with three other detainees; and
that when Locil was asked by the police to identify who among them was
Lansang, she pointed to him (Pulga) whom she called Ramil Lansang.
[42]

Corroborating Pulgas testimony was BJMP personnel Rabanal who
brought out Pulga and the three others for the police line-up, he too alleging
that Locil indeed pointed to Pulga as Lansang.
[43]

Detention prisoner Galgarin, who was detained at the 263
rd
Mobile Post
of the Philippine National Police on July 23, 1994, declared that he saw Locil
arrive in a police car after which Lansang and three other detainees were
made to stand in a police line-up; and that when Locil was asked to identify
Lansang, she said he was not there.
[44]

SPO2 Rafael testified that while he was on duty in the aforesaid PNP
Mobile Post on August 23, 1994, Locil hesitated to identify Lansang even after
the police assured her not to be afraid.
[45]

Accused-appellant Pascua disclaimed knowledge of anyone of his co-
accused prior to the June 29, 1994 incident. He denied having anything to do
with the killing or rape of Jocelyn and branded Locils account as a lie. He
claimed that he was staying with his uncle Victor de Felipe at 27 E. Burgos
St., Puerto Princesa City from April to July 14, 1994; that while he was driving
the tricycle with the marking Ryan-Ryan for a living, he returned it to its
owner on June 27, 1994 due to engine trouble and never drove it again; that
at about 8:00 a. m. of June 29, 1994, he, together with his uncle Victor De
Felipe and a carpenter, went to San Pedro also in Puerto Princesa City where
he helped in recovering materials from De Felipes demolished house thereat
for use in the latters other residence at Burgos St.; and that he was at San
Pedro until 4:00 p. m. of the same day.
[46]

Continuing, Pascua declared that on July 14, 1994, he left for his
stepfathers home at Barangay Burirao of the town of Narra where he was, on
July 23, 1994, arrested without a warrant by the police on suspicion that he
might have been involved in the subject crime, he having driven for sometime
the tricycle bearing the marking Ryan-Ryan; that the apprehending
policemen sought his cooperation so he could be utilized as a witness against
Lansang, even offering him a P100,000.00 reward and his exclusion from the
criminal information, but he refused for he knew nothing about the crime; that
inside a small room at the police station in the city, he again refused to obey
SPO4 Pantollanos order for him to say certain things about the crime, thereby
infuriating Pantollano who threatened to implicate him; that while still under
detention on July 24, 1994, he was brought before Locil for identification
purposes but Locil denied knowing him; and that he did not go into hiding
after June 29, 1994 for he took up a farming course at the Palawan National
Agricultural College (PNAC).
[47]

Victor De Felipe corroborated his accused nephews testimony as to his
whereabouts on June 29, 1994 and his returning the tricycle two days before
the incident.
[48]
Felix Mayor, De Felipes carpenter, confirmed Pascuas being
with him and De Felipe the whole day of June 29, 1994 at Barangay San
Pedro to retrieve building materials from De Felipes demolished house in the
said place.
[49]

The testimony of witness Espiridion Labotoy was dispensed with when the
prosecution admitted its corroboration of Pascuas allegation that the latter
returned the tricycle to its owner on June 27, 1994.
[50]

Filomena Pascua-Tesorio also corroborated her nephew Pascuas claim
that Locil did not identify him as one of those who wronged Jocelyn. And she
added that during her visit to Pascua at the police station on July 24, 1994,
she asked Locil if she was acquainted with Pascua and she replied in the
negative, saying it was her first time to see Pascua.
[51]

Cesar Batin (Batin), an instructor at PNAC, attested that Pascua was
enrolled at PNAC Abo-Abo Center in Brookes point on July 18, 1994 but that
he attended classes for only about a week and resumed his studies on August
16, 1994 until October 11, 1994. Batin affirmed the certification he issued as
to Pascuas school attendance.
[52]

Pascuas mother Teodora Espaola testified that she accompanied her
arrested son when he was brought by the police to Puerto Princesa City on
July 23, 1994 and confirmed that the policemen offered Pascua a reward in
exchange for his admitting responsibility for the crime but that she rebuffed
them.
[53]

Lito Octac, also clinging to alibi, alleged that on the day of the incident he
was working at Pambato Forwarder loading cargoes and pieces of baggage,
in support of which he presented an entry (Exhibit 9)
[54]
in his employers
logbook showing that he reported for work from 1:00 to 5:00 p. m. of June 29,
1994.
[55]

Lansang, who operated a pump boat that ferried passengers from
Barangay Caruray, San Vicente, Palawan where his parents reside, to
Barangay Bahile, Puerto Princesa City and vice-versa, declared as follows: At
about 8:30 a. m. of June 29, 1994, he met his sister Gloria Negosa in her
office at the Philippine Ports Authority for the purpose of borrowing from
her P3,000.00 which he would use to buy pieces of plywood and paint for his
boat. His sister, however, directed him to get the money from his mother who
happened to be at her office at the time and who received two PCIB checks
both dated June 29, 1994 payable to cash, one in the amount of two thousand
(P2,000.00) pesos, and another in the amount of Nine Thousand Six Hundred
Sixteen (P9,616.00) pesos from Gloria. Shortly after, he and his mother went
to the PCI Bank where he, instead of his mother who did not have any
identification card and Community Tax Certificate, did the encashing (at 9:53
a. m.) of the checks- (Exhibits 12 and 12-A). The two left the bank and
proceeded to the Palawan Poultry store from which they purchased
fertilizer. Thereafter, they bought plywood and paint at the Unico
Merchandising.
[56]
(An official receipt dated June 6, 1994 of P2,206
representing the purchase price of the goods was marked as Exhibit 11.)
[57]

Continuing, Lansang declared that while his mother left to make her other
purchases, he remained at the Unico Merchandising until 12:00 noon when he
went to the house of his brothers-in-law to pick up her mothers goods. At the
said house, he briefly met a resident thereof named Ariel Bactad and then
took his mothers goods. He loaded all their purchases in a jeep bound for
Barangay Bahile from which point they were to be transported via a pump
boat to his parents home in Barangay Caruray. As his mother no longer
showed up, he was constrained to accompany his cargo aboard the jeep
which departed at 1:00 p. m. and reached Barangay Bahile at 3:00 p. m. of
the same day, June 29, 1994. At Barangay Bahile, he loaded the goods into
his boat with the help of the boat driver, Arnel Tulonghari. He then took lunch
at the carinderia of a certain Jerry (or Jerico) Rufano where he waited in vain
for two hours for his mother to come to Barangay Bahile. At 5:00 p. m. of
June 29, 1994, Rufano drove him to Barangay Salvacion where he got a
jeepney ride on his way home to the city proper, arriving there at about 8:30 p.
m. still of the same day.
[58]

Lansang further declared that he had never been to Barangay Irawan or to
Jacana in Barangay Bancao-Bancao. While he admitted that he, together
with one Joel Egaa, went to the Sampaton Funeral Parlor in the evening of
July 13, 1994 to condole with the Tans, he denied having told Tan that he
(Lansang) knew somebody who could pinpoint those responsible for the
crime. He likewise denied asking Tan to refrain from seeking the assistance of
law enforcers, he having merely informed Tan that Sunga, with whom (he)
Lansang got to be acquainted earlier that same evening, knew
Jocelyn. Finally, Lansang disclaimed having been Jocelyns suitor for he had
a live-in partner named Mary Ann Dineros whom he intended to marry but
could not do so due to his indictment in the case at bar.
[59]

Witnesses Jerry Rufano, Arnel Tulonghari and Ariel
Bactad corroborated pertinent parts of Lansangs testimony as to his
whereabouts and activities on June 29, 1994.
[60]

Joel
Egaa also affirmed having accompanied Lansang to Sampaton Funeral parl
or on the night of July 13, 1994.
[61]

Melisa P. Mateo, on the other hand, testified that as a bank teller of PCI
Bank, she received and processed for encashment the two checks (Exhibit
12)
[62]
from Lansang at almost 10:00 a. m. of June 29, 1994, which checks as
well as Lansangs signatures and hers and other inscriptions thereon she
identified.
[63]

Edgardo Caisip declared that he was the driver of the jeepney which
Lansang rode on together with his cargo for a trip from the city proper to
Barangay Bahile from 1:00 to 3:00 p. m. of June 29, 1994. Caisip added that
he already knew Lansang before that time, the Lansangs having been his
usual passengers.
[64]

Finally, Freddie Gallego, a barangay councilor of Barangay Caruray,
claimed that Lansang was with him in the afternoon of July 12, 1994 on the
occasion of a birthday party in the said barangay.
[65]

By decision of March 7, 1996, the trial court convicted Sunga and Lansang
as principals of the crime of Rape with Homicide and sentenced each to suffer
the penalty of DEATH, and Pascua as principal in the crime of Rape. The
dispositive portion of the decision reads, quoted verbatim:
WHEREFORE, premises considered, the Court finds accused REY SUNGA and
RAMIL LANSANG GUILTY beyond reasonable doubt as principals of the crime
charged and are sentenced to each suffer the penalty of DEATH. Accused
INOCENCIO PASCUA, JR., is also found GUILTY as principal of the crime of Rape
and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA. Accused
RAMIL LANSANG, REY SUNGA and INOCENCIO PASCUA, JR. are jointly and
severally liable to indemnify the heirs of Jocelyn Tan the sum of P150,000.00 as
moral, actual and compensatory damages with all the accessory penalties provided for
the law and to pay the costs.
For failure of the prosecution to prove the guilt of accused LITO OCTAC beyond
reasonable doubt, he is hereby ACQUITTED of the crime charged.
It appearing that Lito Octac is detained and Locil Cui alias Ginalyn Cuyos is still
under the custody of the PNP, Puerto Princesa City their release are hereby ordered
unless held for other lawful cause or causes.
The City Jail Warden of Puerto Princesa City and Chief of Jimmy Carbonell of Puerto
Princesa City, are hereby ordered to transfer immediately the bodies of accused REY
SUNGA and RAMIL LANSANG to the New Bilibid Prison, Muntinlupa, Metro
Manila pending review by the Supreme Court of this decision.
SO ORDERED.
[66]

Hence, the automatic review of the case by this Court pursuant to Article
47 of the Revised Penal Code, as amended.
Sunga, Lansang and Pascua filed their respective appeal briefs.
In the Appellees Brief, the Solicitor General prays for the affirmance of
Sunga and Lansangs conviction and the modification of Pascuas conviction
such that he be also convicted for rape with homicide and sentenced to suffer
the penalty of death.
The issues in the case boil down to:
(1) Whether the discharge by the lower court of Locil Cui as a state witness is in
accordance with law; and
(2) Whether the guilt of appellants has been proven beyond reasonable doubt.
After examining the record of the proceedings prior to the trial courts
questioned issuance of the order discharging Locil to become, as she did, a
state witness, this Court is satisfied that there was nothing irregular
therewith. Her discharge was ordered in the course of what originally were
hearings on the petition of the accused for bail and after the prosecution had
presented several of its witnesses and submitted Locils sworn
statement. Contrary to accuseds counsels argument that a motion for
discharge could only be filed during trial on the merits, it could be done at any
stage of the proceedings, and discharge can be effected from the filing of the
information to the time the defense starts to offer any evidence.
[67]

From the records, it appears that the following conditions for Locils
discharge under Section 9, Rule 119 of the Revised Rules of Court were
satisfied:
1. the discharge must be with the consent of the accused sought to be a state witness;
2. his testimony is absolutely necessary;
3. no other direct evidence is available for the proper prosecution of the offense
committed except his testimony;
4. his testimony can be substantially corroborated in its material points;
5. he does not appear to be the most guilty; and
6. he has not at any time been convicted of any offense involving moral turpitude.
It is undisputed that at the start of the trial, the prosecution did not have
direct evidence, testimonial or otherwise, to establish the culpability of the
accused.
Based on Locils sworn statement, she was the only person who
saw what happened to Jocelyn. Her testimony was thus indispensable. That
she did not appear to be the most guilty among the accused and that she had
not been convicted of an offense involving moral turpitude were shown, as
was the susceptibility of material corroboration of her testimony at the time of
her discharge in view of the other evidence in the hands of the prosecution.
That the trial court ordered Locils discharge a day before the scheduled
hearing on the motion for her discharge is of no moment. The requirement of
a hearing in support of the discharge had been substantially complied with
when the trial court, during the hearings on the bail petition, already received
evidence from the prosecution including Locils sworn statement and also
heard in open court the defenses arguments in opposition thereto. A hearing
did take place but interspersed with the hearings on the bail petition. So long
as the trial court was able to receive evidence for and against the discharge,
its subsequent order granting or denying the motion for discharge is in order
notwithstanding the lack of actual hearing on said motion.
[68]

In fine, even if Locils discharge failed to comply with all the requirements
embodied in Section 9, Rule 119 of the Rules of Court, her testimony would
not, for that sole reason, be discarded or disregarded for, in the discharge of a
co-defendant, the trial court may reasonably be expected to commit error
which is not reversible, the underlying principle being that it does not affect the
competency and quality of testimony of the discharged defendant.
[69]

From the prosecution evidence, the testimony of the erstwhile accused-
turned state witness Locil is the most pivotal, for it is an eyewitness account
of what transpired before and at the time of Jocelyns death. Her testimony is
the only direct evidence identifying appellants and relating in detail their
specific overt acts.
Yet like any other testimony, this Court may not readily accept Locils
statements hook, line and sinker because in the assessment of the testimony
of a co-accused-turned state witness, the same must be received with great
caution and must be carefully scrutinized.
[70]

The rule in this jurisdiction is that the testimony of a self-confessed
accomplice or co-conspirator imputing the blame to or implicating his
co-accused cannot, by itself and without corroboration, be regarded as
proof to a moral certainty that the latter committed or participated in the
commission of the crime. The testimony must be substantially corroborated
in its material points
[71]
by unimpeachable testimony and strong
circumstances and must be to such an extent that its trustworthiness
becomes manifest.
[72]

Was Locils testimony corroborated in its material points by the
prosecutions other evidence? If in the affirmative, was the corroborative
evidence unimpeachable testimony and strong circumstances to such an
extent that Locils trustworthiness becomes manifest?
Appellant Sungas two extrajudicial confessions, which strictly speaking
were admissions for they referred to statements of fact which did not directly
involve an acknowledgement of guilt or of the criminal intent to commit the
offense with which he was charged,
[73]
could have lent corroborative support to
Locils testimony, having likewise given details of how the crime took
place. Contrary, however, to the trial courts ruling, this Court finds Sungas
admissions to be inadmissible in evidence not only against him but also
against his co-accused appellants.
A person under investigation for the commission of an offense is
guaranteed the following rights by the Constitution: (1) the right to remain
silent; (2) the right to have competent and independent counsel of his own
choice, and to be provided with one if he cannot afford the services of
counsel; and (3) the right to be informed of these rights.
[74]

The right to counsel was denied Sunga during his execution of Exhibit A
- admission before the police on the ground that the counsel who assisted
him, Atty. Agustin Rocamora, was the City Legal Officer of Puerto Princesa.
In People v. Bandula,
[75]
this Court made it sufficiently clear that the
independent counsel for the accused in custodial investigations cannot be a
special counsel, public or private prosecutor, counsel of the police, or a
municipal attorney whose interest is admittedly adverse to the accused. A
legal officer of the city, like Atty. Rocamora, provides legal aid and support to
the mayor and the city in carrying out the delivery of basic services to the
people, which includes maintenance of peace and order and, as such, his
office is akin to that of a prosecutor who unquestionably cannot represent the
accused during custodial investigation due to conflict of interest.
[76]
That Sunga
chose him to be his counsel, even if true, did not render his admission
admissible. Being of a very low educational attainment,
[77]
Sunga could not
have possibly known the ramifications of his choice of a city legal officer to be
his counsel. The duty of law enforcers to inform him of his Constitutional
rights during custodial interrogations to their full, proper and precise extent
does not appear to have been discharged.
Notatu dignum is the fact that nothing in the records shows that Atty.
Rocamora exerted efforts to safeguard Sungas rights and interests,
especially that of his right not to be a witness against himself. In fact,
glaringly, Atty. Rocamora was not even made to testify so he could have
related the extent of legal assistance he extended to Sunga at the police
station. This Court is thus constrained to rely on the
following verbatim testimony of SPO2 Janoras which described how Atty.
Rocamora assisted Sunga during the investigation:
ATTY. ENRIQUEZ (Defense Counsel) -
Q: Did not Atty. Rocamora warn you, as the investigator, that simply he is invoking his
clients right to remain silent? Did not Atty. Rocamora first confer with the accused
Rey Sunga prior to the investigation?
A: They conversed.
Q: You said a while ago that immediately upon your arrival you already started the
investigation. And now you are claiming that they had a conversation first. Which
is correct?
A: They conversed for a very short while because everybody was already there. I
was on my typewriter and they were seated just very near me (Emphasis
supplied.)
[78]

x x x
ATTY. CRUZAT (Defense Counsel) -
Q: And you informed Atty. Rocamora that allegedly Mr. Rey Sunga wanted to confess
his alleged participation in the commission of the offense, Mr. Witness?
A: Yes, sir.
Q: And so upon arrival at the police station it did not take Atty. Rocamora a long time
to confer with Rey Sunga before the alleged investigation started, as you said 6:00
oclock in the morning?
A: Yes, sir. It did not take long because they were already ready (Emphasis
supplied.)
[79]

x x x
COURT -
Q: Who propounded the questions to accused Rey Sunga?
A: I was the one, Your Honor.
Q: And who gave the answers?
A: Rey Sunga was the one answering me, Your Honor.
Continue.
PROSECUTOR GONZALES -
Q: And what, if any, did Atty. Agustin Rocamora do, if any, at the time these questions
were being asked Rey Sunga?
A: He instructed Rey Sunga to just answer the questions, sir (Emphasis supplied.)
[80]

x x x
From the foregoing testimony of SPO2 Janoras, it can be gathered that
Atty. Rocamora did not, if at all, fully apprise Sunga of his rights and options
prior to giving his (Sungas) admission. Evidently, Atty. Rocamora, without
more, merely acted to facilitate the taking of the admission from Sunga.
Moreover, that Sunga was first questioned by SPO4
Pantollano and Patrolman Bolos before he was investigated by SPO2
Janoras does not escape the attention of this Court. Although Sunga failed to
present evidence as to the maltreatment he claimed to have suffered in the
hands of SPO4 Pantollano and Patrolman Bolos, he did not have any lawyer
by his side at the time these two policemen started asking him questions
about Jocelyns death. At that point, Sunga was already under custodial
investigation without the assistance of counsel.
Custodial investigation is the stage where the police investigation is no
longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect taken into custody by the police who carry out a
process of interrogation that lends itself to elicit incriminating
statements (Italics in the original; Emphasis supplied.).
[81]
Under such
circumstances, this Court cannot but entertain serious misgivings as to the
admission Sunga subsequently gave to SPO2 Janoras.
Like Exhibit A, Sungas second extrajudicial admission-Exhibit I is
inadmissible, due to the absence of counsel to assist him when he executed it
on August 3, 1994 before the NBI of Puerto Princesa City. Although Sunga
declared in open court that he made such admission in connection with his
desire to apply as state witness which admission he later repudiated, this
does not make Exhibit I admissible. Sunga was at the time still under
detention at the NBI office and had been languishing in jail since his arrest in
mid-July 1994. His desire to regain his freedom is not difficult to understand,
he having lost it once due to his conviction for another crime. His admission
which was done without the benefit of counsel consisted of answers to
questions propounded by the investigating agent of the NBI and not of a
unilateral declaration of his participation in the crime. To this Court, these
conditions are constitutive of an atmosphere pervading that of a custodial
investigation and necessitating the assistance of
a competent and independent counsel of Sungas choice as a matter of
right but which he had none.
Any information or admission given by a person while in custody which
may appear harmless or innocuous at the time without the competent
assistance of an independent counsel must be struck down as
inadmissible.
[82]
Even if the confession contains a grain of truth or even if it had
been voluntarily given, if it was made without the assistance of counsel, it is
inadmissible.
[83]

The waiver by Sunga of his right to counsel as contained in his sworn
statement-Exhibit I was not a valid waiver for, on its face, it was executed
not in the presence of counsel, contrary to the express requirement of the
Constitution.
[84]

Sunga having had no counsel when he made his admission before the
NBI and his waiver of the right to have one being invalid, his statement-
Exhibit I is inadmissible.
The testimony of Sunga during the preliminary investigation before the
Municipal Trial Court whereby he expressly acknowledged
having executed Exhibit A and affirmed the
contents thereof did not render his extrajudicial
admission into a judicial one which could be used against him and his co-
appellants. Neither could his other statements in such proceeding admitting
his participation in the crime be utilized to establish his and the other
appellants guilt. For in that preliminary investigation, Sunga again was
effectively denied of his essential right to counsel. Atty. Rocamora was
appointed Sungas counsel de officio but just like the assistance he extended
during the execution of Exhibit A, Atty. Rocamora utterly did nothing in
defense of Sungas cause. While Sunga was being asked by the judge a
barrage of questions calling for answers which could and did incriminate him,
Atty. Rocamora did not offer the slightest objection to shield his client from the
damning nature thereof.
The right to counsel applies in certain pretrial proceedings that can be
deemed critical stages in the criminal process.
[85]
The preliminary
investigation can be no different from the in-custody interrogations by the
police, for a suspect who takes part in a preliminary investigation will be
subjected to no less than the States processes, oftentimes intimidating and
relentless, of pursuing those who might be liable for criminal prosecution. In
the case at bar, Sunga was thrust into the preliminary investigation and while
he did have a counsel, for the latters lack of vigilance and commitment to
Sungas rights, he was virtually denied his right to counsel.
The right to counsel involves more than just the presence of a
lawyer in the courtroom or the mere propounding of standard questions and
objections; rather it means an efficient and decisive legal assistance and
not a simple perfunctory representation.
[86]
As in People v. Abano
[87]
where the
confession by the therein accused in the preliminary investigation was
excluded as inadmissible due to the absence of her counsel, this Court will not
admit Sungas. This makes it unnecessary to discuss and emphasize the
conflict on material points of Sungas and Locils accounts of the incident.
As for the rest of the prosecution evidence, it fails to corroborate Locils
testimony. The declarations of witnesses Tan, Devilleres and Gabinete can in
no way enhance the veracity of the essential, material aspects of Locils
account for they relate not to the crime itself but to events thereafter.
Tans testimony that Lansang informed him that he knew someone who
could reveal the identity of Jocelyns assailants and that Lansang suggested
to him to no longer report to the police does not at all constitute incriminating
evidence, for there was no admission, express or implied, by Lansang of any
wrongdoing or criminal participation on his part. Besides, why would
Lansang suggest to Tan not to report to the police when the police early on
had its hands full in trying to solve the crime.
Dr. Vigontes affirmation of her finding of a fatal injury on Jocelyns head is
supportive only of the fact that the victim was hit with something on her head
which caused her death, but this by no means is evidence that appellants
inflicted said fatal injury.
As for the circumstances testified to by the other witnesses, they do not,
by and in themselves, rise to the level of circumstantial evidence which
warrant appellants conviction.
In the appreciation of circumstantial evidence, there must be at least two
proven circumstances which in complete sequence lead to no other logical
conclusion than that of the guilt of the accused.
[88]
The circumstances that
Lansang was seen on June 30, 1994, a day after the incident, walking back
and forth and appearing restless near the place where Jocelyns body was
eventually found; that Lansang was in the company of Octac and inquired, the
day after Jocelyns body was discovered on July 12, 1994, if Jocelyn was from
Barangay Caruray; that Lansang told Jocelyns father that he knew someone
who could pinpoint those responsible for the crime; and that Jocelyn was
fatally hit on the head by a blunt object are too fragile to lead to the inference
that Lansang and his co-appellants are liable for Jocelyns rape and
slaying. These circumstances in the scheme of things are not indubitable
pieces of evidence of a persons commission of a crime for they are
susceptible of explanations which do not necessarily speak of guilt or
culpability.
Standing alone and uncorroborated, can Locils testimony serve as a basis
for appellants conviction? As an exception to the general rule on the
requirement of corroboration of the testimony of an accomplice or co-
conspirator-turned state witness, her testimony may, even if uncorroborated,
be sufficient as when it is shown to be sincere in itself because it is given
unhesitatingly and in a straightforward manner and full of details which,
by their nature, could not have been the result of deliberate
afterthought.
[89]
An exhaustive review of the transcript of stenographic notes of
Locils testimony reveals, however, that the manner by which she related it
was punctuated with marks oftentativeness,
uncertainty and indecisiveness which the trial court unfortunately failed to
take note of in its decision on review.
Consider the following portions of her testimony, quoted verbatim:
COURT:
Q Do you know the name of the woman who died?
A Jocelyn Tan
ATTY. GACOTT [Private Prosecutor]:
Maybe we can use the sound system.
ATTY. GACOTT:
Q: Miss Witness, you said that you are fourteen years old. How come that you are 14
years old?
A: (Witness handing a document to counsel.)
(To the Court:)
Your Honor, the witness handed to me a birth certificate.
ATTY. CRUZAT (Defense Counsel): We are requesting for the witness to speak
loud and not merely hand over certain documents.
COURT: Instruct the witness to speak louder. (Emphasis supplied.)
[90]

x x x
ATTY. GACOTT -
Q: Miss Witness, how many times did you attain your Grade I schooling?
A: Three times.
Q: What about your Grade II schooling?
A: Two years.
Q: How about your Grade III schooling?
A: One year.
ATTY. CRUZAT: I am already tired of requesting this Honorable Court to instruct
the witness to speak quite louder. She is just whispering to the interpreter.
COURT: You speak louder (Emphasis supplied.)
[91]

x x x
ATTY. GACOTT -
Q: Now, Miss Witness, where were you last June 29, 1994 at around 2:00 oclock in
the afternoon?
A: In Mendoza.
COURT -
Q: What is that Mendoza?
A: Mendoza Park.
ATTY. GACOTT -
Q: During that date, do you remember any unusual thing that happened to you?
A: Yes, sir.
Q: Could you please relate to this Honorable Court what happened during that date?
A: Yes, sir.
ATTY. CRUZAT: I may be compelled to ask this Honorable Court for a coercive
authority to declare her in contempt for repeatedly disobeying the
instruction of the Court for her to speak louder.
COURT: You speak louder, otherwise you will be cited in contempt of court.
WITNESS: Yes, Your Honor.
[92]

x x x
ATTY. GACOTT -
Q: You mean to say, Miss Witness, that this Tomboy that you are referring to went
upstairs of Mendoza Park, and once there she talked to the woman sitting there?
A: Yes, sir.
Q: Do you know the name of that woman?
A: No, sir.
Q: After getting near to that woman, what did they do after that?
A: They talked, sir.
Q: Then what happened next?
ATTY. CRUZAT: This woman does not speak quite loud, Your Honor.
COURT: You talk louder (Emphasis supplied.)
[93]

x x x
A scrutiny of her testimony likewise reveals a strain of improbability
ingrained therein. To recapitulate, Locil claimed that on June 29, 1994 she
boarded a tricycle bearing a lesbian who invited her for a joyride, proceeded
to the Mendoza Park and picked up Jocelyn, whom she was not acquainted
with, then brought by the same tricycle to Irawan where the latter was raped
and brutally murdered. In other words, she wanted to convey that she was
deliberately brought by appellants with them on June 29, 1994 to the place
where they were to carry out, which they did, their abominable acts against
Jocelyn. This strikes this Court as improbable if not bizarre. For it is contrary
to human nature and experience for those who undertake the commission of a
crime to bring a spectator thereof. A criminal would certainly take steps to
evade detection or discovery of his criminal act, to keep it from being
witnessed or known by others who might later turn against him. Yet, from
Locils testimony, appellants took the trouble of bringing her to the locus
criminis so she could bear witness to a horrible crime which appellants carried
out with evident secrecy in a remote, uninhabited place in Puerto Princesa
City.
That appellants required Locils presence at the time and place of the
crime only to threaten her later against divulging what she had witnessed thus
defies comprehension.
Evidence to be believed should not only proceed from the mouth of a
credible witness but should also be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances.
[94]

This Court is not in fact prepared to accord Locil credibly as a
witness. Who can trust one who, in her early teens, gets pregnant, flees
home and stays in a boarding house albeit she has no visible means of
income to pay therefor, and carries an alias name to evade being traced by
her mother and aunt?
Locils testimony on how appellants put her in a position to have direct
knowledge of their malevolent acts despite taking measures to conceal their
deeds fails to inspire belief and must, therefore, be discredited.
A serious question too abounds on Locils identification of appellant
Pascua as one of those who raped Jocelyn. She described Pascua, the man
who according to her raped the victim after appellants Lansang and Sunga
did, as having, among other things, singkit (chinky) eyes. But as Pascua did
not have singkit eyes, even the trial court was prompted to ask her if she was
sure that the third person who raped Jocelyn had singkit eyes.
[95]
Thus, with the
courts approval, the defense made it of record that Pascua did not have
chinky eyes, contrary to Locils description of him.
[96]

The aforementioned observations pertaining to both the weak,
incomprehensible voice with which Locil gave her testimony, the improbability
with which she was precisely made by appellants to be a witness to their
crime, and the failure of her description of Pascuas eyes to match the latters
actual physical feature cannot but engender serious doubts as to the reliability
of her testimony against all appellants. This Court thus finds her
uncorroborated account to have failed the jurisprudentially established
touchstone for its credibility and sufficiency, that of straightforwardness and
deliberateness, as evidence to warrant appellants conviction.
In light of the weak evidence for the prosecution, the defense of alibi as
well as of denial by appellants is accorded credence, for it is precisely when
the prosecutions case is weak that the defense of alibi assumes importance
and becomes crucial in negating criminal liability.
[97]
It bears noting that the alibi
proffered by appellants, especially that by Lansang, had been corroborated.
In fine, regardless of the probative weight of appellants alibi, the
prosecution still has the onus of proving the guilt beyond reasonable doubt of
the accused and cannot rely on the weakness of the defense evidence. The
prosecution having failed to discharge its burden, appellants presumed
innocence remains and must thus be acquitted.
WHEREFORE, for failure of the prosecution to prove beyond reasonable
doubt the guilt of appellants Rey Sunga, Ramil Lansang and Inocencio
Pascua in Criminal Case No. 11984 the decision therein is hereby SET ASIDE
and REVERSED and said appellants are hereby ACQUITTED of the crime
charged.
The Director of the Bureau of Corrections is ORDERED to cause
the IMMEDIATE RELEASE of the appellants from custody, unless they are
being held for some other lawful cause, and to INFORM this Court within five
(5) days from receipt of this Decision of the date appellants were actually
released from confinement.
Costs de oficio.
SO ORDERED.














EN BANC
[G.R. No. 151286. March 31, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. CATALINO DUEAS,
JR. appellant.
D E C I S I O N
CORONA, J .:
Before us on automatic review is the decision,
[1]
dated October 26, 2001,
of the Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal
Case No. 2220 finding the appellant, Catalino Dueas, Jr., guilty beyond
reasonable doubt of the crime of murder qualified by evident premeditation
and attended by the aggravating circumstance of recidivism. Appellant was
sentenced to death.
On April 1, 1997, Provincial Prosecutor Charlaw W. Ronquillo filed with the
RTC Baler, Aurora an information charging appellant with the crime of murder:
That at about 8:00 oclock in the morning on November 29, 1996 at Gabgab
Buhangin, Baler, Aurora and within the jurisdiction of this Honorable Court the said
accused who was convicted of Murder on October 2, 1990, with intent to kill, evident
premeditation, treachery and use of an unlicensed firearm, did then and there, attack,
assault and use personal violence upon Elva Ramos-Jacob, also known as Elving
Jacob, by shooting her at the head with a .38 caliber revolver that caused her death not
long thereafter.
CONTRARY TO LAW.
[2]

Upon arraignment, appellant entered a plea of not guilty.
[3]

The following facts are uncontroverted.
Appellant was a convicted felon for the crime of homicide
[4]
in Criminal
Case No. 1414 in the Regional Trial Court, Branch 66, Baler, Aurora. He was
serving sentence in the Iwahig Prison Farm, Puerto Princesa City, Palawan,
when he escaped from confinement on July 11, 1995.
On November 29, 1996, at around 8:00 a.m., Cesar Friginal was cutting
grass in his rice field in Sitio Gabgab, Brgy. Buhangin, Baler, Aurora, when he
heard two gunshots. He instinctively turned to the direction where he heard
the shots and, from about a hundred meters away, saw a short man wearing
green clothes running away. At first, he ignored the occurrence but when he
saw people trooping to the vicinity, he joined the crowd and there saw a dead
woman on the ground. The woman was later identified as his cousin and
neighbor, Elva Ka Elving Ramos-Jacob.
[5]

On December 6, 1996, Dr. Nenita S. Hernandez, municipal health officer
of Baler, Aurora, conducted a post mortem examination on the victim. Her
autopsy report showed the following:
I - Head:
1. wound, gunshot, entrance, circular in shape about 1 cm. diameter at the right
parieto-temporal area.
2. wound, gunshot, exit, stollate in shape, edges everted about 1.5 cm. diameter with
an exposed brain matter and fractured bone fragment located at the temporal area,
right side.
3. wound lacerated about 1.5 cm. long at the right parietal area.
II - Arm:
1. wound lacerated 4 cm. long, lateral aspect, right wrist.
CAUSE OF DEATH:
The most probable cause of death was brain damage and hypovelmic shock due to
gunshot wounds of the brain.
[6]

In a manifestation, the Office of the Solicitor General (OSG) narrated what
it viewed as the factual antecedents of the case:
On December 18, 1996, appellant tried to enter the house of one Benny Poblete in
Brgy. Buhangin, Baler, Aurora, without permission. Benny and his father Harold
Poblete tied appellants hands until the police arrived. Police Officer Noel C. Palmero
then apprehended and detained appellant at the Baler Police Station.
The next day, or on December 19, 1996, appellant sought voluntary confinement for
safekeeping because there were threats upon his life brought about by his
involvement in the aforementioned incident of theft against the Pobletes.
Right after his apprehension, appellant intimated to Police Officer Palmero that he has
information regarding the death of Ka Elving. Police Officer Palmero then instructed
appellant to think about it over (sic) first.
Four days after or on December 23, 1996, Police Officer Palmero asked the still
detained appellant if he was ready to divulge the information regarding Ka Elvings
death, to which appellant answered yes. Appellant was then informed of his
constitutional rights, including the right to secure the services of a lawyer of his own
choice. Police Officer Palmero told appellant that if he cannot afford the services of
counsel, he would even be provided with one for free.
By eleven oclock that same morning, Atty. Josefina S. Angara, upon the polices
invitation, arrived at the Baler Police Station to talk to appellant. Atty. Angara spoke
with appellant in private for about thirty (30) minutes. Appellant blamed Benny for
kicking him and causing him to suffer chest pains. Atty. Angara asked appellant what
really happened. Before long, appellant admitted that he was commissioned by Benny
to kill the victim. Atty. Angara warned him of the seriousness of his implications but
appellant was adamant in confessing to the murder of Ka Elving. The lawyer-client
conference was briefly interrupted by lunchtime. By one-thirty in the afternoon,
however, the inquisition resumed. Between the hours of three thirty and four oclock
in the afternoon, appellant completed his Sinumpaang Salaysay where he confessed to
the killing of Ka Elving. The statement of appellant was initially written on pad paper,
thereafter it was typewritten. However, by the time the Sinumpaang Salaysay was
finalized, it was already past office hours such that the attestation before the municipal
mayor was postponed until the following morning.
Afterwards, because of persistent chest pains, appellant was then brought to the
Aurora Memorial Hospital to be medically examined. However, Police Officer
Palmero did not inquire as to the results of the medical examination. The results of the
medical examination were not offered in evidence.
The following morning, December 24, 1996, appellant, who was escorted by the
police, was brought before the then Municipal Mayor of Baler, Aurora, Arturo S.
Angara. Mayor Angara read the signed Sinumpaang Salaysay before administering
the oath. He probed appellant if the signature appearing in the Sinumpaang
Salaysay was his and whether he understood the contents of the said document.
Subsequently, Mayor Angara affixed his signature on appellants Sinumpaang
Salaysay.
In substance, the contested Sinumpaang Salaysay states that Benny Poblete
commissioned one Cesar to kill Ka Elving. Cesar, in turn, contacted appellant for the
hit. For more than a week, appellant and Cesar, together with a certain Manny
Gonzales, stalked the victim. On November 29, 1996, appellant acted as a lookout
while his companions shot the victim.
[7]

On the other hand, appellant testified that, before noon on December 14,
1996,
[8]
he went to the house of one Benny Poblete to see his brother-in-law,
Erwin Bernardo, who was working for the Pobletes. Since his brother-in-law
was not around, Harold, son of Benny Poblete, invited him to a drinking spree.
While they were drinking, police officers Alfredo Miel and Amoranto Aquino
arrived and arrested him. He was brought to the municipal hall where he
wasforced to admit the killing of Elving Jacob. For three consecutive nights,
he was mauled. As a result, his eyes became swollen and his chest ached.
Unable to endure the pain any longer, he owned up to the crime.
[9]

On December 23, 1996, PO3 Noel C. Palmero, in the presence of Atty.
Josefina Angara, took appellants statement. Appellant claimed that neither
investigating officer Palmero nor Atty. Josefina Angara apprised him of his
constitutional rights during the custodial investigation. The following day, he
was brought to Mayor Arturo Angara before whom he swore to his affidavit
containing his confession.
[10]

Dr. Roberto A. Correa of the Aurora Memorial Hospital testified that he
conducted a medical examination of the appellant at around 2:00 p.m. on
December 23, 1996. During the examination, he found a three-inch lacerated
wound on appellants right arm and a biositis tenderness (inflammation of the
muscle) in his right scapular area. He further testified that the lesions were
caused by a sharp instrument. Aside from these lesions, Dr. Correo did not
notice any other injuries on the body of the appellant.
[11]

On rebuttal, Atty. Angara belied the accusation of Dueas. She testified
that at past 10:00 a.m. on December 23, 1996, policemen came to her office
and requested her to assist the appellant who was then under custodial
investigation. She arrived at the police station at past 11:00 a.m. and was
introduced to the appellant. During her private conversation with the appellant,
she apprised him of his constitutional rights and told him that whatever he said
could be used against him. She discouraged him from giving his confession
but appellant was determined to do so. The questioning resumed at about
1:30 p.m. and lasted up to 4:00 p.m. While the investigation was going on,
appellant complained of chest pains so she requested that appellant be
brought to the hospital for medical attention.
PO3 Palmero was also presented as rebuttal witness. He disclaimed
mauling the appellant. He admitted that appellant was indeed complaining of
chest pains but it was allegedly the result of the kick by Harold Poblete. In
contrast with his previous declaration that he fetched Atty. Angara at around
3:30 p.m. to assist appellant during the investigation, PO3 Palmero now
claimed that the interrogation lasted about three hours, that is, from 1:00 p.m.
up to about 4:00 p.m. on December 23, 1996. He also declared that appellant
was given medical attention after the interrogation.
[12]

Relying principally on the extrajudicial confession of the appellant on
December 23, 1996 (which was later repudiated), the trial court rendered its
decision convicting appellant of the crime charged:
WHEREFORE, premises considered, the Court finds accused Catalino Dueas, Jr.
GUILTY BEYOND REASONABLE DOUBT of the crime of Murder qualified by
evident premeditation, and considering the presence of the aggravating circumstance
of recidivism and in the absence of any mitigating circumstance, hereby sentences
him to suffer the extreme penalty of DEATH and further orders him to indemnify the
heirs of the victims in the amount of Fifty Thousand Pesos (P50,000.00) as moral
damages and to pay the costs.
SO ORDERED.
[13]

Hence, this automatic appeal.
According to appellant, the extrajudicial confession which the trial court
relied on heavily for his conviction was infirm because the confession was
secured through force and intimidation, a violation of his constitutional rights.
For the State, the OSG filed a manifestation and motion in lieu of
appellees brief, seeking the reversal of the challenged decision and the
acquittal of Dueas on the ground of involuntariness of his extrajudicial
confession. The OSG underscored the fact that it was forced out of appellant
by means of threats, violence and intimidation, thus violating his rights.
The appeal is meritorious.
In convicting the appellant, the court a quo reasoned as follows:
The extrajudicial confession of accused Dueas, Jr. was freely and voluntarily given
and that his retraction and claims of violence and coercion were merely belated
contrivances and efforts of exculpation.
The statement (Exh. B-Stip.) itself reveals that there was compliance with the
constitutional requirement on pre-interrogation advisories, thus:
PASUBALI: Ikaw Catalino Dueas, Jr., ipinagbibigay alam ko sa iyo, na ikaw ay
inuusig sa isang kasalanan, pinapaalala ko sa iyo na sa ilalim ng ating Saligang
Batas ay karapatan mo ang manahimik at hindi sumagot sa mga tanong ko sa iyo
at magkaroon ng Abogado ng sarili mong pili, ito ba ay nauunawaan mo?
SAGOT: Opo.
TANONG: Alam mo ba at naipaliwanag ng iyong abogado na anumang
salaysay mo sa pagsisiyasat na ito ay maaring gamitin laban sa iyo?
SAGOT: Opo.
The Court finds no merit in the insinuation of the defense that Atty. Josefina Angara
was not Dueas own choice as counsel for the interrogation (TSN, October 4, 2001,
p. 4).
xxx xxx xxx
In the present case, accused even admitted that he trusted Atty. Angara when he
signed his sworn statement in the presence of the said counsel (TSN, November 23,
2000, p. 9).
Absent any showing that the lawyer who assisted the accused was remissed (sic) in
her duties, it can be safely concluded that the custodial investigation of Dueas was
regularly conducted.
As could be observed, the confession is replete with details that could not have been
concocted by the police authorities. According to Dueas, he is one of those who
killed Elva Jacob; that his companions were Manny Gonzales and one Cesar; that
Benny Poblete contacted Cesar who in turn contacted him (accused) for the purpose
of killing Elving Jacob because his (Benny Pobletes) daughter Rhea who died in
September, 1996 might still be alive were it not for the witchcraft of Elving Jacob and
her siblings; that he (accused) was contacted by Cesar in November, 1996 at the
market near the terminal of Baliwag Transit in Cabanatuan City; that he and Cesar
were together when they went to Baler, Aurora and they just fetched Manny Gonzales
at the gasoline station in Maria Aurora, Aurora; that they hatched the plan of
executing Elving Jacob in the middle of November, 1996 at the house of Benny
Poblete; that at that place and time, Cesar was given three thousand pesos
(P3,000.00); that he (accused) did not know Cesar well but could describe the latters
distinctive features; that Cesar and Manny Gonzales were armed with a .38 cal.
revolver; that they conducted a surveillance on Elving Jacob for more than a week to
determine her movement in going to and from the ricefield she is working on at Sitio
Gabgab, Brgy. Buhangin, Baler, Aurora; that on November 29, 1996, at about eight
oclock in the morning, they positioned themselves under a canal, feigning to be
catching fish, until Elving Jacob passed by; that his two companions followed Elving
Jacob, while he remained on top of the canal and acted as a look out; that, not long
thereafter, he heard two gunshots; that they left the scene and reunited at Santiagos
house in Brgy. Suklayin, Baler, Aurora; that on December 18, 1996, at around one
oclock in the afternoon, he was instructed by Cesar to go to the house of Benny
Poblete to collect the balance of five thousand pesos (P5,000.00); and that he was
arrested there by the police. The confession is replete with details that only the
confessant could have known and which, therefore, show that the confession was
executed voluntarily (People vs. Jimenez, 105 SCRA 721).
Also, the confession of the accused is exonerative in nature as it points to other
member of the group as the triggerman. The exculpatory tone of admission of the
crime and the abundance of details negate violence and maltreatment in obtaining a
confession. A guilty person seldom admits his guilt fully and completely. He has a
tendency to explain away his conduct or minimize his fault or crime or shift the blame
to others.
xxx xxx xxx
The defense tried to impress to the Court that the policemen subjected the accused to
cruel and painful punishment to extract his confession, thus:
ATTY. NOVERAS TO THE ACCUSED
Q During the third time they mauled you and told you to admit responsibility for the
death of Elving Jacob, what happened?
A I already admit (sic) because I could not bear the pain anymore, Sir.
xxx xxx xxx
Q What else, if there are any?
A They could (sic) not allow me to sleep. They just throw water on me so I could not
sleep or rest. (TSN, October 4, 2000, pp. 3-4).
But,
Q You said you were forced and intimidated to give the confession in connection
with the death of Mrs. Jacob, did you tell Atty. Angara about the fact?
A I did not.
Q Why?
A HOW COULD I TELL THAT WHEN THE POLICE OFFICERS WERE THERE
SURROUNDING ME? (Emphasis ours) (Ibid, p. 6)
xxx xxx xxx
PROS. RONQUILLO TO THE ACCUSED
Q Did you file any charge to (sic) the policemen who mauled you?
A No, sir.
Q Why?
A BECAUSE I HAVE NO ONE TO TELL ON AND I AM AFRAID FOR THEM, SIR
(sic). (TSN, November 23, 2000, p. 11)
A review of appellants extrajudicial confession discloses certain facts and
circumstances which put his culpability in doubt.
Under Article III, Section 12 of the 1987 Constitution, persons under
custodial investigation have the following rights:
(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel, preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other means which vitiate the
free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
(4) xxx xxx xxx
There are two kinds of involuntary or coerced confessions covered by this
constitutional provision: (1) those resulting from third degree methods like
torture, force, violence, threat and intimidation, and (2) those given without the
benefit of the Miranda warnings.
[14]

Viewed against this backdrop, certain circumstances in this case need to
be carefully reviewed and considered.
On December 18, 1996,
[15]
appellant was arrested for theft on the request
of a certain Benny Poblete. PO3 Palmero admitted that at the time of the
arrest, appellant was not committing any crime. He was detained overnight
without any charges. The following day, PO3 Palmero claimed that appellant
supposedly sought voluntary confinement for his own protection. The police
blotter entry, however, was not offered in evidence. Only a certification of such
entry was presented, which certification was not even signed by appellant.
Under the circumstances, the voluntary confinement tale appears to be an
afterthought to cover up the appellants illegal arrest and detention. No person
in his right mind, already behind bars, will still seek voluntary confinement
when there are no charges against him.
Appellant executed his sworn statement on his alleged involvement in the
killing of Ka Elving on December 23, 1996 or five days after his arrest.
Immediately after accomplishing the affidavit, appellant sought medical
attention, during which Dr. Correa found positive marks of violence on the
latters body, an indication that physical coercion occurred at one point from
the time of his arrest up to the execution of his extrajudicial confession. The
only purpose of the maltreatment could have been to force him to admit guilt
against his will. When confronted on this matter, rebuttal witness PO3
Palmero had nothing but evasive and unresponsive answers:
Q Did you personally bring Dueas to the hospital?
A I could not remember, anymore, Sir. But he was brought to the hospital.
Q Are you sure of that?
A Yes, sir.
Q If you could not remember anymore if you were the one who bring (sic) him to the
hospital, do you know who was the police officer who brought him?
A I do not know the jailer at the time.
Q Were you still in the police station when he was brought back?
A Maybe I was not there.
Q Did you try to inquire what was the result of the examination being conducted
upon Catalino Dueas?
A Not anymore, sir.
Q Why?
A Because I could not remember anymore the person who accompanied him.
[16]

The trial court considered appellants claim of maltreatment as but a lame
excuse. It stated that the failure of the accused to complain to the swearing
officer or to file charges against the person(s) who allegedly maltreated him,
although he had the opportunity to do so, meant that the confession was
voluntary. But appellant adequately explained why he did not tell anybody
about the police brutality he had suffered. He testified:
Q You said you were forced and intimidated to give the confession in connection
with the death of Mrs. Jacob, did you tell Atty. Angara about that fact?
A I did not.
Q Why?
A How could I tell that when the police officers were there surrounding me.
[17]

On cross-examination, appellant made the following declaration:
PROS. RONQUILLO
Q Did you file any charge to (sic) the policemen who mauled you?
A No, sir.
Q Why?
A Because I have no one to tell on and I am afraid for them, sir. (sic)
[18]

Furthermore, the trial court misapplied the rule that a confession is
presumed voluntary where the same contains details and facts unknown to
the investigator which could have been supplied only by the perpetrator of the
crime. In People vs. Abayon,
[19]
we held:
It is a settled rule that where an alleged confession contains details and is replete with
facts which could have possibly been supplied only by the perpetrator of the crime,
and could not have been known to or invented by the investigators, the confession is
considered to have been voluntarily given. This rule, however, was erroneously
applied by the trial court in the case at bar.
The facts and details contained in at least three of the confessions, those of Reynaldo
Abayon, Mariano Aragon and Jose Juarez, were already known to the PC
investigators at the time the statements were allegedly signed by the said accused-
appellants. The three confessions referred to all appear to have been executed after the
body of the deceased Pedro Eslamado had been exhumed by the PC team on July 15,
1971. Abayon's statement is dated July 16, Aragon's statement, July 22, and Juarez'
statement, July 23, 1971. On those dates, the PC would have known details and facts
such as, that Pedro Eslamado was abducted and killed, where his remains were buried,
that he was tied around the mouth by towels, that his hands were tied with shoe
strings, all of which were stated in the confessions.
In this case, the police authorities already knew of the murder
of Ka Elving. As succinctly pointed out by the Office of the Solicitor General:
xxx at the time of the execution of the extrajudicial confession, and even before
appellants arrest, the post mortem examination was already available to the police.
Data regarding the murder weapon, the wounds sustained by the victim, the
whereabouts of the cadaver were properly within the knowledge of the investigating
officers. The latter, then, could have easily filled up the details of the crime in the
extrajudicial confession. It must be emphasized that the presumption of voluntariness
of an extrajudicial confession arises only when the replete details could have been
supplied by no other person but the perpetrator himself [People vs. Base, 105 SCRA
721 (1981)], which is not the case here.
Also worth mentioning is the belated appearance of Atty. Angara,
incidentally not of appellants choice, who assisted him in the execution of his
extrajudicial confession. This fell terribly short of the standards demanded by
the Constitution and Section 2 of RA 7438.
[20]
Appellant was arrested before
noon on December 18, 1996. The extrajudicial confession was taken five days
later, on December 23, 1996. Atty. Angara testified that policemen came to
her office at past 10:00 a.m. on December 23, 1996 requesting her to assist a
suspect under custodial investigation. She arrived at the police station at
around 11:00 a.m. and conferred with the appellant for about 30 minutes. The
interrogation resumed after lunch and lasted till 4:00 p.m.
From the foregoing, it is evident that appellant had already been in
detention for five days before he came to be assisted by a lawyer, just before
he was about to put his confession in writing. We entertain no doubt that the
constitutional requirement was violated. In People vs. Bolanos,
[21]
we held
that:
An accused who is on board the police vehicle on the way to the police station is
already under custodial investigation and should therefore be accorded his rights
under the Constitution.
Custodial investigation refers to the critical pre-trial stage when the
investigation ceases to be a general inquiry into an unsolved crime but has
begun to focus on a particular person as a suspect. According to PO3
Palmero, right after appellants arrest, the latter already insinuated to him that
he would confess his participation in the killing. As he testified on cross-
examination:
Q On December 18, 1996, when you arrested him what did he actually
told (sic) you?
A Before we put him in jail at the Baler Police Station he told us that he has (sic) to
reveal something about the death of Elvira Jacob.
Q So you already know that on December 18, 1996 that whatever Catalino Dueas
will reveal to you will give you lead in solving the investigation in connection with
the death of Elvira Jacob, isnt it?
A Yes, sir.
Q So, you still waited until December 23, 1996 for that revelation, isnt it?
A Yes, sir. Thats all, your honor.
[22]

Well-settled is the doctrine that the purpose of providing counsel to a
person under custodial investigation is to curb the uncivilized practice of
extracting a confession, even through the slightest coercion which might lead
the accused to admit something untrue.
[23]
What is sought to be avoided is the
evil of extorting from the very mouth of the person undergoing interrogation
for the commission of an offense, the very evidence with which to prosecute
and thereafter convict him.
[24]
These constitutional guarantees are meant to
protect a person from the inherently coercive psychological, if not physical,
atmosphere of such investigation.
[25]

Finally, the court notes the material discrepancy between the testimony of
PO3 Palmero and that of Atty. Angara. When PO3 Palmero was first put on
the witness stand, he testified that he fetched Atty. Angara to assist appellant
at about 3:30 p.m. on December 23, 1996. The interrogation lasted more or
less an hour. However, on rebuttal, PO3 Palmero changed his story and
declared that the interrogation of appellant lasted about three hours from
about 1:00 p.m. to 4:00 p.m. The adjustment in the time cited may have been
made to conform to the earlier testimony of rebuttal witness Atty. Angara who
said that the interrogation of appellant lasted from about 1:30 p.m. up to about
4:00 p.m. But how could the interrogation of appellant have taken place within
that time-frame when, according to Dr. Correo and the appellants medical
record, the doctor conducted his medical examination of the appellant at
around 2:00 p.m. on December 23, 1996?
[26]

In view of the foregoing, since the extrajudicial confession of appellant was
given in violation of the safeguards in Article III, Section 12 of the Constitution,
we hold that the appellants extrajudicial confession dated December 23, 1996
was inadmissible as evidence. And with the exclusion thereof, the record is
bereft of any substantial evidence to sustain the judgment of conviction. While
it is true that one Cesar Friginal was presented as a witness by the
prosecution, his testimony did not implicate the appellant in the murder of
Elving Jacob, the witness having said only that he saw a short man in green
clothes running away from the vicinity of the crime.
WHEREFORE, the decision of the Regional Trial Court of Baler, Aurora,
Branch 96, in Criminal Case No. 2220, convicting appellant Catalino Dueas,
Jr., is hereby REVERSED and SET ASIDE. Appellant is ACQUITTED of the
crime of murder and his immediate release is ordered unless there is reason
to return him for confinement at the Iwahig Prison Farm in Puerto Princesa
City or to detain him for some other valid cause. The Director of Prisons is
directed to inform this Court of his compliance within ten days from receipt of
this decision.
No costs.
SO ORDERED.


SECOND DIVISION


PEOPLE OF THE PHILIPPINES, G.R. No. 169431
Appellee, [Formerly G.R. Nos. 149891-
92]
Present:


- versus - QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
JERRY RAPEZA y FRANCISCO, VELASCO, JR., JJ.
Appellant.

Promulgated:

April 3, 2007

x------------------------------------------------------------------------------------x


D E C I S I O N

TINGA, J.:

In the complex but exquisite scheme laid down by the Constitution, the
Bill of Rights occupies a position of primacy, way above the articles on
governmental power.
[1]
Once again, the Court extends fresh vitality to the
rights of a person under custodial investigation, which, beginning with the
1987 Constitution, has been accorded equal but segregate weight as the
traditional right against self-incrimination, to tip the scales of justice in favor of
the presumption of innocence and the lot of an unlettered confessant.

This treats of the appeal from the Decision
[2]
dated 1 July 2005 of the Court
of Appeals affirming the Consolidated Judgment
[3]
dated 24 July 2001 of the
Regional Trial Court (RTC) of Palawan, Puerto Princesa City in Criminal Case Nos.
13064 and 13202 where Jerry Rapeza (appellant) was found guilty of two (2)
counts of murder and sentenced to the penalty of reclusion perpetua for each
count, plus a total of P100,000.00 as indemnity for the heirs of the two (2)
victims.

In two (2) separate Informations, appellant, together with Mike Regino,
was charged with the murder of the Spouses Cesar Ganzon and Priscilla
Libas,
[4]
with the following accusatory allegations:

Criminal Case No. 13064

That on or about the 21
st
day of October, [sic] 1995, more or less
4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of
Culion, Province of Palawan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping each other, with evident
premeditation, treachery and abuse of superior strength, with intent to
kill and while armed with bladed weapons, did then and there wilfully
[sic], unlawfully and feloniously attack, assault and stab with their
bladed weapons, to wit: knives, PRI[S]CILLA LIBAS, hitting her in the
different vital parts of her body and inflicting upon her multiple stab
wounds which causes (sic) hypovolemic shock which were (sic) the
direct and immediate cause of her instantaneous death.
[5]


Criminal Case No. 13202

That on or about the 21
st
day of October, [sic] 1995, more or less
4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of
Culion, Province of Palawan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping each other, with evident
premeditation, treachery and abuse of superior strength, with intent to
kill and while armed with bladed weapons, did then and there wilfully,
[sic] unlawfully and feloniously attack, assault and stab with their
bladed weapons, to wit: knives, CESAR GANZON, hitting him in the
different vital parts of his body and inflicting upon him multiple stab
wounds which causes hypovolemic shock which were the direct and
immediate cause of his instantaneous death.
[6]


As Mike Regino was at large, only appellant was arraigned and he pleaded
not guilty. Forthwith, joint trial ensued which resulted in the judgment of guilt
against appellant as co-principal for two (2) counts of murder, with conspiracy
and evident premeditation attending the commission of the felonies. Both cases
were thereafter elevated to this Court on automatic review, but later referred to
the Court of Appeals per People v. Mateo.
[7]
The Court of Appeals affirmed the
judgment of guilt.
[8]


The prosecution had sought to establish the facts and events recited below.




In the afternoon of 21 October 1995, an unidentified woman went to the
Culion Municipal Station and reported a killing that had taken place in Sitio Cawa-
Cawa, Barangay Osmea, Culion, Palawan.
[9]
The officer-in-charge, SPO2 Ciriaco
Gapas, sent to the victims house which was the scene of the crime an
investigating team led by SPO2 Crisanto Cuizon, Jr. and PO2 Isidro
Macatangay. There they saw two bloodied bodies, that of a woman lying on the
floor of the sala and that of a man inside the bedroom. The investigating team
wrapped the bodies in blankets and loaded them in a banca to be brought to the
morgue.
[10]
The victims were later identified as Priscilla Libas and Cesar Ganzon.

The Autopsy Reports
[11]
show that the common cause of death of both
victims was hypovolemic shock secondary to massive bleeding secondary to
multiple stab wounds and that both bodies were in the early stages of
decomposition. The medico-legal officer testified that Ganzon sustained six (6)
wounds on different parts of his body while Libas bore sixteen (16) wounds.
[12]
All
the wounds of the victims were fatal and possibly caused by a sharp instrument.

Upon information supplied by a certain Mr. Dela Cruz that appellant had
wanted to confess to the crimes, SPO2 Gapas set out to look for appellant.
[13]
He
found appellant fishing in Asinan Island and invited the latter for
questioning. Appellant expressed his willingness to make a confession in the
presence of a lawyer.
[14]
Appellant was then brought to the police station after
which SPO2 Gapas requested Kagawad Arnel Alcantara to provide appellant with
a lawyer. The following day, appellant was brought to the house of Atty. Roberto
Reyes, the only available lawyer in the municipality.
[15]
The typewriter at the
police station was out of order at that time and Atty. Reyes could not go to the
police station as he was suffering from rheumatism.
[16]
At the house of Atty.
Reyes, in the presence of Vice-Mayor Emiliano Marasigan of Culion, two (2)
officials of the Sangguniang Barangay, SPO2 Cuizon and an interpreter, SPO2
Gapas proceeded with the custodial investigation of appellant who was assisted
by Atty. Reyes. Appellant was expressly advised that he was being investigated
for the death of Libas and Ganzon.

Per the Sinumpaang Salaysay
[17]
that appellant executed, he was informed
of his constitutional rights in the following manner:

x x x x
Tanong: Bago kita kunan ng isang salaysay, ikaw ay mayroong
karapatan sa ating Saligang Batas na sumusunod:

a) Na, ikaw ay maaaring hindi sumagot sa tanong na sa
iyong akala ay makaka-apekto sa iyong pagkatao;







b) Na, ikaw ay may karapatang pumili ng isang
manananggol o abogado na iyong sariling pili;

c) Na, kung ikaw ay walang kakayahan kumuha ng isang
ab[u]gado ang Pulisya ang siyang magbibigay sa iyo.

d) Na, ang lahat na iyong sasabihin ay maaaring gawing
ebidensya pabor o laban sa iyo.

Sagot: Opo, sir.

Tanong: Nakahanda ka na bang ipag-patuloy ang pagsisiyasat na
ito, na ang ating gagamiting salita ay salitang Tagalog, na
siyang ginagamit nating [sic]?

Sagot: Opo, sir.

x x x
[18]



Thereupon, when asked about the subsequent events, appellant made the
following narration:

x x x
Tanong: Maari mo bang isalaysay ang pang-yayari [sic]?

Sagot: Opo, [n]oong Sabado ng umaga alas 8:00[,] petsa 21
ng Oktobre, 1995, kami ni Mike ay nagkaroon ng pag-
iinuman sa kanilang bahay sa Cawa-Cawa at sinabi sa akin
[sic] puntahan naming
iyong matanda, dahil may galit dawsi Mike
sa dalawang matanda [Pris]cilla Libas at Cesar Ganzon)
na nakatira din sa Cawa-Cawa at ang layo ay humigit-
kumulang isang daang metro sa aming pinag-
iinuman at kami ay nakaubos ng labing dalawang bote ng
beer, mula umaga hanggang alas kuatro ng hapon at haba
ng kami ay nag-iinom aming pinag-uusapan [sic]
ang pagpatay sa dalawang matanda. Noong sinasabi sa
akin ni Mike, ako umayaw ngunit ako ay pinilit at sinabihan
korin siya (Mike) at pinag-tatapon [sic]
pa niya ang bote ng beer at may sinabi pa si Mike hindi
ka pala marunong tumulong sa akin, pamangkin mo
pa naman ako. At ang sagot ko sa kanya,
ay maghintay ka, mamayang haponnatin[g] puntahan. At
noong humigit-kumulang [sa alas]
[sic] kuatro ng hapon, amin ng pinuntahan ang bahay ng m
ag-asawa, at pagdating namin sa bahay na dala naming
[sic] ang patalim, tuloy-tuloy na kaming umakyat,
athinawakan ni Mike ang babae (Presing) at nilaslas na
ang leeg at sinaksak ng sinaksak niya sa ibat ibang parte
ng katawan at ako ay umakyat din
sa bahay at nakita kong nakataob ang lalaki (Cesar)[,] aking
hinawakan [sic] kosa kanyang balikat,
at siya ay nakaalam [sic] na
mayroong tao sa kanyang likuran,
akin nang sinaksak sa kaliwang tagiliran [sic]
ng kanyang katawan, at hindi ko na alam ang sumunod na
pang-yayari
[sic] dahil ako[]y tuliro. At kami ay umalis at tumalon sa li
kod ng kusina, nang alam na naming [sic] na patay [na]
iyong dalawang matanda.

x x x x
[19]



An interpreter was provided appellant as he was not well versed in Tagalog
being a native of Samar. As he is illiterate, appellant affixed only his thumbmark
on the statement above his printed name. Bonifacio Abad, the interpreter, and
Atty. Reyes, as the assisting counsel, also signed the statement. Atty. Reyes
signed again as the notary public who notarized the statement.

Thereafter, a complaint for multiple murder was filed against appellant,
and Regino was likewise arrested. Judge Jacinto Manalo of the Municipal Trial
Court (MTC) of Culion conducted a preliminary investigation. Finding probable
cause only as against appellant, Regino was ordered released.
[20]
The Provincial
Prosecutor, however, reversed the finding of the MTC by including Regino in the
Informations, but by then the latter had already left Culion.
[21]


Testifying in his defense, appellant presented a different story during the
trial. The defense presented no other witness.

Appellant testified that he did not know the victims and that he had
nothing to do with their deaths. He was a native of Samar and he did not know
how to read or write as he never attended school.
[22]
He arrived in Culion as a
fisherman for the Parabal Fishing Boat.
[23]
As his contract had already expired, he
stayed in Culion to look for work. He lived with Regino as the latter was his only
friend in Cawa-Cawa.
[24]
Reginos house was about 40 meters away from the
victims house.

Several days after appellants arrival, the killings took place. Appellant,
along with Regino and another man named Benny Macabili, was asked by a police
officer to help load the bodies of the victims in a banca. Shortly thereafter,
appellant was arrested and brought to the municipal hall where he was mauled
by PO2 Macatangay and placed in a small cell.
[25]
Regino, too, was arrested with
him. While under detention, appellant told the police that it was Regino who was
responsible for the killing of the victims but the police did not believe
appellant. But appellant later testified that he implicated Regino only in
retaliation upon learning that the latter pointed to him as the
perpetrator.
[26]
Appellant was then asked by SPO2 Gapas to sign a document so
that he will be released. When appellant replied that he did not know how to sign
his name, SPO2 Gapas took appellants thumb, dipped it in ink and marked it on
the document.
[27]
Appellant claimed he did not resist because he was afraid of
being mauled again.

Appellant further denied going to the house of Atty. Reyes or meeting
Abad, the alleged interpreter. He never left the jail from the time he was arrested
except to attend the hearing before the MTC.
[28]
When appellant was brought to
the MTC, nobody talked to him during the hearing nor did counsel assist
him.
[29]
He was thereafter brought by a police officer to a hut in a mountain
where he was told to go a little bit farther. He refused for fear of being shot. The
police officer then got angry and punched him in the stomach.
[30]


On the basis of appellants extrajudicial confession, the RTC found
him guilty of both crimes. The Court of Appeals upheld the trial court.

Appellant submits for our resolution two issues, namely: (1) whether his
guilt was proven beyond reasonable doubt; and (2) whether the qualifying
circumstance of evident premeditation was likewise proven beyond reasonable
doubt.


Appellant mainly contends that the extrajudicial confession upon which the
trial court placed heavy emphasis to find him guilty suffers from constitutional
infirmity as it was extracted in violation of the due process
guidelines. Specifically, he claims that he affixed his thumbmark through violence
and intimidation. He stresses that he was not informed of his rights during the
time of his detention when he was already considered a suspect as the police had
already received information of his alleged involvement in the crimes. Neither did
a competent and independent counsel assist him from the time he was detained
until trial began. Assuming Atty. Reyes was indeed designated as counsel to assist
appellant for purposes of the custodial investigation, said lawyer, however, was
not appellants personal choice.

Appellant likewise maintains that although the Sinumpaang Salaysay states
that his rights were read to him, there was no showing that his rights were
explained to him in a way that an uneducated person like him could
understand. On the assumption that the confession is admissible, appellant
asserts that the qualifying circumstance of evident premeditation was not amply
proven as the trial court merely relied on his alleged confession without
presenting any other proof that the determination to commit the crime was the
result of meditation, calculation, reflection or persistent attempt.

The Solicitor General, on the other hand, contends that the constitutional
guidelines on custodial investigation were observed. Hence,
appellants Sinumpaang Salaysay is admissible. Even if appellant was not
informed of his constitutional rights at the time of his alleged detention, that
would not be relevant, the government counsel argues, since custodial
investigation began only when the investigators started to elicit information from
him which took place at the time he was brought to the house of Atty.
Reyes. Moreover, appellant did not interpose any objection to having Atty. Reyes
as his counsel. As to the qualifying circumstance of evident premeditation, the
Solicitor General submits that the same was sufficiently proven when accused
proceeded to the victims house together with Regino, armed with bladed
weapons, in order to consummate their criminal design. He further argues that
appellants defense of denial and his lame excuse of being illiterate must be
rejected in the face of a valid voluntary extrajudicial confession.

The fundamental issue in this case is whether appellants extrajudicial
confession is admissible in evidence to warrant the verdict of guilt.

There is no direct evidence of appellants guilt except for the alleged
confession and the corpus delicti. Upon careful examination of the alleged
confession and the testimony of the witnesses, we hold that the alleged
confession is inadmissible and must perforce be discarded.

A confession is admissible in evidence if it is satisfactorily shown to have
been obtained within the limits imposed by the 1987 Constitution.
[31]
Sec. 12,
Art. III thereof states in part, to wit:


SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation or any other means
which vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.

x x x x

Republic Act No. 7438,
[32]
approved on 15 May 1992, has reinforced the
constitutional mandate protecting the rights of persons under custodial
investigation. The pertinent provisions read:

SEC. 2. Rights of Persons Arrested, Detained or under Custodial
Investigation; Duties of Public Officers.

a. Any person arrested, detained or under custodial investigation
shall at all times be assisted by counsel.

b. Any public officer or employee, or anyone acting under his
order or his place, who arrests, detains or investigates any person for
the commission of an offense shall inform the latter, in a language
known to and understood by him, of his rights to remain silent and to
have competent and independent counsel, preferably of his own
choice, who shall at all times be allowed to confer private with the
person arrested, detained or under custodial investigation. If such
person cannot afford the services of his own counsel, he must be
provided by with a competent and independent counsel.

x x x x



f. As used in this Act, custodial investigation shall include the
practice of issuing an invitation to a person who is investigated in
connection with an offense he is suspected to have committed, without
prejudice to the liability of the inviting officer for any violation of law.


If the extrajudicial confession satisfies these constitutional standards, it
must further be tested for voluntariness, that is, if it was given freely by the
confessant without any form of coercion or inducement,
[33]
since, to repeat, Sec.
12(2), Art. III of the Constitution explicitly provides:

(2) No torture, force, violence, threat, intimidation or any other means
which vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.

Thus, the Court has consistently held that an extrajudicial confession, to
be admissible, must conform to the following requisites: 1) the confession
must be voluntary; 2) the confession must be made with the assistance of a
competent and independent counsel, preferably of the confessants choice; 3)
the confession must be express; and 4) the confession must be in writing.
[34]


If all the foregoing requisites are met, the confession constitutes
evidence of a high order because it is presumed that no person of normal mind
will knowingly and deliberately confess to a crime unless prompted by truth
and conscience.
[35]
Otherwise, it is disregarded in accordance with the cold
objectivity of the exclusionary rule.
[36]
The latter situation obtains in the
instant case for several reasons.

Appellant was not informed of
his constitutional rights in
custodial investigation.


A person under custodial investigation essentially has the right to remain
silent and to have competent and independent counsel preferably of his own
choice and the Constitution requires that he be informed of such
rights. The raison d' etre for this requirement was amply explained in People v.
Ayson
[37]
where this Court held, to wit:

x x x x

In Miranda, Chief Justice Warren summarized the procedural safeguards laid
down for a person in police custody, "in-custody interrogation" being regarded as the
commencement of an adversary proceeding against the suspect.

He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court
of law, that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those rights must be
afforded to him throughout the interrogation. After such warnings have
been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a
statement. But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence obtained as a
result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a
police-dominated atmosphere, resulting in self-incriminating statement without full
warnings of constitutional rights."

The rights above specified, to repeat, exist only in "custodial interrogations," or
"in-custody interrogation of accused persons." And, as this Court has already stated, by
custodial interrogation is meant "questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in
any significant way." The situation contemplated has also been more precisely described
by this Court.

x x x After a person is arrested and his custodial investigation
begins[,] a confrontation arises which at best may be termed unequal. The
detainee is brought to an army camp or police headquarters and there
questioned and "cross-examined" not only by one but as many
investigators as may be necessary to break down his morale. He finds
himself in strange and unfamiliar surroundings, and every person he
meets he considers hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and means that
experience and study have taught them to extract the truth, or what may
pass for it, out of the detainee. Most detainees are unlettered and are not
aware of their constitutional rights. And even if they were, the
intimidating and coercive presence of the officers of the law in such an
atmosphere overwhelms them into silence. Section 20 of the Bill of Rights
seeks to remedy this imbalance.

x x x x
[38]


We note that appellant did not voluntarily surrender to the police but was
invited by SPO2 Gapas to the police station. There he was detained from 11
oclock in the morning of 22 October 1995 up to the morning of 23 October
1995 before his extrajudicial statement was allegedly taken. At this juncture,
appellant should have been informed of his constitutional rights as he was already
considered a suspect, contrary to the finding of the trial court that the mandatory
constitutional guidelines only attached when the investigators started to
propound questions to appellant on 23 October 1995 in the house of Atty.
Reyes.
[39]
In People v. Dueas, Jr.,
[40]
we ruled, to wit:

Custodial investigation refers to the critical pre-trial stage when
the investigation ceases to be a general inquiry into an unsolved crime
but has begun to focus on a particular person as a suspect. According
to PO3 Palmero, right after appellants arrest, the latter already
insinuated to him that he would confess his participation in the
killing. As he testified on cross-examination:

Q On December 18, 1996, when you arrested him what did
he actually told [sic] you?
A Before we put him in jail at the Baler Police Station he told
us that he has [sic] to reveal something about the death of
Elvira Jacob.

Q So you already know [sic] that on December 18, 1996 that
whatever Catalino Duenas will reveal to you will give you
lead in solving the investigation in connection with the
death of Elvira Jacob, isnt it?
A Yes, sir.

Q So, you still waited until December 23, 1996 for that
revelation, isnt it?
A Yes, sir. Thats all, your honor.
[41]


In the case at bar, SPO2 Gapas testified:

Q By the way, when you conducted the investigation in the house
of Atty. Reyes in Culion, why was Jerry Rapeza there?
A I invited Jerry Rapeza and upon my invitation he voluntarily came
to me.

Q In the first place, why did you invite him?
A To ask [a] question about the crime committed in the Island of
Cawa-Cawa.

x x x

Q That was the only reason why you invited him, being a transient
in that place you made him a suspect?
A In the first place[,] Your Honor, he was not a suspect but 2 days
after the commission of the crime a certain person came to me
and said that Jerry Rapeza requested that he will give his
confession but in front of a lawyer, so he said: Puntahan nating
[sic] ang isang taong nagngangalang Jerry Rapeza.

x x x

Q And based on your experienced [sic], would it not be quite
strange that a person who committed a crime would voluntarily
give confession because ordinarily a criminals [sic] will find a way
to escape?
A Yes, sir. [B]ut at that time the person who assisted me strongly
believed that Jerry Rapeza would confess so I did not make any
tanong-tanong in order to solve that crime so I proceeded to
that place and talked to the suspect.

Q So you already considered Jerry Rapeza as a suspect?
A When that person informed me that Jerry Rapeza would like to
confess.

x x x x [Emphasis ours.]
[42]


Already being held as a suspect as early as 21 October 1995, accused should
have been informed of his constitutional rights. SPO2 Gapas admitted that
appellant was not so informed, thus:

Q What was he doing?
A He was fishing, sir.

Q And you told him that youre going to arrest him?
A He did not refuse to go with me, sir.






x x x x

Q From the Island you brought him to the station?
A Yes, sir.

Q And there you arrived at the station at around 11:00 oclock in
the morning?
A Yes, sir.

Q And then you started to conduct the investigation as
Investigator of the Police Station?
A Yes, sir.

x x x x

Q And what was the[,] result of your investigation?
A According to him he would confess and he would give his
confession in the presence of a lawyer so I talked to Kgd. Arnel
Alcantara.

x x x x
[43]


Q On October 22, 1995[,] when you brought him to the Police
Station, did you start the investigation at that time?
A Not yet sir, I only talked to him.

Q When did you start the investigation?
A I started the investigation when Jerry Rapeza was in front of his
lawyer.

Q When was that?
A October 23, 1995[,] noon time, sir.

Q From the Island you just talked to him?
A Yes, sir.

Q You did not consider that as part of the investigation?
A Yes sir, my purpose at that time was to certain (sic) the suspect of
the said crime.


x x x x

Q Please answer my question[,] Mr. Witness, on October 22,
1995, did you inform him of his constitutional rights?
A No sir, I did not.

x x x x(Emphasis ours.)
[44]



Even supposing that the custodial investigation started only on 23 October
1995, a review of the records reveals that the taking of appellants confession was
flawed nonetheless.

It is stated in the alleged confession that prior to questioning SPO2 Gapas
had informed appellant in Tagalog of his right to remain silent, that any statement
he made could be used in evidence for or against him, that he has a right to counsel
of his own choice, and that if he cannot afford the services of one, the police shall
provide one for him.
[45]
However, there is no showing that appellant had actually
understood his rights. He was not even informed that he may waive such rights
only in writing and in the presence of counsel.

In order to comply with the constitutional mandates, there should likewise
be meaningful communication to and understanding of his rights by the appellant,
as opposed to a routine, peremptory and meaningless recital thereof.
[46]
Since
comprehension is the objective, the degree of explanation required will necessarily
depend on the education, intelligence, and other relevant personal circumstances of
the person undergoing investigation.
[47]


In this case, it was established that at the time of the investigation appellant
was illiterate and was not well versed in Tagalog.
[48]
This fact should engender a
higher degree of scrutiny in determining whether he understood his rights as
allegedly communicated to him, as well as the contents of his alleged confession.

The prosecution underscores the presence of an interpreter in the person of
Abad to buttress its claim that appellant was informed of his rights in the dialect
known to him. However, the presence of an interpreter during the interrogation
was not sufficiently established. Although the confession bears the signature of
Abad, it is uncertain whether he was indeed present to assist appellant in making
the alleged confession.

For one thing, SPO2 Cuizon did not mention Abad as one of the persons
present during the interrogation. He testified:

Q Who were present during that investigation?
A Vice Mayor Marasigan and the two other SB members.

Q Can you identify who are these two SB members?
A SB Mabiran and SB Alcantara.


Q Who else?
A No more, sir.

Q So, there were two SB members, Vice Mayor Atty. Reyes, Gapas and
you?
A Yes, sir.

x x x x
[49]


For another, the prosecution did not present Abad as witness. Abad would
have been in the best position to prove that he indeed made the translation from
Tagalog to Waray for appellant to understand what was going on. This significant
circumstance lends credence to appellants claim that he had never met Abad.

According to the appellate court, appellant admitted in his Brief that the
confession was made in the presence of an interpreter. The passage in appellants
Brief on which the admission imputed to him was based reads, thus:

The extra-judicial confession was allegedly made in Tagalog when
accused-appellant is admittedly not well versed in said language. Even if the
confession was made in the presence of an interpreter, there is no showing that the
rights of a person under investigation were effectively explained and/or
interpreted to accused-appellant. The interpreter was not even presented in Court
to prove that said rights were translated in a language understood by accused-
appellant.
[50]


Clearly, the imputation is erroneous. Throughout his Brief, appellant
disputes the allegation that he ever met the interpreter much less made the
confession with the latters assistance. The evident import of the passage is that on
the assumption that there was an interpreter present still there was no indication
that the rights of a person under investigation were effectively imparted to
appellant, as the interpreter could not translate that which was not even said in the
course of the proceeding.

Moreover, SPO2 Gapas testified on direct examination:

Q As a way of refreshing your mind[,] Mr. Witness, can you take a look at
this statement [referring to appellants Sinumpaang Salaysay] those
appearing on page 1 of the same up to the word Opo sir, kindly take a
look at this, do you remember that you were the one who profounded (sic)
this (sic) questions?
A Yes, sir, I was the one who profounded [sic] that [sic] questions.

Q And you are very definite that the answer is in [the] affirmative, in your
question and answer?
A I am not very sure, sir.

Q You are not very sure because he has a lawyer?
A Yes, sir.

x x x x
[51]


SPO2 Gapas could not say for certain if appellant had indeed understood his
rights precisely because he did not explain them to appellant. In any event, SPO2
Gapas would be incompetent to testify thereon because appellants alleged
confession was made through an interpreter as he did not understand
Tagalog. SPO2 Gapas testimony as regards the contents of appellants confession
would in fact be hearsay. In U.S. v. Chu Chio,
[52]
this Court rendered inadmissible
the extrajudicial confession of the accused therein because it was not made
immediately to the officer who testified, but through an interpreter. Thus, the
officer as witness on the stand did not swear of his own knowledge as to what the
accused had said. Similarly in this case, SPO2 Gapass testimony as to what was
translated to appellant and the latters responses thereto were not of his personal
knowledge. Therefore, without the testimony of Abad, it cannot be said with
certainty that appellant was informed of his rights and that he understood them.

Not having been properly informed of his rights prior to questioning and not
having waived them either, the alleged confession of appellant is inadmissible.

Confession was not made with
the assistance of competent and
independent counsel of appellants
choice.


Appellant denies that he was ever assisted by a lawyer from the moment he
was arrested until before he was arraigned. On the other hand, the prosecution
admits that appellant was provided with counsel only when he was questioned at
the house of Atty. Reyes to which appellant was allegedly taken from the police
station.

SPO2 Gapas testified that he talked to appellant when they got to the
police station at 11 oclock in the morning of 22 October 1995 and the result of
their talk was that appellant would give his confession in the presence of a
lawyer. Appellant was then held in the police station overnight before he was
allegedly taken to the house of Atty. Reyes.

The constitutional requirement obviously had not been observed. Settled is
the rule that the moment a police officer tries to elicit admissions or confessions or
even plain information from a suspect, the latter should, at that juncture, be
assisted by counsel, unless he waives this right in writing and in the presence of
counsel.
[53]
Appellant did not make any such waiver.

Assuming that Atty. Reyes did assist appellant, still there would be grave
doubts as to his competence and independence as appellants counsel for purposes
of the custodial investigation. The meaning of competent counsel and the
standards therefor were explained in People v. Deniega
[54]
as follows:


The lawyer called to be present during such investigations should be as far
as reasonably possible, the choice of the individual undergoing questioning. If the
lawyer were one furnished in the accuseds behalf, it is important that he should
be competent and independent, i.e., that he is willing to fully safeguard the
constitutional rights of the accused, as distinguished from one who would be
merely be giving a routine, peremptory and meaningless recital of the
individuals constitutional rights. In People v. Basay, this Court stressed that an
accuseds right to be informed of the right to remain silent and to counsel
contemplates the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle.

Ideally therefore, a lawyer engaged for an individual facing custodial
investigation (if the latter could not afford one) should be engaged by the
accused (himself), or by the latters relative or person authorized by him to
engage an attorney or by the court, upon proper petition of the accused or person
authorized by the accused to file such petition. Lawyers engaged by the police,
whatever testimonials are given as proof of their probity and supposed
independence, are generally suspect, as in many areas, the relationship
between lawyers and law enforcement authorities can be symbiotic.

x x x The competent or independent lawyer so engaged should be present
from the beginning to end, i.e., at all stages of the interview, counseling or
advising caution reasonably at every turn of the investigation, and stopping
the interrogation once in a while either to give advice to the accused that he
may either continue, choose to remain silent or terminate the interview.

x x x x (Emphasis supplied)
[55]



The standards of competent counsel were not met in this case given the
deficiencies of the evidence for the prosecution. Although Atty. Reyes signed the
confession as appellants counsel and he himself notarized the statement, there is
no evidence on how he assisted appellant. The confession itself and the
testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty. Reyes
had explained to appellant his constitutional rights. Atty. Reyes was not even
presented in court to testify thereon whether on direct examination or on
rebuttal. It appears that his participation in the proceeding was confined to the
notarization of appellants confession. Such participation is not the kind of legal
assistance that should be accorded to appellant in legal contemplation.

Furthermore, Atty. Reyes was not appellants counsel of choice but was
picked out by the police officers allegedly through the barangay officials.
Appellants failure to interpose any objection to having Atty. Reyes as his counsel
cannot be taken as consent under the prevailing circumstances. As discussed
earlier, appellant was not properly informed of his rights, including the right to a
counsel preferably of his own choice. SPO2 Gapas testified thus:




x x x x

Q Now Mr. Witness, you will agree with me that the accused[,]
when he allegedly gave his voluntary confession[,] he [sic] did not
read the document when he made his thumbmark?
A He did not because according to him he is illiterate.

Q Illiterate because he only placed his thumbmark and you have
all the freedom to manipulate him and in fact he doesnt know
that he is entitled to have a lawyer of his own choice?
A He doesnt know.

x x x x
[56]


Strikingly, while it was made to appear in the alleged confession that
appellant was informed of his right to a counsel of his own choice and that if he
cannot afford the services of one, the police shall provide him with one,
it was overlooked that it was not similarly made to appear in the same statement
that appellant was advised that he had the option to reject the counsel provided for
him by the police authorities.
[57]


Set against the clear provisions of the Constitution and the elucidations
thereof in jurisprudence, the foregoing lapses on the part of the police authorities
preclude the admissibility of appellants alleged confession.



Confession is not voluntary.

It is settled that a confession is presumed voluntary until the contrary is
proved and the confessant bears the burden of proving the contrary.
[58]
The
trial court found that appellants bare denials failed to overcome this
presumption. However, several factors constrain us to hold that the
confession was not given under conditions that conduce to its admissibility.

First, the confession contains facts and details which appear to have been
supplied by the investigators themselves.

The voluntariness of a confession may be inferred from its language such
that if, upon its face, the confession exhibits no suspicious circumstances tending
to cast doubt upon its integrity, it being replete with detailswhich could only be
supplied by the accusedreflecting spontaneity and coherence, it may be
considered voluntary.
[59]
The trial court applied this rule but without basis. On
closer examination of the evidence, the key details in the alleged confession were
provided not by appellant but by the police officers themselves.

The prosecution failed to establish the actual date of the killings. This is
disturbing, to say the least.



The trial court found that the killings were reported to the police at four
oclock in the afternoon of 21 October 1995. That when the investigating team
arrived at the scene of the crime, the bodies of the victims were already rank
and decomposing,
[60]
and that two days after the crimes were committed,
SPO2 Gapas had set out to look for appellant following information from a
certain Mr. Dela Cruz that appellant would like to confess to the crimes.

Indeed, SPO2 Gapas testified that he received a report of the killings
on 21 October 1995 and sent a team to investigate the incident. On direct
examination, he declared that two days after the commission of the crime, he
received information that appellant would give his confession in front of a
lawyer.
[61]
However, on cross-examination, he stated that it was on the
following day or on 22 October 1995 when he found appellant and invited him
to the police station and that appellants custodial investigation had taken
place on 23 October 1995.

Likewise, SPO2 Cuizons testimony is far from enlightening. He testified,
thus:

x x x x

Q Now, on October 24, 1995, where were you?
A I was in Culion Police Station.


Q While you were there in the Police Station, what happened?
A A woman reported to us regarding this incident.
[62]


x x x x

Q When was the investigation conducted?
A October 24, 1995.

Q On the same day that you discover [sic] the cadavers?
A The investigation was conducted on October 25, 1995.

x x x x
[63]



The actual date of the commission of the crimes is material in assessing
the credibility of the prosecution witnesses and of the admissibility of the
alleged confession.

While the prosecution insists through the recitals of the Informations
and the testimony of its witnesses that the killings took place on 21 October
1995, the totality of its evidence shows otherwise, i.e. the killings took place
earlier. When the bodies were discovered on 21 October 1995, they were
already decomposing, a factor that indicates that the victims had been dead
long before then. How then could appellant have killed the victims at 4
oclock in the afternoon of 21 October 1995 as expressly stated in the
confession, when that was the same date and time when the bodies were
discovered? Had appellant voluntarily confessed and had he really been the
killer, he would have given the correct date and time when he committed the
horrid acts. The only sensible way to sort out the puzzle is to conclude that
the police officers themselves supplied 21 October 1995 and four oclock in the
afternoon as the date and time of the killings in appellants statement, a
barefaced lie on which the prosecution based its allegations in the
Informations and which SPO2 Gapas repeated on the witness stand.

Moreover, the police officers went to the house of the victims on 21
October 1995 where they found the bodies. The autopsy on the victimss bodies
was done the following day or on 22 October 1995 while appellants statement
was allegedly taken on 23 October 1995. By then, the investigators knew how
and where the victims were killed, circumstances that could have enabled them
to fill up the details of the crime in the extrajudicial confession.
[64]


Curiously, the autopsy report on Ganzons body shows that he sustained
six (6) stab wounds, four (4) on the right side of his body and two (2) on the
left side. Yet, it is stated in appellants extrajudicial confession that he stabbed
Ganzon on his left side. Quite oddly, SPO2 Cuizon testified that Ganzon was
wounded on the left arm only. His full account on this aspect runs, thus:

Q Where did you go?
A I immediately proceeded to the house of the victim.

Q What did you find out when you went to the house of the victim?
A I have seen blood on the ground floor of the house.

x x x x

Q When you opened the house[,] you are [sic] with Macatangay?
A Yes, sir[.] I was with POII Macatangay but he was a little bit far
from the victim and I was the one who opened the door and
went upstairs.

Q What did you find out inside the house?
A I have seen a woman lying down with her hands nakadipa on
the ground and blooded (sic).

x x x x

Q Where else did you go when you were already inside the house?
A I went to the other bedroom.

Q And what did you find out?
A An old man with his face facing downward.

Q The woman already dead was in the sala?
A Yes, sir.

x x x x
[65]


Q Do you know in what bedroom (sic) of her body she was
wounded?
A The neck was slashed and both arms and both foot (sic) were
wounded.

Q How about the man?
A Left arm, sir.

Q Where else?
A No more, sir.

x x x x
[66]
(Emphasis ours.)






The prosecutions evidence likewise fails to establish when the custodial
investigation had taken place and for how long appellant had been in
detention. Strangely, the confession is undated and it cannot be ascertained
from it when appellant made the confession or affixed his thumbmark
thereon. What emerges only is the bare fact that it was notarized by Atty.
Reyes on 23 October 1995. One can only speculate as to the reason behind
what seems to be a lack of forthrightness on the part of the police officers.

These unexplained inconsistencies cast doubt on the integrity and
voluntariness of appellants alleged confession.

Second, again appellant was not assisted by counsel.

To reiterate, the purpose of providing counsel to a person under custodial
investigation is to curb the police-state practice of extracting a confession that
leads appellant to make self-incriminating statements.
[67]
And in the event the
accused desires to give a confession, it is the duty of his counsel to ensure that
the accused understands the legal import of his act and that it is a product of his
own free choice.

It bears repeating that appellant was held in the police station overnight
before he was allegedly taken to the house of Atty. Reyes. He was not
informed of his rights and there is no evidence that he was assisted by
counsel. Thus, the possibility of appellant having been subjected to trickery
and intimidation at the hands of the police authorities, as he claims, cannot be
entirely discounted.

Confession was not sufficiently
corroborated.


Courts are slow to accept extrajudicial confessions when they are
subsequently disputed unless they are corroborated.
[68]
There must be such
corroboration so that when considered in connection with the confession, it
will show the guilt of accused beyond a reasonable doubt.
[69]


As a general rule, a confession must be corroborated by those to whom
the witness who testified thereto refers as having been present at the time the
confession was made
[70]
or by any other evidence.
[71]


The inconsistencies in the testimonies of the police officers as well as any
lingering doubt as to the credibility of appellants statement could have been laid to
rest by the testimonies of Atty. Reyes, of Abad, and of those allegedly present
during the custodial investigation. However, they were not presented in court.


Abads testimony was likewise crucial in proving that appellant had
understood every part of his alleged confession. Confessions made in a language
or dialect not known to the confessant must also be corroborated by independent
evidence.
[72]
As appellant is unschooled and was not familiar with the Tagalog
dialect, his confession which was in Tagalog necessarily had to be read and
translated to Waray allegedly by Abad. This Court has held that such a multiple
process of reading and translating the questions and translating and typing the
answers and reading and translating again the said answers is naturally pregnant
with possibilities of human, if unintentional, inadequacies and incompleteness
which render the said confession unsafe as basis of conviction for a capital offense,
unless sufficiently corroborated.
[73]
A confession may be admissible if it is shown
to have been read and translated to the accused by the person taking down the
statement and that the accused fully understood every part of it.
[74]
To repeat, we
cannot accept SPO2 Gapas testimony as regards the contents of appellants
alleged confession for being hearsay evidence thereon. Since appellant allegedly
made the confession to SPO2 Gapas through Abad, Abads testimony is thus
indispensable in order to make the confession admissible.


Consequently, the non-production of these material witnesses raises a doubt
which must be resolved in favor of appellant
[75]
and the confession should be
disregarded as evidence.
[76]
Verily, we are left with the unconvincing testimony of
two police officers against whose abuse of authority the Constitution protects the
appellant. As their respective testimonies are sated with inconsistencies and
hearsay evidence, we find the same insufficient bases to hold appellants
extrajudicial confession admissible against him.

The only other prosecution evidence under consideration are the autopsy
reports with which the alleged confession supposedly dovetails, as the trial court
concluded. However, a perusal of the alleged confession would reveal that does
not fit the details in the autopsy report. As discussed earlier, Ganzon was found
to have sustained six (6) stab wounds on different parts of his body while
appellant allegedly admitted stabbing him on his left side only. The confession
does not even state how many times appellant stabbed the old
man. SPO2 Cuizon testified that he saw only one stab wound on Ganzons body
and it was on the latters left arm. Thus, it is not with the autopsy reports that the
alleged confession dovetails but rather with what the police authorities would like
us to believe as the truth.


Nevertheless, since the confession is inadmissible, it becomes irrelevant
whether it dovetails with the autopsy reports. The corroboration that medico-
legal findings lend to an extrajudicial confession becomes relevant only when the
latter is considered admissible. In People v. De la Cruz,
[77]
we held, to wit:

It is significant that, with the exception of appellants putative
extrajudicial confession, no other evidence of his alleged guilt has been presented
by the People. The proposition that the medical findings jibe with the narration of
appellant as to how he allegedly committed the crimes falls into the fatal error of
figuratively putting the horse before the cart. Precisely, the validity and
admissibility of the supposed extrajudicial confession are in question and the
contents thereof are denied and of serious dubiety, hence the same cannot be used
as the basis for such a finding. Otherwise, it would assume that which has still to
be proved, a situation of petitio principii or circulo en probando.
[78]


No motive could be ascribed
to appellant.

For the purpose of meeting the requirement of proof beyond reasonable
doubt, motive is essential for conviction when there is doubt as to the identity of
the perpetrator.
[79]
In view of the inadmissibility of the confession, there is no
other evidence that directly points to appellant as the culprit. However, the
prosecution failed to show any motive on appellants part to commit the
felonies. Appellant consistently denied having known the victims. Although the
confession states that Regino allegedly sought appellants help in killing the
victims as Regino was his nephew, the fact of their relationship was denied by
appellant and was never established by the prosecution. In People v.
Aguilar,
[80]
we held that the absence of apparent motive to commit the offense
charged would, upon principles of logic, create a presumption of the innocence of
the accused, since, in terms of logic, an action without a motive would be an
effect without a cause.
[81]


Furthermore, appellants conduct after the killings was not that of a guilty
person. He never attempted to flee even if he knew that the police authorities
were already investigating the incident as he was summoned to help load the
bodies in a banca. Being a transient in the place, he could have easily
disappeared and left the island but he remained there to continue looking for
work.

Taken together, these circumstances generate serious doubts that must be
resolved in appellants favor, congruently with the constitutional presumption of
innocence.

In view of the inadmissibility of appellants confession, which is the sole
evidence of the prosecution against him, the resolution of the issue of whether
the qualifying circumstance of evident premeditation had attended the
commission of the crimes has become academic. Indeed, there exists no other
prosecution evidence on which appellants guilt beyond reasonable doubt may be
based.

In conclusion, the overriding consideration in criminal cases is not whether
appellant is completely innocent, but rather whether the quantum of evidence
necessary to prove his guilt was sufficiently met. With the exclusion of
appellants alleged confession, we are left with no other recourse but to acquit
him of the offenses charged for the constitutional right to be presumed innocent
until proven guilty can be overcome only by proof beyond reasonable doubt. In
fact, unless the prosecution discharges the burden of proving the guilt of the
accused beyond reasonable doubt, the latter need not even offer evidence in his
behalf.
[82]


WHEREFORE, the Decisions of the Regional Trial Court, Branch 52,
Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 and the
Court of Appeals in CA-G.R. CR-H.C. No. 00642 are REVERSED and SET
ASIDE. Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for
insufficiency of evidence leading to reasonable doubt. The Director of the Bureau
of Prisons is ordered to cause the immediate release of appellant from confinement,
unless he is being held for some other lawful cause, and to report to this Court
compliance herewith within five (5) days from receipt hereof.

SO ORDERED.





















FIRST DIVISION


LOLITA Y. EUGENIO, G.R. No. 168163
Petitioner,
Present:

PUNO, C.J., Chairperson,
- versus - CARPIO,
AZCUNA,
TINGA,
*
and
LEONARDO-DE CASTRO, JJ.


PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. March 26, 2008
x --------------------------------------------------------------------------------------- x


D E C I S I O N

CARPIO, J.:


The Case

This is a petition for review
[1]
of the Decision
[2]
dated 30 November 2004
and the Resolution dated 11 May 2005 of the Court of Appeals, affirming the
conviction of petitioner Lolita Y. Eugenio (petitioner) for Estafa thru Falsification
of Public Documents and denying reconsideration, respectively.


The Facts


The prosecution evidence showed that on 14 November 1995, petitioner
went to the house of private complainant Alfredo Mangali (Mangali) in Tonsuya,
Malabon, Metro Manila and introduced Mangali to Epifania Saquitan (Saquitan),
Amalia Ablaza (Ablaza), and another individual.
[3]
Petitioner persuaded Mangali
to loan P100,000 to Saquitan with a parcel of land in Sta. Ana, Metro Manila (Sta.
Ana lot) as security for the loan. Petitioner assured Mangali that the Sta. Ana lot
was covered by Transfer Certificate of Title (TCT) No. 171602 issued in Saquitans
name. Mangali asked petitioner to confirm with the Register of Deeds of Manila
the validity of TCT No. 171602. In the afternoon of that same day, petitioner
informed Mangali that she saw the original of TCT No. 171602 on file with
the Register of Deeds of Manila. With this assurance, Mangali agreed to extend
the loan subject to Saquitans execution of a deed of sale of the Sta. Ana lot in
his favor. Saquitan agreed and after the deed of sale was signed, Mangali
released the loan in two tranches to Saquitan which the latter promised to pay on
21 December 1995.

Subsequently, petitioner, on behalf of one Lourdes Ty (Ty), sought
another P100,000 loan from Mangali, payable in January 1996 with a parcel of
land in Quezon City (Quezon City lot) as security. Petitioner represented that the
property was covered by TCT No. 92585 issued in Tys name. Mangali agreed to
extend the loan, again subject to the condition that Ty execute a deed of sale
over the Quezon City lot in his favor. After Ty complied, Mangali released the
partial amount of P75,000.

When the loans lapsed and remained unpaid, Mangali inquired from the
Register of Deeds of Manila and Quezon City on the status of TCT No. 171602
and TCT No. 92585, respectively. Mangali discovered that TCT No. 171602 had
been cancelled on 5 October 1995 while TCT No. 92585 is not registered with
the Register of Deeds of Quezon City. Mangali filed a complaint with the National
Bureau of Investigation (NBI) which arranged an entrapment operation on 26
February 1996 in Mangalis house. Mangali expected to see petitioner that day as
petitioner had asked for an additional P33,000 loan. At the appointed time,
petitioner, Ablaza, and two other unidentified individuals arrived in Mangalis
house. The NBI agents effected the arrest while petitioner was counting the
money. The NBI agents brought petitioner and the other individuals arrested with
her to the NBI office where petitioner gave a statement.

Upon investigation by the NBI, it was discovered that the Epifania
Saquitan who owned the Sta. Ana lot was a 79-year old woman who denied
mortgaging the Sta. Ana lot or knowing petitioner and her co-accused. This
Epifania Saquitan executed an affidavit attesting to these facts.

Petitioner, Ablaza, and two other individuals identified only as Jane Does
were charged with Estafa thru Falsification of Public Documents. The
Information
[4]
against them was filed with the Regional Trial Court of Malabon and
raffled to Branch 73 (trial court).
[5]
Petitioner and Ablaza pleaded not guilty to
the charges and, upon their application, were admitted to bail. Ablaza soon went
into hiding.

On the part of the defense, petitioner denied taking part in any conspiracy
to swindle Mangali. Petitioner claimed that since 1993, Mangali had sought her
services to run errands for him in the titling of lots and follow-up of a Social
Security System claim. Afterwards, Mangali recruited her as his commissioned
agent in Mangalis check re-discounting and lending businesses. Thus, even before
14 November 1995, petitioner had brokered check rediscounting and loan deals
with Mangali.

On Saquitans loan, petitioner claimed that she brokered this deal with
Mangali through Ablaza, an acquaintance. Ablaza informed her that Saquitan
wanted to borrow from Mangali with the Sta. Ana lot as security. Anticipating a
commission from Mangali, petitioner brought Ablaza, Saquitan, and two other
individuals to Mangali. Mangali and Saquitan agreed on the terms of the loan,
that is, the loaned amount will be released in two tranches of P60,000
and P40,000, with the interest deducted from the amount first released and
Saquitan will execute a deed of sale over the Sta. Ana lot in Mangalis
favor. Mangali then instructed petitioner to confirm with the Register of Deeds of
Manila if the photocopy of TCT No. 171602 Saquitan brought with her was
genuine. On the same day, petitioner obtained from the Register of Deeds of
Manila a certified true copy of TCT No. 171602 and gave it to Mangali. Thus,
Mangali released to Saquitan P48,000 (P60,000 less interest). Saquitan
acknowledged receipt of the amount and signed the deed of sale over the Sta.
Ana lot, which petitioner prepared on Mangalis instruction. Two weeks later,
Mangali released to Saquitan the second tranch of the loan which Saquitan
promised to pay on 21 December 1995.

On Tys loan, petitioner testified that it was also Ablaza who sought her
help, claiming that Ty, whom petitioner did not know, was offering as security her
property in Quezon City, covered by TCT No. 92585 issued in her name. Again
anticipating a commission from Mangali, petitioner brought Ablaza and Ty to
Mangali. Ty had with her what she alleged to be her owners duplicate copy of
TCT No. 92585. Mangali wanted to inspect the property covered by TCT No. 92585
so the group (Mangali, petitioner, Ablaza, and Ty) proceeded to Filinvest
Subdivision in Quezon City. Satisfied with what he saw, Mangali agreed to
loan P75,000 to Ty but not after requiring her to sign a deed of sale over the
property in Mangalis favor which petitioner again prepared on Mangalis
instruction. Ty complied and received the amount for the loan.

In February 1996, Mangali informed petitioner that TCT No. 171602 and
TCT No. 92585 were spurious and demanded to see Ablaza. Petitioner brought
Ablaza to Mangali and the two discussed the validity of the titles. Ablaza insisted
that the titles were genuine. In the course of their meeting, Ablaza disclosed that
she has a property in Baguio City. Mangali offered to buy a portion of the
property. Ablaza was amenable to the deal provided that Mangali take care of the
expenses for the subdivision of the property which Ablaza placed at P35,000.
Mangali gave Ablaza an initial amount for the subdivision and asked Ablaza to
come back on 26 February 1996 for the balance. On the appointed day, petitioner
and Ablaza returned to Mangalis house. Before giving the amount to Ablaza,
Mangali asked petitioner to count it. It was while petitioner was in the act of
counting the money that the NBI agents arrested petitioner, Ablaza, and their
other companions.


The Ruling of the Trial Court

In its Decision dated 7 September 2001, the trial court (1) found petitioner
guilty with one count of Estafa thru Falsifcation of Public Documents and
sentenced her to 10 years and one day of prision mayor as minimum to 20 years
of reclusion temporal as maximum and (2) ordered petitioner to pay
Mangali P175,005 as actual damages.
[6]
The trial court held:

Against the clear and convincing evidence that thru
misrepresentations of Eugenio, among others, Mangali extended two
loans, one for Saquitan and the other for Ty, with a cancelled title and a
non-existent one being offered as collaterals, Eugenios denial of any
knowledge concerning the irregularity of the transactions of which she
played a principal role and her further claim that in this case she was
merely the victim of circumstances, cannot prevail.

Add to the foregoing the fact that an entrapment was effected
which resulted in the arrest of Eugenio and Ablaza after they demanded
for another additional loan, probably with the alleged Ty property as
collateral, too, and the inevitable conclusion would be that Eugenio is
liable as a co-conspirator of the others who are charged with her in this
case.

Two spurious titles were made to appear to be genuine and valid
ones although the same were no longer valid with respect to one and
non-existent and spurious with respect to the other, and with both
titles having no legal basis to exist at all and thus, can be presumed
falsified with the possessor thereof being further presumed as the
author of the falsification x x x x and it would also be concluded that
falsification of public document was resorted to in order to defraud
Mangali of the amounts she [sic] gave to the accused and her co-
conspirators.

There was fraud resulting in swindling or estafa because
misrepresentations with intent to defraud and to cause damage
characterized the actuations of all the accused in this case, including the
two designated only as Jane Does.

In this case, Eugenio was in conspiracy with the others because
of the misrepresentations made by her to the effect that Saquitans title
was really registered and therefore genuine and because of other acts
she did in connection with the negotiations with Mangali where she
actively participated at every stage of the transactions and played an
important and active role.

In fine, the Court is of the view and so holds that the offense
charged in this case has been sufficiently established and that accused
Eugenio is guilty as charged.
[7]



Petitioner appealed to the Court of Appeals.



The Ruling of the Court of Appeals


In its Decision of 30 November 2004, the Court of Appeals affirmed the trial
courts ruling. In sustaining the trial courts finding on petitioners vital role in the
scheme to defraud Mangali, the Court of Appeals held:

[W]e are convinced that the accused-appellant defrauded the
private complainant through her fraudulent misrepresentation. The
records of the instant case show that the accused-appellant knew that
her co-accused are not the real owners of the property mortgaged to
the private complainant. However, knowing that she has gained the
trust of the private complainant, she misrepresented to the latter that
the persons she introduced to him are the real Epifania Saquitan and
Lourdes Ty, the true owners of the mortgaged properties. Were it not
for the misrepresentation of the accused-appellant, the private
complainant would not have agreed to the mortgage and eventually
part with his one hundred seventy five thousand pesos (P175,000.00),
to his damage and prejudice.

We agree with the findings and conclusions of the trial court that
the accused-appellants fraudulent misrepresentation facilitated the
commission of the crime.
[8]




Petitioner sought reconsideration which the Court of Appeals denied in the
Resolution dated 11 May 2005.

Hence, this petition. Petitioner frames the issues as follows:


A. WHETHER x x x THE COURT OF APPEALS ERRED IN FINDING
THAT PETITIONER EMPLOYED DECEIT IN LEADING PRIVATE
COMPLAINANT ALFREDO MANGALI TO BELIEVE THAT THE TITLES
POSSESSED BY EPIFANIA SAQUITAN AND LOURDES TY, WHICH ARE
MORTGAGED TO PRIVATE COMPLAINANT, WERE GENUINE.

B. WHETHER x x x THE COURT OF APPEALS ERRED IN FINDING
THAT THE PETITIONER EUGENIO MADE REPRESENTATIONS TO PRIVATE
COMPLAINANT ALFREDO MANGALI IN BEHALF OF CO-ACCUSED
ABLAZA, SAQUITAN AND TY, CONSTITUTIVE OF CONSPIRACY.

C. WHETHER x x x THE COURT OF APPEALS ERRED IN
COMPLETELY GIVING WEIGHT AND CREDENCE TO SUBSTANTIAL
PORTIONS OF THE UNCORROBORATED AND IMPROBABLE ALLEGATIONS
OF PRIVATE COMPLAINANT MANGALI AND TOTALLY DISMISSING THE
CONSISTENT TESTIMONY AND FACTUAL NARRATION OF PETITIONER
EUGENIO.

D. WHETHER x x x THE COURTS A QUO ERRED IN NOT HOLDING
THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF THE
PETITIONER BEYOND REASONABLE DOUBT OF THE CRIME OF ESTAFA
THRU FALSIFICATION OF PUBLIC DOCUMENTS SPECIFICALLY UNDER
ARTICLE 315 PAR 2(A) AND ARTICLE 172 IN RELATION TO ARTICLE 48 OF
THE REVISED PENAL CODE.

E. WHETHER x x x THE COURTS A QUO ERRED IN DISREGARDING
THE PATENT VIOLATIONS OF THE CONSTITUTIONAL RIGHTS OF THE
PETITIONER.
[9]


The Issues


The petition raises the following issues:

1) Whether irregularities attended petitioners arrest and investigation,
nullifying her conviction; and
2) Whether petitioner is guilty of Estafa thru Falsification of Public
Documents.


The Ruling of the Court


We set aside the Court of Appeals ruling and acquit petitioner of the
charges against her on the ground of reasonable doubt.

On the Alleged Irregularities Attending
Petitioners Arrest and Custodial Investigation


Before resolving the question of petitioners liability, we first address
petitioners contentions on the irregularities attending her arrest and
investigation and their effect on the judgment against her.

Petitioner contends that her arrest following the NBI entrapment operation
was illegal because it was conducted by a division of the NBI which does not
deal with estafa or fraud and without the participation of the police. Petitioner
also alleges that after she was arrested, she was neither informed of her
constitutional right to counsel nor afforded her right to a phone call. Petitioner
concludes that these irregularities tainted the NBIs entrapment operation,
rendering the same without any probative value in determining whether or not a
criminal act has been committed.
[10]


Respondent does not contest petitioners claim on the alleged irregularities
which attended her arrest. Nevertheless, such irregularities, assuming they did
take place, do not work to nullify petitioners conviction as this Court is neither
the proper forum, nor this appeal the correct remedy, to raise this issue. Any
irregularity attending the arrest of an accused, depriving the trial court of
jurisdiction over her person, should be raised in a motion to quash at any time
before entering her plea.
[11]
Petitioners failure to timely raise this objection
amounted to a waiver of such irregularity
[12]
and resulted in her concomitant
submission to the trial courts jurisdiction over her person. Indeed, not only did
petitioner submit to such jurisdiction, she actively invoked it through her
participation during the trial. Petitioner cannot now be heard to claim the
contrary.

As for the failure of the NBI agents to inform petitioner of her right to
counsel during custodial investigation, this right attains significance only if the
person under investigation makes a confession in writing without aid of counsel
counsel which is then sought to be admitted against the accused during the trial.
In such case, the tainted confession obtained in violation of Section 12(1), Article
III of the Constitution is inadmissible in evidence against the accused.

Here, petitioner merely alleges that following her arrest, she gave a
statement to the NBI agents. The records do not contain a copy of this
statement thus we have no way of knowing whether such statement amounts
to a confession under Section 12(3) in relation to Section 12(1), Article III of the
Constitution. At any rate, no allegation has been made here that the prosecution
submitted such statement in evidence during the trial.
On Petitioners Criminal Liability

The foregoing notwithstanding, we hold that the prosecution failed to prove
petitioners guilt beyond reasonable doubt.


The Prosecution Failed to Prove
Conspiracy to Render Petitioner
Liable as Principal to Estafa Thru
Falsification of Public Documents



To hold petitioner liable for the complex crime of Estafa thru Falsification
of a Public Document, the prosecution must show that she committed Estafa thru
any of the modes of committing Falsification. Under Article 171 of the Revised
Penal Code, Falsification is committed under any of the following modes:

(1) Counterfeiting or imitating any handwriting, signature or rubric;
(2) Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate;
(3) Attributing to persons who have participated in an act or proceeding
statements other than those in fact made by them;
(4) Making untruthful statements in a narration of facts;
(5) Altering true dates;
(6) Making any alteration or intercalation in a genuine document which
changes its meaning;
(7) Issuing in an authenticated form a document purporting to be a copy
of an original document when no such original exists, or including in
such copy a statement contrary to, or different from, that of the
genuine original; or (8) Intercalating any instrument or note relative to
the issuance thereof in a protocol, registry or official book.


On the other hand, Estafa is generally committed when (a) the accused
defrauded another by abuse of confidence, or by means of deceit and (b) the
offended party or a third party suffered damage or prejudice capable of pecuniary
estimation.
[13]


The trial court found petitioner guilty of Estafa thru Falsification of Public
Documents (which the Court of Appeals sustained) for petitioners principal role
in the loan transactions between Mangali, on the one hand, and Saquitan and Ty,
on the other hand. In further pinning liability on petitioner for her role in the
alleged falsification of TCT No. 92585, the trial court, for lack of proof of
petitioners participation in falsifying such document, relied on the disputable
legal presumption that the possessor of a falsified document who makes use of
such to her advantage is presumed to be the author of the falsification. In short,
petitioners conviction below rested on an implied conspiracy with her co-accused
to swindle Mangali, buttressed, as to one count, by a reliance on a disputable
presumption of culpability.

We reverse.

True, conspiracy need not be proved by direct evidence as the same can be
inferred from the concerted acts of the accused.
[14]
However, this does not
dispense with the requirement that conspiracy, like the felony itself, must be
proved beyond reasonable doubt.
[15]
Thus, the presence of a reasonable doubt as
to the existence of conspiracy suffices to negate not only the participation of the
accused in the commission of the offense as principal but also, in the absence of
proof implicating the accused as accessory or accomplice, the criminal liability of
the accused.
[16]


Here, petitioners acts which the lower courts considered as constitutive of
her complicity in the supposed plot to swindle Mangali consisted of the following:
(1) petitioner was the one who brought Saquitan, Ty, and Ablaza to Mangali; (2)
petitioner was present in all the occasions Mangali met Saquitan, Ty, and
Ablaza; (3) petitioner confirmed that TCT No. 171602 was registered with the
Register of Deeds of Manila when in fact it was already cancelled; and (4) the real
Epifania Saquitan denied mortgaging the Sta. Ana property to Mangali. By
themselves, these circumstances can plausibly pass muster to prove petitioners
involvement in a plan among the accused to swindle Mangali.

However, when petitioners side is considered, taking into account
admitted facts and unrebutted claims, her participation in the events leading to
her arrest is cast in an entirely new light raising reasonable doubt as to her
culpability. These facts and unrefuted claims are: (1) petitioner works for Mangali,
on commission basis, in the latters check re-discounting and lending
businesses
[17]
and (2) the Civil Register of Manila certified as true copy the
photocopy of TCT No. 171602 that Saquitan gave petitioner.

As Mangalis agent, petitioner is obliged to bring prospective borrowers to
Mangali; otherwise, she will not earn commissions. This also explains why she
was present in all the ocassions Mangali met Saquitan and Ty she was
pecuniarily interested in seeing to it that the deals she brokered were
consummated to enable her to receive commission from Mangali.

On petitioners disclosure to Mangali that TCT No. 171602 is registered
with the Register of Deeds of Manila, petitioner merely relied on the certification
by the Register of Deeds of Manila that the photocopy of TCT No. 171602 she
brought with her was a true copy of the title on file in that office.
[18]
The
prosecution did not rebut this.

We arrive at the same conclusion on petitioners alleged liability for Estafa
using the allegedly falsified TCT No. 92585. Aside from relying on conspiracy to
pin petitioner for this charge, the trial court also anchored its finding on the
presumption that petitioner was party to the falsification of TCT No. 92585
because she had possession of such title. However, petitioners unrebutted
testimony on this point is that it was Ty who brought with her what she
represented to be her owners duplicate copy of TCT No. 92585 and which she
presented to Mangali.
[19]
At any rate, for the presumption of authorship of
falsification to apply, the possessor must stand to profit or had profited from the
use of the falsified document.
[20]
Here, the extent of petitioners participation on
Tys loan was to bring Ty (and Ablaza) to Mangali. The prosecution failed to show
any proof that petitioner received a portion of the loan Mangali extended to Ty,
just as there is no proof on record that she received any share from the loan
Mangali extended to Saquitan. Petitioner is not a party to any of the documents
Mangali, Ty, and Saquitan signed.

On the NBIs finding that the real Epifania Saquitan did not mortgage the
Sta. Ana lot to Mangali, we note that such person was never presented during the
trial, rendering her affidavit inadmissible. At any rate, the prosecution failed to
rebut petitioners testimony that she was only acquainted with Ablaza who
introduced Saquitan and Ty to her.

In sum, we hold that the lower courts rulings are based on a
misapprehension of facts justifying reversal on review.
[21]
Indeed, when, as here,
the circumstances surrounding the alleged commission of crimes are capable of
two inferences, one favoring the innocence of the accused and the other her guilt,
the inference for her innocence must prevail, consistent with the Constitutional
presumption of her innocence.
[22]

WHEREFORE, we SET ASIDE the Decision dated 30 November 2004
and the Resolution dated 11 May 2005 of the Court of Appeals.
We ACQUIT petitioner Lolita Y. Eugenio of the charges against her on the
ground of reasonable doubt. Petitioner Lolita Y. Eugenio is hereby ordered
released immediately from confinement unless she is being held for another lawful
cause. The director of the Bureau of Corrections is directed to inform the Court of
the action taken on this ruling within five (5) days from notice.

SO ORDERED.